INTRODUCTION
- Governs relations amongst states
- Horizontal system of authority
- Nonhierarchical
- Created on basis of state consent
- Primary source is custom
Custom:
- Repetition of act leads to expected behavior
- Made slowly, little use in regulation due to rapid social change
- Obeyed as tradition, public opinion, sanctions, and withdrawal pf support
- This encourages people to accept the normative order
Idealist theory:
- States interact harmoniously because of social and economic independence
Realist theory:
- States act to purse own interests
Int law and our constitution:
- S39(1)(b) – when interpreting BOR must take into account considerations of
international law
- S231-233 – governs treaties, custom and application of international law
- Played big role in apartheid fall
Enforcement
- State responsibility:
- victim state pursue claim against breaching state
- This is a civil law claim (no criminal state responsibility) and is state vs state
- Courts:
- International courts work off consent for jurisdiction
- No precedent
Remedies
- Civil law remedies: compensation, restitution, apologies
- Non-forcible countermeasures: where treaty has been violated, victim state no
longer has treaty obligations
- UN security council sanctions: impose sanctions
- Use of force
Organizations
- United nations
- Regional organizations
- Judicial organizations
- Expert bodies
SOURCES
Article 38(1) of the statute of the ICJ
1. International conventions (treaties)
2. International customs
3. General principles of law
4. Judicial decisions
, 5. Writings of the most learned
- This is the hierarchal order
Treaties
- International convention creates binding contract between states
- Sections called articles
- Can be oral, between state and organization or between international organizations
- However, article 2 of the VCLT gives narrower definition:
- ‘Concluded between states in written form’
- Bilateral: 2 states
- Multilateral: between many states
- Universal: signed up to by almost all states – eg. UN Charter
- Can be rule setting or institution establishing
requirements:
1. The parties
- Only sovereign states have full treaty making power
2. Intention
- Presumed parties intended to conclude valid treaty
- Must have intended to create legal obligation
- Obligations of international law
- Or can decide that want it to be governed by municipal law
- Unilateral declaration can also give rise to binding international law obligations
3. Consent
- Only bound once has given consent
Reservations:
- Article 19 of VCLT
Permitted unless:
- Explicitly prohibits
- Only specific reservations allowed
- Goes against object of treaty
Article 2(d) – is a unilateral statement
- Declarations: how intend to interpret
- Derogations: state can depart from treaty for certain time in certain circumstances
Effect of reservations:
- Bilateral – acts as counter offer; does not accept = no treaty; does accept = treaty +
reservations
- Multilateral:
- Another state has rejected – can still be party if reservation is not against object
- States that refuse to accept reservation = reserving state is not regarded as party
- Signatory can object to reservation only on ratification
- If no states accept reservation = no treaty for reserving party
- If some accept = treaty + reservation for those states
- If some reject = full treaty between them
, invalid reservations
- Determined by states
- Can either be fully bound or not party at all
Expressing consent
- Art 31 of VCLT
- Ratification – sent back to parliament, what ratification requires depends of states
constitution, if have no set requirements falls back on VCLT provisions
- Accession – did not take part in treaty negotiations but allowed to join if treaty has
provision for it or if all other parties agree
- Exchange of intruments – deposit intruments in third party
- Treaty can state whether needs signature or ratification
- If not determined, depends on intention of parties when drafting treaties –
CAMEROON V NIGERIA – look beyond text of treaty to determine intention
Obligations when sign but no ratify
- If not yet ratified but needs to = not full party, limited obligation; obligation not to
act contray to object of treaty
Entry into force
- Normally effective as soon as consent goven
- Can be delayed to adjust domestic laws
- Can say treaty will only come into force after received number of ratifications
Registration
- unPublished with UN secretariat
- Unregistered = valid but cannot be invoked before UN organs
Jus Cogen
- Overriding rules of IL
- Treaty will be invalid to extent of conflict – art53 of VCLT – conflicts with peremptory
norm
- Eg. Prohibition of force, prohibition of apartheid or genocide, right to self
determination
Persons negotiating treaties
- Certain representatives
- Art7-8: produces full appropriate powers or if appears intention to deem particular
person a representative
- Presumed to have authority – heads of state, heads of gov, ministers of foreign
affairs
- Unless expressly knew, treaty will be valid
- S231(1) of con – president and national executive can negotiate and sign
- S231(2) – NA and NCOP can ratify and accede
- If presumed to have authority but didn’t under domestic law, still bound
- Unless violation was manifest
- If not presumed, not bound
