I te atio al La P of.

Pie e d’A ge t
Week 4: Making International Law II

Contenu
THE NOTION OF TREATY ...................................................................................................... 2
TREATY NEGOTIATIONS ....................................................................................................... 6
SIGNATURE, RATIFICATION AND ENTRY INTO FORCE...................................... 9
THE ICC STATUTE................................................................................................................... 14
REGISTRATION AND PUBLICATION ............................................................................. 16
UN TREATY SERIES................................................................................................................ 19
RESERVATIONS : NOTION ................................................................................................ 20
RESERVATIONS: PERMISSIBILITY ............................................................................... 23
RESERVATIONS: LEGAL EFFECTS ................................................................................. 26
RESERVATIONS: ACCEPTANCE AND OBJECTION ................................................ 28
RESERVATIONS AND OBJECTIONS IN PRACTICE: PAKISTAN AND THE
CAT .................................................................................................................................................. 32
THE VALIDITY OF TREATIES: INTRODUCTION ..................................................... 36
DEFECT OF CONSENT (COMPETENCE) ....................................................................... 40
DEFECT OF CONSENT (GENUINE AND INFORMED CONSENT) .................... 44
JUS COGENS .............................................................................................................................. 47
FINAL NOTE ON THE INVALIDITY OF TREATIES .................................................. 52
GENERAL PRINCIPLES ACCORDING TO ARTICLE 38 OF THE ICJ
STATUTE ....................................................................................................................................... 53
GENERAL PRINCIPLES IN ICJ CASES ......................................................................... 57
UNILATERAL ACTS OF STATES ....................................................................................... 61
TIMOR-LESTE AND AUSTRALIA AT THE ICJ ........................................................... 64
UNILATERAL ACTS OF INTERNATIONAL ORGANIZATIONS ........................... 66
KOSOVO ICJ'S ADVISORY OPINION ............................................................................ 69
UN GENERAL ASSEMBLY RESOLUTIONS AND CUSTOMARY LAW ............... 71
LAST YEAR'S GENERAL ASSEMBLY RESOLUTIONS ............................................ 75
SOFT LAW .................................................................................................................................... 76
READING: ICJ PULP MILLS ON THE RIVER URUGUAY CASE ........................ 80

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THE NOTION OF TREATY

This lesson is about treaties, that is "international conventions" as Article 38 of the ICJ Statute puts it.

Treaties have existed for thousands of years in the history of mankind.

They are a very old instrument of international law.

For the public opinion, treaties are often associated with international politics and diplomacy.

And children learn the names and the dates of important peace treaties that have shaped the history
of their country.

Intuitively, everybody understands what a treaty is.

It is an agreement on the international stage.

Conceptually, a treaty is very similar to a contract, but at the international level.

There are thousands of international treaties currently binding between two or more States, and also
between States and international organizations, or between international organizations.

And those thousands of treaties are about many different things: they can be about land or maritime
borders, about trade, about international aviation, the promotion or protection of investments, the
protection of human rights or the protection of the environment and biodiversity, the rules of war,
judicial cooperation between States and extradition, about disarmament; and so on.

They can also be treaties establishing international organizations like the United Nations, the African
Union or the European Union, the World Trade Organization or the International Criminal Court, etc.

Actually, any topic, any issue can be the object of a treaty, provided that there is agreement for that
purpose.

This lesson will not report on the rules and obligations contained in all those different treaties.

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This would simply be impossible.

Rather, this lesson is about the making of treaties in general.

It is about the rules of international law relating to the making of any treaty.

In that regard, we are very much helped by the fact that there is a treaty on the law of treaties.

It is called the Vienna Convention on the Law of Treaties.

It was signed in Vienna on 23 of May 1969 and it entered into force on 27 January 1980.

114 States are now currently parties to that treaty and it is applicable to the treaties contracted by
those States after they became bound by it.

However, because most of its core provisions reflect customary international law, the substantive
rules contained in the Vienna Convention also govern treaties contracted by States that are not party
to it.

Those substantive rules are not applicable to those treaties as rules of the Vienna Convention, but as
rules of customary international law.

And for the same reason, those substantive rules also govern treaties concluded by States before
they became party to the Vienna Convention.

For instance, and as the ICJ has decided on several occasions, the rules on treaty interpretation
enshrined in the Vienna Convention may serve for the interpretation of treaties concluded back in
the 19th century, because those rules are customary rules written down in the Vienna Convention.

According to its Article 2, the Vienna Convention applies to "an international agreement concluded
between States".

So, from a formal point of view, the Vienna Convention of 1969 does not govern treaties when one of
the parties to it is an international organization.

Another Vienna Convention, signed this time in 1986, was negotiated for the purpose of governing
treaties concluded between States and one or several international organizations, or between
international organizations.

