1. LAW 221: INTERNATIONAL LAW
Dr. Başak Çalı

2. Sources of international law
International treaties – Part I
Outline

3. Two distinct, but interrelated questions
What is international law?
B) What is international law on a given issue?
Two distinct, but interrelated questions

4. Sources of IL The second question begs an additional question:
What are the sources of international law?
Sources of IL

5. Formal sources of international law
International treaties
International custom ( or customary international law)
General principles of international law
Formal sources of international law

6. Article 38
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

7. What does it mean for you?
When I ask what is the law on X, you need to ask,
for whom?
And then…
2) You need to say, under treaty law the law is A, under custom the law is B, under general principles of law, the law is C, and in sum, rules governing X is as follows.
What does it mean for you?

8. Consider this example:
Draconia decided to build a dam, which would block significant amount of water supplies to Arcadia . In response, Arcadia blocked the gas supplies passing through Arcadia to Draconia.
Consider this example:

9. What does Article 38 does not say?
Is there a hierarchy between sources of international law?
What happens when there is a conflict between different sources of international law?
What happens when all sources say nothing about what international law? (the so called non liquet problem)
What does Article 38 does not say?

10. What is a treaty?
Article 38 of the ICJ: “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states” Article 2(a) VCLT “treaty” means an international 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;

11. Key features of treaties
Express consent
Written form
Establishing rules
Governed by international law
Key features of treaties

12. Treaties can be: Bilateral Multilateral Normative Transactional
Constitutive
Treaties can be:

13. What law governs the law of treaties?
A treaty! The Vienna Convention on the Law of Treaties (1969): signatories 45, parties 113. BUT: It is also accepted that VCLT reflects custom.
What law governs the law of treaties?

14. What does the law of treaties regulate?
Adoption, Authentication, Entering into Force Reservations
Scope of application
Interpretation
Invalidity
Denunciation-Termination-Suspension
Dispute settlement
What does the law of treaties regulate?

15. Key principles of governing treaties
Express consent
Refrain from acts defeating the object and purpose of treaty (VCLT18)
Possibility to modify legal effect through reservations regime (VCTL 19)
Pacta sunt servanda (VCTL 28)
Treaties create obligations independent from domestic law (VCTL 27)
Interpretation of treaties based on wording, context and object and purpose (Article 31)
Key principles of governing treaties

16. How do we know what rules govern a particular treaty?
You need to READ the treaty. It will tell you things like: when it came into force, whether it accepts reservations, what happens if there is a dispute.
If the treaty is silent, you need to look at the VCLT.
How do we know what rules govern a particular treaty?

17. A treaty needs to be ratified by an adequate number of states in order to come into force.
What happens when a state signs a treaty, but does not ratify it?
Coming in to force

18. GOLD DUST CASES 2 : Are you reading them?