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INTERNATIONAL LAW (LCP4801)
LECTURE NOTES UPDATED VERSION
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▪ Where the rule came from?
▪ Where it is found?
▪ Why it is binding?
It is generally accepted that, "things" that the ICJ is instructed to use in setting the
cases before it "in accordance with international law" are the sources:
Statute of the International Court of Justice (ICJ)
A 38 (1) The Court, whose function it is to decide in accordance with international
law such disputes as are submitted to it , shall apply:
a) international conventions, whether general or particular, establishing
rules expressly recognized by the 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 Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
A 59 The decision of the Court has no binding force except between the parties and
in respect of that particular case.
No provision is made for a hierarchy of sources but;
primary source = treaties
secondary source = custom
peremptory norms ( jus cogens ) = a higher status in the normative hierarchy
*The normative superiority of sources is founded on the consent of states.
➢ A source of origin = is a source from which international law arises-it
creates international law.
➢ A cognitive source = is a source you would consult to find a content of an
existing
rule of international law.
# What is the nature of the agreement?
*Treaties can be bilateral or multilateral and are divided broadly into three categories;
Contractual Legislative /law-making Constitutional
Two or more states
"contract" with each other
to establish a particular
legal relationship.
Codify existing rules of
customary international
law or which create new
rules of law. They are not
binding upon non-
signatory states.
A multilateral treaty that
creates a constitution for
public international law
subject (s) or bodies or
international
organisation's
etc.
Basic rule governing treaties is pacta tertiis nec nocent nec prosunt , = treaties do not
confer obligations or benefits upon non-signatory states.
Binding upon states in accordance with the principle of pacta sunt servanda =
foundation stone of international law. (belofte ooreenkomste moet nagekom word;
"belofte maak skuld"/agreements are to be observed.)
Requirements for the conclusion of a treaty
Firstly = no formal requirements in this sense of statutory
requirements. Treaty requirements;
➢ There must be consent by the parties, they must agree to create an
international
law relationship.
➢ Parties must be competent.
➢ Treaty must give rise to reciprocal rights and duties.
➢ Rights and duties = governed by international law.
*Agreement between parties with international legal personality will be governed
by international law, unless the parties specifically provide that it will be governed
by some other legal system.
Practical exercise 3 (p 20)
Why is there a problem with oral treaties?
There is no evidence other than the evidence of each party's "word", on which the
international community can rely to glean the purpose and provisions of the oral
agreement, thus proving the validity of the agreement becomes a problem.
What does the VC provide in respect of oral treaties?
Is the conclusion of treaties governed by international law or national law?
A States national law determines who may conclude treaties on behalf of the state;
▪ S 231(1) the national executive has the responsibility of negotiating and
signing international agreements.
▪ (3) an agreement is of "a technical, administrative or executive nature" it binds
the Republic on signature without parliamentary approval , but must be
tabled in
the National Assembly and the National Council of provinces within a
reasonable time.
▪ (2) if an agreement does not fall into one of the above categories it "binds
the
Republic only after it has been approved by resolution in both the
National Assembly and the National Council Provinces".
International law lays down certain general principles as to who may
conclude treaties,* these principles remain subject to the National law.
Certain people presumed to bind the state because of the position they hold-" ex
officio ". In terms of Article 7 (2) of the VC, they are;
o the head of state (Pres/Queen etc)
o the head of government (Prime Minister)
o the Minister of Foreign Affairs
o the head of a diplomatic mission (ambassador/consul)
o State Representatives at treaty making conferences.
If a person does not fall into supra categories, Article 7 (1) (a) of the VC applies;
A person is considered as representing a State for the purpose of adopting or
authenticating the text of a treaty or for the purpose of expressing the consent of
the State to be bound by a treaty if:
-produces appropriate full powers or
*" Full powers " is documentary proof designating a person as an authorised person
to represent the state in the conclusion of the treaty.
-It is clear from the practice of the state concerned or from other considerations
that the intention of this state was to consider that person as a representative of
the state for such purpose and to dispense with full powers.
***** A treaty concluded by an unauthorised person is essentially invalid, but the state
may ratify the un-authorised acts of the party and and become bound themselves (a
How is this consent expressed?
VC identifies six methods;
article 11-by signature , exchange of instruments constituting a treaty , ratification ,
acceptance , approval or accession , or (a catch-all) by any other means if so agreed.
Ratification = normally required in addition to signature. VC defines "the
The parties sign a treaty & each state has a "second chance" to confirm its intention
to be bound or to amend its national law in order to meet its obligation under the
treaty.
