International Law - Treaties

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What is the very last stage of the treaty making process? When does

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When a required number or percentage of states that signed the treaty have ratified it within their state in compliance with there domestic law.

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even when they have not ratified a treaty they are under obligation not to act to subvert the purpose of the treaty.

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Who is party to the treaty?

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Only states who have signed and ratified the treaty are parties to the treaty, and therefore only they are subject to that treaty.

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What is the partial exception to who is bound or party to the treaty?

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When a treaty is intended to codify customary law, states that have not signed or ratified the treaty are still not subject to the law of the treaty but they are still bound by the customary law the treaty intended to codify.

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After a state has signed a treaty, whether or not it has been ratified, how do the states treat the treaty before it comes into force?

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It is customary practice but not customary law for states to act as though they are bound by the treaty.

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Can a rule have to sources? What does that mean for international law that codifies such a rule?

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If a treaty intends to codify and international customary law, states not party to the treaty

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When can you work in cross purposes with a treaty that you have signed?

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You must unsign the treaty.

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Best example of unsigning a treaty?

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Clinton administration signed the Rome Statute but never submitted it for ratification. The bush administration went the next step and informed the UN that the U.S. did not intend to ratify that treaty.

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How do you unsign a treaty?

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You inform the other parties or whoever holds the treaty that you do not intend to ratify the treaty.

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What is inovative about Rome Statute?

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Restates existing laws against-war crimes, geonocide, crimes against humanity and to a lesser extent aggression-and more significantly creates a way to prosecute actors who commit these crimes.

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What are reservations?

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Some modification of a particular or multiple provisions of a treaty that only effect the obligations of that one state.

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What does "No Reservations" mean?

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Some treaties have no reservations allowed, it is written into the original treaty

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How does a state attach a reservation to a treaty?

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All states have to agree that the reservation

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How does contemporary law handle reservations differently than traditional international law?

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if 1 or more states reject the request for a reservation than the states that rejected the request for reservationa

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U.S. reservation on Torture Convention:

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we agree to the term so long as what you all mean by "cruel, inhumane, and degrading treatment" is the same as what we consider to be "cruel, inhumane, and degrading treatment" in the 5th 14th and 18th amendments of the U.S. Constitution.

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Bush Administration

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The torture memos describe a process of exploration within the Bush admin that intednded to see how much "torture" could be tolerated legally

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intentionalist approach to treaty interpretation?

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subjective

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textualist approach to treaty interpretation?

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objective

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teleological approach to treaty interpretation?

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"ultimate goal" should be used when interpreting treaty. closely linked to the intentionalist approach, however, considerers the overall goal or intention of the treaty instead of the intentions of the founders of the treaty

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principle of effectiveness?

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treaty must be interpreted flexibly in order to be effective

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Best example of use of teleological approach to treaty interpretation?

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ICJ issued an advisory opinion in Certain Expenses case, UN peacekeeping did in a teleological sense conform with the intentions of the United Nations Charter.

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Example of a state withdrawing from a treaty?

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N. Korea withdrew from non-proliferation and was fully within its rights to do so. The terms of the non-proliferation treaty requireed 3 months notice, which N. Korea gave.

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Material Breach?

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when a state unilaterally renounces a treaty that does not permit withdrawl or when the state doesn't follow the stipulations of withdrawel stated in the treaty, reserved for aggregious violations of treaty provisions.

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Consequence of Material Breach?

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The parties to treaty re no longer obligated to the state that has withdrawn

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rebus sic stantibus

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The concept of rebus sic stantibus (Latin: “things standing thus”) stipulates that, where there has been a fundamental change of circumstances, a party may withdraw from or terminate the treaty in question.

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1961 United Kingdom and Iceland fishery agreement.

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12 mile band around your coastline; ICJ ruled not rebus sic statibus

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Problem with customary law?

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Much of this law evolved over centuries when many contemporary states didn't even exist; lack of awareness among those countries. The solution has been a movement towards codifying those customary laws

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Role of International Law Commission in codification?

