Public International Law Reviewer

The Nature of International Law International Law Traditional definition a body of rules and principles of action which are binding upon civilized states in their relations to one another. State are the sole actors Dealt almost exclusively with regulating relations between states in diplomatic matters and in conduct of war.

Todays definition Sovereign states remain as the principal subjects of international law, joined by international organizations and individuals.

Restatement of Foreign Relations Law of the US US courts consider as the most authoritative work on the subject. International law- the law which deals with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.

Scope of IL New subject matters, subjects, non- Western states, political and social principles are changing, international organizations have new roles.

Various Factors Rapid changes in technology Multiplication of the number of states with differing backgrounds and achieving loose forms of cooperation Fear of war Rising demands for social reform

Topics covered by IL Regulation of space expeditions Division of the ocean floor Protection of human rights Management of the international financial system Regulation of the environment Beyond the primary concern for the preservation of peace, it now covers all the interests of contemporary international and even domestic life.

Is International law a law? Individualist no law binding sovereign states. no international legislative body There is the General Assembly of the UN, but its resolution are generally not binding on anybody. No international executive No central authority that can make judgments binding on states. Security Council is subject to veto power ICJ can bind states only when states consent to be bound. Enforcement of IL is a real problem for several reasons. There is no assured procedure of identifying violation. IL is not law because it is commonly disregarded. These objections are based on an exaggerated notion of sovereignty as embodying an individualist regime.

Reality There is social interdependence and the predominance of the general interest. The reality is that States are bound by many rules not promulgated by themselves. The final enforcer is power, there is a general respect for law. Henkin: It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time. Brierly: The ultimate explanation of the binding force of all law is that man, whether he is a single individual or whether he is associated with other men in a state, is constrained, in so far as he is a reasonable being, to believe that order and not chaos is the governing principle of the world in which he lives. There is general respect for law because of the possible consequences of defiance either to oneself or to the larger society.

Some theories about IL Theoretical basis of IL or what makes it a law Command Theory John Austin: law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed. International law is not law because it does not come from a command of a sovereign. Theory has been discredited.

Reality- Nations see IL not as commands but as principles for free and orderly interaction. Consensual theory IL derives its binding force from the consent of states. Treaties are an expression of consent Custom, as voluntary adherence to common practice, is seen as expression of consent. Reality- there are many binding rules which do not derive from consent. Natural law theory Law is derived by reason from the nature of man. IL is said to be an application of natural reason to the nature of the state-person. Some dissenters No objective basis for IL. IL as a combination of politics, morality and self- interest hidden under the smokescreen of legal language.

*There is a general respect for law and also there is concern about the consequences of defiance either to oneself or to the larger society. IL s law because ot is seen as such by states and other subjects of IL. PUBLIC AND PRIVATE IL Public IL- international law Governs the relationships between and among states and also their relations with international organizations and individual persons.

Private IL- conflict of laws Domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts.

Brief Historical Development of IL From Ancient law to the League of Nations Ancient law- governed exchange of diplomatic emissaries, peace treaties, etc., in the world of ancient Romans and even earlier. Evidence of treaties concluded between Jews and Romans, Syrians and Spartans. The progressive rules of jus gentium- common to all men became the law of the vast Roman empire. Modern IL began with the birth of nation-states in the Medieval Age. Governing principles were derived from Roman Law or Common Law which in turn drew heavily from natural law.

Hugo Grotius, Dutch- considered father of modern IL. He authored De Jure Belli ac Pacis. What he called the Law of the Nations was later given the name of IL by the British philosopher Jeremy Bentham. Before Grotius, was Alberto Gentili- Oxford Professor of Roman Law (De Jure Belli) and the Spanish theologian Francisco de Vitoria and Jesuit theologian Francisco Suarez; Samuel Pufendorf, German (De Jure Naturae Gentium); Emmerich de Vattel, Swiss (The Law of Nations). natural law people Positivist approach- reinterpreted IL not on the basis of concepts derived from reason but rather on the basis of what actually happened in the conflict between states. With emergence of the notion of sovereignty of states came the view of law as commands originating from a sovereign and backed up by threats of sanction if not come from a command of a sovereign. Neither treaties nor custom come from a command of a sovereign.

