Public International Law

Custom and Treaty

Multilateral treaty as declaratory of customary international law
A multilateral treaty that purports through the clearest possible
language in its preamble, to be declaratory of customary international
language. The crucial question is whether the law enunciated in the
treaty is binding qua customary international law on the one nonparticipating state, without the necessity of any independent proof of
customary international law. There are three ways in which the law
declaring quality of a treaty might be established:
The first is that the treaty, though appropriate language in the
preamble or elsewhere would state that it incorporates nothing but
customary international law. The second is through travaux
preparatoires of the treaty or the instrument under the authority of
which the treaty was drawn up. The third would be through comparison
of provisions of the treaty with customary international law whereby it
might be established that certain articles of the treaty or all of its
content are, as it were, an accurate photograph of the law.
Multilateral treaties as constitutive of new customary international law
Treaties that do not purport to be declaratory of customary
international law at the time that they enter into force may
nevertheless with the passage of time pass into customary
international law. If one is to rely on a treaty that has grown into
customary international law, one must 1) prove the rule of customary
international law, 2) show that the treaty contains the same rule and 3)
thereby demonstrate that the treaty is evidence of the state of
customary international law
Bilateral treaties as evidence of customary international law
Making of Treaty
Treaties may be drafted as between states, or governments, or heads
of states, or governmental departments, whichever appears the most
expedient.
Reservation
Where a state is satisfied with most of the terms of a treaty, but is
unhappy about particular provisions then it can refuse to be bound by
such provisions while consenting to the rest of the agreement. The
effect of a reservation is simply to exclude the treaty provision to which

the reservation has been made form the terms of the treaty in force
between the parties.
Article 19 of the Convention on the law of treaties says that reservation
may be made when signing, ratifying, accepting, approving or
acceding to a treaty, but they cannot be made where the reservation is
prohibited by the treaty, or where the treaty provides that only
specified reservations may be made or where the reservation is not
compatible with the object and purpose of the treaty.
Reservation must be made in writing and communicated to treaty
parties as well as other states entitled to become parties. Reservations
are distinguishable from 1) interpretative declarations and 2) unilateral
statements.
Interpretative declaration means that a state interprets a specific word
in a certain way to suit its interest. Unilateral statements are intention
on matters relating to the treaty but not to its specific provisions.
Under articles 20 and 21 if one state has proposed a resrvation, each
other state may accept the reservation or object to it and if an
objection is not made within 12 months the state is deemed to have
accepted it.
There are three options upon reservation and it cannot be told which is
the current practice in international law
1) The reserving states remains bound to the treaty except for the
provisions to which the reservation related.
2) The invalidity of a reservation nullifies the instrument of
ratification as a whole and thus the state is no longer a party to
the agreement.
3) An invalid reservation can be severed from the instrument of
ratification as a whole and thus the state remains bound to the
treaty including the provisions to which the reservation related.
The general rule that became established was that reservations could
only be made with the consent of all other states involved in the
process. However, this restrictive approach to reservation was not
accepted by the ICJ in the 1948 Reservations of the Genocide
Convention case.
Reservations to the Convention of Genocide (ICJ, 1951)
(1) Countries can make reservations and remain party to a treaty as
long as the reservation is compatible w/the object & purpose of the
treaty.

(2) If a party to the treaty objects to a reservation as being

incompatible, it can consider the reserving state as not a party.
The same has been included in 1969 Convention on the Law of
Treaties.

Article 20(2)