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However, lacking the needed number of ratifications, that latter convention has not yet entered into
force.

But this does not mean that international organizations may not conclude treaties, nor that those
treaties are governed by rules that are very different from the ones applicable to treaties between
States.

As a matter of fact, the 1986 Vienna Convention is to a large extent a cut-and-paste of the 1969
Vienna Convention.

And because, as I just mentioned, the 1969 Convention very much reflects customary international
law, the same core rules apply to any treaty, whether or not international organizations are parties
to it.

From now on and as a matter of convenience, I shall most of the time simply refer to the "Vienna
Convention", meaning, the 1969 Vienna Convention on the treaties between States.

For the purpose of the Vienna Convention, a treaty is an international agreement that is both
concluded "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."

In other words, treaties can be finalized in one single document or be the result of the exchange of
several diplomatic notes or texts.

Moreover, a treaty is a treaty whatever its name: it can be called treaty, convention, pact, charter,
covenant, protocol, memorandum of understanding, statute, whatever!

International law is not a formalistic legal order.

What matters is the wine in the bottle, not the bottle nor its label.

What matters is the existence of an agreement between subjects of international law, and an
agreement which is governed by international law- as opposed to a contract governed by a domestic
law, or as opposed to a political agreement, which is also called a gentlemen's agreement and which
is on purpose not binding under international law and therefore not governed by international law.

So, it is important to keep in mind that not every agreement between States is a treaty: only those
agreements that parties tacitly or expressly agree to submit to international law are treaties.

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Let me end this introduction to the notion of treaty by mentioning the fundamental rule of treaty
law.

It is an easy and straightforward rule, so fundamental that it is intrinsic in any legal system.

It is considered to be a basic principle of international law and an essential rule of customary

international law.

In Latin, that rule is called "pacta sunt servanda", which literally means "agreements must be kept".

Article 26 of the Vienna Convention is entitled "Pacta sunt servanda" and it reads as follows:"Every
treaty in force is binding upon the parties to it and must be performed by them in good faith".

In the next sections of this lesson, we'll learn about the four usual successive steps in the making of
treaties: negotiations, signature, ratification and registration of treaties.

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TREATY NEGOTIATIONS

Treaty negotiations are a great subject for historians and scholars of international relations.

This is because treaties are often important instruments of international politics.

Just think for instance at certain peace treaties that have had a lasting influence on human history.

If treaty negotiations can be fascinating from an historical or political perspective, they are however
rarely a subject of concern for international lawyers.

And indeed international law does not provide many rules about how to negotiate a treaty.

This is because in order for negotiations to be successful, States should be free to set up the
negotiating framework, the agenda and the process as they wish.

Of course, those issues may require prior consultations and negotiations: States must first agree that
it is a good idea to negotiate a treaty about a specific topic, and then they must agree on the way
forward on the negotiating process itself: where will it take place, what will be the pace of
negotiations, how proposals will be exchanged, and discussed, etc.

But all this is very much left unregulated by international law, simply because it is impossible to set
up in advance clear rules on all those issues.

Each negotiation is different and must therefore be conducted differently, without being limited by
predetermined rules.

Having rules on all aspects of negotiations could indeed be counter-productive as it could slow down,
discourage or derail the negotiations.

So, there are very few rules of international law applicable to every single treaty negotiation.

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However, and because it would be a waste of time to negotiate a treaty with persons who are not
entitled to speak and to bargain on behalf of the future contracting parties, one of the very few rules
relating to treaty negotiations stems from the long established practice according to which persons
sitting at the negotiating table must produce appropriate "full powers".

Under Article 2, paragraph 1, c) of the Vienna Convention, "full powers" are defined as "a document
emanating from the competent authority of a State designating a person or persons to represent the
State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of
the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty."

The practice relating to full powers has been codified by Article 7 of the Vienna Convention on the
Law of Treaties, and you will find its text in the documents of the course.

And a similar provision exists in the 1986 Vienna convention on treaties by international
organizations.

Full powers are usually established by a letter, signed by the Minister of Foreign Affairs of the State
or the Secretary General of the organization concerned.

And in our time of global communication, the requirement of full powers may seem a bit outdated
and there is not much to say about it, as it rarely raises problems.

However, it is interesting to note that paragraph 2 of Article 7 establishes presumptions of full

powers: the persons that are specifically listed in paragraph 2, that is Heads of State, Heads of
Government and Ministers for Foreign Affairs, heads of diplomatic missions, representatives
accredited to international conferences or organizations.

All those people are presumed to have full powers for the purpose of the negotiation and the
conclusion of the treaty, so much that they do not need to produce any document establishing that
they have full powers.

And it would indeed be quite absurd to see, for instance, the Minister of Foreign Affairs of a State
writing to himself or to herself a letter of full powers.

