Sources of International Law
|Cours||International Public Law|
- Aspects introductifs du droit international public
- Les sources du droit international
- Les rapports entre le droit international et le droit interne
- Les sujets du droit international : les États
- Les principes fondamentaux des relations entre États
- Les principes fondamentaux des relations entre États
- Les Organisations Internationales
- L'individu en tant que sujet du droit international
- La responsabilité internationale
- Le règlement pacifique des différends internationaux
- Le recours à la Cour internationale de Justice
- Les exceptions préliminaires
- Les mesures conservatoires
- La procédure consultative
- 1 The typology of sources of international law
- 2 The question of the hierarchy between sources
- 3 The Treaties
- 3.1 Definition
- 3.2 Conclusion
- 3.3 Reservations
- 3.3.1 The question arises as to what to do with States that say they could ratify only if they could make an exception?
- 3.3.2 What is a reservation?
- 3.3.3 When are reservations eligible?
- 3.3.4 Why do these States ratify when they have problems with this type of convention?
- 3.3.5 Is it contrary to the object and purpose?
- 3.3.6 Does Article IX appeal to the procedure?
- 3.3.7 In summary, what happens if there is disagreement about the acceptability and validity of the reservation?
- 3.3.8 Assuming we have valid reservations, what are their effects?
- 3.3.9 If there is an objection to a reservation that it is the effect of the reservation?
- 3.4 Validity
- 3.4.1 What are the rules?
- 3.4.2 Applicability of Article 46?
- 3.4.3 Is this a debate of fundamental importance?
- 3.4.4 Is this a manifest violation?
- 3.4.5 What is coercion within the meaning of Article 52?
- 3.4.6 Can a treaty relate to any object?
- 3.4.7 What about this absolute nullity / relative nullity distinction?
- 3.4.8 Can we split or not?
- 3.5 Third countries
- 3.6 Interpretation
- 3.6.1 What is interpretation? What does it mean to interpret?
- 3.6.2 What are the concepts and rules of treaty interpretation?
- 3.6.3 What exactly are we interpreting? Are we interpreting the text of the treaty above all, or are we looking first and foremost for the will of the parties?
- 3.6.4 How is a treaty interpreted?
- 3.6.5 Good faith
- 3.7 End of treaties
- 3.8 Can a treaty be denounced?
- 3.9 What is the applicable regime?
- 4 The custom
- 5 General principles of law
- 6 Soft law and the resolutions of international organisations
- 7 Annexes
- 8 References
The typology of sources of international law[modifier | modifier le wikicode]
A source of law is an old term used from the reworking of Roman law in the Middle Ages. These are the places where the applicable law for its passive component can be found. The right can be found in the sources of the law, such as the various codes where one can find the right. While the active component says that the sources are the mechanisms of legal production, there are ways through which the law is produced, so the legislation of the state through the parliament and all its procedures make the process by which the law is done is also a source of law.
What are the sources of international law?[modifier | modifier le wikicode]
Let us think about the fact that in international law there are no higher authorities, because each State is sovereign, allowing us to reach the conclusion that the sources of international law are covered by agreement and custom. Both sources are based on the fact that the subjects of law cooperate to make the rule of law binding on them.
An agreement is the most compatible with sovereignty because it is a reciprocal manifestation of a willingness to be bound to benefit from its rules. It is an exercise of sovereignty to decide to submit to a treaty.
- The custom
Making an agreement is an act of practice, but beyond that, it is possible to practice other things on a regular basis because they are considered useful and must be enforced in law. For a long time, States have recognized jurisdictional immunity before the courts, i. e., an individual cannot cite the acts of one State before the acts of another State. Customary law is also something that can be practiced in a parity society, because each one practices and then there is convergence that can be summed up as a rule of law.
Legislation presupposes a superior who can enact a law at a lower level, in international law no one has legislative power, no one can compel States to comply with it. International law is a science that thinks its own violation.
The main sources[modifier | modifier le wikicode]
They make it possible to function within the framework of sovereign states that are not subject to a senior executive. The regulation is found in Article 38 of the Statute of the International Court of Justice, which is the oldest jurisdiction for the settlement of interstate disputes. This court, which has been in existence since 1921, can and must deal with disputes under international law. In 1945, it was considered useful to explicitly state international law and list its sources.
- Agreements / Treaties;
- The general customary law, which is therefore universal and binding on all States;
- The general principles of law recognized by "civilized nations".
These sources are the main ones, as they can be directly applied to a particular case to give it a legal solution.
A State asks for a legal opinion: it is necessary to deal with a legal issue such as delimiting the continental shelf between the DRC and Angola. It is possible to rely directly on a treaty, as it is a source of law applicable between the two States, but also on customary law by referring to the general practice of delimitation. On the other hand, if doctrine and jurisprudence are used as auxiliary means, the fact that they are auxiliary sources means that one cannot rely directly on doctrine or jurisprudence to base a legal solution.
Auxiliary means[modifier | modifier le wikicode]
States are the "legislators", the doctrine is not lawful, but it can be useful, because those who have written fundamental books have examined the practice and provide practical tools for interpreting applicable rules. The same is true of jurisprudence, contrary to common law, the foregoing, in international law, does not do justice. It is not possible to rely on jurisprudence or arbitral awards, it is possible to consult the arbitration, because the lawyer of the time will have set out legal rules, but an arbitrator only allows the dispute between the two States that have referred it to him. It is only if we are convinced and if this has not changed since the time of arbitration that we can apply a jurisprudence.
It is clear that the applicable sentence of the time based on a treaty that is not applicable now cannot be applied. Doctrine and jurisprudence are consulted only in the sense that they can contribute something.
If the parties to the proceedings agree, the court may also judge in fairness. This means that in some cases the court may judge by not applying international law, but fairness, i.e. what the sense of justice suggests to it in an individual case. For a court of justice or any operator, the power to decide or propose things in fairness cannot be abrogated.
Fairness means a change in the rule of law. This is only possible if the parties agree to do so. The Court has been allowed to play an additional role when the strict application of the law is not considered by the parties to be appropriate for resolving their disputes.
It is not said that Article 38 must necessarily be exhaustive. We must distinguish between limiting and illustrative provisions. Actually, it's illustrative except that at the same time it's a little bit exhaustive/limitative, because all the important gears are mentioned and you can't invoke others. This is not exhaustive in the sense that there cannot be other specific sources.
Other sources[modifier | modifier le wikicode]
Broadly speaking, Article 38 is exhaustive, but in detail it is not. Other sources are less important, however. The special custom is not mentioned, Article 38 (b) contains a general provision, but there are regional customs not covered by the status that do exist. For example, the International Court of Justice has recognized that there are rights and duties between India and Portugal to run along the coast to the Portuguese enclaves.
Secondary sources are also not indicated. If a treaty establishes the power of a certain body to impose binding conditions on states, such as the UN Security Council's case of the UN Charter of the United Nations, what is here is a particular source of law, it is a source of law, because it contains legally binding and enforceable standards.
These are derived standards adopted under the Charter of the United Nations, it is treaty law, secondary law also known as "derived". A particular standard can only be dealt with in a specific case that will apply and sanction in a particular case. This is a relatively common phenomenon, but not contemplated, as it falls within the framework of treaty law.
In conclusion, there are some minor, derived, and sometimes non-core sources that have not been conducted in Article 38, making the type of provision non-exhaustive in a sense. Reference may be made to Article 38 of the ICJ Statute for an overview of these sources.
The question of the hierarchy between sources[modifier | modifier le wikicode]
There could be a lot of talk about it. The question of hierarchy is whether we have superiority and inferiority in the sources of international law. The answer is no, it is fairly easy to understand why it is negative.
The hierarchy of sources is fundamentally a matter of democratic legitimacy. The constituent with the greatest democratic legitimacy either because the combined chambers vote or the people have to vote; the ordinary right is already less, etc.. It is understandable that in this type of state organization, it reflects an order.
It is the States that legislate and always they do. The treaty is an act of ratification stemming from reciprocal wishes. There is no reason to give the will of one State greater weight than another, all States are on an equal footing, all sources are coordinated and have the same degree of prominence.
A collision problem cannot be solved based on a hierarchy of sources that do not exist. For example, if the article of a convention X and contrary to a customary rule Y, one cannot invoke the argument of the hierarchy of sources, each is at the same level as the others.
How do we resolve a conflict between norms?[modifier | modifier le wikicode]
In the above example, the collision is between two norms: between an article and a customary rule. We therefore have here a collision between two standards and not between two sources, it is not at the content level, it is Article X against Rule Y. Article X is a conventional norm and rule Y is a customary norm, i. e. an injunction or organizational rule. It is on this level that the collision between two standards will have to be resolved through the rules on the collision of standards.
There are essentially two:
- rule LEX SPECIALIS : the most special law derogates from the more general rule,"lex specialis derogat legis generalis". This means that the most special rule takes precedence over the general rule. It is quite logical, because it is quite intelligent to think that States wanted the most detailed rule to take precedence, because they have considered the function of this more specific rule. For example, universal investment standards serve as an illustration: if two States decide on a bilateral convention, it makes perfect sense to say that between the two States that have concluded the convention, it has priority over the more general rules. Both states have adopted the treaty because they do not agree with the general rules.
- rule LEX POSTERIOR : « lex posterior derogat legi priori »,the later law derogates from the earlier law. The rule makes perfect sense, because if we have a multilaterally concluded 1958 law of the sea treaty and another one in 1982, and now we have States that are party to the 1958 Convention and at the same time to the 1982 Convention. The posteriority rule, because the most recent rule was intended to normalize a more recent situation. If these States have concluded only the 1958 Treaty, only this rule will apply until both States are parties to the 1982 Convention
Knowing when two rules are in conflict and what rules to apply[modifier | modifier le wikicode]
It is a question of substance and interpretation; we must interpret the standards and see if there is a conflict between them. The presumption rule is that there are no conflicts between the standards. If the problem with interpretation cannot be solved at this time, there is a conflict. The application of the rule depends on the case at hand, as both rules may draw in the same direction. There may be a case where they draw in different directions where the oldest rule is the most special rule and the newest general rule. There are maxims in the maxims to try to harmonize.
It's a complicated question, because there is nothing mechanical, it's a question of interpretation and conventions that requires the lawyer's support to solve the problem.
- First, we have a hierarchy that even exists at the source level within international organizations.
It would already be necessary to show that domestic law was in line with public international law. The domestic law of international organizations is international law. On the formal aspect, the law of international organizations derives from an international treaty; the law deriving from a treaty must be of the same nature as a treaty that carries it.
In international organizations, there is a hierarchy of sources, as there is exactly within states. In States, there is the constituent and the legislature that are not placed on an equal footing, but placed hierarchically in a subordinate relationship, so the constitution is higher than simple legislation.
In international organizations, the founding treaty is the founding treaty, all decisions taken must be in conformity with the founding treaty. States adopting resolutions must do so in accordance with the constituent treaty, otherwise it is a null resolution.
Internally, it is the secretariat with the Secretary General that refers to the executive of the organization. It also adopts rules such as, for example, the Staff Regulations. These rules are inferior to the constitutional treaty, but also to the texts adopted by the General Assembly. If the meeting orders the secretary to issue a rule, he or she is bound to carry out what the senior complainant body says.
Thus there is an organization as in domestic law, the constitution, the texts adopted in the general assembly and then the texts adopted by the secretariat which incarnates the executive. The hierarchy, however, is not similar to domestic law because it is stricter, in domestic law the constitution does not simply override ordinary law. There are, if necessary, procedures for invalidating the law if you have a constitutional court, as is the case, for example, in Germany. Legislation passed by parliament in Switzerland may be unconstitutional, but it is not repealed and remains in force. Municipal law may sometimes prevail over cantonal law.
There is a hierarchy between the various texts, which sometimes translates into a strict hierarchy, sometimes it is an indicative hierarchy as in some internal legal systems where there is no sanction mechanism.
- Second, the doctrine perceives another hierarchy that refers to the phenomenon of normative hierarchy.
In Article 103 of the Charter of the United Nations, this provision reads as follows:"In the event of a conflict between the obligations of the Members of the United Nations under this Charter and their obligations under any other international agreement, the former shall prevail". This provision, if we take its text, indicates that for members of the United Nations, when they have obligations under the Charter, for example to implement Security Council sanctions, and they come into conflict with a treaty other than the Charter, such as a trade treaty; then the former will prevail.
Charter obligations are superior to other treaties. The provisions of the Charter are superior to the provisions of the other agreement which contains lower obligations. However, it is a conflict rule, but not a priority rule exactly like lex speciali or lex posterior.
There is something like a desire for hierarchy, the obligations of the Charter are considered to be higher than those contained in other treaties. The aim in 1945 was to protect, above all, the functions of the United Nations in peacekeeping and the Security Council.
The Security Council enacts sanctions against State B because it believes that it threatens peace and calls on UN members to implement sanctions. Without Article 103, the trade treaty would be applied because it would be the lex speciali and the superior rule.
There have been no real hierarchies in international law because states are always equal to themselves and when they legislate there is no reason to privilege a piece of legislation. Conflicts must be resolved on a case-by-case basis in accordance with interpretative principles.
The Treaties[modifier | modifier le wikicode]
Treaties are a very important area of international law, because we work in a subject with fundamentally written texts, it is like the law for domestic law. For customary law it requires specialists, because it is unwritten law.
There are a whole series of advantages of agreements over custom, but we will mention two. The benefits of custom are exactly the opposite of those of treaties.
First and foremost, the advantage is legal certainty. Foreign policy will fluctuate according to the circumstances and interests involved. Foreign policy is an area in which the positions of states are constantly changing. However, there are issues that need to be laid down by rules that provide some legal certainty for the future, for example with regard to investments. If a State wishes to attract investors, it is interested in providing them with a framework that does not depend on domestic law, which can be changed at any time. By adopting treaties that cannot be unilaterally amended, legal certainty is created. It may also be to delimit a territory between what is a State A and a State B. We can go further, in the case of immunities, States have a certain interest in knowing that they cannot be brought before a court, as this would cause them considerable harm. There are old rules on immunity that have now been codified. So there is a collective interest in having some security against attacks from all sides that could be subordinate to one court of another.
All these subjects require a certain legal regulation in order to be sufficiently sure that they must be written.
The Treaties alone allow for a detailed regime. Customary law is a good way to determine the main lines of action. If we want to create a specific regime or an international organization with special functions, we cannot do this on the basis of customary law, we can only do it on the basis of the law of treaties. If we want to do humanitarian law, the rules must be codified to apply them, because the military are not lawyers. Codification of the Treaties is necessary. As, therefore, international society has become increasingly important and States wish to have legal certainty for a certain period of time, and since international society is becoming increasingly complex and requires increasingly specific regimes, this explains why treaties have taken an increasingly important place.
Today we do not know exactly how many treaties have been concluded. For treaties registered with the League of Nations or the United Nations, the figure is about 60,000. The United Nations Treaty Section estimates that there are approximately 40,000 unregistered treaties. So there would be about 100,000 treaties in force around the world. Many are technical points, protocols added with technical vocabulary. There are only a few hundred treaties that are really important for international political life.
This is not an insignificant figure and it is not easy to manage this number of treaties at the universal level. Especially since there are 5 official languages in the United Nations.
