Decisions and Publicists

This category is described as a subsidiary means of finding law, Judicial decisions

and scholarly writings are, in essence, research aids for the Court, used for example to support
or refute the existence of a customary norm, to clarify the bounds of a general principles of
customary rule, or to demonstrate practice under a treaty.
Judicial Decisions
As there is no binding authority to precedent in international law, international court
and tribunal cases do not make law. Judicial decisions are, therefore, strictly speaking not a
formal source of law. However, they clarify the existing law on the topic and may, in some
circumstances, create a new principle in international law. They can also be considered evidence
of State practice.
The Writings of Publicists
This source generally only constitutes evidence of customary law. However, learned
writings can also play a subsidiary role in developing new rules of law.
Requisites to be a highly qualified publicist

His writings must be fair and impartial representation of law;

An acknowledged authority in the field

Examples: Grotius, Lauterpacht, Oppenheim, Crawford, Aust, Shaw, and Brownlie

Equity
Equity is understood to be:

A general principle of international law and thus may be considered as a material source
of law;
A way of infusing elements of reasonableness and individualize justice whenever law
leaves a margin of discretion to a court in deciding a case. This is equity which operates
within the boundaries of law (equity intra legem).

Under Article 38(2) of the Statute of the ICJ, equity means that a decision may be made
ex aequo et bono, i.e. the court should decide the case not on legal considerations but solely on
what is fair and reasonable in the circumstances of the case (equity intra legem). However, the
parties must expressly authorize the court to decide a case ex aequo et bono. So far, the ICJ has
never delivered any judgment based on Article 38(2) of its Statute.

NOTE: Non-permissible reservations are invalid but views differ on whether they are totally
invalid, which means that the reserving States ratifications is ineffective, or whether they are
partially invalid, which means they are severed from reserving States declaration of consent to

be bound by the relevant treaty with the consequence that the treaty applies to the reserving
State and the reservation is regarded.
Interpretative and Conditional Interpretative Declarations and their Relationship
with Reservations

An interpretative declaration, however, phrased or named, is made by a State in order to

specify or clarify its understanding of the meaning or scope of certain provisions of a
treaty, e.g. State X understands provision A as meaning. . . Such declarations are nonbinding.

Entry into Force, Deposit, Registration and Publication of Treaties

Entry into Force

The conditions of the entry into force are normally specified by the relevant treaty.
Otherwise, a treaty is presumed to enter into force as soon as all the negotiating States
have expressed their consent to be bound by it.

Deposit

A depository is designated by the contracting parties to a treaty. He is the custodian of

the treaty and performs administrative tasks relating to it (Articles 7680, VCLT).
However, he is not entitled to determine the legal effect of any instrument or
communication received from a party. This task is within the competence of the
contracting parties.

Registration

In order to ensure transparency in the conduct of international relations, Article 102 UN

Charter requires all treaties and all agreements entered into by any member of the UN to
be registered with the UN Secretariat. However, failure to register a treaty has no effect
on its validity.

Publication

Subsequent to registration, a treaty will be officially published in the UN Treaty Series,

so that anyone can consult it.

Validity of Treaties
Article 42(1) of VCLT sets out the only grounds on which a State can rely to nullify a
treaty. The VCLT makes a distinction between grounds of nullity which:

Concern the lack of consent of a party to a treaty with the consequence that a treaty will
still be valid (but not for a bilateral treaty) for all parties except for the State which did
not consent to it.

Lead to nullity of a treaty for all parties on the grounds that either it was concluded in
violation of a jus cogens rule (Article 53, VCLT) or that it is in conflict with a jus cogens
rule which emerged after its conclusion (Article 64, VCLT).