In the case between Cameroun and Nigeria, the question arose as to whether a joint declaration
made by the two Heads of States amounted to an international agreement tracing part of the
maritime border between the two States.

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The Court considered that the declaration amounted to such a treaty and it rejected Nigeria's
argument according to which Article 7, paragraph 2, of the Vienna Convention would be solely
concerned with the way in which a person's function as a State representative is established.

Rather, the Court considered that the presumptions of Article 7, paragraph 2, "deal with the extent
of the person's powers when exercising that representative function".

Hence, the presumptions are substantive and not only formal: they relate to the extent of the
powers to represent the State, not only to the presumptive way by which such representation is
established.

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SIGNATURE, RATIFICATION AND ENTRY INTO FORCE

Article 10 of the Vienna Convention provides that failing any other procedure or mechanism agreed
by the parties participating in the drawing up of the treaty, the signature of the treaty establishes
that the negotiated text is authentic and definitive.

In other words, the end of the negotiations results from the signature of the treaty.

Once the treaty is signed, its text is final: the draft treaty becomes the treaty.

Treaties are usually identified by referring to the place and the date of their signature: for instance
the Convention on the Law of Treaties was signed in the city of Vienna on 23 May 1969.

And aside from the authentification of the treaty, what are the other legal effects deriving from the
signature of a treaty?

The most important effect is that by signing a treaty, a State may express its consent to be bound by
the treaty.

However, this important effect does not automatically derive from the signature.

As Article 12 of the Vienna Convention makes clear, the signature expresses the consent to be bound
by the treaty only when: the treaty provides that the signature shall have that effect; or it is
otherwise established that the negotiating parties were agreed that the signature would have such
effect; or again that the intention of the negotiating parties to give that effect to the signature
appears from the full powers of the representatives involved or such intention was expressed during
the negotiations.

In other words, the signature expresses the consent to be bound by the treaty if that is the common
intent of the negotiating parties.

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If they do not have such an intent, the signature cannot be considered as expressing the final consent
to be bound by the treaty.

In such a case, a separate and distinct act will be needed to express such consent; that additional act
is called the "ratification" of the treaty.

The ratification may also be called the acceptance, approval or accession to the treaty.

And in each case, and as the definition to be found in Article 2 of the Vienna Convention reads, it is
an international act whereby a State or an international organization establishes on the international
plane its consent to be bound by the treaty.

It is important to stress that, as Article 11 of the Vienna Convention makes clear, there is not one
single means of expressing consent to be bound by a treaty: the contracting parties are free to
decide for each treaty which one is to be preferred.

As the ICJ ruled in the Cameroun v. Nigeria case "both customary international law and the Vienna
Convention on the Law of Treaties leave it completely up to States which procedure they want to
follow".

States may want the treaty to immediately enter into force upon its signature and therefore consider
that the signature is the act by which consent to be bound by the treaty is given.

Or States may prefer to give to themselves a moment of thought and evaluation, and eventually also
a moment of democratic approval at the national level, so as to choose for a ratification process.

When consent to be bound is not expressed by the signature of the treaty, the final clauses of the
treaty usually provide for the requirement of ratification and the procedure by which the treaty will
take effect.

In case of a bilateral treaty, the day when the instruments of ratification of both parties are
exchanged will usually be chosen as the day upon which the treaty will enter into force.

In case of a multilateral treaty, the ratification by each party will take place at various moments in
time.

But if this is so, when will the treaty take effect, when will it enter into force, for each of the parties
that have ratified it?

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Most of the time, parties agree that a certain number of ratifications are needed for the treaty to
enter into force.

This is because it simply makes no sense to have a treaty binding between only a few parties if it is a
multilateral treaty.

Hence, in the final clauses of the treaty, you will most of the time find a provision entitled "entry into
force" which states the conditions for such entry into force.

For instance, Article 84 of the Vienna Convention requires 35 ratifications for the Convention to enter
into force.

Furthermore, the same Article states that the Convention will enter into force 30 days after the 35th
ratification: before that day, 35 States have expressed their consent to be bound by the treaty, but
they are not yet bound by the treaty.

Once that day arrives, the treaty enters into force, which means it is legally binding on the States that
have already ratified it.

From that day, and from that day only, the parties that have already ratified the treaty must perform
it in good faith - pacta sunt servanda.

Ratifications that are made after the day of the entry into force will usually produce their effect
immediately or after a period of time specified under the treaty.

In the case of the Vienna Convention, that period is 30 days: the obligation to perform the treaty in
good faith begins 30 days after each new ratification.

In order to centralize that process and to keep all the interested parties duly informed of the various
ratifications, the final clauses of a multilateral treaty usually designate a depositary with whom the
instruments of ratification must be deposited.