Significant milestones in the development of IL a. The Peace of Westphalia- ended the 30 years War( 1618-1648) and established a treaty based framework for peace operation. - pacta sunt servanda arose. b. Congress of Vienna (1815)- ended the Napoleonic Wars and created a sophisticated system of multilateral political and economic cooperation. c. Convenant of the League of Nations (1920) included the Treaty of Versailles which ended World War I. In the aftermath of World War I, the victors decided to create an institution designed to prevent the recurrence of world conflagration. League of Nations was born- consisted of 43 states, included the 5 British Dominions of India, Canada, South Africa, Australia and New Zealand. The US did not join. The League created the Permanent Court of International Justice.

From the end of World War II to the end of the Cold War The League of Nations failed to prevent World War II. The formulation of a new avenue for peace became the preoccupation of the victors. Founded the UN in 1945. Marks the shift of power away from Europe and the beginning of a truly universal institution. The universalization was advanced by decolonization which resulted in the expansion of the membership of the UN. New states, carrying a legacy of bitterness against colonial powers became members of the UN. Three major groupings of states arose. a. Western States - not all completely of one mind, formed one group.

2 points: 1. legal provisions must be clear and precise. 2. any substantive rule must be accompanied by an implementation mechanism that can spot and correct violations. b. Socialist states -led by the Soviet Union - formed the socialist camp - sought to avert Western intrusion into domestic affairs even as they sought relatively good relations with the West for the sake of economic and commercial interchange. -sought to convert developing nations to their ideology. c. Developing countries Formed the overwhelming majority Consisted mainly of former colonies suffering from underdevelopment together with newly industrializing countries such as the Philippines, Malaysia, Thailand, Singapore, and South Korea who had earned their independence through armed or political struggle while remaining under the influence of Western or socialist ideas. Cold war- succeeded in maintaining peace through the balancing of the two super powers , US and its allies on the other hand and the Soviet Union.

The end of Cold War period Dissolution of the Soviet Union resulted in the end of the Cold war with the pre- emergence of IR based in multiple sources of power and not mainly on ideology. Many of the Baltic states were restored to statehood. Yugoslavia collapsed and fragmented. The newly born Russian Federation did not inherit the Soviet Unions position as superpower. At present, there is only one super power , the US, politically and ideologically leading the western states. The US acts both as world policeman (but in an obviously selected manner as dictated by its own interests) and also as global mediator. Socialist countries are no longer united with some of them depending on the support of Western States. The developing countries seem to have veered away from ideological orientation and towards market orientation instead and towards fighting poverty and backwardness. As for UN, it seems to have declined as an International Agency for the maintenance of peace.

The Sources of IL Classification

Formal sources- refer to the various processes by which rules come into existence. Legislation, treaty making, judicial decision making, practice of the states. Material sources- not concerned with how rules come into existence but rather with the substance and content of the obligation. Identify what the obligations are. State practice, UN Resolutions, treaties, judicial decisions and the writings of jurists in so far as they identify what the obligations are. Referred to as Evidence of IL

The Most widely accepted statement of Sources of IL Art. 38(1) of the Statute of the ICJ, does not speak of sources. It is primarily a directive to the Court on how it should resolve conflicts brought before it. 1. The Court, whose function is to decide in accordance with IL such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Art. 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide ex aequo et bono, if the parties agreed thereto. Art. 38- declaration by states that these are the laws under which they are willing to be bound. Restatement(Third) of Foreign Relations Law of the US: 1. A rule of IL is one that has been accepted as such by the international community of states a. in the form of customary law; b. by international agreement; or c. by derivation from general principles common to the major legal systems of the world. 2. Customary IL results from a general and consistent practice of states followed by them from a sense of legal obligation. 3. International Agreements create law for the states parties thereto and may lead to the creation of customary international law which such agreements are intended for adherence by states generally and are in fact widely accepted. 4. General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreements, may be invoked as supplementary rules of IL where appropriate. The Sources of IL are: Custom

Treaties and other international agreements Generally recognized principles of law Judicial decisions Teachings of highly qualified and recognized publicists.

