Public International Law

Public International Law - PUBLIC INTERNATIONAL LAW Fall...

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P UBLIC I NTERNATIONAL L AW Fall 2006 I. SOURCES A. Scope 1. International Court of Justice (ICJ) (a) Article 38 – to resolve disputes, the ICJ shall apply: (i) treaties (ii) international custom (iii) general principles of law (iv)judicial decisions and scholarly works B. Treaties 1. Vienna Convention on Law of Treaties (VCLT) (a) Article 2 – treaty is an international agreement between states in written form, in one or more instruments, and governed by international law (b) Article 3 – treaties may be written or oral, bilateral or multilateral, for a fixed term or indefinite, and involve parties other than states 2. Parties (a) Article 6 – every state has the capacity to make treaties (b) – only actions of properly authorized representatives with a full powers document will bind a state, unless: (i) appears that state’s intention was to make that person its representative (ii) assumed that representative has full powers (e.g. heads of states, diplomats) (iii) state’s ex-post actions confirms the apparent authority of representative 3. Signature (a) Article 12 – if treaty provides that a state’s signature establishes the state’s consent to be bound or does not indicate that further steps are necessary after signature, then signature establishes state’s consent to be bound 4. Ratification (a) Article 14 – if treaty provides that ratification necessary after signature (e.g. state passing internal implementing legislation), then signature only reflects a non- binding commitment by the state to pursue measures necessary to ratification (b) Article 18 – between signature and ratification, a state must refrain from acts which would defeat the object and purpose of the treaty 5. Reservations (a) Article 2 – reservation is a unilateral statement made when signing or ratifying a treaty whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state (b) Article 19 – state may file a reservation unless: (i) treaty prohibits reservations (ii) treaty only permits some reservations, which do not include that reservation (iii) reservation is incompatible with object and purpose of treaty (c) (i) if state files a reservation to a treaty that expressly authorizes that reservation, then no acceptance by other parties is necessary, unless treaty requires it (ii) if application of entire treaty necessary to its object and purpose, then a
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reservation requires acceptance by all the parties before reserving state a party a. Reservations to Convention on Genocide (I.C.J. 1951): reservation to court’s jurisdiction does not defeat object and purpose of treaty (iii) if the above is not applicable, then the reserving state can become a party to the multilateral treaty if one other state expressly or tacitly accepts it a. reservation only enforceable between reserving state and accepting state b. treaty enforceable between reserving state and objecting state, except for
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Public International Law - PUBLIC INTERNATIONAL LAW Fall...

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