INL2000 Basic Principles of International

Law

Joumana Ben younes

72405 (A)
Oxana Golovashova
(1104195)
Katerina Smirnova
1204325

University of Malta

Faculty of Arts
International Relations

Table of Contents
Title............................................................................................................................ 3
Introduction................................................................................................................ 3
Background on Treaty Law......................................................................................... 4
Formation of Customary International Law.................................................................5
Opinio Juris................................................................................................................. 5
Treaties....................................................................................................................... 5
TREATIES AND OPINIO JURIS....................................................................................... 6
The relationship between Treaties and customary law...............................................7
Conclusion.................................................................................................................. 8

Title
Discuss How customary International Law
and treaties work together to develop
general international law

Introduction
The notion of international law as a law is usually very controversial
because of the way it is made, constructed and enforced. There is no central
legislature to adopt legislation, no executive to apply or adopt the laws which
are made and, finally, the international system lacks centralized judiciary for
statutory interpretation and adjudicates disputes. Nevertheless, international
lawyers, diplomats, international organizations representatives and others
insist upon or restrict specific actions, individuals often repose trust on
international law to make claims in national and international forums, also,
international law is applied by national and international tribunals to resolve
disputes. In other words, according to international lawyers, international law
is made, applied, interpreted and and, sometimes, enforced through a
variety of processes which will be studied in this work.
Nonetheless, international law does exist and may be defined. Some
available sources exist from which the rules may be extracted and
analysed. From Malcolm Shaws point of view By sources one means those
provisions operating within the legal system on a technical level, and such
ultimate sources as reason or morality are excluded, as are more functional
sources such as libraries and journals. What is intended is a survey of the
process whereby rules of international law emerge.1 (Malcolm N., p.70)
The following chapter is about the primary ways of the establishment
of international law. Article 38 of the Statute of the International Court of
Justice describes the law that should be applied by ICJ (International Court of
Justice) and the UNs principal judicial organ to resolve disputes:
Statute of the International Court of Justice, Article 38
1. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
1Malcolm N. Shaw QC, International Law, Sixth edition (Cambridge University Press 2008) p.70

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. . . . 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

Background on Treaty Law

In 1969 the Vienna Convention on the Law of Treaties was adopted and
most norms of international law were codified there. Since 2006, January,
105 states are the members of this Convention. Most provisions of Vienna
Convention confirm or codify customary international law before the treatys
adoption. The rules of Vienna Convention are widely recognized and even the
US, which is not a party to the treaty, is talking about the Convention as
the authoritative guide to current treaty law and practice.
The Vienna Convention provides such notion of a treaty as:
Article 2
Use of Terms
1. For purposes of the present Convention: (a) 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. . . .
As suggested in Article 2 of the Convention, treaties take many forms and
can be
denominated by many different terms, including agreement, protocol,
concordat, pact, accord, and charter.3
2Statute of The International Court of Justice, Article 38.
3 Vienna Convention On The Law Of Treaties Signed At Vienna 23 May 1969, Article 2.

Formation of Customary International Law

Customary international law usually develops from the state practice and the
form of that law comes from ancient times. According to Roman law, custom
may be recognized as a source, like the Greek city states gave birth to rules
governing war, trade and other relations. Eventually, a sense of a legal
obligation appears, also known as opinio juris. The drafters of the
Restatement (Third) of the Foreign Relations Law of the United States
therefore define custom as law like the results from a general and
consistent practice of states followed by them from a sense of legal
obligation.4

Opinio Juris
Not all state practice results in customary law. Indeed, there are many
instances of repeated state practice that reflect simply conveniencefor
example, the forms of address used for ambassadors or other government
officialsbut not law. Consistent state practice becomes law when states
follow the practice out of a sense of legal obligation encapsulated in the
phrase opinio juris sive necessitatis.
For international lawyers states often act without express reference to rules
of international law. Accordingly, the subjective element implicit in
customary international law, the belief that a practice is in fact binding, must
often be inferred from the nature and circumstances of the practice itself.
In many cases, judges and international law scholars may help identify and
establish such inferences through careful review of the relevant practice and
their work is therefore listed in Article 38 of the Statute of the International
Court of Justice as a subsidiary means for determining the law. Whether proof
of opinio juris is essential to the recognition of a new rule of customary
international law is controversial. The International Law Associations
Committee on Formation of Customary (General) International Law
concluded in 2000 that it is not necessary to the formation of such a rule
that such a belief exists, either generally or on the part of any particular
State.5
4 http://library.law.columbia.edu/guides/Researching_Public_International_Law