For instance, Article 82 of the Vienna Convention establishes the Secretary-General of the United
Nations as depositary of the instruments of ratifications of that treaty.

Article 77 of the Vienna Convention defines what are the various administrative functions and duties
that the depositary must impartially perform.

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There is no need to go too much into details in that regard, but you may wish to read that provision
for yourself.

Of course, when the signature of the treaty does not express the consent to be bound by the treaty,
it must nevertheless entail the duty to respect the final clauses by which the process of ratification
and entry into force is provided for.

This is of course made clear by Article 24, paragraph 4, of the Vienna Convention and any other
solution would not make sense.

One more important legal obligation needs to be mentioned here, pending the entry into force of the
treaty.

During that period of time, awaiting that the treaty takes effect, each State or international
organization which has signed the treaty or expressed its consent to be bound by the treaty through
ratification, each is obliged not to defeat the object and purpose of the treaty.

This is a general obligation and it has been codified by Article 18 of the Vienna Convention.

It is an obligation "to refrain from acts which would defeat the object and purpose" of the treaty.

It is not an obligation to comply with the treaty, nor an obligation to perform any of its provisions: it
is an obligation of good faith to abstain from any act which would make the object and purpose of
the treaty meaningless.

And it is an interim obligation: it only exists pending the entry into force of the treaty; once the treaty
enters into force and becomes binding, that obligation is replaced by the obligation to perform the
treaty in good faith.

Furthermore, the obligation not to defeat the object and purpose of the treaty exists "until [the
signing party] shall have made its intention clear not to become a party to the treaty".

Hence, a party which has signed a treaty and later decides not to ratify it can unilaterally free itself
from that obligation by making clear that it does not intend to become a party to the treaty.

From the moment such intention is made clear, the interim obligation ceases to be binding and the
State concerned may perform acts which would run counter the object and purpose of the treaty.

This has been a very long video.

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Please turn now to the exercise that follows to see how those concepts and obligations work in
practice.

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THE ICC STATUTE

The Statute establishing the International Criminal Court (ICC) has been negotiated by a diplomatic
conference which met in Rome. The final text of the treaty was signed in the Italian capital on 17 July
1998.
Articles 125 and 126 of the ICC Statute read as follows:
Article 125: Signature, ratification, acceptance, approval or accession
This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and
Agriculture Organization of the United Nations, on 17 July 1998. Thereafter, it shall remain open for
signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date,
the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31
December 2000.
This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of
ratification, acceptance or approval shall be deposited with the Secretary-General of the United
Nations.
This Statute shall be open to accession by all States. Instruments of accession shall be deposited with
the Secretary-General of the United Nations.
Article 126: Entry into force
This Statute shall enter into force on the first day of the month after the 60th day following the date
of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the
Secretary-General of the United Nations.
For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th
instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the
first day of the month after the 60th day following the deposit by such State of its instrument of
ratification, acceptance, approval or accession.

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A few weeks before leaving office, President Bill Clinton signed the Rome Statute on behalf of the
United States of America, on 31 December 2000. After the Administration of President George W.
Bush considered that it was its policy that the US were not to become party to the ICC Statute, the
Secretary-General of the United Nations received on 6 May 2002, the following communication from
the US Embassador to the UN:
"This is to inform you, in connection with the Rome Statute of the International Criminal Court
adopted o Jul , , that the U ited “tates does ot i te d to e o e a pa t to the t eat .
Accordingly, the United States has no legal obligations arising from its signature on December 31,
2000. The United States requests that its intention not to become a party, as expressed in this letter,
e efle ted i the deposita ’s status lists elati g to this t eat .

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REGISTRATION AND PUBLICATION

Secret treaties have existed all along in the history of mankind.

Many of them have provided for alliances, mutual defense and assistance in case one of the
contracting States is in a state of war against a third State.

Because of their secrecy, those treaties have been considered to be dangerous and undesirable for
the unforeseeable consequences they trigger.

Secret treaties were blamed for helping spark the First World War.

As a result, in his opening statement for the "Fourteen Points" that he presented in January 1918 as
the basis for a future peace treaty, President Wilson straightforwardly condemned "secret
understandings of any kind" and he solemnly declared: "The day of conquest and aggrandizement is
gone by; so is also the day of secret covenants entered into in the interest of particular governments
and likely at some unlooked-for moment to upset the peace of the world."

Hence, the very first of the Fourteen Points called for "Open covenants of peace, openly arrived at,
after which there shall be no private international understandings of any kind but diplomacy shall
proceed always frankly and in the public view."

This idea that secret treaties were to be banned was translated into Article 18 of the Covenant of the
League of Nations, which provided that the League Members must register their treaties with the
League Secretariat in order for them to be published.

The last sentence of Article 18 stated that: "No such treaty or international engagement shall be
binding until so registered."