Custom or customary law Custom or custom international law A general and consistent practice of states followed by them from a sense of legal obligation. (Restatement) 2 basic elements of custom a. material factor- how states behave, practice of states or usus b. psychological or subjective factor- why they behave the way they do. o the initial factor for determining the existence of custom is the actual behavior of states (usus).

Several elements: Duration Consistency Generality of the practice of states

Duration (diuturnitas)- can be either short or long. Example of Long- The Paquete Havana on the exemption of fishing vessels from capture as prize war. Not the most important element.

North Sea Continental Shelf cases: Short duration, by itself, will not exclude the possibility of practice maturing into custom provided that other conditions were satisfied. State practice should be extensive and uniform in the sense of the provision invoked, and should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. Consistency The basic rule is continuity and repetition Asylum case

Generality of the practice of states Uniformity and generality of practice need not be complete, but must be substantial. Asylum case: Columbia wanted Haya de la Torre be granted safe conduct and be a refuge. Columbia had not proven the existence of a constant and uniform practice of unilateral qualification as a right of the State to refuge and an obligation upon the territorial state.

In Nicaragua v. US-The practice need not be in absolute conformity with the purported customary rule as long as it is consistent with such rules. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of states should, in general, be consistent with such rules, and the instances of state conduct inconsistent with a given rule should generally have been treated as breach of that rule, not as indications of the recognition of a new rule.

Opinio Juris Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do.

Opinio Juris- the belief that a certain form of behaviour is obligatory; what makes practice an international rule. Without it, practice is not law. Humanitarian consideration does not constitute opinion juris Nicaragua case- for a new customary rule to be formed, not only must the acts concerned amount to a settled practice but they must be accompanied by the opinion juris sive necessitas. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinion juris sive necessitas

*It is possible for customary law to develop which will bind only several states, or even only two states. But the party claiming it must prove that it is also binding on the other party. *In the Asylum case, this was not proved. But was proved in the case of Right of Passage over Indian Territory where the right of Portugal to pass through Indian territory was recognized. Dissenting States; subsequent contrary practice Bound by custom, unless they had consistently objected to it while the custom was merely a process of formation. Anglo-Norwegian Fisheries case- the ICJ said that a coastline delimitation rule put forward by England would appear to be inapplicable as against Norway, inasmuch as she has always opposed any attempt to apply it to the Norwegian coast. Dissent protects only the dissenter and does not apply to other states. A state joining the IL system for the first time after a practice as become law is bound by such practice. It is possible that after a practice has been accepted as law, contrary practice might arise. Effect of contrary practice- In Fisheries Jurisdiction case(Merits), - such contrary practice can cast doubt on the alleged law. It noted great uncertainty as to the existing customary law on account of the conflicting and discordant practice of States. The uncertainty had an unsettling effect on the crystallization of a still evolving customary law on the subject. If the contrary practice should gain general acceptance, it might instead become the law.

Evidence of state practice

Treaties, diplomatic correspondence, statements of national leaders, political advisers, conduct of states They do not constitute customary law unless characterize by opinio juris. Existence of opinio juris is a matter of proof. The burden of proving its existence falls on the state claiming it. Nicaragua v. US- where one of th eissues was whether the prohibition of the use of force was customary law, The ICJ said: xxx Consent to such resolutions is one of the forms of expression of an opinio juris with regard to the principle of non-use of force, regarded as a principle of customary IL, independently of the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter.

Instant custom Is not the product of constant and prolonged practice. It comes about as a spontaneous activity of a great number of states supporting a specific line of question. In the aftermath of the attack on the World Trade Center in New York, a coalition of force arose in a matter of months supportive of the action taken by the US against Osama Bin Laden. this united action has given birth to instant customary law classifying the attack as an armed attack under Art. 51 of the UN Charter justifying collective self-defense. The object of defense was not an attack from a state but from a non-state organization.