Definition[modifier | modifier le wikicode]
We have somewhat varied terminology for international agreements. This terminology is relevant, on the one hand, because each word has its own meaning, but, on the other hand, it does not have its own meaning, because each legal regime is not identical.
We have different words: agreement, treaty, convention, covenant, pact, protocol, concordat or even minutes. On the one hand, these differences in terminology do not have any legal effects because all these different texts mentioned are all agreements and it is the same law of treaties and international agreements that applies to them. Thus terminology is not necessarily relevant. Each of these agreements is applicable independently of the name. What is important is to verify that it is an agreement within the meaning of international law.
However, we would have every right to wonder if the same legal regime applies. If we have different terminologies it is because the different words make each of these words have their own meaning :
- Agreement: to cover any treaty text or even what is not a text if they are verbal.
- Treaty: used for written texts in the proper sense of the word, what is oral is an agreement.
- Convention: used for multilateral treaties; a multilateral convention is a contradiction. A convention is an open treaty because it is multilateral.
- Covenant: written treaty, but the term pact is intended to emphasize the particular importance attached to the text. These are fundamental texts adopted with increased solemnity, such as the Covenant of the League of Nations.
- Protocol: it is a treaty, but by that we mean a treaty attached to an earlier treaty that modifies the earlier treaty on certain points. In IHL, it is said that the two additional protocols to the 1949 Geneva Convention are complementary to the Geneva Convention, which it amends in some respects and supplements in others.
Concordat: normally reserved for the agreements of the Holy See by historical tradition.
- Procès-verbal: sign the origin of the agreement, this means that there were discussions and that a record was drawn up. It shows the origin of the agreement, basically, these are summaries of a negotiation signed and therefore enhanced in an agreement.
In law, every word counts and nothing is interchangeable or almost interchangeable.
The legal regime, on the other hand, is the same, but there are slight distinctions. The vocabulary does not provide differences in treatment, but indicates the nuances in the type of text.
There are four building blocks, four "check points" to see if a given text constitutes an agreement in the sense of international law; these four elements are cumulative, meaning that the existence of the four must be verified. If one of them is lacking, we are faced with a text that may be of a treaty nature, but it is not an agreement within the meaning of public international law:
- There must be concordant wishes: an agreement is always based on a convergence agreement between the various parties. The subjects, in principle, must agree on something, there must be a minimum of common denominators. If, on the other hand, agreement cannot be reached on any point because the differences continue to the end, then we are dealing with dissent. This point is self-evident, but it should not be forgotten, particularly with regard to oral agreements, and it is exactly the same in domestic law.
- The conclusion of an agreement on international law requires a subject of international law: an authority vested with the legal personality of international law. It is quite natural that the agreements of a given legal order should be concluded by subjects of that legal order. The subjects of international law are an area that has already been addressed; it is States, but especially others that can conclude international agreements under public international law. The only subject of international law so limited in its powers that it cannot conclude treaties is the individual we are. The individual may enjoy certain rights under international law. It may also be subject to certain obligations. However, the individual can only exercise his or her human rights, which are engraved as much as the criminal obligations imposed on him or her, he or she is not a political subject with autonomy of action and cannot therefore conclude international agreements. When companies or individuals enter into a concession contract with a concession State, an investor enters into a contract with another treaty State that is binding but not based on international law. The parties will make a choice of law by choosing a legal order other than international law. The parties can of course choose to submit this contract under the principles of international law because they have called it, but spontaneously this agreement is outside international law.
- An agreement in the sense of international law must produce legal effects, also known as "legal effects"; if it does not produce legal effects, it is not an agreement in the sense of legally binding. Of course, agreements under international law are voluntary under the law. Here this is not the case, there may be certain agreements between States; they are not agreements, but concerted non-Convention acts. We are told that this is a concerted act, but it is unconventional in the sense that it is not binding. We are also talking about political agreements and the "gentleman agreement". A whole series of examples of such agreements are, for example, the final act of the Helsinki Accords of 1905, from which the OSCE is emerging. The final act of the Helsinki conference is made as a treaty, but it is not a treaty because states do not want to bind themselves legally, they want to assume political obligations. This means that States believe that these obligations should remain in the realm of politics and that, in the event of a violation, legal mechanisms such as liability should not be implemented; States are not obliged to conclude treaties, but rather engage on a purely political level.
- The agreement must be governed by public international law: in order for it to be an agreement, the law that governs that agreement must be public international law. We have, for example, a whole series of agreements between governments that are legally binding and have legal effects concluded by States. The first three conditions are met, however, but they are not international agreements in the legal sense, because the applicable law is a different law than that of the international order; this may be international trade law or Swiss law. States do it because there are areas that are not political. A state can sell an aircraft, a ship or paper to another state, to exchange an airplane a treaty can be concluded, but it is not worth it because it has solemnity. If States so wish, they may conclude agreements by choosing another legal system that is not international law.
These are the four conditions of general international law. This refers to the general rules on the existence of agreements. However, there may be special rules. The Vienna Convention on the Law of Treaties is the codification of the law of treaties. If we have treaties or an agreement, we can ask ourselves legal questions about this recurring agreement is important. For example, the International Law Commission has proposed to draft a convention that contains all the information on treaties. The Vienna Convention is the law of treaties, but applies only to certain treaties because it governs the life of certain treaties.
In the Vienna Convention, we are in the field of treaties and this applies only to texts, only to written agreements. By this alone, we can have divergences between general law and particular definitions contained, for example, in the Vienna Convention. This difference means that an agreement within the meaning of general law makes it possible to distinguish between agreements. On the other hand, in order to be able to apply the Vienna Convention, the treaty in question must meet the conditions of that Convention, otherwise it will not be applied to it. However, customary law is applicable because it is covered by an agreement under international law.
There is an articulation between customary law which is general, but if you have special law, customary law becomes a lex speciali.
The Vienna Convention applies to treaties. In article 2 of the 1969 Vienna Convention, the term "treaty" is defined as meaning an international agreement concluded in writing between States and governed by international law, whether it is contained in a single instrument or in two or more related instruments, and, whatever its particular denomination.
There are two elements that stand out and stand out. This Convention shall therefore only apply to agreements concluded in writing, otherwise it shall not apply as well as to an oral agreement. Thus, the Vienna Convention is more restrictive than general law. In other words, in order to be able to apply the Vienna Convention, four conditions are required:
- an agreement
- concluded between States
- but above all it must have been ratified by the Contracting States. For example, an investment treaty will only be valid in the context of the Vienna Convention if the contracting parties have ratified it.
The second Vienna Convention of 1986 was concluded to govern treaties concluded between States and international organizations and treaties concluded between international organizations. The 1986 Convention concerns treaties between States and international organizations, or States between States, or international organizations between international organizations. For example, the treaty between Switzerland and the United Nations on the headquarters of the United Nations in Geneva.
The 1986 Convention has not yet entered into force because it has not yet received sufficient ratifications. For agreements between States, the 1969 Convention is applied, while for international organizations, the 1986 Convention is applied, but since it has not entered into force, customary law is applied.
We are doing all of this because the legal regime is potentially different. In customary law, these may not be the same rules, but at the same time, the situation is quite simple as in IHL. In the treaties, we are fortunate because they are the same rules, that is, if we take customary law or one of the conventions in general terms, we have the same rules.
The 1969 Convention photographed the practice of States while the 1986 Convention was aligned with the 1969 Convention. It is always important to determine which title applies what. It is always necessary to ascertain whether it can be applied either as a rule of customary law or as a convention between States. The substantive aspects of treaty law lead to the same rules, which makes the task easier.
This is a happy circumstance in treaty law, but it is not always the case. The customary case is not fully aligned.
We now know what a treaty and an agreement is, but there is often an impression among philistines that a treaty must always be very solemn and formalistic, that a treaty must be concluded with lengthy procedures. Ritualization is an important treaty to mark solemnity because it is politically useful.
However, the law of treaties does not provide any rule in this regard, which is the will of States. Treaty law is fully flexible on questions of form. The law of treaties is sovereign and adult.
In the Aegean Continental Shelf case brought before the Court of Justice in 1978, the legal question is whether a treaty can be concluded in a press release. There is a very special condition for bringing a case before the International Court of Justice; it requires the consent of all the parties involved, an agreement, a consent. The question is whether a joint press release of the two ministers could be an agreement in the sense of international law because if it was an agreement it could have founded the competence of the agreement; it was said that if the ministers could not reach an agreement the court could be seized. Therefore, the content of this agreement was a consent, but in order for the court's jurisdiction then to have been given, it had to be verified whether this press release was a joint agreement. Only after a legally binding agreement can the Court's clemency be founded.
In 1978, the Court responded in an orthodox manner by saying that there is no reason to believe that a joint press release could be a perfect international agreement. The Court did not need to go any further because it felt that there was no commitment in the agreement to accept the Court's jurisdiction, there was only an agreement to consider going to the Court in a subsequent agreement. To sum up, a joint press release can be an agreement.
In the case of territorial delimitation between Qatar and Bahrain, the same question was posed almost exactly in the same way. This was a signed record of negotiation. Saudi Arabia had been there to do the good offices of mediation and had also sent a secretary to govern the minutes. Following the discussions, the foreign ministers signed the minutes. In 1993, the Court considered that the minutes signed by the Ministers of Foreign Affairs were informal but valid treaties, and that the content was such that the Court could be involved in the matter.
A treaty can be treated in a totally informal manner. Only whether States were willing to conclude a legally binding instrument or whether a text could be interpreted as meaning that they had accepted a legally binding agreement will be verified.
As Minister of Foreign Affairs, you have to be careful what you sign. Formalism is not necessary, it's a discretionary question, we leave the choice to the States.
Conclusion[modifier | modifier le wikicode]
In the conclusion of treaties, there are a whole series of purely political issues, such as the conduct of negotiations involving framework rules, which are far removed from the details of the negotiation, the aim is to maintain the usefulness of the negotiation. This is a question that should be left to politics.
There is a whole practical question concerning the conclusion of treaties. There is a first and very important question of who can negotiate a treaty.
Negotiation and signature[modifier | modifier le wikicode]
Treaties are generally negotiated, there are always preliminary discussions even for a small treaty signed during a dinner. There are very different situations between multilateral treaties and bilateral treaties negotiated at a minimum.
There is always the question of who can conclude, who can negotiate and sign the text, what is at stake is legal certainty; we must see and determine the authorities. The issue is governed by international law, but is partially left to domestic law. That is to say, international law contains certain rules; otherwise it is left to domestic law.
Persons designated by international law as such, who still have the power to conclude a treaty for a State by signature, are mentioned in Article 7 §2 a. of the Vienna Convention vested in the full powers: "Heads of State, Heads of Government and Ministers of Foreign Affairs, for all acts relating to the conclusion of a treaty".
This means that the head of state is traditionally the person entitled to conclude treaties, the head of government who can be described as prime minister and the Minister of Foreign Affairs can always bind the state.
Thus the Permanent Court in 1933 had a special case concerning Eastern Greenland: there was an agreement between Norway and Denmark through a simple agreement reached by the Foreign Ministers. The Court held that this agreement bound Norway because its Minister of Foreign Affairs was empowered to make commitments for its State.
As for other persons, as a general rule, the first paragraph of article 7 reverts to the first paragraph, those other persons can only negotiate for a State if they are given full powers. If Switzerland decides to send someone to negotiate a treaty for Switzerland, a formal letter must indicate that a person has the right to represent Switzerland at the conference showing that he or she is the representative of the State that can sign the agreement on the basis of what has been authorised to him or her under the full powers, these powers must also be notified to the other parties.
Three persons are still authorized and a fourth person may be authorized by a letter of full authority.
There is one more development, the Court has said; it is an increasingly common practice, in international law, that the ministers in charge have the right to conclude treaties in their area of competence. For example, the Minister of the Environment goes to environmental conferences and signs agreements for his state. This is a recent development that poses a series of legal problems. In the case of the armed cases between the Congo and Rouanda, paragraph 47 of the 2006 ruling explains the broadening of the practice and in which cases the ministers in charge may conclude treaties, it is empowered to negotiate and sign.
Adoption[modifier | modifier le wikicode]
In bilateral negotiations, there are no prescribed rules, there is total flexibility. Delegates or ministers will sign the treaty. In the case of a multilateral treaty, it is much more complex. A text negotiated in the framework of an international organization or a conference, one can have up to 190 States in such a conference, in this case what is important is to authenticate the adopted text.
When there's two of us, we can see what we're working on. In the case of an international conference where thousands of texts circulate with amendments up to the last minute, it is clear that it is essential to authenticate the text.
We proceed to the adoption of the text, which means that when an agreement has been reached and compromises have been reached, the text is put to the vote. The president will check whether the required majority is reached, often it is the rule of two-thirds or a simple majority. If the majority is reached, the text is adopted, but it is from now on that no one can argue it.
Delegations go before the President to initial the text in order to authenticate it. The Chair had the original text initialled page by page by delegations to indicate that all pages had been viewed. On the last page, the delegate signs, sometimes it may be deferred if the Minister has to sign and is not present. At this point the text is adopted and authenticated. Negotiation is now complete and the text can no longer be changed.
When the text is signed, it has certain legal effects. With adoption, this becomes a treaty text, but the signature enhances its status, as some legal effects will follow.
There are two in particular. Most importantly, there is a non-existent effect. The signed text is not binding on States, it is not in force and at the same time the State has not accepted to be bound by the text, the signature does not make the text binding. Exceptionally, signature is binding on States only if the treaty is concluded in the case of a so-called "simplified" or short procedure. In fact, it is not just a signature, but a signature and ratification at the same time. States agreed not to ratify the treaty separately, but to ratify it uni actum, so signature is ratification.
This is hardly ever the case, but more than once in bilateral treaties where ministers can directly engage their states, this is not to accumulate acts for nothing.
In multilateral conventions it is more solemn, ratification is later, the signature is not binding. The simple signature: what is its legal effect?
- with signature, the transitional provisions enter into force immediately: when the treaty is signed, the provisions contained in the final clauses which are attractive to the process of implementing the convention enter into force. In 1998, a treaty was concluded on the International Criminal Court in Rome - it is clear that we will not wait until the treaty enters into force to question its creation. Preparatory measures are provided for in the transitional provisions and lead to ratification unless they explicitly state otherwise, they are applicable at the time of signature. If we signed, we were told that we have a favourable provision for the convention.
- the second effect is legally much more complex, referring to article 18 of the Vienna Convention. It provides that when a treaty is signed, as a signatory, there is an obligation not to empty the treaty of its object and purpose before it enters into force. It is impossible to do acts that sabotage the void of meaning. For example, a treaty is concluded between State A and State B under which the two states undertake to reduce customs duties on tomatoes by 50%, which will enter into force in January 2014. State A says to itself, on December 31st, I will double my customs tariffs so that when the treaty came into force, the customs tariffs have not changed, while state B, in good faith, will halve its customs duties, meaning that there was bad faith behaviour by A. Thus, the treaty is emptied. However, it may be difficult to determine what Article 18 establishes and what it does not.
