Pil- Relationship Between Treaty And Cil

Front 1

(Schachter)
Two main issues re treaty-CIL relationship

Back 1

• Governments and lawyers seeing treaty rules as CIL; binding on non-states parties

• Seeing treaty provisions as superseded by state practice outside the treaty itself

Front 2

ICJ 'North Sea Continental Shelf' (1969)
Three ways that treaty rules = CIL

Back 2

1 • Declaratory of existing CIL
2 • Crystallise CIL
3 • Generate CIL after treaty adoption

Front 3

Divergence in the views of treaty provisions becoming CIL

Back 3

1 • (Majority) Need adequate SP and OJ outside of the treaty context
2 • Act of adopting the treaty and ratification/adhere = SP and OJ, esp. for declaratory treaties
3 • Conference of states (e.g. LOS) can decide by consensus that treaty rules = CIL
4 • (+ ICJ 'Nicaragua' (1986))

Front 4

ICJ 'Nicaragua' (1986)
Formation and existence of CIL through a treaty norm

Back 4

• Law on UOF and S-D has developed under the UN-Ch to such an extent that it has acquired a status independent of it
• Can have co-existence of identical tr. and CIL norms; "they retain a separate existence" (although also divergences)