Usus and opinio juris in Humanitarian Law: The Martens Clause Martens clause- a paragraph found in the 1899 Hague Peace Convention. Until a more complete code of laws of war has been issued, the High contracting parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. Was first inserted by the Russian publicist Fyodor Martens Has founds its way into a number of treaties including the 1949 Vienna Convention and the First Additional Protocol of 1977; The Legality of the Threat or Use of Nuclear Weapons To put the laws of humanity and the dictates of public conscience on the same level as usages of states or usus thus suggesting that even without the practice or usus or at least without the consistent practice there can emerge a principle of law based on laws of humanity and the dictates of public conscience. One need not wait for thousanfs of civilians to be killed before a ban becomes effective.

Treaties International agreements, whether bilateral or multilateral. Determine the rights and duties of states just as individual rights are determined by contracts. Their binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior.

All the treaties must be observed by the parties under the principle of pacta sunt servanda. *no. of contracting parties + generality of acceptance of rules by a treaty= may create a universal law - whether or not a treaty overrides a custom depends on the intention of the parties.

Treaties and Custom If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law. Treaties and custom can be complementary. Nicaragua case- adherence to treaties can be indicative also of adherence to practice as opinio juris. If a treaty comes later than a particular custom, as between the parties to the treaty, the treaty should prevail. Treaty manifests a deliberate choice of the parties and the principle of pacta sunt servanda should be followed. If a later treaty is contrary to a customary rule that has the status of jus cogens, custom will prevail. If custom comes later, custom prevails.

JUS COGENS/ PEREMPTORY NORM Norm accepted and recognized by the international community of states as a whole Norm from which no derogation is permitted Can be modified only by a subsequent norm of general IL having the same character. Art. 53 of the Vienna Convention on the Law of Treaties: o A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general IL. For the purpose of the present Convention, a peremptory norm of general IL is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general IL having the same character.

Where a custom develops after a treaty, the later custom, being the expression of a later will, should prevail. o Such an approach would militate against the certainty of treaties.

In practice, ab attempt is made to keep the treaty alive by efforts of reconciling a treaty with developing custom. o Example: Anglo- French Continental Shelf Case (1979).

General Principles of law recognized by Civilized Nations Al so referred to by the Restatement as general principles of law recognized by or common to the worlds major legal systems. Has reference to principles of municipal law common to the legal systems of the world. May be said to belong to no particular system of law but are evidence rather of the fundamental unity of law. Most of these principles have either become part of customary law or have been incorporated into conventional.

The Restatement refers to them as supplementary rules of IL. May be found in judicial decisions and the teachings of the most highly qualified publicists of the various nations . Statute- subsidiary means for the determination of rules of law. o Example: 1928 Chorzow Factory case- the permanent court declared that it is a general conception of law that every violation of an engagement involves an obligation to make reparation. Affirmation that private rights acquired under one regime does not cease upon the change of government. Principle of estoppels

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The affirmation of general principles of law found in domestic systems as a source of IL makes up for the fact that there is no international legislative system.

Judicial decisions Art. 38 of the Statute directs the Court to apply judicial decisions as subsidiary means for the determination of the rules of law, subject to Art. 59 which says that the decisions of the court have no binding force except between the parties and in respect of that particular case. Such decisions do not constitute stare decisis. The decisions of the ICJ are not only regarded as highly persuasive in IL circles; they have also contributed to the formulation of principles that have become IL. ICJ is the source of principles recognizing the international personality of international organizations, the doctrine on general link between a person and a state for purposes of jurisdiction, and the straight baseline method in drawing baselines for archipelagos. Arbitral decisions have been instrumental on the formation of IL principles.

Teachings of highly qualified writers and publicists Writers The only authorities that can be cited are writers. The extent to which they are referred to depends on the tradition of the court or of individual judges. In common law jurisdictions, there is reluctance to use them, more so in the US than in Britain. In civil law jurisdictions, there is more ready reference to writers. ICJ is generally reluctant to refer to writers but they are often taken into consideration.

Publicists Are institutions which write on international law. Play a role.

More significant: The International Law Commission- an organ of the UN; Institut de Droit International; IL Association, a multinational body; (revised) Restatement of Foreign Relations Law of the US; annual publication of the Hague Academy of IL. These institutions are generally governed sponsored; they bear within themselves a potential for national bias.