Ratification[modifier | modifier le wikicode]
The signed treaty is not binding on the parties, let alone giving effect to it. In articles 11 et seq. of the 1969 Vienna Convention, ratification is the consent to be definitively bound by the treaty.
Since ratification does not necessarily coincide with signature, this means that a State has time to consider whether or not it wants to be bound by the treaty. If he wishes, he will ratify it.
There is a time for reflection; the negotiating States know what to do with it. The time for reflection comes from the democratic institutions of domestic law. At the time of the kings, the signature was worth ratification. With the advent of Republican regimes, the situation has changed. It is therefore the executive branch that negotiates and ratifies the treaty. If, therefore, the entire process of concluding the treaty up to and including the choice to become a party to that treaty is in the hands of the executive branch, it would mean that the executive branch could take decisions of great importance for national life without the democratically elected body representing the people having any say.
All the Republican states, and first and foremost the United States of America, have each time requested that they should be able to sign and refer, decide later on whether or not they want to be bound, because it is necessary to consult beforehand. The legislator must give the "green light". We sign act referendum. That is the reason for the time for reflection. The concern of States is democratic participation; it is a concern of domestic law.
Ratification from the standpoint of international law refers to articles 11, 12, 13 and 14 of the Vienna Convention. Ratification is the final consent to be bound, but ratification from the standpoint of international law is a letter sent by the executive branch, someone at the Department of Foreign Affairs will send a letter to the treaty depositary who is the official elected by the contracting states to manage the treaty. Ratification therefore takes the form of a letter sent to the depositary stating that, after referring to it domestically, State X consents to be bound by the treaty.
It is often believed that it is parliament that ratifies a treaty, which is perhaps not wrong from the constitutional law point of view. In fact, Parliament authorizes ratification.
For example, we ratify a treaty and sign it marking the end of the negotiation procedure. Then the negotiators disperse. International law has nothing to say, it is a matter of domestic law. Assume that the fictitious treaty signed, the negotiator takes it with him and enters State X. The State provides that the text must be submitted to parliament so that it can debate and decide whether the treaty is good for the State or not. The text was discussed and the vote was taken. If Parliament considers that the treaty is sufficiently good by majority vote, then Parliament has given the "green light" for the executive to ratify it. In virtually no state in the world, the executive is obliged to ratify when parliament has said "yes".
The executive still has a margin of decision. If an impromptu event occurs, the executive can slow down ratification and wait. Therefore, Parliament does not ratify the treaty from the point of view of international law, it authorises it. Constitutional law uses the term "ratification" in a different way. If the parliament or people do not authorise ratification, then the executive is obliged not to ratify and will notify the depositary that it will not be obliged to be a party to the treaty because it has not succeeded in obtaining parliamentary approval.
The time for reflection is a matter that depends on domestic law; if parliamentary approval is not required, it can be ratified at the time of signature, which is called the "short conclusion procedure". This avoids uncertainty, buoyancy, the risk of adopting treaties and the risk of waiting decades for states to ratify treaties to become obsolete and ruinous.
Still, it is incumbent on democracy and the separation of powers to allow time for reflection. If domestic law directly authorizes ratification, it makes things easier. However, this is the case for the vast majority of treaties, because they concern subordinate and technical conditions,"treaties on trifles", minor objects of importance. Such treaties can be concluded even in Switzerland or they can be concluded directly.
What if the executive ratifies if it did not have to?
For example, the text is submitted to parliament, which does not authorize ratification and the executive still ratifies, or if the parliament says "yes" and the executive ratifies, but in reality there was no quorum required for the vote. It is a question of treaty validity.
We distinguish between ratification and accession to a treaty also known as "accession to a treaty". What is the meaning of this distinction?
The result of both is the same, it is always the definitive consent to be bound by the treaty. The result is therefore that the acceding or ratifying State is bound by the treaty. Since the distinction is not downstream, it must be upstream. The lawyer often has a reason to distinguish the word.
The distinction is who is entitled to do an act or otherwise. Ratification is reserved for States that have participated in the negotiation of the treaty. Ratification is a right for them, a State that has participated in the negotiation can become a party to the treaty, it is not obliged to become a party to the treaty, but has a right to ratify it even 20 years later. On the other hand, States which have not participated in the negotiation, third States, may become party to the Convention on the terms which the Treaty will make them. Bilateral treaties are in principle closed, even multilateral conventions are more or less open. The North Atlantic Treaty is not as open as that, we have to look at the treaty itself, which will say under what conditions another state can accede to the treaty. If there is no clarification, it means that accession is subject to the consent of all other parties to the treaty.
This becomes an option only if the treaty grants it. Thereafter, it becomes a State bound by the Treaty, without accession, there is no distinction.
We assure you that the treaty has been fortunate, it has been ratified. Now, it's about when it's going to come into effect, sending backà l’article 24 de la convention de Vienne de 1969.
Entry into force[modifier | modifier le wikicode]
A treaty does not enter into force once it has been ratified. With the second ratification, the treaty can enter into force when there are two parties, but if it is intended to bind all the States of the world, the issue is different. In the final provisions are explained when the treaty enters into force.
In bilateral treaties, these clauses are generally forgotten, but if there are no specific clauses, it is considered that it is at the time of the second ratification that the treaty enters into force when the instruments of ratification are exchanged.
For open multilateral conventions, those that are intended to have many States parties, the rule has gradually crystallized in modern times to have 60 ratifications plus a certain period of applicability. It is at the time of the sixtieth ratification plus the first of the following month.
There is another possibility of bringing the treaty into force provisionally, that is, it has been signed and is awaiting ratification. If it is considered unfortunate because the treaty is urgent and it is in our interest to bring it into force immediately, Article 25 provides that this can be done.
There may be a provisional partial agreement of the treaty or some States agree among themselves to apply only part of the treaty. Everything always revolves around the agreement of the States on this matter. If we do not ratify, there are difficulties such as the difficulty of going back on provisions created when they were made in accordance with the law.
Article 102 of the Charter of the United Nations is applicable to all Member States providing that when a treaty has been agreed and entered into force, the signatory States shall be obliged to register it in the United Nations Treaty Service in New York. Since laws are published domestically, they are published internationally.
Finally, treaties do not apply retroactively; they apply to facts, circumstances and events that occur after the treaty has been concluded. They shall not apply to facts and circumstances prior to its entry into force.
Entry into force may depend on. The Convention shall enter into force on the date specified in the clause; for States acceding to it at a later date, the treaty shall enter into force at a later date.
Non-retroactivity must be determined on the basis of the entry into force for each State. This is not a peremptory rule, because States can agree, but must regulate this decision. They must expressly say or wish to do so in such a way that it can be said in the interpretation that there was a willingness on the part of States to apply a convention retroactively. In some areas of international law, rules cannot be applied retroactively.
Finally, there is no question of non-retroactivity for customary law. Retroactivity is a matter of treaty law. Customary law, from the moment the rule is established, applies to all States. It is not retroactive, but binding on all States. Events prior to the birth of the customary rule are not taken into account. There is only one critical date, the rule covers all events from birth.
Reservations[modifier | modifier le wikicode]
This is a specificity of international treaties, there is nothing comparable in domestic law contracts. The rules on reservations can be found in articles 19 to 23 of the Vienna Convention on the Law of Treaties. Subsequently, the International Law Commission worked on the issue, which led to the adoption of a non-binding text or the Commission recalls the rules on reservations.
The problem of reservations is a simple matter of possible consent. There are treaties where it is not difficult to know who must consent. In the case of a bilateral treaty, it is clear that mutual consent is necessary. Finding a common denominator between 194 states is difficult, even "diabolical".
So we can negotiate, but then we will arrive at a time when nothing goes wrong, because we can always question it. Now there is the question of some dissatisfied states, some will disagree radically. There are States that will say that the compromise we have arrived at and acceptable, but there are a few articles that are not even essential, which are a huge problem that could be contrary to constitutional law or a political problem, for example.
The question arises as to what to do with States that say they could ratify only if they could make an exception?[modifier | modifier le wikicode]
The problem is to find a consensus between protecting the integrity of the treaty or promoting the universality of the treaty.
If one is in favour of the integrity of the treaty, the treaty as such cannot be subject to reservations. If, on the other hand, the universality of the treaty is favoured, it is impossible to agree on everything. The idea was to ensure greater ratification by releasing ballast on articles, especially since States could withdraw their reservations afterwards.
Before the Second World War, the universal rule was that of the integrity of treaties, we accepted all or nothing, we could make a reservation only if all States agreed. After 1945, the rule was to favour the universality of treaties by admitting reservations. Today, the general rule is to be able to make reservations to conventions.
It is generally said that these must be multilateral and not bilateral conventions. Practice, however, shows that reservations have taken place in bilateral treaties. What can be said is that it is certain that reservations apply to multilateral treaties. In a multilateral treaty, agreement must be reached.
The second important thing to know is that reservations must be made at the latest at the time of signature or ratification. At the time of ratification and accession, one gives one's final consent to be bound by the treaty, other contractors must know what one is obliged to do and what one is not. A State that no longer wishes to implement a particular article would mean that the convention would no longer be binding on States overriding the adage pacta sunt servanda. In the case of reservations, other participants may object. That does not mean that we cannot make reserves later. This is the case if there is an agreement between all States, there is no reason why it is prohibited.
What is a reservation?[modifier | modifier le wikicode]
In order to know this, one must go to the definition of the terms used in Article 2 §1 (d) of the Vienna Convention: Reservation "means a unilateral declaration, whatever its wording or designation, made by a State when it signs, ratifies, accepts, approves or accedes 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.
The reserve is distinguished by the following elements:
- It is a unilateral declaration; each State, when ratifying or acceding to the treaty, can at the same time formulate a reservation.
- The reservation is formulated at that time in the formulation of ratification sent to the depositary, which will notify it including the reservation to the other High Contracting States, including the signatories.
- The purpose and effect of the reservation is to exclude or modify the legal effect, so provision X or Y will not apply according to the terms written in the treaty. The substance of these provisions is being changed; it will not apply in the substance of the treaty; it can either exclude the application of this provision to it or slightly modify an article in its own respect, since it assures part of the obligations, but accepts another. The treaty will not apply in the same way as if the reservation had not been made.
Interpretative declarations, which States often make when ratifying or acceding to a treaty. In principle, these are declarations that are not intended to modify the substance of the treaty or to seek ratification so that the State can make known its understanding of the convention or make political declarations. The true interpretative declaration is to say how the provision is understood.
In theory, it is clear that the interpretative declaration merely casts a certain light on the article, but remains the same, although States sometimes play with it, they make disguised reservations, do not dare to make open reservations either for legal or political reasons. Sometimes interpretative declarations are reservations. It must be said that it is not the label that counts, it is not because the State is going to send its position in the form of a reservation or an interpretative declaration. The question is sometimes subtle, depending on the interpretation of the text by the State, but also on the interpretation of the text of the treaty. If it bites on the substance, it's a reserve.
When are reservations eligible?[modifier | modifier le wikicode]
The current regime provided for by the 1969 Vienna Convention in articles 19 to 23 is a liberal regime under which a State may make as many reservations as it wishes, there is the presumption and freedom to make reservations. There is no formal limit, it is a common sense limit, if a State has too many problems with a treaty it will not ratify it.
There are, however, some rules on the admissibility of reservations and in particular some of them are covered by treaty law and others by general international law.
By conventional law, we mean that, on the basis of a convention, we want to know whether we want to make reservations. The first thing to do to avoid the issue is to say that the treaty itself may have provisions on the issue to be followed; the contracting parties have been able to make provision. If in the Treaty there is nothing, in other Treaties there are things; we must follow them:
- treaties which completely prohibit reservations: the Contracting Parties considered that the integrity of the treaty weighed more heavily than the universality of ratification. Interpretative declarations, but not reservations, can be made.
- prohibition of reservations on certain provisions: this will define a hard core of the most important provisions on which reservations cannot be made. Reservations are prohibited on certain articles, a contrario, they are allowed on the other provisions. Negotiators are of the opinion that certain articles are essential to the convention. For example, article 12 of the 1958 Geneva Convention on the Continental Shelf.
- Reservations are permissible for certain articles, i. e. reservations are prohibited on all other provisions. This latter version is generally more subtle, the convention is more locked.
- provisions which prohibit certain materially defined reservations: reservations having certain qualities such as, for example, in the former Human Rights Convention to article 64, which prohibits reservations of a general nature that are considered non-intelligible. There are conventions which prohibit certain types of reservations, particularly those that are not specific.
We are authorized to make reservations that are authorized by the treaty. This is the rule of consent and willingness.
Irrespective of what the parties had intended, and particularly in treaties such as the Vienna Convention, States could make reservations in principle unlimited. There is a problem with the general law: States can make reservations as they wish. That is why there are limits to reservations in general law:
- relative limits (Article 20 § 2 and § 3): in institutional treaties, it is difficult to make reservations, for example, the United Nations, as an institution must operate according to equal rules for all.
- limit of the object and purpose of the treaty as provided for in article 19 of the Vienna Convention letter c): it is not an easy or straightforward application, since one can legitimately have different views on the object and purpose of the treaty.But what is easily understandable is that in a multi-party treaty which contains many provisions, not all of them are of equal importance, some are eminent and others are secondary provisions of an administrative or other subordinate nature; it is not possible to place reservations on articles essential to the proper functioning of the convention while reservations on secondary provisions are permitted. Deciding what is relevant to the object or purpose is sometimes obvious and sometimes not easy. We can have quite legitimately divergent views.
The case that is legally very clear is the "Shariah" type of reservations, also known as "reservations of internal tradition". A Djibouti reservation to the Convention on the Rights of the Child in 1989 states that " [The Government of the Republic of Djibouti will not consider itself] bound by provisions or articles incompatible with its religion and traditional values".
This reservation is of a general nature and does not relate to a specific provision, it potentially concerns all the provisions of the treaty, and moreover, it is of an absolutely indeterminate nature, since no one other than Djibouti knows its religion and traditions, which means that Djibouti does not have to assume any obligation. This is not inconsistent with any convention; we reserve the right to apply or not to apply a provision on the basis of tradition and religion, which only Djibouti knows. This is incompatible with the adage pacta sunt servanda, reserving the application of an agreement is contrary to the object and purpose of any contractual commitment. In that case, it would simply have been necessary not to ratify the Convention. In fact, a whole series of States have made an objection to this reservation.
Why do these States ratify when they have problems with this type of convention?[modifier | modifier le wikicode]
The problem is not legal in this respect, it is that these human rights conventions have become so much a religion for Western countries that everyone has to ratify them. This somewhat unfortunate situation leads these states to ratify this convention, because it is politically necessary. In reality, they cannot apply these conventions contrary to their internal traditions. It's politically sensitive, but not legally.
Another case is a delicate one, the reservations made by the socialist states in the late 1940s and early 1950s with regard to the 1948 genocide convention. This reservation concerns Article IX, in the event of a dispute concerning the interpretation or application of this Convention, each State Party to this Convention is a party to disputes concerning another State may bring the dispute before the International Court of Justice. It is an arbitration clause that allows in the event of a dispute to bring it before the International Court of Justice.
