Treaties are binding pacta sunt servanda Art 26 of VCLT A treaty is an

Treaties are binding pacta sunt servanda art 26 of

This preview shows page 17 - 20 out of 132 pages.

- Treaties are binding: pacta sunt servanda — Art 26 of VCLT - A treaty is an international agreement concluded between states in written form and governed by international law . (2(1) VCLT) Mainly governed by 1969 Vienna Convention on the Law of Treaties (VCLT) - A treaty, on a formal level, is merely a source of rights and obligations but not a source of law (Fitzmaurice (1958)). - Creation of written agreements whereby the participating states bind themselves to act in a particular way: Require express consent from all parties – therefore seen as superior to custom Set out series of propositions which are binding on all party states Codify old customs and incorporate new rules - Cf instruments of less than treaty status e.g. MOUs — these are less formal — — it can be for agreements between two governments. Treaty and customs - Treaties can ( North Sea Continental Shelf ): codify or declare pre-existing rules or custom, e.g. Vienna Convention on Diplomatic relations crystallise emerging rules, e.g. 1982 Law of the Sea Convention, Exclusive economic zones generate new rules of custom where provisions are ‘of a fundamentally norm creating character’ - States that do not sign and ratify are not bound by a treaty ( North Sea Continental Shelf ) — BUT they are if a treaty provision reaffirms customary law — As the customary law is binding with or without the treaty
Image of page 17
- Even if a treaty provision and customary law have exactly the same content, they still exist and operate separately ( Nicaragua Case ) - North Sea Continental Shelf Cases : treaties and customs can be related in three ways: A treaty provision may be declaratory of custom at the time the provision is adopted A treaty provision may crystallise customs as states agree on the provision to be adopted during the treaty drafting process A treaty provision may come to be accepted and followed by states as customary practice after the treaty is adopted. - Where the rules provided in a treaty are not identical to the rules provided in rules of CIL regarding the same issue, the court must adopt a fortiori approach ( Nicaragua Case [1986]). - ILC Draft conclusion 11: Treaties 1. A rule set forth in a treaty may reflect a rule of customary international law if it is established that the treaty rule: (a) codified a rule of customary international law existing at the time when the treaty was concluded; (b) has led to the crystallization of a rule of customary international law that had started to emerge prior to the conclusion of the treaty; or (c) has given rise to a general practice that is accepted as law ( opinio juris ), thus generating a new rule of customary international law. 2. The fact that a rule is set forth in a number of treaties may, but does not necessarily, indicate that the treaty rule reflects a rule of customary international law.
Image of page 18
GENERAL PRINCIPLES OF LAW - Article 38(1)(c) — The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: c. the general principles of law recognized by civilized nations; - Municipal law is the national, domestic, or internal law of a sovereign state.
Image of page 19
Image of page 20

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture