Sources of international law-

with focus on TREATIES

Study guide and Dugard
Sources
• Article 38(1) of the Statute of the ICJ lists the sources in legal disputes
between states. Article 38(1) states:
• a. international conventions, whether general or particular, establishing
rules expressly recognised by the contracting states;
• b. international custom, as evidence of a general practice accepted as law;
in other words customary international law. “USUS”
• c. the general principles of law recognised by civilised nations; “OPINIO
JURIS”-THESE ARE THE PRIMARY SOURCES, and as a SECONDARY SOURCE,
• d. 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.
Sources
• An “international convention” is similar to a “treaty". Is an agreement
between two or more states binding the states that have signed or
ratified the convention.
• FOR EAMPLE: THE VIENNA CONVENTION ON THE LAW OF TREATIES
SIGNED AT VIENNA 23 May 1969
• (a)Recognizes treaties as a mean of co-existence, whatever their
constitutional and social systems,
• Noting that the principles of (b) free consent and of ( c) good faith
and the (d) pacta sunt servanda rule are universally recognized,
Sources
• Pacta sunt servanda: Latin formula (“agreements must be kept”) is
arguably the oldest principle of international law. Without such a
rule, no international agreement would be binding or enforceable.
• LAW OF TREATIES CONVENTION: Affirming that the rules of
customary international law will continue to govern questions not
regulated by the provisions of the present Convention.
• Art 1-Vienna Convention “Treaties /Conventions agreements
between states in one or more documents; followed by the
ratification, acceptance, approval, accession / by the competetent
authority of the state.
Sources
• Other terms which are used are “Covenant” (e.g. International
Covenant on Civil and Political Rights, 1966), or “Charter” (e.g. Charter
of the United Nations 1945).
• The common characteristic of all these terms is that they refer to
international instruments (documents) which are legally binding on
states that have become parties to such instruments
• We must distinguish “declarations” from treaties. A declaration is not
legally binding adopted by way of a resolution (decision). The purpose
of declarations is to set general standards for state conduct in certain
fields, for example, the well-known Universal Declaration on Human
Rights (UDHR) adopted by the General Assembly of the UN in 1948.
Sources
• The adoption of a declaration is also a step towards the eventual
writing and adoption of an international convention. This, for
example, was the case with the formulation of international standards
for the protection of children’s rights. This initiative led to the
adoption of the Declaration of the Rights of the Child in 1959, which
was transformed into a binding Convention on the Rights of the Child
in 1989
• Apart from treaties, declarations, we get resolutions. The most
commonly known resolutions are those adopted by the UN. A
resolution is a decision to take some form of action.
Sources-Treaties specifically
• They may also apply to international organizations apart from states.
• Article 6 Capacity of States to conclude treaties. Every State possesses
capacity to conclude treaties. (If recognized)
• Specific persons within a state are recognised as having the power to
conclude treaties::(a) Heads of State, Heads of Government and Ministers for
Foreign Affairs, for the purpose of performing all acts relating to the
conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of
adopting the text of a treaty between the accrediting State and the State to
which they are accredited; (c) representatives accredited by States to an
international conference or to an international organization or one of its
organs, for the purpose of adopting the text of a treaty in that conference,
organization or organ.
Treaties-Vienna Convention
• See the SG for the different forms of consent. Not required for test
purposes!
• Article 19 Formulation of reservations A State may, when signing,
ratifying, accepting, approving or acceding to a treaty, formulate a
reservation.
• A reservation is a declaration by a state made upon signing or ratifying
a treaty that the state reserves the right not to abide by certain
provisions of the treaty. Reservations are formally defined in Article
2.1(d) of the 1969 Vienna Convention on the Law of Treaties.
Treaties-Vienna Convention
• Article 26 Pacta sunt servanda Every treaty in force is binding upon the
parties to it and must be performed by them in good faith.
• Article 27 Internal law and observance of treaties A party may not invoke
the provisions of its internal law as justification for its failure to perform
a treaty. This rule is without prejudice to article 46.
• Article 28
• Non-retroactivity of treaties Unless a different intention appears from
the treaty or is otherwise established, its provisions do not bind a party
in relation to any act or fact which took place or any situation which
ceased to exist before the date of the entry into force of the treaty
with respect to that party.
Treaties-Vienna Convention
• Article 31 General rule of interpretation
• 1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose. 2. The context for
the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexures.
Treaties -Vienna Convention
• Article 34 General rule regarding third States: A treaty does not create
either obligations or rights for a third State without its consent.
• Article 35 Treaties providing for obligations for third States: An
obligation arises for a third State from a provision of a treaty if the
parties to the treaty intend the provision to be the means of
establishing the obligation and the third State expressly accepts that
obligation in writing.
Treaties-Vienna Convention
• Article 39 General rule regarding the amendment of treaties
• A treaty may be amended by agreement between the parties. The
rules laid down in Part II apply to such an agreement.
Treaties-Vienna Convention
• Article 43
• Obligations imposed by international law independently of a treaty
• The invalidity, termination or denunciation of a treaty, the withdrawal
of a party from it, or the suspension of its operation, as a result of the
application of the present Convention or of the provisions of the
treaty, shall not in any way impair the duty of any (other) State to
fulfil any obligation embodied in the treaty.
Sources
• Treaties and the South African Constitution
• The Vienna Convention on the Law of Treaties is an important source
on international law norms regulating the conclusion of treaties.
• Another important source is the constitution of a country, which
often determines how a state will become party to a treaty and what
the legal consequences of treaty membership are. In this regard, you
must study article 231 of the South African Constitution. (Previous
lecture)
Sources
• For further reading-A Decolonial/TWAIL view of Article 52 of the
Vienna Convention on the Law of Treaties (VCLT)
• See Del Negro, Guilherme, The Validity of Treaties Concluded Under
Coercion of the State: Sketching a TWAIL Critique, 10 European
Journal of Legal Studies 39 (2017)