The Socialist Republics agreed to sign the convention, but not to recognize the international tribunal. The communist countries never had the majority of judges in court is no chance to impose their vision of international relations. For these States, it was out of the question to submit to the court. At the same time, these States absolutely wanted to become party to it for the same political reasons as in the previous example. It was vital to be bound by the Convention, but not by Article IX.
Is it contrary to the object and purpose?[modifier | modifier le wikicode]
For socialist states, what counts in the convention is the substantial conditions and repression of genocide. The object and purpose are therefore linked to genocide and the substantive provisions of the Convention.
Does Article IX appeal to the procedure?[modifier | modifier le wikicode]
This is a non-essential procedural issue.
The Westerners in the late 1940s argued that the convention against genocide was not a convention against others, it was not limited to designating a crime and organising repression. There was a provision in the convention that allowed the convention to be applied. This convention by virtue of Article IX is not a paper rag convention. The guarantee clause in Article IX is essential to the realisation of the object and purpose of the Convention.
The two arguments are plausible, the choice between the two is not obvious; for a long time there was uncertainty about the admissibility of the Soviet reserve and the effects to be attached to it.
The issue had meanwhile been resolved, as other States had formulated the same reservation and that practice had become widespread. Thus, for Westerners, this reserve is not so bad, the practice is that this reserve is admissible. The Court still applies this reservation.
In summary, what happens if there is disagreement about the acceptability and validity of the reservation?[modifier | modifier le wikicode]
First of all, it will be necessary to ascertain whether there are agreements and whether there are objections to the reservation. If there is no objection to the reservation and States expressly accept it, then this means that reservations to those States do not pose any problems. We can therefore proceed as if the reservation were valid even if it is not true.
If we have objections, we have a potential dispute. At that time, we do not know how to apply the treaty. As long as there is no particular problem, we move forward and the dispute can be dormant. As long as there are no disputes, it is not very important to know whether the reservation to article IX is valid or not. However, we won't be able to test it, because we don't have a case. If we have a case, we have a dispute about the applicability of the convention; we will have to engage in procedures for the peaceful settlement of disputes.
Finally, the effects. The setbacks are decided on the basis of the treaty and, if not, on the basis of Articles 19 and 20 of the Vienna Convention.
Assuming we have valid reservations, what are their effects?
The general effect of the reservation is to fragment the treaty into a bundle of bilateral relations. Contrary to the option that exists, there is in reality a plurality of treaties according to the reservations and the reactions of other States to those reservations, so the treaty is fragmented according to bilateral relations. Thus it will apply differently depending on the States parties to the treaty. We have to look at the reports of each state, there are potentially many relations.
A silent state that does not react, in this case if the situation were not regulated there would be legal certainty that would last too long. According to Article 20 §5, after one year silence is considered acceptance; it is a legal fiction, acceptance is imputed to the silent state. A State that does not wish to accept a reservation, if it does not object, after a certain period of time has elapsed, will be understood that it has accepted. After 12 months the position will be clear. During the twelve months, the situation is in abeyance.
Assuming we have valid reservations, what are their effects?[modifier | modifier le wikicode]
The general effect of the reservation is to fragment the treaty into a bundle of bilateral relations. Contrary to the option that exists, there is in reality a plurality of treaties according to the reservations and the reactions of other States to those reservations, so the treaty is fragmented according to bilateral relations. Thus it will apply differently depending on the States parties to the treaty. We have to look at the reports of each state, there are potentially many relations.
A silent state that does not react, in this case if the situation were not regulated there would be legal certainty that would last too long. According to Article 20 §5, after one year silence is considered acceptance; it is a legal fiction, acceptance is imputed to the silent state. A State that does not wish to accept a reservation, if it does not object, after a certain period of time has elapsed, will be understood that it has accepted. After 12 months the position will be clear. During the twelve months, the situation is in abeyance.
If there is an objection to a reservation that it is the effect of the reservation?[modifier | modifier le wikicode]
Il y a deux distinctions à faire qui sont superposées :
1) it is an option given by the Vienna Convention and by practice to the objecting State: if it is stated that a reservation is not intended to be applied to a particular article and that a State objects, a choice must be made:
- simple objection: do we want to apply the provisions of the convention on which there is no dispute? The reservation is opposed to the reservation, which entails the consequence that the reservation to the article will not be applicable. However, if there is no difference of opinion, we are not opposed to implementing the treaty.
- Radical objection: the article was so important that a State refused to apply the agreement between it and the reserving State. As long as the provision is retained, the convention will not be enforced.
The effect of an objection will be, depending on the circumstances, to allow the treaty to apply except in the case of an objection to a reservation, or that a provision of the treaty will not be applicable from then on, there will be no treaty relationship between the States wishing to make the reservation and the objecting State.
2) Is it the same thing, because the result is the same? The reason for the result is different. There is disagreement on the application of the reservation, in this case there is no agreement and therefore no treaty relations. In both cases the article will not apply, on the one hand, because there will be no agreement on how to apply it and, on the other hand, because the reservation has been accepted. If a reservation modifies an article, this is no longer true, because the situations differ. Among the States that have accepted the reservation, the article is applied as amended; if an objection has been made, the article will not apply at all. The article cannot be applied with and without reservation. In case of disagreement the article will not apply at all. It is therefore only when the reservation excludes a provision and the objection is simple that the same result can be achieved, but by different means. Treaties may apply differently, but do not affect relations between other States without any specificity.
Validity[modifier | modifier le wikicode]
This is the scope of articles 46 to 53 of the Vienna Convention.
A treaty may be concluded in accordance with the necessary procedures, but does not tell us whether the treaty is valid, as there may be particular grounds and circumstances that may invalidate or nullify the treaty. If, for example, you have to sign a contract because someone is pointing a revolver at the temple, it would be surprising to be bound by the contract as an extreme constraint, it would be normal for it to be invalidated or considered null and void because of the constraint.
In international law there are grounds for a treaty to be invalidated. It is a new branch, until World War II there were no provisions on the invalidity or nullity of a treaty, because international law was either violence or violence itself was not prohibited. In this context, it would have been quite unusual to draw up grounds for the invalidity of a treaty, since the violence was lawful and a treaty concluded under coercion was therefore lawful. Since violence is conceded, the treaty cannot be invalidated. Moreover, at the time the peace treaties were essentially important instruments, foundations of legal orders such as the Treaty of Westphalia which founded the modern European order in 1648 or the Vienna Agreements of 1815 or the Treaty of Versailles of 1919. A state forced to sign a peace treaty does so under duress, and if it is said that they are not valid, all treaties are called into question, it is impossible to concede this. If we say that treaties concluded under coercion are valid, then we will not seek its nullity or invalidity because they are valid. It is considered that the principle of pacta sunt servanda is so fundamental that opening the loophole to plead the invalidity of treaties is tantamount to opening the Pandora's box.
This has changed with the law of the United Nations Charter where the use of force has been completely reconsidered; logically, in the sense that treaties concluded under coercion cannot be considered valid. There is a whole vision to see things on crucial points in modern international law with a much more positive vision. The trace is section II of Part 5 of the Vienna Convention, article 46 et seq.
What are the rules?[modifier | modifier le wikicode]
1) The first rule to be considered is that the grounds for invalidation or nullity of a treaty, i. e. the invalidity of a treaty, can only be based on grounds that are limitatively enumerated in the Vienna Convention. It is therefore only on the basis of a ground recognised in the Vienna Convention or recognized in customary international law for States not bound by the Vienna Convention that it is possible to plead invalidity of a treaty, this is the subject of Article 42 and in particular §1.
This does not preclude customary law from developing other grounds, but it should be abolished by international practice and the legal opinion of States. Since 1969, State practice has not created other grounds for invalidation.
2) Second, what are the grounds for invalidating a treaty? They are set out in articles 46 et seq. on irregular ratifications, which is the violation of domestic law on the conclusion of treaties. In practical terms, this means that when a treaty is concluded there is a whole procedure to go through, errors can occur in each of these steps. Suppose a treaty was concluded is that domestic law provides that the parliament must give its approval for it to be ratified or the executive did not consult the parliament in disregard of domestic law. The only relevant provisions of domestic law are those concerning the procedure for the conclusion of treaties. Article 46 does not concern the compatibility of domestic law with substantive rules, but only if the provisions on the conclusion of the treaty are relevant, it is only if errors have been made in the formal provisions which allow the application of Article 46 to be invoked.
Article 46 is worded negatively, which means that a State cannot invoke the error it has made in the procedure for drawing up a treaty. In other words, the violation of domestic law cannot be invoked, it is necessary to bear the consequences without the other contracting parties paying the costs.
However, there is a way out. Section 46 sets out the criteria. These are two cumulative conditions, the rule must be of fundamental importance to invalidate a treaty concluded, with other treaties the violated provision must be of major importance. On the other hand, this violation must have been manifest for the other contractors. The manifest criterion is the protection of the legitimate expectations of other States. It is only if they had to know that the other state could not ratify the treaty in the way it did, they should have known that there was a mistake in the process for the treaty to be invalidated. The stability of the treaty is maintained because it commits other contractors who do not need to know the domestic law of non-Contracting States.
The convention speaks of "objectively obvious" for any State, one can add "subjectively obvious". States that have close relations know each other well; therefore, in the case of bilateral treaties, Article 46 could be interpreted somewhat looser.
We will talk about the arbitration between Guinea-Bissau and Senegal published in the book of awards applicable volume XX page 121 and following. There is an agreement between these two states dating back to 1960, an international treaty of 1960 between France and Portugal at the time the colonial powers. The agreement covered the maritime border and States were in dispute over the maritime border. There was a problem when this treaty was signed. Indeed, normally this treaty should have been submitted to the Parliament in Portugal, but it was not, as it was ratified directly through Salazar.
Applicability of Article 46?[modifier | modifier le wikicode]
The Vienna Convention does not apply retroactively; it entered into force in 1980; the arbitral tribunal found that article 46 was customary law in 1960. So this customary law was applicable to the treaty.
Is this a debate of fundamental importance?[modifier | modifier le wikicode]
Yes, it is certainly a very important provision, for States with territorial accession is a sensitive subject.
Is this a manifest violation?[modifier | modifier le wikicode]
The court said no it was not obvious; Portugal's constitutional practice at the time was to bypass parliament. France could rely in good faith that this treaty was ratified regularly, not in the formal forms applicable, but in accordance with the practice of the time. This was Portugal's usual practice at the time, France could not perceive this subtlety, and the treaty is therefore applicable.
Article 48 deals with error, which is a rare or rather frequent occurrence only in a particular context of international law. This is an essential error on a fundamental fact at the time of concluding the treaties. Treaties were concluded on misrepresentation of an essential fact of the treaty. In domestic law, contracts can also be invalidated for essential errors. There is a situation in which errors are not uncommon in geographical maps. It happens more than once that the maps are appended to a treaty, one will describe the border in the treaty and say that on the map or sketch the border is drawn directly on the ground and the map is part of the treaty. It is not so rare that we have made mistakes about how to draw boundaries on maps or different geographical configurations.
Article 49 deals with fraud, that is deliberate error, that is misleading. This is a very common ground for invalidation of contracts in domestic law, but does not exist in international law. We must go back to distant eras to find cases of fraud; states are not credulous. This is an intellectually necessary discussion, but in practice rarely used.
Article 50 is also fortunately not a frequent occurrence. Corruption is the bribery of a representative of a State, the expression of a State's consent has been obtained through the bribery of its representative, but these are still relatively rare cases, as the representative can rarely directly bind the State. It is a motive that we insert more to be complete.
Articles 51 and 52 on coercion are articles of great importance. It should be noted that there are two provisions: Article 51 is the coercion exerted on a representative of a State when he or she is entitled to commit it, and Article 52 is the coercion of a State to sign under threat of the use of force. Normally a representative of the State cannot engage a State alone and directly. What can happen more often is the threat of physical force. These articles therefore deal with coercion.
What is coercion within the meaning of Article 52?[modifier | modifier le wikicode]
It is that of the armed force, the reference is made here to the Charter of the United Nations is in particular to Article 2 § 4.
The Vienna Convention refers to the Charter. The Charter deals with armed force, but does not cover economic or other coercion. It may constitute an intervention in internal affairs depending on the circumstances, but such an intervention does not lead to the invalidation of the Treaty. The solution chosen is good, invalidating the treaties is extremely serious and must be reserved for flagrant cases. Admitting economic coercion is opening the door to degrees. Foreign policy is made up of coercion; wanting to incorporate all these games and allow economic pressures to be invoked is a door that was not opened in Vienna and did not lead to the invalidation of a treaty.
In reality, coercive treaties will be treated as null and void only when the United Nations and the law of force are relatively strong and well. When important States begin to use this means to have treaties signed and ratified, this, of course, is clearly harmful to provisions such as articles 51 and 52. In the case of peace treaties such as Dayton's, we accept that this is not a prohibited coercion, because it is in the nature of the state not to have much choice in signing the peace treaty. It is forbidden to take advantage of its predominant position to extort advantages, if in a peace treaty it is provided for an annexation of territories this would be considered as a form of coercion contrary to Article 52. It is incumbent upon the organs of the United Nations to lend strength to these arrangements.
Article 53 is the domain of ius cogens also known as imperative law. The ius cogens is a concept that has been the subject of much debate, the great question of international law. Here we are in the law of treaties, Article 53 relates to the lawfulness of the object itself. Here we are at the other end of the spectrum, the point is the lawfulness of the object.
Can a treaty relate to any object?[modifier | modifier le wikicode]
If any object is lawful then any treaty is lawful, because the object is indifferent.
The doctrine of ius cogens is the denial of this principle, it is considered in article 53 that there are certain illicit objects, so that the treaty is null and void when it relates to such intrinsically illicit objects. The dispute continues over the definition of these humanitarian and compassionate items. Thus, there are peremptory norms that cannot be derogated from by a treaty.
To sum up, the ius cogens is a question of the lawfulness of the treaty's content, there are certain objects that make the treaty null and void, in legal terms it seems that there are certain international standards that are imperative, which means that they cannot be derogated from by special agreements. Customary law normally weakens before treaty law. General law may be derogated from by a particular law. The ius cogens blocks the operation of this rule, one can no longer derogate from the general rule of customary law because this rule is imperative, it cannot be replaced by another. If a rule prohibits genocide and it is imperative ius cogens, if a treaty is intended to derogate from that rule, the treaty will be null and void. If the rule had not been mandatory, the treaty would have applied as a matter of priority. This is why Article 53 is included in the chapter on the invalidity of the Treaty.
The wording of the various provisions differs. Sometimes we are told how in article 48 a State can invoke an error or loosen itself from it; there are other terms such as in article 52 is "null and void", or in article 53 is "null and void".
There is clearly a difference between absolute nullity and relative nullity, also called annulability.
What about this absolute nullity / relative nullity distinction?[modifier | modifier le wikicode]
The grounds of relative nullity are grounds which are in the particular interest of a State, a State may, when it finds a ground for annulment of the treaty, invoke the ground for annulment of the treaty or not invoke it in order to maintain the treaty. He may invoke it if his personal interest has been prejudiced. Once you realize the misrepresentation, you can repudiate the treaty, you can also decide that it is convenient for your own interests.
The State has the choice, the right gives it a mere power to invalidate only if and only if its interests have been affected.