Under that system, non-registered treaties were thus deprived of any binding force, which is quite a
radical outcome.

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The Covenant of the League of Nations has been terminated after the entry into force of the United
Nations Charter.

Under Article 102 of the United Nations Charter, Member States have also a similar obligation to
register with the UN Secretariat every treaty and every international agreement they have entered
into.

Such obligation only exists for new treaties in the future, that is once the Charter is in force and the
State concerned has become a member of the UN.

Article 102 says that the registration of treaties must be done "as soon as possible", but there is no
time-limit for such process.

Once the treaty is registered, the UN Secretariat must publish it, which is done through the United
Nations Treaty Series, a very large collection of volumes and now an online database which is freely
accessible on the UN website.

The drafters of the United Nations Charter probably thought that the sanction provided for under
Article 18 of the League of Nations was too radical.

It was therefore replaced under Article 102, whose paragraph 2 provides that "No party to any such
treaty or international agreement which has not been registered may invoke that treaty or
agreement before any organ of the United Nations."

Thus instead of being deprived of their binding force, non-registered treaties may simply not be
invoked before any organ of the UN, most notably before the Security Council or the International
Court of Justice.

UN organs will just ignore non-registered treaties and will not be able to consider or protect any right
stemming from them.

However, because there is no time-limit for the registration of treaties, a party which intends to avail
itself of a non-registered treaty before a UN organ may suddenly rush to the Secretariat and present
it for registration.

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When a depositary is designated in a multilateral treaty, it will usually register the treaty with the UN
Secretariat, so that the other contracting parties will not have to do it themselves.

Does this all mean that there are no secret treaties anymore?

Well, it would be quite naive to think so and it is, by definition, also quite impossible to know
precisely because those treaties are what they are: they are not made public and they are kept
within some closed governmental circles.

They remain secret.

But this does not mean that the evolution resulting from the registration requirement is meaningless.

On the contrary, the obligation to make treaties public somehow induced a change in the diplomatic
culture: the contracting parties will have to decide whether they want to depart from the registration
obligation, instead of deciding that they want to publicize their treaty.

And even if they agree to keep the treaty secret, any of the parties could at any time decide to
present the treaty for registration without being susceptible of being blamed from a legal point of
view for having breached any secrecy obligation that may exist between the parties.

This is because the obligation to register treaties is contained in the UN Charter (Article 102) and
that, as we shall see later in this course when addressing Article 103 of the Charter, obligations under
the UN Charter always prevail over other treaty commitments.

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UN TREATY SERIES

Please find here the website of the United Nations Treaty Series which contains a very large
collection of volumes with all sorts of bilateral or multilateral treaties that UN member States have
registered pursuant to Article 102 of the Charter. Furthermore, an online database on the status of
over 560 major multilateral instruments deposited with the Secretary-General of the United Nations
is freely accessible.

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RESERVATIONS : NOTION

The negotiation of a multilateral treaty is usually a more difficult and more cumbersome process
compared to the negotiation of a bilateral treaty: as more voices speak, it becomes more
complicated to find an agreement on every single point discussed.

But disagreement on points of details should not prevent agreement on the core principles and rules
of the new treaty.

For instance a State may like 90% of what is in a treaty, but dislike what some of its provision provide
for, provisions that are of minor importance.

In such a case, it would be sad not to have that State on board of the treaty.

But if the logic is "take it or leave it", the risk is that such State will not consent to the treaty at all,
despite the fact that it very much likes most of it.

So, in order to encourage the conclusion of and accession to multilateral treaties, parties are often
entitled to make reservation to the treaties they contract.

Article 2, paragraph 1, d) of the Vienna Convention defines the concept of "reservation" as follows: "
'reservation' means 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.

Reservations are a difficult and very technical legal issue and this introductory course will not deal
with every aspect of it.

But let us try to understand the gist of the matter, even if this will already require several videos.

From the definition I just read out, a few elements already appear.

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A reservation is a unilateral statement: reservations need not be agreed between the contracting
parties during the negotiations, they are unilateral statements of each of them.

It does not matter what the reserving State calls its reservation: it can call it 'reservation' or
'declaration' or 'statement'.

What matters is the intent conveyed by that unilateral statement.

Such intent must be either "to exclude or to modify the legal effect of certain provisions of the treaty
in their application to" the State making that statement.

This is the proper, the intrinsic, legal effect that a reservation may have.

Excluding the effect of a certain provision can be easily phrased: for instance, a State may declare
that it does not consider itself bound by, let us say, Article 66 of the Vienna Convention which
confers jurisdiction to the International Court of Justice for settling certain disputes about the alleged
invalidity of treaties.

Modifying the effect of a certain provision is sometimes more difficult to phrase.