Equity The permanent Court of Justice had occasion to use equity as a source of law in the case of Diversion of Water from the Meuse. Netherlands v. Belgium: one party which is engaged in a continuing non-performance of that obligation should npot be permitted to take advantage of a similar non-performance of that obligation by the other party. To achieve justice, determination that is equitable and fair. Equity is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice. Procedural and substantive aspect. Procedurally, a mandate given to a judge to exercise discretion in order to achieve a determination that is more equitable and fair.

Different Kinds of Equity 1. Intra legem (within the law)- the law is adapted to the facts of the case; 2. praetor legem (beyond the law)- used to fill the gaps within the law; 3. contra legem (against the law)- a refusal to apply the law which is seen as unjust. It can be an area of great controversy. Other supplementary evidence UN Resolutions Declarations of legal principles and resolutions by the UN are generally considered merely recommendatory. If they are supported by all the states, they are an expression of opinio juris communis. A growing number of weaker nations, who have a very substantial vote, feel that UN Resolutions should have the force of law. Resolutions can also be a reflection of what has become a customary law.

Soft Law Not included among the sources Non- treaty agreements International agreements not concluded as treaties and therefor not covered by the Vienna Convention on the Law of Treaties.

Sources of Soft law: -administrative rules which guide the practice of states in relation to International Organizations. -administrative procedure that are carried out with varying degrees of consistency and uniformity that may eventually ripen into customary law or become formalized later on in treaties. Soft law plays an important role in IR because often states prefer non-treaty obligations as a simpler and more flexible foundation for their future relations.

The Law of Treaties Various names Conventions, pacts, covenants, charters, protocols, concordat, modus Vivendi, etc. Represent the most deliberate form of commitment through which governments cooperate with one another. Generic term- international agreements. Absence of an international legislative body, international agreements are a convenient tool through which states are able to protect common expectations.

Law on treaties found in the 1969 Vienna Convention on the Law of Treaties Governs treaties between states Entered into force in January 1980 The document is not retroactive in effect, it does contain customary law precepts antedating 1969.

Convention on the Law of Treaties Between States and International Organizations or Between International Organizations Adopted on March 26, 1986 It should enter into force 30 days after 35th ratification or accession of states.

Treaties 1969 Vienna Convention on the Law of Treaties An international agreement concluded between States in written form and governed by IL , whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. Vienna convention- applies to International agreements that satisfy the conventions definition, specifically that they be in writing and reflective of the intention of the parties to be bound, and governed by IL. Treaties generally in written form, writers hold that even an oral agreement can be binding, Only written agreements that are new, come under the provisions of the Vienna Convention. No particular form is prescribed. Most deliberate form of commitment through which governments cooperate with one another

Convenient tool through which states are able to project common expectations Qatar v. Bahrain- the exchange of notes between the 2 heads of state was considered an International agreement; minutes are not a simple record of the meeting, they enumerate commitments parties have consented; they create rights and obligations, they constitute an International agreement. Norway v. Denmark- oral declaration can be binding Australia v. France and New Zealand v . France- unilateral declarations concerning legal or factual situations may create legal obligations, if given publicly with an intent to be bound, it is binding. 2 Characteristics making it binding 1. commitment was very specific 2. there was a clear intent to be bound. Attributing binding effect to a unilateral declaration

Must not be done lightly Subject to strict conditions Not affected by casual statements nor representations in the heat of legal argument

Functions of treaties Sources of IL Serves as the charter of international organizations Used to transfer territory Regulate commercial relations Settle disputes Protect human rights Guarantee investments

Different kinds of treaties from the standpoint of their relevance as source of IL o o Multilateral treaties open to all states of the world. Create norms which are the basis for a general rule of law. Either codification treaties or law-making treaties or have the character of both. Collaborative mechanism of universal scope (e.g. regulations of allocation of radio frequencies) or regional (e.g. fishing agreements).

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Operate through the organs of the different states. Bilateral treaties largest category of treaties In the nature of contractual agreements which create shared expectations such as trade agreements of various forms contract treaties Binding only on the parties

The making of treaties 1. Negotiation Bilateral treaties, and multilateral treaties among a small number, generally originate from the foreign ministries. Negotiation is done through foreign ministries. Larger multilateral treaties are negotiated in diplomatic conferences which are run like a legislative body.