In Articles 51,52 and 53 of the Vienna Convention, these are matters of collective interest, which is why nullity is here absolute, which means that the legal order considers this treaty to be null and void, for the legal order this treaty does not exist.
It would be surprising to say that a treaty that organizes the slave trade until challenged by a contractor would be in force and valid.
There is another problem in the question of the validity of treaties, which is that of divisibility in Article 34.
In some cases, a reason for invalidating a treaty may concern only part of it or even only one provision. The question arises as to whether the invalidation of the treaty can lead to the invalidation of only a part of the treaty while safeguarding the rest of the treaty, that is the question of divisibility.
Can we split or not?[modifier | modifier le wikicode]
Answers are given in Article 44.
The general rule is that divisibility is only established under certain restrictive conditions. The treaties are to be safeguarded, but it is not assumed that they are divisible unless certain conditions are met, they are set out in §3 of Article 44.
The main issue is whether the treaty can be reasonably maintained without the clauses that constitute the cause of invalidation, if in other words there is not an imbalance, because a treaty is normally equilibrium, that is precisely why divisibility is not allowed.
Article 45, a party loses the right to invoke a ground of relative nullity or a ground for terminating or suspending the application of a treaty if, after learning of the ground for invalidity of the treaty, it continues to apply it.
Paragraph b, if a cause of invalidation referring to article 48 is knowingly established and is not invoked as continuing to apply it, then the treaty is deemed to have been acquiesced in. This is a reasonable period of time in which to react, as high contractors need to know what to do at a given point in time. Article 45 applies only to annulable treaties.
Only the state is supposed to know if it discovered its mistake. It can happen that you don't know when a mistake has been discovered. However, we are mistaken.
Usually these motives appear in diplomatic correspondence, and it is at this point that we realize that we have made a mistake. As long as no one stands up to a mirror, you can't see that you've made a mistake; diplomatic correspondence allows you to see when you discover a cause of voidability.
For Article 44, it is the same thing: the indivisibility of a treaty can only be established when the treaty is voidable. In the case of treaties that are absolutely void under articles 51,52 and 53, there is nothing to be saved, nullity is for the entire treaty, parties who want to defy public policy by challenging article 44 § 5 are punished, or indivisibility is not allowed.
Third countries[modifier | modifier le wikicode]
Third States are all States that are not party to a treaty, which means that they have not ratified or acceded to it, in other words, that are not legally bound by the treaty.
A party to the treaty is a State bound by the treaty, third States are all those outside the treaty.
The question is what is their legal status vis-à-vis the treaty to which they are not a party?
If they become a party, the issue no longer arises because they are no longer third States, there are also treaties where there is no third State for universal conventions such as the Geneva Convention on International Humanitarian Law, which is almost universal.
These rules are found in sections 34, 35, 36, 37 and 38.
The principle is self-evident that treaties are binding only on States parties." Commitment "means that treaties confer rights only on the parties and impose obligations only on the parties.
The third State being outside the Treaty cannot be subject to any obligation in relation to a treaty which is for it res inter alios acta i.e. something done by others, but it cannot also benefit from rights in relation to a treaty.
This is what we call the relative effect of treaties, which is similar to the relative effect of contracts in domestic law. This is not to say that treaties concluded by States do not have indirect effects on other States, such as a treaty forging a military alliance and forcing States to build counter-allies, but rather domino effects. Alliance treaties do not bind, confer rights or impose obligations on the third State. The Treaty neither benefits nor applies to third parties.
However, there are exceptions to this rule. The principle is clear, but the exceptions merit comment. They are found in sections 35 and 36.
These exceptions are all based on the collateral agreement technique, what lawyers call a collateral agreement. A collateral agreement is an agreement in addition to the treaty.
We have a multi-party treaty on the management of a shipping canal. Now we want to either impose an obligation or confer a right on a third party; the collateral agreement technique means that if the third party accepts the obligation, then it will be applicable to the third State, but that party does not become a party and bound by the treaty as a whole, the collateral agreement relates only to the consent to enjoy a particular agreement or to have the third party enjoy an obligation. If the third party accepts the rights and obligations, they will become applicable by treaty, requiring consent.
The Vienna Convention, which is rational, distinguishes between rights obligations, two different provisions in articles 35 and 36.
Article 35 deals with the obligations that the parties to a treaty try to impose on a third State, the Vienna Convention provides for it, this category is provided for, but under very strict conditions, since acceptance of a third State in relation to the obligation sought to be imposed on it must be expressly made and made in writing.
We believe that it is so unusual that a prestigious sovereign state accepts an obligation without consideration, just a charge without having a collateral benefit, it is so exorbitant that we are willing to accept it, but we want to make sure that it really wants it.
Article 36 deals with rights, one tries to confer a right on a third State, it is the stipulation for others of French law. Here the Vienna Convention is much more flexible, requiring the consent of a State, namely the collateral State, but in this case its consent is presumed.
What is required for a right to apply to a third State is that the parties to the treaty must have intended to confer a subjective right and that right must be accepted by the third State, but acceptance is presumed if the third State does not expressly state that it does not want it.
We assume that States want to have an advantage without compensation, we don't put any difficulties in their path, we assume that States accept the benefits because it is a fact of life, individuals accept benefits without compensation.
It is not uncommon for rights to be conferred on a third State, as is the case in Article 35 § 5 of the United Nations Charter, which provides that any State may lead to the United Nations General Assembly or the Security Council in the event of a dispute which could jeopardise international security; a non-member may bring a dispute to the attention of the social organs of the United Nations even if it is not a member of the United Nations. If they do so, they are willing to avail themselves of Article 35 § 2.
After the Napoleonic wars against a weakened France, the powers gathered in congress in Vienna had obtained that the city of Geneva should be opened up, so a free zone was established or there were customs advantages for Switzerland when it imported goods from the hinterland. Switzerland was not a party to the final act of the Vienna conference, and the powers imposed this burden on France.
Interpretation[modifier | modifier le wikicode]
Interpretation is an absolutely crucial function. When a treaty is entered into for the purpose of applying it, and applying a treaty presupposes having understood it and knowing what needs to be done, assuming that one has intelligence, that is, an understanding of the provisions. This presupposes an interpretation of the provisions, particularly when doubts may arise as to the true meaning and scope of these provisions.
Matters are also governed by the Vienna Convention in articles 31, 32 and 33.
Article 31 contains the general rule, Article 32 contains certain additional means of interpretation and Article 33 deals with the problem of multilingual treaties.
Article 33 relates only to treaties adopted in more than one authentic language, it does not concern cases where the case has been concluded in only one authentic language, in which case the treaty is concluded in only one authentic language which is the only authentic language, as specified in the final provisions of the treaty.
If you have several authentic languages, you may have different interpretations. The United Nations Charter has five authentic languages, divergences may appear. Article 33 explains the principles to be applied in this case. However, the provision is somewhat problematic because the practice is richer.
What is interpretation? What does it mean to interpret?[modifier | modifier le wikicode]
This is a fairly typical function for the lawyer, because their work consists largely of understanding and interpreting texts.
The text takes on its true meaning and reveals only real problems in the face of concrete problems. The real problems will only be encountered in the application, we are going to have quite unexpected cases that will appear and raise questions, so we have to face this situation that requires interpretation.
In this case, interpretation is an operation of the mind that seeks to determine the legal meaning of a provision.
What are the concepts and rules of treaty interpretation?[modifier | modifier le wikicode]
The first thing to know is the meaning of some concepts:
- we call authentic interpretation,
the interpretation emanating from all parties to the treaty. It may indeed happen that the treaty once concluded gives rise to doubts as to the meaning of certain provisions that appear, the parties to the treaty exchange views on them and determine the meaning of a provision. Thus, the parties determine how the provision is to be interpreted and, on the other hand, an interpretation can lead to agreement added to the treaty.
The parties act in concert and are the masters of the treaty, as they can modify it they can interpret it and say the correct interpretation. If all parties agree, then this interpretation is binding on the judge.
- By extension, it is called an almost authentic interpretation,
the interpretation of a treaty by a large majority of the treaty, but not unanimously shared; this interpretation is not binding on the judge, but may be inspired by it if a generally accepted interpretation exists and can be determined.
it should not be forgotten that the interpretation is first and foremost that of the text to which the subject has subscribed. When we conclude a contract in writing and want to perform it, it is relatively obvious that we ourselves will first interpret it as a consequence of understanding the contract.
Self-interpretation is the interpretation by each of the subjects in contrast to authentic interpretation, here each party individually interprets the treaty in the way it is interpreted according to its interests and prejudices. 99% of the cases of interpretations are self-interpretation and self-interpretation.
The only difference with domestic law is that in domestic law there is the guarantee of a judge who can deliver his authoritarian interpretation. In international law, because of sovereignty, we do not have a judge's guarantee, nor do we easily come to a judicial interpretation. If for disputes in domestic law interpretation is the rule, in international law it is the exception.
What exactly are we interpreting? Are we interpreting the text of the treaty above all, or are we looking first and foremost for the will of the parties?[modifier | modifier le wikicode]
For a long time it was a controversial issue, the two do not necessarily or frequently oppose each other.
The text is normally the best expression of the parties' will, the text and the will ideally meet. However, the text sometimes does not perfectly reflect the will of the treaties.
The opinion of jurists differed, some were in favour of the text even if it did not reflect the real will of the parties; they argued with legal certainty, the will hidden in the internal forces once it is not sufficiently manifested then it is not tangible enough to stick to it.
The text is much more certain, we can read it; the States that become party to the treaty later on knew that the text was not the interpretations.
Other jurists felt that prioritizing the text over the real will is ultimately giving priority to the means over the end. The end is the will, since a treaty is the consent of the parties and what they wanted to do is to pervert the order of things rather than give more weight to what is the basis and purpose of the treaty.
The Vienna Convention decided in favour of the text. All the means which recall the will of the parties have been relegated to Article 31 and its last paragraph as in the preparatory work, i. e. the debates at the conclusion of the treaty, this was decided in the process of interpretation of the Vienna Convention in Article 32. Complementary means of interpretation are not a primary means which is the text.
The reason for the Vienna Convention is legal certainty. The drafters of the Vienna Convention were aware that in international law there was no need for a judge to rule on the provisions.
A judge is an impartial and independent person who is capable of giving an objective meaning to the provision, in international cases it is self-interpretation which will prevail; the writers' fear was that if one relied on a will not specified in the text one opens the way to a manipulation of the treaty by the strongest.
Any liberty in relation to the text always means that the strongest can do as he wishes, the treaty is the one that constrains the most, because the most powerful cannot reinvent the text, it directs at a certain point.
Par conséquent, le plus sûr est le texte, comme dans les affaires internationales il y a beaucoup de fluctuations, d’incertitudes, de luttes de pouvoir et d’auto-interprétation, on a estimé que le texte été beaucoup plus sûr.
According to Beckett, "the use of the parties' common will is unrealistic inasmuch as" it is almost certain that the dispute will involve an element which [the parties] have not imagined "..
How is a treaty interpreted?[modifier | modifier le wikicode]
The main rule is contained in Article 31 §1.
There are four elements in this formula, four alternative elements, four approaches that give a better understanding of the meaning of a provision:
- good faith;
- ordinary meaning;
- the context;
- object and purpose.
Interpretation is a matter of flexibility, of flexibility, it's art, that's why the right interpreter is not only a good lawyer, but also someone who has experience in legal matters with practical experience because it's only then that he can give intelligence to these elements and propose an interpretation in full knowledge of the facts.
What makes the difference in the quality of an interpretation is the ability to capture the entire legal environment of the problem and to integrate a subtle interpretation between firmness and flexibility. It is an art that one acquires little by little in one's life as a lawyer.
These different elements are not separated from each other, but interact. Interpretation is a matter of weighting. It is therefore a matter of integrating all the elements that must act together in a given case, of using them in such a way that they can be used consistently, and of counterpointing them.
Ordinary meaning also means natural meaning[modifier | modifier le wikicode]
Lawyers of all kinds on the continent use the term "grammatical interpretation", which means interpretation according to the text. The interpretation according to the ordinary meaning of the text is also the grammatical interpretation in the Latin sense of the term, i. e. verbs, syntax and signs.
The ordinary meaning of the text to which the Vienna Convention attached the greatest importance is not an absolute meaning of the terms, it cannot be said that such a word necessarily has an ordinary meaning, but it can sometimes be said in the context, it is the most reasonable sense, the one that surprises the least, the most usual in a given context. They will be interpreted according to these ordinary meanings.
Why is it preferred?
It is a question of externalizing the will and legal certainty, we don't want to surprise the parties by hearing senses. A special meaning is not excluded, that which deviates from ordinary use is a meaning which is likely to surprise, such a meaning should not bind unless it is really intended to refer to §4 of Article 31.
Thus, the special or particular meaning is only if the parties wanted to deviate from the ordinary meaning. One can deny the ordinary meaning that in the context of knowing what the parties should or could have understood in the context, what can be understood in good faith.
In the Eastern Greenland judgment in a dispute between Denmark and Norway, the case was referred to the Permanent Court of International Justice, which delivered its judgment in 1933..
In the pleadings it had been argued by Norway that some of the conventions applicable to Greenland actually meant only part of Greenland, namely East Greenland. Norway argued that although these conventions use the term Greenland, it meant only part of this continent.
The Permanent Court replied before the Vienna Convention, Series A bar 53 page 52 that "the natural meaning of this term is its geographical meaning as it appears from the maps, if Norway maintains that these treaties use the word Greenland in a special sense it is up to it to demonstrate it"; however, Greenland has not demonstrated this.
The ordinary meaning is meant to preserve the essential meaning. If the parties had wanted to deal with East Greenland, they would have dealt with East Greenland. However, it is not excluded that imperfect expression may occur, but this will not be taken into account under the ordinary meaning rule.
If the interested parties can show that when this treaty was concluded that the parties understood a special meaning then it would prevail, but only when all the parties agreed to give Greenland a special meaning at the time of the conclusion of this treaty.
Context[modifier | modifier le wikicode]
This is also referred to as systematic interpretation, meaning that it is interpreted in the system as a whole, i. e. in context.
Context is an equally essential and intuitive rule. If we look for the meaning of a word contained in a convention, we will not immediately look at the word and ignore everything else, we will do the opposite. First we will look at the sentence in which the word is inserted, the paragraph, the layout, the section, etc., and try to see if the systematic aspect of things can shed light. Context can sometimes make it possible to shed significant light on the meaning of a word.
Good faith[modifier | modifier le wikicode]
It is an interesting element, good faith essentially means two things; first of all, a temperament to know that one must privilege the reasonable sense rather than an excessively literal meaning, which is similar to the ordinary sense, because one seeks the most reasonable meaning in the context. The reasonable meaning of words requires good faith, so ordinary sense and good faith join and oppose an excessively literal meaning. The terms should not be taken in absolute terms, but in context.
Good faith also has a more specific meaning because it adds something specific. Good faith sometimes requires repudiating interpretations that attach themselves to the letter in order to repudiate the spirit. In Corinthians 3:6 says "the letter kills, but the spirit gives life".
Sometimes there are interpretations compatible with the text.