But let us imagine for instance a treaty by which labour by children under the age of 16 is outlawed
and that a State makes a reservation providing for the possibility of having children working in the
advertisement industry, provided for instance that prior administrative authorization be given
through a specific procedure.

Whether it is in order to exclude or to modify the legal effect of the treaty, the reservation may only
relate to "certain provisions of the treaty".

Reservations must be specific.

They cannot be about the treaty in general.

Finally, the definition of the reservation contains an important temporal element: reservations must
be made "when signing, ratifying, accepting, approving or acceding to a treaty", which means that
they cannot be made later than when the State expresses its consent to be bound by the treaty.

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Once you are bound by the treaty, you must perform its obligations in good faith and it is too late to
declare that you do not want to be bound by one of its provisions.

Any late reservation is not a reservation and produces no legal effect.

Such temporal requirement is repeated in Article 19 of the Vienna Convention.

Article 19 is also important because it puts other limits to the possibility of making reservations.

This is what we are going to see in the next video.

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RESERVATIONS: PERMISSIBILITY

In the previous video, the notion of reservation was introduced, as well as the basic conditions for
making reservations.

Article 19 of the Vienna Convention states other limits to the possibility of making reservations.

First, and quite obviously, reservations cannot be made if they are prohibited by the treaty.

For instance, Article 120 of the Rome Statute of the International Criminal Court simply states: "No
reservations may be made to this Statute."

Second, if the treaty provides that only specified reservations may be made, any other reservation is
prohibited and does not produce any effect.

Third, in all other cases, the reservation must not be "incompatible with the object and purpose of
the treaty".

This criterion comes from the advisory opinion delivered by the International Court of Justice in 1951
concerning the reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide.

You may recall that the notion of the "object and purpose of the treaty" already appears in Article 18
of the Vienna Convention, in relation to the interim obligation that exists pending the entry into force
of the treaty.

The idea here is the same: a reservation is not permissible if it contradicts the very 'raison d'être' of
the treaty, that is the core obligations under the treaty.

For instance, if a State adheres to the Genocide Convention while at the same time declaring that it
does not consider itself bound by the Convention in relation to a specific ethnic group living on its
territory, such declaration would obviously have to be considered as a prohibited reservation.

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But if that is the case, what happens?

Is the State bound by the entirety of the treaty despite its prohibited reservation or must one
consider that it is not bound by the treaty at all because its reservation, despite being invalid, was an
essential element of its consent to the treaty?

The first issue to be addressed is to determine who is entitled to authoritatively decide on the
validity of the reservation, on its compatibility or incompatibility with the object and purpose of the
treaty.

If there is an international court or arbitral tribunal having jurisdiction between the parties to decide
on this issue, that court or tribunal could settle the dispute about the validity of the reservation.

And in case the reservation is considered to be incompatible with the object and purpose of the
treaty, the same court or tribunal could also decide on the consequences of such finding.

In the Belilos case, the European Court of Human Rights decided in 1988 that an "interpretative
declaration" made by Switzerland about Article 6 of the European Convention (Article 6 is about the
right to a fair trial)- that such declaration was actually a reservation and that it was incompatible with
the object and purpose of the Convention.

And furthermore, the European Court decided to set aside that invalid reservation and it ruled that
Switzerland remained nevertheless bound by the European Convention in its entirety, including
Article 6.

Human rights bodies usually follow such approach.

And it is quite understandable in light of the nature of the rights at stake.

But it is not certain that a similar approach is granted in every case, when the instrument at stake is
about something else than the protection of human rights.

When it is a purely contractual matter between States, the logic of consent as the basis for the
creation of international law rules should maybe lead one to consider that if the reservation is

24
invalid, but was nevertheless an essential element of the State consent to the treaty, such consent
has not been properly given so that the State is not bound by the treaty as a whole.

Well be that as it may, and in the absence of any adjudicative body having jurisdiction to decide on
the matter, the question of the validity of certain reservations will often be left to the appraisal of
each of the other contracting parties.

In that regard, the Vienna Convention provides for a complex system of acceptance and objection to
reservations.

This is what we are going to study in the next videos.

25
RESERVATIONS: LEGAL EFFECTS

Before turning to the complex system of acceptance and objection to reservations established under
the Vienna Convention, let me come back for a moment on the various legal effects of reservations,
and let us assume that we are dealing with a perfectly valid reservation, that is a reservation that is
not prohibited by the treaty nor a reservation that is incompatible with its object and purpose.

You may remember that, for the party making the reservation, the proper or intrinsic effect of that
reservation is either to exclude or to modify the legal effect of certain provisions of the treaty.

But what about the other parties to the multilateral treaty?

What are, for them, the legal effect of a valid reservation?

Two effects must be distinguished.

First, between the reserving party and the other contracting parties, the reservation has a reciprocal
effect.