In practice; generally if treaty should be rectified it will be indicated, but where it is
not done = the intention of the parties will be ascertained from the surrounding
circumstances.
***** The state will be bound internationally by ratification & and until the treaty (that
requires ratification) has been ratified, the state is not bound = although the state
should refrain from any acts which would defeat the object and purpose of such a
treaty until it has made intention clear (a 18 (VC)).
E.g. the US has done this in respect of the Rome Statute of the ICC. In 2000, the
Clinton administration signed the Rome Statute, but, in 2002, the Bush
administration announced that the US did not intend to become a party of the
Rome Statute, and that it was accordingly absolved from any obligation under this
statute.
Accession = a manner in which a state who was not a party to the original treaty may
become a party. It does this by = depositing a notice of accession. NB the treaty
must allow for accession/the parties to original treaty must agree to the "new" `state
joining the treaty.
E.g. the International covenant on civil and political rights provides that it shall be
open to accession, inter alia, by any member state of the United Nations.
# Generally a treaty will indicate whether ratification is required or accession is
allowed. How do you identify an agreement of a technical, administrative or
executive nature?
= Comes into force on signature alone.
It will depend on intention of the parties which will be gleaned from the
circumstances surrounding the conclusion of the treaty ;
- Government law advisors is to treat agreements "of a routine nature, flowing
from the daily activities of government departments" as not requiring
parliamentary approval.
- Any doubts , the agreement is referred to parliament.
THE VALIDITY OF TREATIES
VOID VOIDABLE
No agreement ever came into existence. Treaty has come into being, with full
rights
and duties for the parties will stop
There was no legal act &, as a result, the
parties have no rights or obligations.
The treaty is valid and the rights and
duties are enforceable until one of
the parties
decided to query the treaty's application.
A state need not apply to have a
treaty
"declared" void, for there is nothing to
be voided
Option of nullifying the treaty = rests
with the "innocent" party.
not itself
contribut
e to
the
error; or
VI. the
circumst
a nces
were
not
suspiciou
s
E.g. in 1939 when Germany forced the Pres of Czechoslovakia to sign a treaty
creating a German protectorate over Bohemia and Moravia, and again in 1968 when
the Soviet Union forced Czech representatives to conclude a treaty allowing Soviet
troops to be stationed in Czechoslovakia.
*The use of force was was outlawed by the Pact of Paris of 1928 and the Charter of
the United Nations.
Other grounds which are exclusive to international law;
A) Constitutional Provisions
Article 46 (VC): A states may raise the fact that consent to be bound was given in
violation of its constitutional provisions to invalidate a treaty only if;
- the violation is manifests, &
- it concerns a rule of fundamental importance.
Article 47 (VC): If the authority of a representative to express the consent of a State
to be bound by a particular treaty has been made subject to a specific restriction ,
o his omission to observe that restriction
o may not be invoked as invalidating the consent expressed by him unless
o the restriction was notified to the other negotiating States prior to his
expressing such consent.
International Society = a horizontal system premised on the sovereign equality of
states. International law = a body of rules based on consent and
characterised by their neutrality.
Supra description takes little account of the development of a value system within
the international community which gives a special status to the prohibition of
aggression, other promotional human rights and the protection of the
environment.
The orthodox account of international law is challenged by two new concepts;
peremptory norms, known as ius cogens;
B) Ius cogens
Article 53 (VC);
➢ an obligatory rule (of)
➢ general international law (which is)
➢ accepted and recognised by the community of states as a whole (as)
➢ a rule from which no deviation is allowed &
➢ which can be altered only by another norm or rule of the same kind.
*States cannot "contract out" of ius cogens -it is absolutely binding on all states
whether they like it or not.
The ICJ has avoided giving practical application to the notion of peremptory norms.
There is a bit of controversy in the way of acceptance of the ius cogens as to
which norms qualify as peremptory. (The use of force is generally accepted as
peremptory.) What is the effect of ius cogens on the existence of a treaty?
❖ A treaty which conflicts with existing norm of ius cogens is void ab initio (from
the
outset).
❖ No treaty comes into existence.
Erga omnes: An obligation of which the state owes the International community as
a whole and in the enforcement of which all states have an interest.
e.g. The formulation of the concept is in response of the South-West Africa cases of
1966 in which the ICJ denied legal standing to Ethiopia & Liberia to enforce an
obligation owed to the international community-namely the obligation on the part
of the South African government "to promote to the utmost the material and moral
well-being and social progress" of the people of South West Africa.
E.g. in 1970, in Barcelona Traction, Light and Power Co Ltd, the ICJ went out of its
way to repudiate finding of 1966 in an orbiter dictum which indicated that the
litigants take would no longer be required to prove a national interest in the subject
matter of its claim where an obligation of concern to all states -an obligation erga
omnes -was involved.