Reported by Vatel and Grotius, the Spartans had concluded an armistice with another Greek people in which it was written that for 30 days there would be the silence of arms. After the thirtieth day during the night the Spartans attacked. Confronted with the armistice agreement, they argued that the agreement had been honoured because it was for 30 days, not 30 days and 30 nights. This interpretation respects a literal meaning.
Obviously that was not the meaning of the terms, it was understandable to everyone by virtue of good faith.
The Germans had argued at the world premiere that in war law, the 1914 declaration of The Hague prohibited projectiles containing asphyxiating gases, as they had used cylinders that was not prohibited.
Object and purpose[modifier | modifier le wikicode]
These are two different things, the object of the treaty is the subject matter subject to regulation; the object of the treaty is the purpose for which it is intended.
By way of example, the object of the treaty can be maritime navigation, because there are uses, consecrated terms, practices, if we know these uses and practices, i. e. the object of regulation, we are able to interpret much better.
The aim is the purpose, the will of the legislator. It has always been interpreted in the sense of purpose. The purpose is always an indication of how to interpret.
This is also called the teleological interpretation referring to the word "telo" in Greek (τέλος) which means "the purpose" so it is an interpretation in finality or in Latin a interpretation in ratio legis.
For example, in the case of certain United Nations expenditures, an advisory opinion of the International Court of Justice dated 1952, a question was raised as to whether the United Nations could conduct peacekeeping operations. Can the United Nations organize peacekeeping operations; nothing is certain, but the Charter has been interpreted in a flexible way; the arguments were to say that the purpose of the United Nations Charter was to maintain peace; the United Nations must be a means of inventing other means of maintaining peace, otherwise it will not be able to pursue the primary purpose of the Charter, which is to ensure international security.
By this example, we know that teleological interpretation is often a supporting interpretation, it is not an autonomous argumentation, because it provides additional support by providing teleological arguments. If we stick to the goal, we can rewrite a whole text.
There are maxims of interpretation[modifier | modifier le wikicode]
- interpretation in accordance with international law: this means that in case of doubt one interprets in a consistent manner so that there is no conflict between norms. This principle applies mainly in domestic law; domestic law will be applied in such a way that it is in conformity with international obligations. This rule also exists in international law, as has recently been the case law of the European Court of Human Rights or the Security Council's sanctions against individuals suspected of terrorism.
- useful effect: it is better for things to live than to perish; it is a rule in case of doubt, if one can interpret things in a way that is interpretative, but also in an interpretative way, because two interpretations are compatible with the text, however there is doubt. We can and must make our choice in favour of interpretation A if it turns out that interpretation A guarantees a meaning to the terms in question while interpretation B deprives it of any effect. For example, in a treaty we have a word X, by interpreting it as A it makes a difference in the application of the provision; if we apply interpretation B the word no longer has any meaning; in this case we will not assume that interpretation B is correct.
- contrario argumentation
- argument by analogy
- argumenta fortiori
- similar argument
These are arguments that can be used as strong arguments in legal arguments when interpreting a provision.
For example, let's say that in domestic law we go to a lawn on which there is a sign saying that it is forbidden to walk on the lawn. You think you can't walk on the lawn, but you see someone walking into the lawn biking. So we tell him that he can't go in, he retorts that he doesn't walk, but rides his bike.
It is a question of interpretation; if we interpret this on the other hand, it means that the legislator wanted to prohibit only one thing, he does not want us to walk on it. If this is the purpose of the rule then going by car on the lawn is not a problem; conversely, if walking is forbidden then anything else is allowed.
If we interpret it differently, it is only a question of protecting the lawn, the legislator has not been very intelligent in specifying only "walk". At this moment one interprets by analogy and a fortiori, if it is forbidden to walk on the lawn then by analogy it is forbidden to cycle on it and a fortiori, because in view of the goal which is to preserve the lawn to walk on it the abyss to 10% and to go to cycle on it the damage to 30%.
This example shows that if the subject matter is understood differently, the same will be true for argumentation, because it is not possible to interpret it mechanically, the arguments occur in legal argumentation, they never give a solution, they must be understood in the sense of the text.
End of treaties[modifier | modifier le wikicode]
Treaties are made to last, which is why in antiquity they were engraved in stones, but they are human works that do not last forever.
There are moments and events leading to the termination of treaties.
These provisions are found in Articles 42 et seq.
The second paragraph of Article 42 states that "the termination of a treaty, its denunciation or the withdrawal of a party may take place only in accordance with the provisions of the treaty or this Convention. The same rule applies to the suspension of the application of a treaty."
This means that the termination of a treaty can only be pleaded for a reason recognised in the Vienna Convention or for reasons provided for in the treaty itself.
We do not wish to give States the possibility of inventing other grounds for terminating a treaty because it is a sensitive matter; if a State could plead termination of a treaty by its inventions, it would be contrary to the pacta sund servenda principle. In international law, the treaty plays the role of the law.
The reasons for completing a treaty can be classified according to different criteria: the simplest and most justified criterion is that of distinguishing between subjective and objective grounds for extinguishment.
These two terms always have the same meaning in legal science. When subjective considerations are mentioned, one always aims at something having to do with the will, subjective is what is voluntary, in the case of treaties there are certain motives for terminating a treaty that flow from the will of the parties. The objective criteria are independent of the will of the parties, here are grounds for extinctions based on external circumstances and not based on the will of the parties.
Article 42 §2 uses different terms: termination, denunciation or withdrawal. So there are three terms:
- extinction: termination of the treaty, it is no longer at a certain point in time, it is extinguished.
- denunciation and withdrawal: means of terminating a treaty vis-à-vis certain parts of the treaty. The treaty continues to exist, simply it will no longer bind certain parties, the personal scope of the treaty will have been narrowed.
In both cases, there is the cessation of the application of the treaty for certain States and that is why the Vienna Convention regulates these terms together; the legal problems are the same; the danger to the principle of stability of treaties is the same.
- Subjective reasons linked to the will of the contracting parties:
The vast majority of these grounds are summarized in section 54. It is possible to have express consent of the parties to terminate an earlier treaty. This express consent may take the form of an abrogatory agreement, i. e. an agreement between States that a specified earlier treaty is no longer in force from a certain date; this express agreement may take the form of a new treaty on the subject matter of another treaty as set out in the preamble of the new treaty.
The new Panama Canal Treaty of 1977 replaces the 1903 treaty, the abrogation of the old one is inserted in the new treaty, but the new treaty regulates the matter, it replaces the old one. It is also possible to have express consent to terminate an old treaty informally, i.e. without entering into a new agreement, i.e. without abrogatory or replacement.
In 1946, the Assembly of the League of Nations met for the last time, taking the decision to dissolve the society with effect from the next day. A resolution by the Assembly to dissolve the League of Nations was legally tantamount to terminating the League of Nations pact. The League of Nations pact is terminated by an informal agreement.
Sometimes there may be implicit consent not to continue the application of an old treaty. Some of the old Russia's trade treaties were not continued after the Bolshevik revolution, since Russia has radically changed putting an end to the application of liberal economic agreements, especially with Japan, it is an implicit consent to end the treaty.
The resolutory clauses fall under Article 54 is a clause inserted in the treaty intended by the parties that says that after a certain period of time has elapsed or when a certain event occurs, the treaty must cease to be in force. Sometimes a treaty is concluded with limited temporality and can be renewed. This means that the treaty is in force for the specified period of time and if it is not renewed, the treaty ceases to apply at the end of the specified date.
Some treaties say that if certain events occur, the treaty must cease to apply, as is the case with alliances.
It should be remembered that withdrawing from a treaty means withdrawing a party to the treaty.
Can a treaty be denounced?[modifier | modifier le wikicode]
Answers are given in articles 55 and 56 of the Vienna Convention; the principles are:
- A treaty which makes no provision for denunciation, i. e. it does not have denunciation clauses inserted in its text, is considered, except for a few examples, not to be denounceable. The principle is that a treaty cannot be denounced by a State party. The analogy with contracts does not work, because treaties are the substitute for the law; treaties are not negotiated for several years to give each State the possibility of denouncing the treaty when it does so. A treaty that is not denunciable is not eternal, one can always modify a treaty, one can conclude special agreements that have priority over the general treaty, or even make an amendment with all the other parties to the treaty.
- Denunciation is permitted if the treaty itself provides for and permits denunciation. Treaties may therefore contain a clause covered by the will of the parties according to which States parties to the treaty may denounce them under certain conditions, such as, for example, the 1976 Outer Space Treaty in article 16, which provides that it may be denounced under certain conditions. A whole series of treaties have clauses of this kind that can be applied and enforceable through negotiation. For treaties between Switzerland and the European Union, Switzerland has inserted a negotiation clause depending on certain circumstances.
- If the Treaty is silent on the possibility of denunciation, if it does not contain denunciation clauses, there are exceptions resulting from Article 56. There are two exceptions:
- if there is an implicit intention to permit the denunciation of a treaty, it may be exercised, i. e. the parties to the treaty at the time of the conclusion of the treaty have subsequently accepted an denunciation, but have not written it in the treaty; if such an intention can be proved, a denunciation power may be enjoyed. This is the case of the Charter of the United Nations, it is established that a State may denounce the Charter of the United Nations, according to Article 108 of the Charter of the United Nations a resolution may be imposed on a Member State. In San Francisco was said that denunciation is allowed, but this was not written following the experience of the League of Nations which had a denunciation clause; all dictatorial powers left the League of Nations in order to be free from their acts.
- denunciation is permissible if, as stated in article 54 of the Vienna Convention, it is intended that the parties should admit denunciation. Some treaties are so fluctuating in nature that it is hard to imagine that States would not want to allow them to leave. The classic example is alliances, which are based on a series of political affinity criteria that give meaning to the alliance. A change of regime can change the meaning of an alliance and therefore the nature of the treaty is such that it justifies denunciation. In case of doubt, denunciation cannot be assumed since the general principle is that a treaty which does not provide for denunciation is not denunciation, the interpretation is strict.
Denunciation does not put an end to the treaty, simply the State withdraws, but in the case of a bilateral treaty denunciation puts an end to the treaty, however this is possible in the case of a multilateral convention; in the case of the 1948 convention against genocide, there is in article 15 a quorum of 16 States, if denunciation were to result in a withdrawal from the quorum, the treaty ceases to apply. If Switzerland denounces the bilateral agreements with the European Union then they would cease to exist.
- Objective reasons provided by law which do not depend on the will of the parties:
There are potentially a whole range of objective grounds, such as, for example, Article 61, which deals with material impossibilities of executions. In some cases, a treaty may be concluded on an object that can no longer be realized, such as an island that is ceded to a foreign State but is swallowed up by the sea, in which case the very object of the treaty disappears.
In domestic law, this is much more frequent, in international law it is rather rare, and therefore it is a ground that does not need to be particularly discussed.
Armed conflict suspends and very rarely terminates certain treaties; the Vienna Convention does not regulate it particularly, as this is not covered by the law of peace and the law of war. Succession of States is also a reason for terminating a treaty.
Two grounds are found in article 60 of the Vienna Convention, which deals with the termination of the treaty following its violation, and article 62, which is the fundamental change of circumstance.
In Article 60, it is the case of a treaty violated by one party, must the other party continue to execute it?
As long as the treaty is not suspended, that is the case. The question is precisely whether the violation cannot give the injured State the right to suspend or terminate a treaty. In other words, the breach may possibly be grounds for suspending or in some cases terminating a treaty.
This will be appropriate for reasons of practice and fairness: the injured state is recognized to do something.
The title of section 60 isTermination or suspension of the operation of a treatyas a consequence of its breach. There is a rather rich practice.
What is the applicable regime?[modifier | modifier le wikicode]
First, it should be noted that article 60 is based on a fundamental distinction between a substantial breach of a treaty and a mere breach of a treaty. There are two types of violation:
- material: serious breach
- simple: violation that is not a violation
A material breach gives rise to certain rights.
Substantial "is not a legal term, it is a term that must be defined, there must be a definition otherwise we would not understand anything and it is found in §3, it is" a rejection of the treaty not authorized by this Convention; or the violation of a provision essential to the achievement of the object or purpose of the treaty ".
The repudiation of the treaty is a total rejection, one does not apply the treaty, it is obvious that it is difficult to find a more serious violation than that of not applying anything.
In the event of a material breach, there are certain options, in other words, if the breach is material, the treaty may be suspended or terminated under certain conditions.
If the breach is not substantial, it is a less material provision, and the injured party was not given the opportunity to terminate the treaty. In the case of a non-substantial violation one is rejected in the field of State responsibility, i.e. the international responsibility of States by seeking reparations or otherwise; the injured State must seek reparation, but cannot use the context to terminate the treaty.
The Convention tries to protect the treaty either from a small violation or to prevent abuse.
In the case of bilateral and multilateral treaties, what can be done is slightly different. That is why the Convention distinguishes between the two cases.
In the case of bilateral treaties, in the event of a substantial breach, the Convention recognizes that the other State party which is automatically the injured party either to suspend or terminate the treaty if the breach relates to a specific object of suspension or termination with effect ex nunc, i. e. without retroactivity, is not in the area of treaty validity. There is the procedure laid down in Article 65 which must be followed. It is a relative means for the aggrieved party to terminate the treaty, because it is a stronger means than finding without a judge.
For multilateral treaties, it is more complex because there are more situations. Thus, the Vienna Convention distinguishes three possible scenarios:
1) Article 60, paragraph 2 (a), what States parties to the treaty may do except the violator: If we have all concluded a treaty, is that one party violates the treaty; if everyone agrees, either the treaty may be suspended or terminated in whole or in part, either with respect to the violator or between all parties.
- the first case would be to say "he violated the substance of the treaty", we will simply exclude the rapist from the treaty.
- it may be decided to stop, because the violating State may have become aware of problems inherent in the treaty, in which case it may be possible to exercise the power to terminate the treaty by consensus.
2) the case of the part that has been especially affected or affected
The first question that arises is: what does it mean to be a party specifically harmed by the violation?
In some multilateral treaties, we have situations in which different States parties to the convention can be distinguished by the violation of the Convention. In the case of a multilateral treaty on extradition, i.e. mutual assistance in criminal matters, there is a case where extradition must be "implemented by State A vis-à-vis State B". Assuming that the accused person is not surrendered, then all parties are affected because the breach affects trust, there is legitimate fear about the scope and life of the treaty; however, only one party is specifically affected. The Vienna Convention confers certain rights on the affected State: these rights are far below the rights that the Convention grants to States acting by mutual agreement under letter (a).
What can the specially affected part do?
There is the possibility of invoking the substantial breach only to suspend the treaty and not to terminate the treaty in whole or in part and only with respect to the violating State.
In other words, what can be done as a specially affected party is that the treaty can be suspended with respect to the violator in order to put both states on an equal footing only with respect to the violator.
We see a considerable difference: it cannot end the treaty, but only suspend it. One should always consider unilateral allegation. The convention considers that when all other parties act in concert, the risk is practically nil. On the other hand, the party especially affected is all by itself, one cannot know the truth of its allegations. This would open the door to abuse, which is why the substantial breach is quite sufficient. 3) the third case is Article 60 (c), they are integral treaties, treaties that are not bilateral with any party not specifically affected.