2. Power to negotiate Negotiators must possess powers to negotiate Act relating to the conclusion of a treaty by one who has no proper authorization has no legal effect unless confirmed by his state.

3. Authentication of text Negotiations conclude with the signing of the document, so that states will know the contents and avoid misunderstanding. Signatures serve as authentication of the document.

4. Consent to be bound Once the document has been signed, there are stages which follow which culminate in making the document binding. Most important step to be bound Signature Exchange of instruments Ratification Acceptance Approval Accession

Other means if so agreed

5. Accession to a treaty States which did not participate in the initial negotiation may also express their consent to be bound by accession Treaty Otherwise All agree

6. Reservations Deference to the sovereign of states, the Vienna Convention allows for reservations Art.2 defines reservations 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 to modify the legal effect of certain provisions of the treaty in their application to that State. Treaties are different from statutes. Statutes must necessarily apply to all. Reservations are different from interpretative declarations which are not meant to be a derogation from the treaty but an expression of how a state understands its adoption of the treaty. Art. 19-23 Does not require acceptance by other parties May withdraw anytime without consent of other party Res, acceptance and objection must be in writing and communicated to other parties A proliferation of reservations in multilateral treaties can very well defeat the purpose of a treaty. In bilateral treaties, a reservation by one party mean s a rejection of the treaty and necessitates re-negotiation. Reservations are meant only for multilateral treaties. (might defeat purpose) Does not need to be consented by all as long as compatible with object and purpose.

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Must a reservation be consented to by all parties for it to be effective? ICJ, in its advisory opinion in Reservations of the Genocide Convention- by seven votes to five, a state which has made and maintained a reservation which has been objected to by one or more parties to the Convention but not by others, can be regarded as a party to the Convention if the reservation is compatible with the object and purpose of the Convention. Compatibility could be decided by states individually since if a party to the Convention objects to a reservation which it considers incompatible with the object and purpose of the Convention, it can be consider that the reserving state is not a party to the Convention. It is possible for different legal relationships to arise among parties to the same treaty.

The Philippines and the 1982 Convention on the Law of the Sea archipelagic waters-conflicts with the Philippine claim in Art. 1 of the Constitution that the waters connecting the islands, irrespective of their breadth and dimension, are internal waters. ratification of the Convention on the Law of the Sea- Aug. 5, 1984.

Reservations in Human Rights Treaties Human Rights Committee of the UN made the reservations regarding reservations in human rights treaties. Absence of protest by states cannot imply that reservation is compatible with the purpose of covenant.

7. Entries into force of treaties Treaties enter into force on the date agreed upon by the parties. Where no date is indicated, the treaty enters into force once consent has been given. Multilateral treaties generally contain a provision which says how many states have to accept the treaty before it can come into force.

8. Application of treaties o The first fundamental rule on treaties is pacta sunt servanda. Art. 26 of the Convention every treaty in force is binding upon the parties to it and must be performed by them in good faith. Second fundamental rule- Art. 46- a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Territorial scope of its applicability- Art. 29- Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.

9. Interpretation of Treaties Art. 31 combines various approaches to treaty interpretation . Art. 31 (1)Follows the objective approach- interpretation according to the ordinary meaning of the words. Supplemented by the teleological approach in Art. 31(2)- interpretation according to the telos or purpose of the treaty; take into account subsequent agreement, subsequent practice, relevant rules of IL Art. 31(3) and (4)- subjective approach- honors special meaning given by the parties. Where there are ambiguities in the meaning of a treaty, resort may be made to supplementary sources. Art. 32 and 33 are relevant. Air France v. Saks: Airplane passenger became one ear deaf. Accident as an unusual or unexpected happening, not passengers own internal reaction. Facts to prove: text of Warsaw Convention, drafted by continental jurists, consistent with history of WC, conduct of the parties, US court precedence.