Treaties
Vienna Convention on the Law of Treaties defines treaty as: 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.6
Treaties are known by a variety of differing names: Conventions,
International Agreements, Pacts, General Acts, Charters, through to Statutes,
Declarations and Covenants. In Malcolm Shaws point of view In contrast
with the process of creating law through custom, treaties are a more modern
and more deliberate method.
Where Oppenheims International Law emphasizes that not only is custom
the original source of international law, but treaties are a source the validity
and modalities of which themselves derive from custom.

TREATIES AND OPINIO JURIS

The existence of a rule of customary international law depends on two
elements: the rule must reflect the general practice of states, and states
must adhere to this practice in the belief that the law obligates them to do
so. Accordingly, in considering the contribution that treaties can make to the
formation of customary rules, it is not enough to examine the extent to
which the treaties amount to practice. One must also determine in each case
whether, assuming a given treaty can fairly be treated as an instance of
state practice, adherence to the treaty satisfies the opinio juris requirement.
This requirement means that a state acknowledges the right of states to
whom it owes a putative duty to inquire about possible breaches of the duty
and also acknowledges its obligation to make reparation for any breaches of
duty.7
With respect to many treaties, this determination can lead to the conclusion
that the treaty is not merely an example of practice, but in addition, an
example of practice believed to be legally binding. Even when this type of
statement is an inaccurate description of the state of law as of the date of
5 (Statute of the International Court of Justice 2014)
6 (Vienna Convention on the Law of Treaties, 2014)
7 (Shaw, International Law, 2008)

the treaty's conclusion, it amounts to an explicit acknowledgement by the

parties to the treaty that they would be legally bound to the treaty's rules
even if the treaty did not exist. This acknowledgement makes it easy to
include those parties in the tally of states that not only follow a 'given
practice but do so in the belief that the practice is law.
However, it does not follow that conclusion of a treaty necessarily implies
opinio juris, that is, that the parties believe that the treaty's provisions would
legally bind them outside the treaty. Subjects of international law may
assume obligations that would not otherwise bind them without that
assumption suggesting that they believe the obligations would be otherwise
binding. There are circumstances in which a particular treaty not only fails to
express opinio juris, but actually denies opinio juris, that is, provides
evidence that the parties would reject any duty to behave as the treaty
required had the treaty not been concluded. If a treaty demonstrates that
the parties believe they would have no legal obligation to behave as the
treaty requires but for the treaty, it follows that practice under the treaty
cannot supply the usage element necessary to establish a rule of customary
international law. This follows because all usage does not create a rule of
customary law-only usage informed by opinio juris does so.8
While considerable disagreement exists among scholars concerning when
usage is informed by opinio juris, it would seem obvious that if one can
establish that particular usage is not informed by opinio juris, that usage is
irrelevant to the formation of a customary rule. This is the clear opinion of
the ICJ in the North Sea Case, in which the Court held that to constitute a
rule of customary law, "Not only must the acts concerned amount to a
settled practice, but they must also be such . . . as to the evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law
requiring it." Practice undertaken despite a belief that it is not obligatory is
not, therefore, that practice which contributes to the formation of a rule of
customary law.

