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International Law (Sources of International Law (Customary Practice or Law…

- - - - Denmark, Germany, and the Netherlands
      - International Law Principle - If the delimitation had been determined by the equidistance rule ("drawing a line each point of which is equally distant from each shore")
      - Legal Principle - For a custom to become binding as international law, it must amount to a settled practice and must be rendered obligatory by a rule requiring it.
      - Germany's Argument
        
        Not signed any treaty so not obliged
        
        The time of practice was within small space of time, not enough for customary law
    - - Persistent Objector - EXCEPTION
        
        EXCEPTION TO THE EXCEPTION or a Peremptory Norm- Jus Cogens ('yuus' cogens')
        
        The challenges
        
        Subject to contentious debate
        
        Subject to cultural relativism
        
        Rules so fundamental and parental to rule of law, they can not be objected
        
        Example: USA and the rule of precaution and the issue of climate change
    - - Consistency in practice
    - - "Principle of Distinction"
      - 'Legality of
        the Use by a State of Nuclear Weapons in Armed Conflict'
      - http://www.icj-cij.org/files/case-related/95/095-19960708-ADV-01-00-EN.pdf
  - - - De facto Precedent
- - - - Negotiations
        
        Conducted in good faith
        
        With the intention of concluding an agreement
        
        An obligation of conduct and not result
        
        'Ad infinitum' again and again in the same way; forever
        
        Failed negotiations
        
        Negotiators must have the full powers of the state
      - Setting the Agenda
        
        Framing the text and internal (within the sovereign) discussions
        
        Consent of the key states
      - Setting the framework
      - Adoption
      - Signing = endorse the text but does not amount to binding
        
        Article 18. of the Vienna convention- Obligation not to defeat the object and purpose of a treaty prior to its entry into force
      - Ratifying = 'Pact Sunt Servanda' or legally bound
      - To enter into force, the Treaty must satisfy the minimum number of ratifications
    - - The treaty must specifically allow for reservation or be silent on reservations
      - (Article 2(1)(d) of the Vienna Convention 1969)
      - When is reservation permissble
        
        Whether consistent with the object and purpose
        States parties?
        Human rights bodies?
        Depositary?
      - Objections
        
        Reciprocity
        
        Effect of objections on entry into force
        
        An objection “… does not preclude the entry into force of the treaty ... unless a contrary intention is definitely expressed by the objecting State”
        
        To avoid uncertainty, an objecting State specifies whether its objection precludes the entry into force.
    - - Invalidity may be in the phase of negotiation and adoption
      - As stated in Article 46 of the Vienna Convention
        
        The violation must be manifest and fundamentally in opposition of fundamental practice.
      - There is a strong reluctance to invalidate a treaty
      - Relative Grounds of Invalidity
        
        Error
        
        Fraud
        
        A practice that in opposition of fundamental practice
      - Grounds for Terminatation
        
        Coercion
        
        Violates jus cogens
        
        Withdrawal
        
        States can retract from a treaty
        
        principle of rebus sic stantibus, or "things standing thus." Under this principle, a state may withdraw from a treaty which has no withdrawal provisions only if there has been some substantial unforeseen change in circumstances, such as when the object of the treaty becomes moot or when a material breach is committed by a treaty party
        
        Grounds with restrictive norms
        
        Material Breach
        
        Read Gabčíkovo–Nagymaros Dams Case
- - - - Adminsitration
      - Control
    - - Settlement
      - Inclusive of nomadic communtities
    - - Article 1 of the UN Charter
      - Schools of Thought
        
        Internal Self Determination
        
        External Self Determination
        
        Both internal governance and decisions on external borders- Subject to oppressive regimes
  - - - Does the UN have a legal personality