This means that the other contracting parties will only be bound vis-a-vis the reserving party to the
extent of the reservation.

This rule is provided for in Article 21, paragraph 1, b), of the Vienna Convention.

The rule is obvious: if the reserving party considers itself not bound by a certain provision (or only
bound in a certain manner), it is not entitled to require from the other contracting parties that they
fully respect the treaty vis-a-vis itself.

The other parties will only be bound vis-a-vis the reserving State to the same extent as it is itself
bound as a result of its reservation.

The reservation has a reciprocal effect.

26
Let me take an example and illustrate this point.

In a treaty between States A, B, C and D, if State A declares that it consents to the treaty except for,
say Article 42, State A is not bound by Article 42, but as a matter of reciprocity, States B, C and D are
not bound to respect Article 42 vis-a-vis State A.

Second, between the other contracting parties, the reservation does not modify their obligations
under the treaty.

This is called the relative effect of the reservation, and it is provided for in Article 21, paragraph 2, of
the Vienna Convention: "the reservation does not modify the provisions of the treaty for the other
parties to the treaty inter se."

To take the same example: between States B, C and D, who have not made a reservation about
Article 42, Article 42 applies fully and B, C and D must respect Article 42 vis-a-vis each other.

As you can see, and if you add some complexity with B, C and D each having different reservations,
the multilateral treaty will have to be viewed as a web of bilateral relations that are to a large extent
similar but not exactly similar.

The question of the legal effect of the treaty will have to be analyzed from the point of view of each
contracting party, in relation to every other party.

In other words, the same multilateral treaty will not produce the same legal effects for each of its
contracting parties.

27
RESERVATIONS: ACCEPTANCE AND OBJECTION

Having now acquired a clear understanding of the legal effects of reservations, let us now turn to the
complex system of acceptance and objection to reservations.

The matter is regulated by Article 20 and Article 21, paragraph 3, of the Vienna Convention.

Without going too much into details, the system is as follows: Reservations that are not specifically
authorized by the treaty should, as a matter of principle, be accepted by the other contracting
parties.

Of course, reservations that are prohibited by the treaty or that are incompatible with its object and
purpose should not be accepted by the other parties.

And the acceptance of an objectively invalid reservation cannot make it legal.

The rule according to which valid reservations should be accepted in order to produce their effect is
largely tempered by two rules.

The first rule is that it is enough that only one other contracting party accepts the reservation for the
reserving party to become party to the treaty and for the reservation to produce its effect.

This is provided under Article 20, paragraph 4, c), of the Vienna Convention.

The second rule is expressed by Article 20, paragraph 5, of the Vienna Convention: "reservations are
considered to be accepted by another contracting party if it has not raised any objection within one
year of the notification of the reservation or its ratification of the treaty."

Silence during twelve months means tacit acceptance of the reservation.

Read together and combined, those two rules mean that if all the other contracting parties
unanimously object to the reservation, the reserving State will not become party to the treaty at all.

28
This outcome is of course very unlikely, as all the other contracting parties must unanimously object
and this is very rare.

What happens then if the other contracting parties do not unanimously object to the reservation and
that, instead of expressly or tacitly accepting the reservation, some of the other contracting parties -
but not all -object to it?

Sometimes, one party will object to the reservation because it considers it to be incompatible with
the object and purpose of the treaty, and for that reason invalid.

In such a case, we would be back to the question raised earlier as to whether this is a correct
appraisal or not.

Absent a court having jurisdiction to settle the matter, the claim relating to the invalidity of the
reservation will remain unsolved.

But what would be the effect of such objection anyway?

Here, we need to distinguish between two possible types of objection, irrespective of whether the
objection is about the invalidity of the reservation or whether it simply expresses the discontent of
the objecting State with a reservation that is nevertheless valid.

First, and as provided for under Article 20, paragraph 4, b), of the Vienna Convention, it is possible
for the party objecting to the reservation to expressly declare that, because of the reservation, it
opposes the entry into force of the treaty between itself and the reserving party.

If that is the case, there is no treaty between the reserving State and the party making such objection
to the entry into force of the treaty.

Such an objection has a radical effect and it must expressly oppose the entry into force of the treaty.

Of course, it does not prevent the treaty from being binding between the reserving State and the
other parties to the treaty when they have not made a similar objection.

29
So, if B objects to the entry into force of the treaty because A made a reservation about Article 42,
there will be no treaty between A and B, but the treaty will be binding between A and C, and also
between A and D.

And of course, the treaty will also be binding between B, C and D.

Second, if the objecting State does not go as far as preventing the treaty from entering into force
between itself and the reserving State, what is the effect of a simple objection?

Article 21, paragraph 3, of the Vienna Convention states that when the objecting State has not
explicitly opposed the entry into force of the treaty "the provisions to which the reservation relates
do not apply as between the two States to the extent of the reservation".