The relationship between Treaties and customary law

as shown in the Nicaragua case decided by the ICJ, a custom and a treaty
can exist in parallel9. They do not, therefore, supplant or subsume each
8 (Shaw, International Law, 2008)
9 Malcolm Shaw. 2008. International Law (Sixth Edition). New York: Cambridge University
Press, pp. 72-93

other. A cause of action arising from a dispute may be founded in either. For
the present purpose, this rule is of ultimate importance in that it declares
that custom and treaty always exist simultaneously.
In summary, at the top of the hierarchy are the customary rules, including
the general principles of law common to the interior; custom is therefore a
source of First Instance, the only source of general binding rules all states.
The second hierarchy is up to the treaty, which is in a customary rule, the
rule of pacta sunt servanda10, the foundation of its obligation.
The third place is occupied by the sources provided by agreements and then
by the acts of international organizations.
The fact that the agreements shall be subordinate to the customary rules
does not in itself mean the mandatory nature of the latter part of the first: a
norm of lower grade may depart from the standard of higher grade if the
latter allows.
According to the common opinion, the customary rules are characterized by
flexibility and therefore their derogation by agreement. This rule also applies
to that particular category of customary law consists of the general
principles of law common to the interior; a clear example is given by art. 27
UN Charter, which normally protects the Great Powers which, having a right
of veto, can block a procedure of expulsion or coercive measures against
them; the exception to the general principle nemo judex in his king is
obvious.
However, it is widely accepted that there is a group of rules of general
international law which would be exceptionally compelling (jus cogens);
Article. 53 of the Vienna Convention of 1969 states that "it is treaty is
void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law", because it is intended for peremptory norm of
general international law "a norm accepted and recognized by the
community of States as a whole as a norm from which no derogation cant be
made and that cant be changed to a new standard of general international
law having the same character ";
Article. 64 states that "if a new peremptory norm of general international law
is formed, any existing treaty which is in conflict with this norm becomes
void and terminates."
In the silence of the Convention, that group of rules must be identified
making lever on Article. 103 UN Charter, which states that "in the event of a
conflict between the obligations of the Members of the United Nations under
the present Charter and their obligations they have undertaken under any
10 Black's Law Dictionary (8th ed. 2004)

international agreement shall prevail to the obligations under the present

Charter": the 'respect for principles of the Charter 'is now considered as one
of the fundamental rules of social life and international appears no longer as
a simple arrangement covenantal, but as a customary rule binding that
Article. 103 gave the initial push and then consolidating that has come over
the years.
Even the vast majority of the founding treaties of international bodies
normally mention: Symptomatic is the preamble of the EC Treaty, where
they focus on the purpose of "building prosperity of the Member States in
accordance with the principles of the Charter of the United Nations." It is
noteworthy that the art. 103 descends ineffectiveness, not the disability, the
agreement is incompatible.
The rules of the UN Charter from which descends a real obligations for States
, and it can therefore be covered by the scope of Article. 103 (or rather, the
customary rule corresponding to it), are some general principles that lie at
the base of the big areas of expertise of the United Nations. Around the area
of peacekeeping, the principle that requires states to refrain from the threat
or use of force in international relations, except for the individual and
collective self-defense, however, limited to the case of a response to an
armed attack.
the economic and social sector, the principle that commits states to
cooperate, which may be obtained from the prohibition of conduct that would
inevitably undermine the economy of other countries. the humanitarian
sector, the principle of respect of human dignity and the field of
decolonization and the principle of self-determination.
Lastly, bilateral treaties have potential to produce customary law, and this
will be a process that has to be in consistence with the terms of Article 38(1)
(b)11.

Conclusion
It is also to be noted that the rules governing the causes of disability and
termination of treaties (rules on defects of the will, on the clause as things
stand, etc.) Are mandatory rules any contractual clause that provides for an
exception to these rules would remain in turn still subject to them. The
fundamental rule that conventional norms may derogate from the common
11 Statute of The International Court of Justice, Article 38.

law, except of course for the jus cogens, is to be extended to the sources
provided by agreements; in cases of doubt, however, that must be
considered is the same Constitution of the bodies to impose the observance
of general international law.

References
Anon., 2014. Statute of the International Court of Justice. [Online]
Available at: http://www.icj-cij.org/documents/?p1=4&p2=2
Anon., 2014. Vienna Convention on the Law of Treaties. [Online]
Available at: http://www.admiraltylawguide.com/conven/lawoftreaties1969.html
Shaw, M. N., 2008. International Law. New York: Cambridge University press.
Shaw, M. N., 2008. International Law. New York: Cambridge University press.
Black's Law Dictionary (8th ed. 2004)
Statute of The International Court of Justice, Article 38.