Summary.Intl.Law Notes

PART 1: SOURCES OF INTERNATIONAL LAW

Sources are important given that there is no legal international body ensuring enforcement. Further, there is no court that has international jurisdiction over all states. The ICJ only has the jurisdiction that states give it and the ICC has prosecutorial jurisdiction, but can only do so when states fail to prosecute of or there are no other legal mechanisms to prosecute.

Source 1: Statute of the International Court of Justice, Article 38

• Disputes submitted to the ICJ shall apply within the context of customary law (general state practice), international conventions (established rules expressly recognized by consenting states), general principles of law (come from states by ‘civilized nations’), judicial decisions and teachings of publicists

Source 2: Treaties

• Most important source of law: also referred to as agreements, accords, covenants, joint communiqués, pacts, etc.

• Vienna Convention on the Law of Treaties (VCLT); even non-signatories are bound by its provisions because it’s considered CIL; treaty making covered by Articles 7-17)

• States that do not sign them are not bound by their provisions (Article 34, VCLT) + North Sea Continental Shelf Case

• No prescribed format for treaties

  • Eastern Greenland Case: oral exchanges can constitute binding intl obligations

  • Qatar v Bahrain Maritime Delimitation Case: minutes of meetings can be used to denote set of obligations

  • Anglo-Iranian Oil Case: Agreement between state and non-state actor cannot create a treaty unless it’s an international organization.

• Treaties with Indigenous peoples are still to be recognized but they are not treated like other treaties

• Can be bilateral or multilateral

• 8 step process: accreditation, negotiation, adoption of text, authentication, ratification, accession, EIF, registration

Article 2: treaty is an international agreement concluded between states in written form and governed by IL

Article 2(1)(d) (reservations): a unilateral statement made by a state where it purports to exclude or to modify the legal effect of certain provisions of the treat in their application to that state.

Article 6: every state has the capacity to conclude treaties, except for non-state actors

TREATY MAKING PROCESS (7-15)

Article 7 (full powers): Representative of the state has the powers to negotiate and adopt text of a treaty, authenticate the text of the treaty and express the consent of the state to be bound. State must produce full powers in order to do so (have documentation showing that person has authority to represent state)

7(2): people with full powers include heads of state, heads of government, ministers of foreign affairs, heads of diplomatic missions have limited powers, delegates to international conferences are presumed to have power to negotiate and adopt treaty on behalf of state

• state cannot invalidate agreement made by someone with full powers

• in Canada, s. 132 of CA 1867 grants Parliament and the Government the power to perform obligations of treaties for Canada (no constitutional mandate requiring government to pass treaties with Parliament, but they must keep in mind the division of powers)

• the Foreign Minister has legal capacity to oversee treaty making process, but many departments and staff are involved in the negotiation process

• full powers in Canada are conferred to the order of the Governor in Council

Article 8: when acts must be confirmed by the state

Finalizing Treaty Text (9-10)

Article 9(1) (adoption of text): states must unanimously agree to adopt text (bilateral)

Article 9(2): if negotiated at international conference, adoption takes place by 2/3 vote of states (unless 2/3 agree to adoption by different majority)

Article 10 (authentication of text): (a) text established as authentic and definitive by procedure as may be agreed between negotiating states. (b) If there is no agreement, the default is by signature (and variants).

• Signature authenticates the treaty as negotiated (it is not consent to be bound)

Expression of Consent to be Bound (11-15)

Article 11 (expression of consent): expression of consent can be done by signature, exchange of instruments, ratification, acceptance, approval or accession or any other means agreed.

Article 12: consent to be bound expressed by signature where the state so provides or the negotiating states agree that it is sufficient

• Treaties can be open for signature after authenticated

Article 14(1) (ratification): consent to be bound is expressed by ratification when:

1. the treaty so provides

2. established by the states so agreed

3. a treaty is signed subject to ratification

4. intention to sign the treaty subject to ratification appears in the full powers

• Ratification allows for the domestic constitutional steps to be fulfilled

• States that don’t originally sign a treaty cannot ratify it but may later sign it to become a party

14(2): conditions for consent to be bound expressed by acceptance or approval are similar to those for ratification.

Article 15 (accession): consent of a state to be bound by a treaty is expressed by accession when: treaty so provides, states so agree, or all parties have subsequently agreed.

North Sea Continental Shelf Cases (FRG v Denmark; FRG v Netherlands) 1969

F: FRG had signed but not ratified 1958 Geneva Convention on Continental Shelf

Ratio: It is not lightly presumed that a state which has not carried out the formalities of a treaty is somehow bound by another way.

Article 18: obligation not to defeat object and purpose in effect of treat (argued that signature imposes moral obligation to seek ratification approval).

Article 24 (EIF): EIF as agreed by parties but not agreed as soon as all negotiating states have expressed consent to be bound (some treaties require X number of ratifications before EIF)

Article 25: treaty may provide that it applies before entry into force

• Ex. Landmines Convention (ICBL)

Article 39 + 41 (AMENDMENTS): process to amend treaties

Article 46: competence under...

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