Derek G.

Pasion
Public International Law
1. Theory of sources of public international law
a) Distinction between the source and the norm
-

Source this is the basis or foundation to which all other laws or statutes
follow.
Norm - a general and consistent practice of states followed by the people
residing therein from a sense of legal obligation.
b) Distinction between formal sources and material sources

- Formal sources can refer to the various processes by which rules come into
existence. The methods or procedures by which international law is created.
- Material sources, the material sources are those from which is derived the
matter and not the validity of the law. The material source supplies the substance of the
rule to which the formal source gives the nature and the law
c) Article 38 of the Statute of the International Court of Justice
- Article 38 of the statutes of International Court of Justice provides a reflection of
the sources of international law, though not accurate and Article 38 did not expressly
mention sources' but it is usually invoked as sources of international law. Sources of
international law can be characterized as formal' and material' sources, though the
characterisation is not by hierarchy but for clarification, therefore, conventions or
treaties ,custom and general principles are formal sources whereas judicial decisions
and juristic teachings are material sources. Formal sources confer upon rules an
obligatory character', while material sources comprise the actual content of the rules'.
Article 38 is a declaration by states that these are the laws under which they are
willing to be bound. Thus, another statement of sources is the Restatement (Third) of
Foreign Relations Law of the United States
d) Relationship between the sources of public international law
- In earlier stages of the development of international law, rules were frequently
drawn from municipal law. In the 19th century, legal positivists rejected the idea that
international law could come from any source that did not involve state will or consent,
but were prepared to allow for the application of general principles of law, provided that
they had in some way been accepted by states as part of the legal order. Thus Article
38, for example, speaks of general principles "recognised" by states. An area that
demonstrates the adoption of municipal approaches is the law applied to the
relationship between international officials and their employing organizations although
today the principles are regarded as established international law.
e) Relationship between the norms of public international law
-

The notion of practice establishing a customary rule implies that the practice is followed
regularly, or that such state practice must be "common, consistent and concordant".
Given the size of the international community, the practice does not have to encompass
all states or be completely uniform. There has to be a sufficient degree of participation,
especially on the part of states whose interests are likely be most affected, and an
absence of substantial dissent. There have been a number of occasions on which the
ICJ has rejected claims that a customary rule existed because of a lack of consistency
in the practice brought to its attention.

2. International treaties
a) Concept, definition and categories
- 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.
- The different kinds of treaties may be classified from the standpoint of their
relevance as source of international law.
The first are multilateral treaties open to all states of the world. They create
norms which are the basis for a general rule of law. They are either codification treaties or
law-making treaties or they may have the character of both.
Another category includes treaties that create a collaborative mechanism. These
can be of universal scope or regional. They operate through the organs of the different
states.
The third and largest category of treaties are bilateral treaties. Many of these are
in the nature of contractual agreements which create shared expectations such as trade
agreements of various forms. They are sometimes called contract treaties.

b) Conclusion of treaties
c) Reservations to international treaties
- a unilateral statement, however phrased or named, made by a State, when
signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of the treaty in their
application to that State
The rules on reservations are found in Articles 19 to 23:
Article 19. Formulation of reservations.
A State may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the
treaty provides that only specified reservations, which do not include the reservation in
question, may be made; or (c) in cases not falling under sub-paragraphs (a) and (b),
the reservation is incompatible with the object and purpose of the treaty.
d) Conditions of Validity of treaties

Outline of the treaty making process:

Secretary of State authorizes negotiation
U.S. representatives negotiate
Agree on terms, and upon authorization of Secretary of State, sign treaty
President submits treaty to Senate
Senate Foreign Relations Committee considers treaty and reports to Senate
Senate considers and approves by 2/3 majority
President proclaims entry into force
Outline of the agreement making process:
Secretary of State authorizes negotiation
U.S. Representatives negotiate
Agree on terms, and upon authorization of Secretary of State, sign agreement
Three types of agreements
Agreement enters into force
President transmits agreement to Congress
e) Interpretation and application of treaties
- Interpretation of treaties
Article 31 contains the rules for the interpretation of treaties:
1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its object
and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes: (a) any agreement relating to
the treaty which was made between all the parties in connection with the conclusion of
the treaty; (b) any instrument which was made by one or more parties in connection with
the conclusion of the treaty and accepted by the other parties as an instrument related
to the treaty.
3. There shall be taken into account, together with the context: (a) any subsequent
agreement between the parties regarding the interpretation of the treaty or the
application of its provisions; (b) any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its interpretation; (c) any
relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.
f) Modifications and termination of treaties

- Modification
Article 41. Agreements to modify multilateral treaties between certain of the parties only
1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify
the treaty as between themselves alone if: (a) the possibility of such a modification is
provided for by the treaty ; or (b) the modification in question is not prohibited by the
treaty and:
2. Unless in a case falling under paragraph 1(a) the treaty otherwise
provides, the parties in question shall notify the other parties of their intention to
conclude the agreement and of the modification to the treaty for which it provides.