A multilateral extradition treaty is nothing more than the sum of an extradition treaty. The multilateral treaty can be divided into a multilateral treaty, exactly by [n*(n-1]/2
Let us take a treaty on demilitarisation or denuclearisation of a certain region in the case of peaceful denuclearisation. All States undertake not to introduce nuclear weapons into a given area in a region. If a State inserts a nuclear weapon, there is not a specially affected State, all of them are specifically affected.
It is an objective situation that changes things. This is the typical example of a treaty whose structure is different from a bilateralisable treaty.
Each State Party outside the violator; each party may declare suspension of the treaty and only suspension of the treaty in whole or in part vis-à-vis all other parties to the treaty.
What changes is that all states are especially affected and basically all can suspend the treaty. What also changes is that the treaty is suspended from all others, including the violator.
As each State can do individually, there is no more than suspension.
Two exceptions should be mentioned.
In paragraph 4 are the provisions which, in the treaties, are to be applied in cases of violations or in cases which include the violation of the treaty, such as, for example, the provision on the settlement of disputes stating what can and must be done in the case of a dispute over the application or interpretation of this Convention. It is said that each party can bring a case before the Court of Justice, which is an attractive clause for dispute resolution.
One party says "you violated the treaty" while the other denies; it would be absurd if in this case the clause referring to the International Court of Justice saying that this clause was suspended following the termination of the treaty were not applied.
It is much more logical to say that the powers given to the State to terminate or suspend a treaty have been inserted in the final provisions; therefore, the clause giving jurisdiction to the International Court of Justice is not suspended, paragraph 4 is applied.
Paragraphs 1 to 3 of Article 60 on the consequences of a material breach of a treaty apply only in the case of material breaches.
The Geneva Conventions on the protection of persons in the event of armed conflict or certain human rights treaties, for example, cannot be suspended or terminated because they are treaties protecting third parties. Since these are not bilateral benefits of States, it is not permitted to suspend or terminate treaties.
There are certain standards where we cannot measure ourselves according to the principle of reciprocity, reciprocity does not apply in these areas even if it is a great principle.
Clause 62 deals with the fundamental change of circumstances, i. e., the treaty is concluded at a given time on the basis of certain circumstances, facts or events. After the treaties have been concluded, there is a radical change in circumstances, for example, an economic treaty is concluded on the basis of an exchange based on fixed to floating exchange rates.
Can we consider that the treaty is over? This is a complex and debated issue, but never since 1969 has this provision been successfully implemented.
This provision says "a change of circumstances cannot be invoked to terminate a treaty"; things always change. This principle is that a change in circumstances does not count as grounds for terminating a treaty, but there are exceptions that are cumulative conditions:
- the circumstances at issue must have existed at the time of the conclusion of the treaty and the parties must have given their consent to be bound by the treaty solely with respect to the existence of those circumstances. Circumstances exist at the time of ratification of a treaty between two States depending on circumstances, but which change fundamentally thereafter; an imbalance often arises unfairly.
- the change of circumstances must not have been foreseen by the parties.
The custom[modifier | modifier le wikicode]
It is quite specific that a society, especially the international society, should be governed by customary law. We are not accustomed to customary law, because in domestic law it has a subordinate and marginal role.
This is not the case in international law, where there are no legislators and laws in the formal sense, except for treaties, so there is a right emerging from practice and precedents, i. e. States find ways to deal with things that serve more or less everyone, creating a minimum of legal certainty that gradually leads to the alignment of States with practice.
For a long time international law has been fundamentally customary, and it is only recently that we have a series of multilateral conventions worthy of the name. This is a recent phenomenon, previously the common law of customary law.
A few comments are helpful:
First, in treaties, the essential thing for States is to have legal certainty and stability, which is why the violation of treaties is not prohibited except for human rights treaties. Violations are rare because States seek security so that they can count on what others will do.
In customary law, we don't really seek stability, because it moves much more often, a right stemming from the practice moves regularly. We are looking for flexibility, the international society is moving and evolving at an increasingly rapid pace over the last two or three hundred years; there are new conditions, the conventions are very difficult to modify, if we do not have a unanimous agreement we are each time in front of a mountain.
The conventions do not guarantee flexibility; we need a safety valve so that the law stays close to the facts of international society and follows the contours of reality.
If we add the sources, we have both the cluster of stability and the pole of flexibility interacting.
Secondly, the second point is to provide general international law. The general law is almost exclusively customary law, the treaty law of general law.
What is meant by "general law"?[modifier | modifier le wikicode]
It is a right that applies to all States regardless of everything else, it is in that sense where the law is general or common, a treaty will never apply to any other party than those that have ratified the treaty; customary law applies to all States of the world, it is a rule that applies to all at the same time.
This indicates the residual function of custom: when analysing a problem in international law, the first thing to do is to check whether there are applicable treaties or particular law. Once it has been ascertained whether there is no particular law, applicable treaty, acquiescence or diplomatic note, it is not that there is no applied law, but it automatically reverts to general international law.
If there are no rules with priority according to the lex speiciali rule, one falls back into general law. Customary law provides a residual basis if there is no specific rule to be adopted for certain situations that avoid a number of loopholes.
Customary law may not provide rules, but it has a gap-filling function that is left by the particular law, as it is always residually applicable.
What is custom?[modifier | modifier le wikicode]
A simple equation is always used to define this concept: the customary must is said to be made up of two elements, it is the "doctrine of both elements":
- opinio juris
The custom would be the conjunction of a practice and a juris, i.e. an opinion on the law; both of these elements are cumulative, requiring a practice and a subjective consideration.
Practice: objective element[modifier | modifier le wikicode]
The general rule is that it is state practice that counts, because customary international law is basically the practice of states, the other subjects have a much lesser voice.
In States it is now accepted that all organs of the State can contribute to customary practice. Previously it was sometimes said that it was only the practice of the Head of State and the Minister of Foreign Affairs that mattered, but it is completely outdated. It is mainly state practice that matters, but it is not the only one, however it is the most important, because the last word always belongs to the states.
In humanitarian matters, the ICRC's practice has a certain weight, but does not bind States; the practice of the United Nations on peacekeeping operations is a fundamental practice for the legal framework of peacekeeping operations; the rules on peacekeeping operations have been formatted in a very significant way by the various secretaries-general of the United Nations. It is the Secretary-General who lays down the rules and therefore the various secretaries of the United Nations have contributed to a practice on peacekeeping operations that has led to a practice accepted by States.
What is the quality of the practice? What is a practice?
This is a question of the intrinsic quality of the acts. It will always be said that the practice consists of three elements:
A practice must, in other words, be consistent and uniform and general in order for a rule of customary law to emerge as a general international rule.
By practice, we mean either act or omission, a practice can also consist of an act i. e. a "do" or an "omission", i. e. a "nondoctor".
There are a whole series of negative customs based on omission.
In the law of the sea, the rule that a territorial State in which a foreign ship anchors cannot prosecute crimes on the ship has gradually emerged, this is reserved for the flag State. The territorial State shall refrain from initiating proceedings under its criminal authorities.
However, a ship entering a State's port enters the territory and yet States do not prosecute, as they have found that they leave this to the flag State; it is essentially a flag State case that is valid only for crimes not having an impact on the territorial State. It is an omission that has given rise to a customary rule of abstention.
The purpose of the rule is an omission and this practice was based on abstention.
Second, it is considered that the practice may consist of physical acts or verbal acts; this means that the practice is either physical acts such as the arrest of a vessel claiming jurisdiction to arrest a vessel, but the practice is also verbal, i. e. declarations, for example to the United Nations General Assembly, which is a State practice.
A declaration is not only a matter of juris) but also of practice.
A final remark relates to the frequency of practice, which requires consistency, uniformity and generality; cases may be different.
Cases of diplomatic or state immunity are very common in domestic courts, almost every day a court will recognize immunity to a foreign state. This means that perhaps hundreds of precedents cannot be very numerous, because others may go in a different direction.
There are cases where there is very little practice, because the opportunities lack practice; the precedent depends very much on the circumstances being inserted in a principle of relativity.
Angaria is traditionally the requisitioning of a foreign ship for public service; the last precedent is a Chilean precedent of 1955.
The conditions for practicing angaria are so exceptional that there are perhaps three cases in a century; if in the three cases where the situation arises one does the same then it prevails as a practice.
It is a temporal element, it is the continuity of the practice in time, in fact, almost conceptually one cannot speak of a practice unless something repeats itself in time. A practice implies a succession of relatively similar acts.
If time is an indispensable criterion for a practice for conceptual reasons, it must be said that the constant criterion had its moment of glory in the past, whereas now it has failed in much smaller categories.
In the 19th century, it was rightly said that a custom was based on a long tradition or prolonged practice with the characteristic of antiquity. Trade between states was very rudimentary.
The reality today is that there is no requirement to participate in time; on the contrary, it is said that time can be short for the formation of a custom if the practice is uniform and consistent. We do not want to prevent States as legislators from adopting a practice; everything becomes a question of the quality of the practice if it is sufficiently uniform, followed, frequent; that is enough.
An example of a custom that has grown rapidly because it responded to the interests of States is that of the exclusive economic zone; maritime States have a coastal frontage, inland waters, a territorial sea and a possible continuous zone and an exclusive economic zone that extends to 2,000 coastal sailors.
It was officially launched in 1974 by Kenya, in 1985 the International Court of Justice in the case of the continental shelf between Libya and Malta explained that the practice was already customary. 1974 is the immediate starting point, probably towards the late 1970s - late 1980s it had become a practice because almost all states had declared an exclusive economic zone.
However, consistency is a quite relative element in the formation of custom.
Substantive criterion or condition, for there to be a practice that could give rise to a customary norm, the relevant acts must be sufficiently similar. In other words, every time a problem has arisen, the same thing has been done; in the area of convergence a rule is potentially established. Whenever there was a problem with a diplomat, there was a recognition of diplomatic immunity because he represents a foreign head of state.
If every time the problem has arisen we have done different things, then we do not have a practice, because it assumes a similarity. The International Court of Justice in the 1950 Diplomatic Right of Asylum case granted the Peruvian embassy a fleeing revolutionary; the International Court of Justice held that there was no special custom granted to Latin American countries on embassies.
In the 1950 Compendium at page 77, the Court concluded that the Latin American countries had done different things each time to ensure that these acts were sufficiently uniform, the Court spoke of fluctuation, disparity or even political motives.
The practice must be general and this makes perfect sense, for it is only if it is general that a standard of general international law can be produced. A general standard applies to all subjects of international law, i.e. all States; for a standard to be binding on all States of the world, a general practice is needed, for it would be tempting if a minority were to practice something, then all States would be bound by what a minority does.
"General" does not mean "unanimous "; there is virtually no practice that we can call frankly and completely" unanimous "except in a few rare cases, notably that of immunities.
The custom is not an agreement, however, the doctrine explains that the simple majority is not enough either, because we do not see how a simple majority could bind other States, because States are sovereign, they are not supposed to be subject to a majority. It is more or less concluded that a significant majority of States are needed.
If we approach the issue from a quantitative point of view, it is unsatisfactory, because it does not reflect reality, what is actually happening in this generality criterion is that a majority of States are practicing something, if a new problem arises and we do not know what to do, then the first ones confronted with this problem imagine practicable, useful, timely solutions, other States follow; So there are a number of States that practice and it is growing. What matters is not to count up to a certain number, but it is the reaction of the other States affected by this practice.
These states basically have two possibilities:
- object, because they find that this rule is not good and at this time the customary rule cannot be established because it is not generalized.
- if the other States affected by this growing practice do not object, there is more or less quickly a general practice in the absence of an objection.
The objection is the crucial element, it is a negative element, we look at objections. If we have a bloc of States that formulates an objection, there can be no customary rule if beyond a bloc there are dissenting voices in different blocs; then we can say that the customary rule has not been established.
The generality of the practice is measured by the States that practise and do not oppose it; the fundamental element is the absence of opposition.
It is stated in the books that objection and protest is a crucial element in law because it prevents customary rules from forming that prevent subjective situations from arising, and the State can protest against this fact. The objection to the virtue of preventing a situation from happening including the formation of a customary rule.
The International Court has invented the argument of particularly representative States whose adherence to the practice in question would be particularly important. This criterion is sometimes and sometimes not justified.
Opinio juris: subjective element[modifier | modifier le wikicode]
The element of theopinio juris est subjectif, It is an opinion, a voluntary projection, a representation when practice is a material fact.
This subjective element relates to practice, acts and omissions in practice. The essence of l’opinio juris is that the State which practices or fails to do the acts of interest to us considers that it is for legal reasons that it acts as it acts. The State practices and may do so for legal reasons, either because it considers that a legal norm has already been created or if it considers that customary law has not yet been formed; this practice it does or adheres to is a practice it legally recommends, and it is the practice it intends to adopt on the element in question.
The opinio juris has been justified by a negative function, because there is a whole series of practices in international life that are quite constant, but which are not legal practices, they are mere usages.
A use is something that is done for non-legal reasons. There is a whole series of acts that are invariably done, but where States are not convinced to act according to the law, but according to political freedom.
The opinio juris is a question of opinion non-juris that States leave outside the law.
The International Court of Justice has eloquently recalled in the North Sea continental shelf cases: "not only must the acts in question represent a consistent practice, but they must also testify, by their nature or the manner in which they are carried out, to the conviction that this practice is made compulsory by the existence of a rule of law. The need for such a conviction, i.Perhe. the existence of a subjective element, is implicit in the very notion of opinio juris sive necessitatis. Interested States must therefore feel that they are complying with what amounts to a legal obligation. Neither the frequency nor even the habituality of the acts is sufficient. There are many international acts, in the field of protocol for example, which are almost invariably accomplished, but are motivated by mere considerations of courtesy, expediency or tradition and not by the feeling of a legal obligation ".
In these acts, which are not motivated by a legal consideration, the scope of these acts remains simple usages which are non-binding grounds.
If a warship is encountered on the high seas there is a salutation ceremony, if a ship does not engage in the ceremony it will simply be considered rude.
The opinio juris is above all there to discard the practices that States would do with the conviction that is outside the law.
There are matters in international law where custom is more defined by the opinio juris than by practice. There are materials wherel’opinio juris has become the main criterion, particularly in the field of human rights and humanitarian fields such as torture, since there are too many acts of torture. If we follow the practice, there would be no prohibition of torture, but we take States by word rather than by deeds, that is to say the opinio juris.
What is the relationship between treaties and custom?[modifier | modifier le wikicode]
This relationship is multiple and rich. Treaties can either as a whole, or according to the norms they contain, position themselves in relation to customary law in three ways:
- a treaty may be declarative of customary law.
- a treaty may constitute a customary norm.
- a treaty can crystallize customary law.
- 1. treaty declaring customary law
This is the object of a codification agreement, a treaty that describes what already exists in customary law. We write the customs that we will codify, the treaty does not invent anything essential, it transcribes customary law in writing. To a very large extent, the treaty and custom are in any case aligned at the time the treaty is adopted; the treaty reflects customary law, both of which say the same thing. However, customary law continues to evolve in contrast to the treaty; the treaty has the function of declaring custom.
- 2. founding treaty
A treaty that innovates, it does not codify existing customary rules, but rather created rules that will become customary rules. Rule 54 of Additional Protocol I was a customary rule of the Geneva Convention.