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International law commission has taken the lead in finding out what Customary laws are, clarifying them, writing them down and submitting them to states to sign as treaties.

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What are reservations?

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Some modification of a particular or multiple provisions of a treaty that only effect the obligations of that one state.

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What does "No Reservations" mean?

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Some treaties have no reservations allowed, it is written into the original treaty

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How does a state attach a reservation to a treaty?

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All states have to agree that the reservation

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How does contemporary law handle reservations differently than traditional international law?

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if 1 or more states reject the request for a reservation than the states that rejected the request for reservationa

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U.S. reservation on Torture Convention:

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we agree to the term so long as what you all mean by "cruel, inhumane, and degrading treatment" is the same as what we consider to be "cruel, inhumane, and degrading treatment" in the 5th 14th and 18th amendments of the U.S. Constitution.

Front 34

Bush Administration

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The torture memos describe a process of exploration within the Bush admin that intednded to see how much "torture" could be tolerated legally

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intentionalist approach to treaty interpretation?

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subjective

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textualist approach to treaty interpretation?

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objective

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teleological approach to treaty interpretation?

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"ultimate goal" should be used when interpreting treaty. closely linked to the intentionalist approach, however, considerers the overall goal or intention of the treaty instead of the intentions of the founders of the treaty

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principle of effectiveness?

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treaty must be interpreted flexibly in order to be effective

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Best example of use of teleological approach to treaty interpretation?

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ICJ issued an advisory opinion in Certain Expenses case, UN peacekeeping did in a teleological sense conform with the intentions of the United Nations Charter.

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How is termination written into a treaty?

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Provisions allowing for a state to unilaterally withdraw from a treaty?

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Example of a state withdrawing from a treaty?

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N. Korea withdrew from non-proliferation and was fully within its rights to do so. The terms of the non-proliferation treaty requireed 3 months notice, which N. Korea gave.

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Material Breach?

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when a state unilaterally renounces a treaty that does not permit withdrawl or when the state doesn't follow the stipulations of withdrawel stated in the treaty, reserved for aggregious violations of treaty provisions.

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Consequence of Material Breach?

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The parties to treaty re no longer obligated to the state that has withdrawn

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rebus sic stantibus

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The concept of rebus sic stantibus (Latin: “things standing thus”) stipulates that, where there has been a fundamental change of circumstances, a party may withdraw from or terminate the treaty in question.

Front 46

1961 United Kingdom and Iceland fishery agreement.

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12 mile band around your coastline; ICJ ruled not rebus sic statibus

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Problem with customary law?

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Much of this law evolved over centuries when many contemporary states didn't even exist; lack of awareness among those countries. The solution has been a movement towards codifying those customary laws

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Role of International Law Commission in codification?

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International law commission has taken the lead in finding out what Customary laws are, clarifying them, writing them down and submitting them to states to sign as treaties.

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What are the primary sources of international law?

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Treaties and Customs

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What are the secondary sources of international law?

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Judicial decisions, International Organizations

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Relationship between states and different sources of law

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What are the subsidiary sources of international law?

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general principles of law human rights and the rights of individuals, sovereignty.

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How does one identify the general principles of law?

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One can deduce the principles of law by observing the laws themselves.

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Trace general principles of law one could deduce from

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1. treaty
2. customary law
3. general principles of international law
4. then you might look at more general customs of law, a nations laws, decisions of international organizations

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systematic rape

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stare decisis

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Significance of EU and security council on international law?

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Make binding decisions and have the power to make law..

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provide material that will subsequently become law given further state action; give interpretations that helps to identify whether certain behavior constitues customary law

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General principles of law

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some principles exist in many legal systems,

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nullum crimen sine lege

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example of a general principle of law; means "no crime without law"

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conflict between treaty law and customary law?

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treaty law will often override customary law particularly if it is more specific and newer

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general and specific law

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specific

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general priciples and treaty/custom law

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treaty /custom

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not liquet

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