- Governs relations amongst states
- Horizontal system of authority
- Nonhierarchical
- Created on basis of state consent
- Primary source is custom
Custom:
- Repetition of act leads to expected behavior
- Made slowly, little use in regulation due to rapid social change
- Obeyed as tradition, public opinion, sanctions, and withdrawal pf support
- This encourages people to accept the normative order
Idealist theory:
- States interact harmoniously because of social and economic independence
Realist theory:
- States act to purse own interests
Int law and our constitution:
- S39(1)(b) – when interpreting BOR must take into account considerations of
international law
- S231-233 – governs treaties, custom and application of international law
- Played big role in apartheid fall
Enforcement
- State responsibility:
- victim state pursue claim against breaching state
- This is a civil law claim (no criminal state responsibility) and is state vs state
- Courts:
- International courts work off consent for jurisdiction
- No precedent
Remedies
- Civil law remedies: compensation, restitution, apologies
- Non-forcible countermeasures: where treaty has been violated, victim state no
longer has treaty obligations
- UN security council sanctions: impose sanctions
- Use of force
Organizations
- United nations
- Regional organizations
- Judicial organizations
- Expert bodies
SOURCES
Article 38(1) of the statute of the ICJ
1. International conventions (treaties)
2. International customs
3. General principles of law
4. Judicial decisions
, 5. Writings of the most learned
- This is the hierarchal order
Treaties
- International convention creates binding contract between states
- Sections called articles
- Can be oral, between state and organization or between international organizations
- However, article 2 of the VCLT gives narrower definition:
- ‘Concluded between states in written form’
- Bilateral: 2 states
- Multilateral: between many states
- Universal: signed up to by almost all states – eg. UN Charter
- Can be rule setting or institution establishing
requirements:
1. The parties
- Only sovereign states have full treaty making power
2. Intention
- Presumed parties intended to conclude valid treaty
- Must have intended to create legal obligation
- Obligations of international law
- Or can decide that want it to be governed by municipal law
- Unilateral declaration can also give rise to binding international law obligations
3. Consent
- Only bound once has given consent
Reservations:
- Article 19 of VCLT
Permitted unless:
- Explicitly prohibits
- Only specific reservations allowed
- Goes against object of treaty
Article 2(d) – is a unilateral statement
- Declarations: how intend to interpret
- Derogations: state can depart from treaty for certain time in certain circumstances
Effect of reservations:
- Bilateral – acts as counter offer; does not accept = no treaty; does accept = treaty +
reservations
- Multilateral:
- Another state has rejected – can still be party if reservation is not against object
- States that refuse to accept reservation = reserving state is not regarded as party
- Signatory can object to reservation only on ratification
- If no states accept reservation = no treaty for reserving party
- If some accept = treaty + reservation for those states
- If some reject = full treaty between them
, invalid reservations
- Determined by states
- Can either be fully bound or not party at all
Expressing consent
- Art 31 of VCLT
- Ratification – sent back to parliament, what ratification requires depends of states
constitution, if have no set requirements falls back on VCLT provisions
- Accession – did not take part in treaty negotiations but allowed to join if treaty has
provision for it or if all other parties agree
- Exchange of intruments – deposit intruments in third party
- Treaty can state whether needs signature or ratification
- If not determined, depends on intention of parties when drafting treaties –
CAMEROON V NIGERIA – look beyond text of treaty to determine intention
Obligations when sign but no ratify
- If not yet ratified but needs to = not full party, limited obligation; obligation not to
act contray to object of treaty
Entry into force
- Normally effective as soon as consent goven
- Can be delayed to adjust domestic laws
- Can say treaty will only come into force after received number of ratifications
Registration
- unPublished with UN secretariat
- Unregistered = valid but cannot be invoked before UN organs
Jus Cogen
- Overriding rules of IL
- Treaty will be invalid to extent of conflict – art53 of VCLT – conflicts with peremptory
norm
- Eg. Prohibition of force, prohibition of apartheid or genocide, right to self
determination
Persons negotiating treaties
- Certain representatives
- Art7-8: produces full appropriate powers or if appears intention to deem particular
person a representative
- Presumed to have authority – heads of state, heads of gov, ministers of foreign
affairs
- Unless expressly knew, treaty will be valid
- S231(1) of con – president and national executive can negotiate and sign
- S231(2) – NA and NCOP can ratify and accede
- If presumed to have authority but didn’t under domestic law, still bound
- Unless violation was manifest
- If not presumed, not bound