ICJ is more willing to accept this concept. (Legal consequences of the construction of
a wall in the occupied Palestinian territories, "the obligation to respect the right of
the Palestinian people to self-determination and certain of its obligations under
international humanitarian law).
The ICJ has given recognition to the concepts of ius cogens and obligations of erga
omnes, in its 2001 Draft Articles on the Responsibility of States for Internationally
Wrongful Acts; laid a framework for the responsibility of states in the case of the
breach of higher norms , recognises both the notion of peremptory norms & certain
obligations that are owed to the international community.
Article 4T & 41-states are*obliged to co-operate in the bringing to an end through
lawful means = serious breaches by estate of an obligation arising under a
peremptory norm of a general international law.
-Also* obliged to refrain from recognising as lawful, a situation created by a serious
breach of a peremptory norm = a non-injured state is entitled to invoke the
responsibility of another state if it violates an obligation owed to the international
community as a whole.
***** Ius cogens & obligations of erga omnes have transformed international law from a
system in which all rules carried equal weight = a system of graduated normativity
in which certain norms enjoy a higher state.
Ensure harmony between domestic constitutional norms and peremptory norms of
international law.
B) TREATIES THAT ARE VOIDABLE OR MAY BE TERMINATED
Breach of treaty a
60-VC
A breach of a treaty must be "material" or "important".
"Material" is defined in article 60 (3) as:
▪ a repudiation not allowed by the VC, or
▪ the violation of a provision essential for the
achievement of the object or purpose of the treaty.
What happens if it is?
What is the effect on bilateral and multilateral treaties?
Bilateral = the innocent party may suspend or terminate
the
operation of the treaty in part or entirely.
Multilateral = the innocent party/ies may;
❖ suspend the treaty in part or entirely or
❖ terminate the treaty either;
▪ in relation with the innocent and the guilty State
or
▪ as between all parties.
In regard to the termination for breach:
*Where the nature of the treaty means that a breach will
affect all future performance , any party other than the guilty
State may terminate the treaty.
*Breach of treaty cannot be raised to terminate a treaty
protecting "the human person".
*Breach of treaty doesn't always mean that the other parties
will terminate the treaty-it merely gives them the right to do
so should
they so wish.
Impossibility of
performance a 61-
VC
It becomes impossible to perform in terms of the treaty if:
o an object indispensable for the performance is
o permanently destroyed and
o this isn't the fault of the party raising the impossibility.
***** If the object is not permanently destroyed, the treaty may
only be suspended and not terminate it.
Fundamental
change of
circumstances:
rebus sic stantibus
a 62-VC
- Relevant circumstances = are those which existed when
the treaty was concluded.
A change in circumstances must have occurred.
The change must not have been foreseen by the parties.
General rule: a change in circumstances does not give a
party the right to terminate a treaty. There are (inevitable if)
exceptions:
➢ if the existence of the circumstances was an
essential
basis for the conclusion of the treaty, and
➢ if the change radically affects the obligations under
the treaty, the change may give rise to a right to
terminate.
*That rebus sic stantibus may not be raised with regard
to treaties;
establishing boundaries or
by the party responsible for the change.
War and
suspension of the
The outbreak of war between two or more of the parties to a
treaty does not automatically lead to the termination of all terminated or suspended. A treaty on the treatment of
prisoners of war will, remain in force.
E.g. Harksen v Pres of the Republic of SA 1998 2 SA 1011 (C) =
the court found that an extradition treaty is suspended rather
than terminated by the outbreak of war.
The suspension of diplomatic/consular relations will affect
only
those treaties where such relations are indispensable for the
application of the treaties.
Ius cogens (^) What if a treaty has been concluded and a new rule of ius
cogens
then develops?
Situation is unique and somewhat anomalous. The treaty is
not void -performance which has already been rendered is
perfectly valid.
*However, there can be no further performance.
*Normally in other voidable treaties termination must be
initiated by the injured party, in the case of a new ius
cogens, the treaty
terminates automatically.
Reservations to treaties
Covered by the VC and by the ICJ's advisory opinion in Reservations to the
Convention on the Prevention of the Crime of Genocide 1951, which establishes the
approach later incorporated into the VC. Remember a few basic principles:
- Reservations arise only in multilateral treaties. In a bilateral treaty, a reservation
is in fact an offer by the objecting state to conclude a different treaty. If this offer is
accepted, and you treaty comes into operation.
- Remember that treaties are consensual. States can now be forced to accept that
