IURI 323 – Study unit 1.

1
1. International law
 International law is the rules and principles that regulate the legal relationship
between the subjects of international law
 A particular ule of international law is created by a treaty establishing a relationship
between two or a few states only
 Principles reflect the values upon which the international order is based and
emphasise that international law is a normative system
Differences between international law and municipal law
1. Legislature
 There is no central legislative body in international law with the power to enact rules
biding upon all states
 The General Assembly of the UN is only empowered to adopt recommendation that
are not binding upon member states
 Rules of international law are to be found in treaties and international customs and
these rules are not imposed from above by any central law-making body
 They are created by the consent of states whereas municipal law operates vertically,
with rules imposed from above, international is horizontal system in which lawmaker
and subject are the same legal persona
2. Executive
 There is no central executive authority with a police force at its disposal to enforce
the rules of international law
 The UN isn’t a world government; it lacks the power to direct states to comply with
the law, and it lack a permanent police force to punish violators of the law
 The UN is able to raise forces to police certain situations
3. International courts – judiciary
 Number of international law, best known is ICJ in the Hague which may be use to
settle disputed between all states in the world
 International law therefore does have judicial system capable of ruling on disputes
between international courts and domestic courts but international courts have
jurisdiction only over those states that have consented to their jurisdiction
 ICJ is also competent to give advisory opinion on matter of concern to the UN at the
request of the political organs of the UN and these carry considerable weight as
statements of the law
2. Is internation law really law
 Austin’s claim that law is the command of a political superior to a political inferior
backed by the threat of a sanction
 Pollock said that a legal system requires the existence of a political community, and
the recognition by its members of settled rules binding upon them
 According to Pollock international is a system of law because:
1. There is a political community namely the community of modern states
2. There is a body of rules and principles that comprise the international legal order
3. The members of the international community recognise these rules and principles as
biding upon them
  But according to Austin’s theory international law isn’t law because there is no
political superior and inferior in international law

Study Unit 1.2

1. Sources of international law
 Sources of international law are described in article 38(1) of the Statute of the
International Court of Justice:
(a) International conventions/treaties, whether general or particular
(b) International custom/customary international as evidence of a general practice
accepted as law
(c) The general principle of law recognised by civilised nation
(d) Judicial decision and the teachings of the most hight qualified publicist
2. Treaties or conventions
 a treaty is an agreement between states or between states and international
organisations governed by international law
 the rules to the capacity to enter into treaties, the procedure to be followed for
entering into treaties, the interpretation and termination of treaties are governed by
the Vienna Convention on the Law of Treaties of 1969 and the Vienna Convention on
the Law of Treaties between States and International Organisations and between
International Organisations
 Treaties may be multilateral in the sense that they bind many states, or bilateral and
binding on two states and they are binding upon states in accordance with the
principles of pacta sunt servanda which constitutes the foundation stone of
international law
 3 different types of treaties
1. Contractual
- 2 or more states contract with each other to establish a particular legal relationship
- Treaties between states that govern matter like trade, extradition, landing rights
2. Legislative
- Treaties that codify existing rules of customary international law or that create new
rules of law
- They are not binding upon non-signatory states and treaties don’t confer obligations
or benefits upon non-signatory sates
3. Constitutional
- A treaty that creates a constitution for a organisation
- The Charter of the UN is a treaty to which all member states are party and which
serves as the constitution of the UN
- The Rome Stature of the International Criminal Court is multilateral treaty that
creates a constitution for this court
 Article 2(1)(a) of the Vienna Convention defines a treaty as an international
agreement concluded between states in written from and governed by international
law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation
 Agreements between states and international organisations also qualify as treaties
because special considerations apply to this type of treaty a separate multilateral
treaty, the Vienna Convention on the Law of Treaties between Sates and
International Organisations or between International Organisations
 Oral agreements between states create legal obligations but they don’t qualify as
treaties
  To avoid the dangers of secret treaties both the Charter of UN and the Vienna
Convention requires treaties to be registered with the secretariat of the UN
 Where states are party to an agreement don’t intend to create legal obligations or
rights under international law, the agreement will not be a treaty
 Article 34 of the Vienna Convention states that a treaty doesn’t create obligations or
rights for a third state without consent but an exception to the rules is when a treaty
becomes accepted as CIL
Making of treaties
 IL doesn’t prescribe how a state is to exercise its treaty-making power, it is left to the
municipal law of each state to determine who may enter into treaties on its behalf
 In terms of s231 the national executive has the responsibility of negotiating and
signing international agreements
 Where an agreement is of a technical, administrative or nature it bind the Republic on
signature without parliamentary approval, but must be tabled in the NA and the
NCOP within a reasonable tie
 The agreement doesn’t fall into one of the categories it bind the Republic only after it
has been approved by resolution in both the NA and the NCOP
 Formal agreements particularly multilateral agreements, normally require ratification
in addition to signature – this requires representative of the state subsequently to
endorse the earlier signature
 This provides the state with an opportunity to reconsider its decision to be bound by
the treaty and to effect changes to its own law to enable to fulfil its obligations under
treaty
 Although a state isn’t bound a treaty that it has signed but not ratified, it is obligated
to refrain from acts that would defeat the object and purpose of such a treaty until it
has made clear its intention not be bound by the treaty – apply treaty provisional
between singing and ratification
 A state may later become a party to a treaty in whose negation it didn’t participate
and which it didn’t sign by means of accession
Reservations
 When a state has reservations about a provision to be included in a bilateral treaty, a
the appropriate course is for the two parties to renegotiate the provisions before the
agreement is signed – reservation amounts to a counter-offer
 A state may become a party to a multilateral treaty while maintaining a reservation
which excludes or modifies the legal effect of certain provisions of the treaty in their
application to that state, provided that the reservation is compatible with the object
and purpose of the treaty.
 Article 2(1)(d) of the Vienna Convention defines a reservation as a unilateral
statement, however phrased or named, made by a State when signing, ratifying,
accepting, approving, or acceding to a treaty, whereby it purports to exclude or
modify the legal effect of certain provisions of the treaty in their application to that
State
 Article 19 states that a state may, when signing, ratifying, accepting, approving, or
acceding to a treaty, formulate a reservation unless
(a) The reservation is prohibited by the treaty
(b) The treaty provides that only specified reservations, which don’t include the
reservation in question may be made
 (c) In cases not falling under sub-paras (a) and (b), the reservation is incompatible with
the object and purpose of the treaty
Invalidity of treaties
 A state may not invoke the fact that it entered into a treaty in violation of its internal
law as a ground for invalidating its consent unless that violation was manifest and
concerned a rule of is internal law of fundamental importance
 A state may not invoke an error in a treaty as a ground for invalidity unless the error
relates to a fact which was assumed by the State to exist at the time when the treaty
was concluded and formed an essential basis of its consent to be bound by the treaty
 A state may not rely on an error in this way if it contribute to the error by its own
conduct or if the circumstances were such as to put it on notice of a possible error
 A treaty will be void where the consent of a state has been secured by means of
threats directed at the representative of that sate
Termination of treaties
 A treaty may not be terminated or suspended unless the treaty contemplates such
termination or suspension, or if the parties agree thereto
 A material breach of a treat entitles the other party to invoke the breach as ground for
terminating treaty
 CIL recognises the right of a state to terminate a treaty where has been a
fundamental change in the circumstances which determined the parties to accept a
treaty, if it has resulted in a radical transformation of the extent of the obligations
imposed by it
 This principle know as the doctrine of rebus sis stantibus is codified by article 62 of
the Vienna convention
Interpretation of treaties
 3 approaches to treaty interpretation
1. The textual gives effect to the literal or grammatical meaning of words and is the
approach favoured by formalists and positivists
2. The teleological emphasises the object and purpose of a treaty in the interpretative
process
3. The intention of the parties seeks to give effect to the intention or presumed intention
of the parties, which the judge infers from the text and the preparatory works or
historical record of the treaty
 Ambiguities in a treaty are resolved by choosing that interpretation which gives the
maximum effect to the main purpose and object of the treaty
 Article 31 recognises both the textual and theological approaches in providing that a
treaty is to be interpreted in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose
 The intention of the parties approach receives support from article 32 which permits
recourse to supplementary means of interpretation, including the preparatory works
of the treaty and the circumstances of its conclusion
 While article 31(3) allows consideration of any subsequent agreement between
parties relating to the interpretation of the treaty or any subsequent state practice in
 the application of the treaty that establishes the agreement of the parties regarding
its interpretation
Succession to treaties
 a change in government doesn’t affect the validity of treaties entered into on behalf of
a state
 the treaties of its predecessor also bind the new government because such changes
don’t alter the international personality of the state that concluded the treaty
 the position is different when the state itself undergoes a change in legal personality
as a result of annexation, decolonisation, the dissolution of one state into several
states, or the merger of several states into a state
3. Customary International Law
 States give their express consent to be bound by a rule when they enter into a treaty,
the consent of states to a customary rule is inferred from their conduct
 2 requirements for the existence of rule of customary international law
1. Settled practice of states (usus)
- Practice of other entities, including that of international organisations and non-
governmental organisations doesn’t generally constitute practice for the purpose of
establishing customary law
- The practice of one or two states isn’t a sufficient basis for the establishment of a rule
of CIL, the practice has to be general and widespread
- Evidence of state practice is to be found in a variety of materials including treaties,
decision of national courts, national legislation, diplomatic correspondence
- The practice must also be constant and uniform usage before it will qualify as custom
2. Opinio juris
- A settled practice on its own is insufficient to create a customary rule, there must be a
sense of obligation, a feeling on the part of states that they are bound by the rule in
question – that the general practice is in the language of article 38(1)(b) accepted as
law
Soft law
 These are imprecise standards, generated by declarations adopted by diplomatic
conferences or resolutions of international organisations, that are intended to serve
as guidelines to states in their conduct, but which lack the status of ‘law’
Jus Cogens and Erga Omnes
 Horizontality of international law means that general rules of international law can be
modified or derogated from by states through treaty and customary international law
 Two states or more can decide, whether through treaty or local custom, they will not
apply customary international law on immunities in their relations with each other
 These general rules of international law that can be modified easily through the
agreement of states are referred to as jus dispositivum
 There is a category of norms of international law which can’t be modified or
derogated by the mere will of states and these norms of IL are referred to as
peremptory norms of general international law (jus cogens) e.g. slavery, genocide,
racial discrimination, torture
 The Drafting Committee has also defined a two-step approach to the identification of
jus cogens norm
- First it must be a norm of general international law
- Secondly, it must be recognised and accepted by the international community of
states as a whole as one from which no derogation is permitted
- Whether a norm protects the fundamental values of the international community, and
is deemed to be universally applicable and hierarchically superior to other norms,
must be taken into account in assessing the second element
 Erga omnes is obligations which a state owes to the international community as a
whole and in th enforcement of which all states have an interests
 In East Timor case, the Court accepted that the right of peoples to self-determination
has an erga omnes character and that Israel violated certain obligations erga omnes,
notably the obligation to respect the right of the Palestinian people to self-
determination and certain of its obligations under international humanitarian law
 All the obligations with an erga ones character flow from the norms that are
recognised as being jus cogens
 It seems that there is an inextricable link between jus cogens norms and obligations
erga omnes in that the erga omnes nature of an obligation flows from the jus cogens
character of the relevant norm