- 3. crystallization of a custom by a treaty
It's a rarer hypothesis. We have a customary practice that is already relatively well-fed, but there is doubt as to whether the previous practice has already been established as a customary rule.
There is a conference at which States meet to discuss the subject of a treaty to which they accede massively. The last step between the practice and its customary character is considered to have been taken at the time of codification of the treaty; the treaty confirms the customary rule.
A custom was defined in the convention governing outer space at the time of the launch of Sputnik. At the 1967 Conference, the Convention on Outer Space was adopted and decided that it should become a customary rule.
What is the persistent objector?[modifier | modifier le wikicode]
It is explained to us that sometimes, on the basis of some explicit precedents that a State which has objected to the formation of a new custom, once the customary rule is established and continues to object, it is sometimes said that the new customary norm will not apply to the persistent objector as long as it maintains the objection.
One must be careful, because customary rules are dealt with in formation, if one accepts the doctrine of the persistent objector, one can ensure that the custom is not applicable to the objector.
A State may not be able to accept a new customary rule because of its constitution, by objecting to the custom it could during the transitional period in order to change the constitution against the application of this custom otherwise it could violate its constitution.
For Professor Kolb, there is a great deal of doubt about this rule, as it does not apply for the simple reason that a state is not going to say that it is a persistent objector. It is therefore unclear whether this criterion applies.
New states[modifier | modifier le wikicode]
There are some States that are born at a given moment and wonder whether it is their position on the previous customary rules.
What about the previous customary rule?
The new State is born in international law as it was at the time of its birth and is therefore bound by all the customary rules it finds at the time of its birth. It is impossible that each time a new State is born, it should be able to question the generality of the customary rule.
In the case of decolonization, many States are born with a different ideology, practising differently from the old States, by practicing a opinio juris that will change the custom. If a sufficiently large number of States practice a new rule, then the old custom disappears in favour of a new practice. It is because they are part of the system that they can change the custom.
The regional custom[modifier | modifier le wikicode]
There are also regional customs, i. e. special customs that bind only a few States in the world, but not all of them. The regional term is not necessarily relevant, because States are not necessarily neighbours, they can be from all over the world. The criterion may be neighbourhood, cultural or religious.
Regional or particular customs may extend to a custom practised in up to two States; the peculiarity may extend to a minimum.
A custom allowed Portugal to join its enclaves, particularly that of Goa in India. The International Court accepted a trilateral custom between France, Spain and Andorra. Since Andorra does not have prisons to imprison long sentences, convicts can be imprisoned in French and Spanish prisons. The Court accepted that a trilateral custom was the legal basis for detention in France.
The custom may be reduced to a few States; the particular custom always derogates from the general custom. If the States in question practiced the same thing as the others, then there would be a universal custom, regional custom would appear in the light of the general custom binding only those States which practise expressly only regional practice. However, a State shall not be presumed to have a regional custom, but shall be universal; however, by way of derogation, special custom is only practised between the States concerned.
General principles of law[modifier | modifier le wikicode]
The general principles of law are recognized by civilized nations in Article 38 §1 letter c) of the Statute of the International Court of Justice.
We distinguish between the general principles of law recognized by civilized nations and the general principles of international law.
General principles of international law[modifier | modifier le wikicode]
They are principles, i. e. rules of great importance and generality that already exist in international law, and they are important rules of international law that are called "principles of international law" such as certain rules such as the principle of non-use of force or the principle of self-determination of peoples, or the principle of consent in the law of treaties, but also the principle of good faith.
A whole series of proposals of general importance and therefore referred to as the general principles of international law. With regard to its importance and scope of application of the principle of non-use of force, we can see that this rule has a higher density and a higher importance than other rules, they are points of reference in the legal order.
These are international rules of customary law.
General principles of law[modifier | modifier le wikicode]
Article 38 §1 (c) did not simply recall the general principles of international law. By the general principles recognized by civilized nations we wanted to do something else, namely to extend the domain of sources.
To understand, we must go back to the 1920s; the writers' fear was that if we applied the main source of Article 38, we might sometimes have no legal answer; moreover, in 1920 there were very few multilateral treaties, we had just had the League of Nations pact.
Customary law in 1920?!
Perhaps, but, first of all, it is a custom of an ancient culture, it takes time to establish an undisputed custom, there is the element of time, but also a need for convergence in the international community.
There is a risk that the legal operator will not find applicable rules. At this point, if we leave it at that, it means that the judge must either reject a flaw or say that he cannot decide in law. States therefore remain free to act as they see fit.
The drafters considered it useful to insert another source which is the general principles.
In the absence of other rules, the legal operator can, because he is a lawyer, turn to domestic legal systems and see if he can find a common rule within domestic legal systems. We should see whether in the major legal systems there is a common rule, i.e. in each of these legal systems there is a more or less similar rule, which is why it is called a principle rather than a rule.
In the main lines of thought, i. e. that everything that goes up converges and that moreover, it can be transposed by analogy into international law, then it can be applied as a general principle of the law recognized by civilized nations.
It is a subject in which analogies are drawn from domestic law to fill the gaps in customary law. It is a way of legislating. It is the technique of analogy that makes it a general principle of law.
Case of limitation on discharge[modifier | modifier le wikicode]
This is the time limit after which a claim can no longer be asserted. There was a case between Venezuela and Italy in the Gentini case. There was an arbitration by an Italian-Venezuelan Free Arbitration Commission in which Italy claimed compensation for an Italian national who suffered damage in Venezuela as a result of the Venezuelan State. Italy acts within the framework of diplomatic protection.
The problem was that Italy had brought this claim before the arbitral tribunal some 30 years after the facts. The arbitral tribunal considered whether there was a limitation period. There was no arbitration agreement. The arbitration commission turned its attention to domestic legal systems and found everywhere a principle of prescription for discharge, believing that this principle existed in international law and that it should be applied. The applicable time limit was to be the reasonable time. The legal question was whether Italy had justifiable reasons to wait for the International Court to stipulate that the deadline had been exceeded.
Case of indirect evidence[modifier | modifier le wikicode]
Can we prove something indirectly, in other words, in a circumstantial way?
Circumstantial evidence is indirect evidence, we cannot prove a fact directly. This was the case in the Corfu Strait case in 1949 before the International Court of Justice. The United Kingdom accuses Albania of knowing that there were mines in Albanian territorial waters without warning the international community.
Proving that Albania knew the location of these mines is the legal question. How can we prove that Albania knew knowing that the United Kingdom had no way of knowing directly?
Therefore, the United Kingdom could only prove knowledge of Albania by circumstantial evidence, there is a bundle of evidence which tends to prove knowledge of Albania.
The question is whether indirect evidence is admitted under international law? Can a State be condemned on the basis of indirect evidence? How do we determine that?
There were no well-established practices, the Court went through general principles of law, questioned whether it could transpose this rule to the international trial and questioned whether it could be transposed.
Penal trials of the 1900s[modifier | modifier le wikicode]
When international criminal law was booming, but not yet sufficiently developed, it became clear what constitutes rape under international law. Rape was nowhere defined and the question arose as to what constituted rape.
In the tribunal of the former Yugoslavia in 1997, in order to determine how far the norm of rape can be determined, the tribunal ended up in domestic legal systems.
It was therefore by turning to domestic legal systems, considering points of convergence and proceeding by analogy that the court was able to escape.
Soft law and the resolutions of international organisations[modifier | modifier le wikicode]
What is soft law and how does it fit into the source system? What are the qualified acts of soft law?
There are a variety of categories, but in particular the following three categories:
Resolution of international organizations when not dealing with binding resolutions[modifier | modifier le wikicode]
The term resolution is a generic term. All the acts adopted by the organs of international organizations are resolutions, some resolutions are binding, others are called decisions, others are not binding, they are recommendations.
Political agreements are also soft law, and the reports of certain international bodies are often referred to as soft law.
Why is soft law adopted? Why has soft law become ever more important since 1940?
First of all the number of States, there is a constantly increasing number of States in the international community; the more States with different ideologies, the more difficult it is to find a common denominator in order to conclude hard law.
If States do not commit themselves legally, it is easier to find an agreement between them because they will be less resistant to the necessary concessions.
There is great mobility of international issues after 1945.
For immediate situations it is easier to achieve soft law standards in the first place because they are easier to adopt and can be easily changed.
From a legal point of view, what is the usefulness of these soft law standards?
Contrary to what some people believe there is a great hunger for norms in international relations, a whole series of actors are asking for norms, want points of reference and guidelines because the world has become complex, we cannot reinvent the world ourselves every time; we must base ourselves on a model is a practice.
Soft law very quickly makes it possible to produce standards, fill gaps and satisfy hunger.
Soft law standards are sometimes useful in the preparation of conventional standards[modifier | modifier le wikicode]
Soft law prepares hard law. In drafting the 1966 Outer Space Convention, soft law has been a means to achieve hard law.
Soft law is based on democratisation, in treaties only states are entitled to be party to the treaty, they are made by and for states; NGOs can try to get into the game, but their status is unenviable.
In the soft law we involve a whole other set of actors, this makes it easier to elaborate norms and standards with all the components of international society. It's something that is valued. In standards of conduct, many things can be proposed and many actors involved.
What difficulties did soft law pose?
There are a whole series of problems; first of all, we have a tendency to interfere with sources, we no longer know if we are in the soft law or in the hard law, and States have a whole lot of ambiguity studied. Sometimes the absence of real agreements is masked by using soft law instruments rather than disappointing observers that the conference has failed, so a resolution or model of soft law rules is produced, masking the fact that there has been no consensus and that there is a certain status in international law, but not defined.
Soft law is sometimes not very credible, because soft law is sometimes non-binding and the problem is that the public does not differentiate between soft law and hard law. There is a tendency to discredit international law.
Soft law does not commit to a concrete attitude and can make one agree to let go, creating ill-considered or even utopian norms, satisfying certain pressures, because it is not serious. We do things that we don't really have the means to implement.
In legal life, it's a little more pointed.
What are the legal effects of soft law standards?
They may have some effects, but it depends on the standard and the specific case.
In the context of a non-binding resolution of an international organization that is non-binding, what are its effects?
First of all it can give rise to an agreement, at this point the recommendation of the soft law becomes hard law; for example, a resolution can be accepted by States or certain States which at that time grants it binding force through the agreement concluded.
By virtue of an agreement concluded by four powers claiming to respect the conditions of their agreement, it becomes binding.
There may be recommendations that influence customary law, i. e., soft law influences the development of customary law. The resolution of the United Nations General Assembly on Outer Space 1962 of the year 1963 was an important landmark on the road to the customary rules of outer space, but it was a General Assembly resolution. Sometimes the soft law is used more precisely to determine the juris.
Soft law can be used to interpret hard law[modifier | modifier le wikicode]
There may be doubts about the interpretation of a conventional standard, so soft law may be considered.
It is possible to have the national legislator who uses the soft law as a model to adopt internal standards, or to legislate. The Federal Council has done this very often since the asylum problem came up in the Federal Council. The Federal Council has taken the soft law into account when calibrating the law.
Soft law can have a permissive effect: when there is a resolution recommending a certain conduct, taken under the constituent instrument, it allows all Member States to adopt the recommended attitude and if they do so they are not at risk of putting their international responsibility for an unlawful act into play, because the State has the right to follow the recommendation and the other Member State must be given the possibility to act.
There are sometimes related to the soft law obligations to take account of information. In Article 19 §6 of the Constitution of the International Labour Organisation, there is a rule that member States of the organization must take into account the recommendations of the Labour Conference by submitting them to national bodies and informing the International Labour Organization of the follow-up. On the recommendation of procedural obligations, this is a case of soft law, to which are added aspects of hard law under the paragraph cited. Very often soft law works much better than hard law.
Annexes[modifier | modifier le wikicode]
- Les Conventions de Vienne sur le droit des traités - Commentaire article par article sous la direction de Oliver Corten et Pierre Klein, Secrétaire de rédaction Maxime Didat, Préface de Sir Ian Sinclair, Bruylant, Bruxelles, 2006
- Hostert Jean. Droit international et droit interne dans la Convention de Vienne sur le droit des traités du 23 mai 1969. In: Annuaire français de droit international, volume 15, 1969. pp. 92-121.
- Nations Unies - Collection des traités : Convention de Vienne sur le droit des traitésVienne, 23 mai 1969
- Treaty Series Treaties and international agreements registered or filed and recorded with the Secretariat of the United Nations VOLUME 1155 Recueil des Traites Traites et accords internationaux enregistre's ou classes et inscrits au répertoire au Secretariat de l'Organisation des Nations Unies United Nations - Nations Unies New York, 1987
- Commentaires à la Convention de Vienne sur le droit des traités de 1969 - Commentaires assemblés par Erika Grossrieder
- Les traités de l'ONU - Commentaires à la Convention de Vienne sur le droit des traités de 1969
References[modifier | modifier le wikicode]
- OECD Nuclear Energy Agency - Accords bilatéraux et multilatéraux
- Decaux Emmanuel. Affaire de la délimitation maritime et des questions territoriales entre Qatar et Bahrein, Fond (arrêt du 16 mars 2001 Qatar c. Bahrein). In: Annuaire français de droit international, volume 47, 2001. pp. 177-240.
- Comme l’a déjà fait remarquer Eric Beckett, le recours à la volonté commune des parties est irréaliste dans la mesure où « il est presque certain que le différend portera sur un élément n’ayant pas été imaginé par [les parties] » : « Observations des membres de la Commission sur le rapport de M. Lauterpacht », 43 :1 A.I.D.I. (1950) 435, aux pp. 437-438
- COUR PERMANENTE DE JUSTICE INTERNATIONALE - Série A/B - Arrêts, Ordonnances et Avis Consultatifs - FASCICULE No 53 - STATUT JURIDIQUE DU GROËNLAND ORIENTAL - ARRÊT DU 5 AVRIL 1933 - XXVIme SESSION
- RECUEIL DES ARRETS, AVIS CONSULTATIFS ET ORDONNANCES - AFFAIRES DU PLATEAU CONTINENTAL DE LA MER DU NORD (RÉPUBLIQUE FEDERALE D'ALLEMAGNE/DANEMARK); RÉPUBLIQUE FÉDÉRALE D'ALLEMAGNE/PAYS-BAS) - arrêt du 20 février 1969
- Résumés des arrêts, avis consultatifs et ordonnances de la Cour internationale de Justice Document non officiel - AFFAIRES DU PLATEAU CONTINENTAL DE LA MER DU NORD, Arrêt du 20 février 1969
- COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRÊTS, AVIS CONSULTATIFS ET ORDONNANCES - AFFAIRE DU PLATEAU CONTINENTAL (JAMAHIRIYA ARABE LIBYENNE/MALTE) - ARRÊT DU 3 JUIN 1985
- Traité sur les principes régissant les activités des États en matière d'exploration et d'utilisation de l'espace extra-atmosphérique, y compris la Lune et les autres corps célestes (19 décembre 1966)
- Déclaration des principes juridiques régissant les activités des États en matière d'exploration et d'utilisation de l'espace extra-atmosphérique (13 décembre 1963)
- Constitution de l'OIT - Article 19.6