Invalidity of Treaties The usual ground for invalidation of contracts can also invalidate a treaty: error of fact, fraud, corruption or duress. Violation of jus cogens invalidates a treaty (e.g. unlawful use of force contrary to the Charter, criminal acts under IL, slave trade, piracy, genocide) Jus cogens- no derogation is allowed because it is jus cogens. It is the intrinsic nature of the rule that disallows derogation State can lose the right to assert an invalid treaty: Expressly agreed treaty is valid, in force or operation Acquiescence or maintenance in force or operation Arts. 45-47

Rules considered to be jus cogens 1966 Report of the International Law Commission a. treaty contemplating an unlawful use of force contrary to the provisions of the charter b. treaty contemplating the performance of any other act criminal under IL c. treaty contemplating or conniving towards the commission of acts such as trade in slaves, piracy, or genocide. The commission decided not to stipulate a list of jus cogens rules for fear of being misunderstood and fear of being misunderstood and for fear of prolonged debate. A state can lose the right to assert the invalidity of a treaty. A state, with limited exception, may not plead its municipal law as a ground for invalidating a treaty that has been entered.

Amendment and Modification of Treaties Amendment is a formal revision done with the participation, at least in its initial stage, by all the parties to the treaty. Art. 40

GR: Art. 39- A treaty may be amended by agreement of the parties. The procedure is the same as that for the formation of treaties. Art. 40 provides for the possibility of amendments which will affect only some states but only after all parties have been given the opportunity to consider the proposed amendments. Modification involves only some of the parties.

Art. 41 allows modification of a treaty by two or more of the parties.

Termination of Treaties may be terminated or suspended according to the terms of the treaty or with consent of the parties. Treaty with a definite period may also expire, May also end when the purpose for the treaty has already been achieved. A mere change of government or severance of diplomatic relations does not terminate or suspend a treaty.

Three other modes of terminating a treaty 1. Material breach a. repudiation of the treaty not sanctioned by the convention b. violation of a provision essential to the accomplishment of the purpose of the treaty * Namibia Case- if revocation only takes place with the concurrence of the Mandatory (South Africa), it would be contrary to the general principle of law governing termination on account of the breach and would be an impossibility. Consent of the wrongdoers to such a form of termination cannot be required. 2. Supervening impossibility of performance Permanent disappearance or destruction of an object indispensable for the execution of the treaty If temporary- only suspend operation Must not be caused by the party itself Danube Dam case (Hungary v. Slovakia): impossibility of performance may not be invoked when it results from that partys own breach. Changes of political nature, reduced economic viability of the project, and progress of environmental knowledge and international environmental law are not of such nature that would radically transform obligations. Violation of other treaty rules or of general international law may justlfy taking of certain measures but not constitute a ground for termination. Czechoslovakia did not act unlawfully when it constructed works.

3. Rebus sic stantibus (fundamental change of circumstance) o Art. 62- a codification of the common law principle of rebus sic stantibus. The modern approach to it is restrictive.

Existing at the time of conclusion Not foreseen by the parties Constituted an essential basis of consent Radically transformed the extent of obligations still to be performed May not be invoked if: about boundaries, result of the invoking partys breach

US v. Iceland: Fisheries jurisdiction- Changes of circumstances which must be regarded as fundamental or vital are those which imperil the existence or vital development of one of the parties. Changes in circumstance alleged by Iceland cannot be said to have transformed radically the extent of the jurisdictional obligation.

Procedure for the termination of treaties Notify other parties of ground and measure proposed If no objection, carry out measure proposed If there is an objection, follow Art. 33 Read Art. 66- 68

Authority to terminate Belong to the one who has the authority to enter into treaty. In the Philippines , as in the US, the authority to conclude treaties is shared between the Senate and the President.

Succession to treaties When one state ceases to exist and is succeeded by another on the same territory, the question arises whether the new state is bound by the commitments made by its predecessor. Taken up by the 1978 Vienna Convention on the Succession of States with Respect to Treaties- entered into force on Nov. 6, 1996. The Convention follows the clean slate rule. Art. 16- A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates. But a newly state may agree to be bound by the treaties made by its predecessor. The clean slate rule does not apply to treaties affecting boundary regimes.