Chapter 2: Sources of international law

1. What is the legal basis of the source of international law?

 Article 38(1) of the Statute of the International Court of Justice (ICJ) contains an
instruction to the Court on what “sources” of International Law the court should
apply.
 Article 38 lists four sources of international law:
+ International conventions = treaties, whether general or particular, establishing
rules expressly recognized by the contesting states,
+ International custom, as evidence of a general practice accepted as law;
+ The general principles of law recognized by civilized nations.
+ subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
*Give examples of international treaty and some that Vietnam is a party?
International treaties: UN Charter, Law of the Sea Convention, European Union
Treaty
International treaties that vietnam is a party: United Nations Charter, Law of the
Sea Convention, ASEAN Trade in Goods Agreement, ASEAN Treaty of Amity
and Cooperation

*Give examples of international customs that you may know?

Diplomatic Immunity: This long standing custom grants foreign diplomats and
officials immunity from prosecution within the host country.
Prohibition of Chemical and Biological Weapons

2. Name two types of the source of international law?

- There are two types of the source of international law:
1. Primary source: which contain legal norms of international law. Primary
sources applicable for matters fall into the scope of regulation of
International law. And for primary sources, consent as the foundation of
International Law.
Including: International Conventions (treaties), International customs,
General principles
2. Subsidiary source: is complementary means to provide clear explanations to the
meaning of the primary sources. Also the materials to build international norms and
principles and contribute to the creation of primary sources. It can be applied to
deal with international issues if the primary source is unavailable.
3. Compare two types of the source of international law?

Feature Primary Sources Subsidiary Sources

Binding Directly create legal Not directly binding,

force obligations for states that are interpretative
party to them
Examples Treaties, customary Judicial decisions, teachings of
international law, general jurists, resolutions of IGOs (not
principles mentioned in the Art. 38(1) of the
ỊC statute)

Strengths Clear, specific provisions; Offer flexibility and adaptability

Relatively strong to evolving situations;
enforcement mechanisms Provide guidance in interpreting
through dispute settlement ambiguous primary sources.
bodies and sanctions;

Play a central role in shaping

and developing international
law.

Weaknesses Limited applicability only to Not directly binding on states.

states party to the specific
source. Maybe subjective

Customary law can be

ambiguous and difficult to
prove.

4. What is a treaty?
- According to Vienna Convention, Article 2.1(a): International treaty is an
agreement concluded between states in written form and governed by international
law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation.
Dễ hiểu hơn: Treaty means an agreement in written form concluded in the name of
the states that give rise to, change or terminate rights and obligations of the states
under international law, regardless of its title, such as treaty, convention, pact,
covenant, agreement,.... or another title.
*How to recognise a treaty?
Subjects: subjects of international law
Form: written
Content: rights and obligations
Create
Change/ adjust
End
 Function: regulate international relations.
5. What are conditions for a treaty to be source of international law?

The conditions for a treaty to be a source of international law are:

- Must be concluded on the basis of voluntariness and equality.

- In accordance with domestic law regarding authorization and procedure.

- Must not contravene fundamental principles of international law.

*conclusion of a treaty (procedure):

stage 1: adoption and authentication of the text.

stage II: Expressing consent to be bound by a treaty

6. Who are the subjects that have capacity to enter into a treaty?
- According to Vienna Convention, Article 2.1(a): International treaty is an
agreement concluded between states in written form and governed by international
law. So the subjects that have capacity to enter into a treaty are sovereign states.
(And also the inter-governmental organizations(like the European Union, have
been granted treaty-making powers in specific areas within their mandate.) ,
peoples fighting for independence, state-like entities(As a unique sovereign
entity with limited territory, the Holy See possesses the full capacity to enter
into treaties on various matters related to its religious mission and
international role.
))
International organizations can be third parties to treaties within the terms of that
Convention.)
7. Identify means that a state can use to express the consent to be bound by a
treaty?

- The consent of a State to be bound by a treaty may be expressed by:

 SIGNATURE
 EXCHANGE OF INSTRUMENT CONSTITUTING A TREATY
 RATIFICATION
 ACCEPTANCE
 APPROVAL or
 ACCESSION, or
 BY ANY OTHER MEANS IF SO AGREED.

- The terms ratification, acceptance and approval all mean the same thing in
international law,- The State has agreed to become party and is willing to undertake
the legal rights and obligations contained in the treaty upon its entry into force.

- Signing a treaty is one of the most common steps in the process of becoming
party to a treaty. A State does not take on any positive legal obligations under the
 treaty upon signature. It does, however, indicate the State's intention to express its
consent to be bound by the treaty at a later date.

*Why ratification/ acceptance/ approval?

 Review the treaty before being officially bound by it;

 Checking the act of the state’s representative;
 Having time for preparation before implementing treaty’s obligations.
8. Reservation can be applied in what kind of treaty?
Definition: “reservation” means a unilateral statement, however phrased or named,
made by a state when signing, ratifying, accepting, approving or acceding to a
treaty, whereby it purports to exclude or modify the legal effect of certain
provisions of the treaty in their application to that state. (Art. 2, Vienna Convention
1969 on the law of treaties)

Bình dân hơn: A reservation enables a state to accept a multilateral treaty as a

whole by giving it the possibility not to apply certain provisions with which it does
not want to comply

 Reservations can only be applied to a multilateral treaty because it is a treaty with

many legal entities participating, especially countries. Making reservations to those
countries as whether the terms agreed to are contrary to their Constitution or
national laws. If they find it inappropriate, they can reserve it so that the application
of national law and the treaty does not conflict.

It cannot be applied bilaterally because there are only 2 participants at this time.
And during the agreement, the two parties will have to agree on things that both
parties see as appropriate, so reservations will not be applied.

9. When is it possible to make a reservation?

 A State may, while signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation → any time during treaty conclusion is possible to make
a reservation.
10. When a reservation is permitted?
 A reservation is permitted, UNLESS the reservation is prohibited by the treaty or is
incompatible with the object and purpose of the Treaty.
 Some Treaties do not accept reservation. Other states may accept or object to
reservation.
11. When is a treaty invalid?
 The validity of a treaty or the consent to be bound by a treaty may be impeached.
Invalidity eradicates legal effects of the treaty.
→ A treaty is void if its conclusion has been procured by the threat or use of force
in violation of the principles of international law embodied in the Charter of the
United Nations. (Article 52, VIENNA CONVENTION ON THE LAW OF
TREATIES).
→ A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a
 peremptory norm of general international law is a norm accepted and recognized by
the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character. (Article 53, VIENNA
CONVENTION ON THE LAW OF TREATIES). (2 cái này ghi thêm thôi nha)
*Absolute void treaties: International treaties are void when there is coercion on the
representative of the state, coercion against the state by threat or use of force, or they have
the content conflicts with a peremptory norm of general international law.
*Relative void treaties: International treaties with content violated with domestic laws on
the competence; or there is a mistake when conclusion; or commit acts of fraud, bribery or
accepting bribes from representatives of countries.
→ However, such international treaties can still enter into force if the parties accept them.