What does that mean?

Well, if you think of it, this is not much different, and this is not different, from the reciprocal effect
of the reservation itself: the provision to which the reservation relate will not apply between the
reserving and objecting States, to the extent of the reservation.

This means that if the reservation excludes a provision, that provision will not apply between the two
States, which is exactly what the reciprocal effect of the reservation means.

And if the reservation modifies a provision, it will also not apply between the two States, but only to
the extent of the reservation: the two States will reciprocally be bound by the modified provision to
the extent of the modification, and it will not apply between them for the rest.

So, one must conclude that, under the system established by the Vienna Convention, a simple
objection to a reservation does not prevent a valid reservation from producing its effect.

In other words, the simple objection to a valid reservation has no specific legal effect as it does not
deprive a reservation from its own intrinsic, reciprocal and relative effects.

The simple objection is just the expression of a discontent with the reservation, an indication that the
objecting State would prefer that the reserving State withdraw its reservation.

30
And under Article 22 of the Vienna Convention, the reserving State may always and at any time
withdraw any of its reservations.

As you can see, treaty reservations are a difficult and very technical issue.

Let us turn now to a concrete example to make it less abstract.

31
RESERVATIONS AND OBJECTIONS IN PRACTICE:
PAKISTAN AND THE CAT

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (or CAT)was adopted by the UN General Assembly on 10 December 1984 and was
open for signature in New York by all States.

The CAT entered into force in 1987. Currently, 157 States are parties to the Convention.

When Pakistan ratified the Convention on 23 June 2010 it made the following reservations:

       " .  A ti le – The Government of the Islamic Republic of Pakistan declares that provisions of
Article 3 shall be so applied as to be in conformity with the provisions of its laws relating to
extradition and foreigners.

        .  A ti le – The Government of the Islamic Republic of Pakistan declares that pursuant to
Article 8, paragraph 2, of the Convention, it does not take this Convention as the legal basis for
cooperation on extradition with other States Parties.

        .  A ti le , , , a d – The Government of the Islamic Republic of Pakistan declares that

the provisions of these Articles shall be so applied to the extent that they are not repugnant to the
Provisions of the Constitution of Pakistan and the Sharia laws.

        .  A ti le – In accordance with Article 28, paragraph 1, of the Convention, the Government of
the Islamic Republic of Pakistan hereby declares that it does not recognize the competence of the
Committee provided for in Article 20.

        .  A ti le – The Government of the Islamic Republic of Pakistan does not consider itself bound
by Article 30, paragraph 1 of the Convention."

The first and third reservations made by Pakistan, about Article 3, 4, 6, 12, 13 and 16 attracted many
objections by other contracting parties.

Please read some of those objections carefully and note their similarities, but also their differences
in precision and tone:

32
  The Government of Australia has examined the reservation made by The Islamic Republic of
Pakistan to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment and now hereby objects to the same for and on behalf of Australia:

       The Government of Australia considers that the reservations by the Islamic Republic of Pakistan
are incompatible with the object and purpose of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (the Convention).

       The Government of Australia recalls that, according to customary international law as codified in
the Vienna Convention on the Law of Treaties, a reservation incompatible with the object and
purpose of a treaty is not permitted.

       It is in the common interest of States that treaties to which they have chosen to become party
are respected, as to their object and purpose, by all parties and that States are prepared to
undertake any legislative changes necessary to comply with their obligations under the treaties.

       Furthermore, the Government of Australia considers that The Islamic Republic of Pakistan,
through its reservations, is purporting to make the application of the Convention subject to the
provisions of ge e al do esti la i fo e i The Isla i Repu li of Pakista .  As a esult, it is
unclear to what extent The Islamic Republic of Pakistan considers itself bound by the obligations of
the Convention and therefore raises concerns as to the commitment of The Islamic Republic of
Pakistan to the object and purpose of the Convention.

       The Government of Australia considers that the reservations to the Convention are subject to the
general principle of treaty interpretation, pursuant to Article 27 of the Vienna Convention of the Law
of Treaties, according to which a party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.

       For the above reasons, the Government of Australia objects to the aforesaid reservations made
by The Islamic Republic of Pakistan to the Convention and expresses the hope that the Islamic
Republic of Pakistan will withdraw its reservations.

       This objection shall not preclude the entry into force of the Convention between Australia and
The Isla i Repu li of Pakista .

33
 The Go e e t of Finland welcomes the ratification of the Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment by the Islamic Republic of Pakistan.  The
Government of Finland has carefully examined the content of the reservations relating to Articles 3,
4, 6, 8, 12, 13, 16, 28 and 30 of the Convention made by the Islamic Republic of Pakistan upon
ratification.

      The Government of Finland notes that the Islamic Republic of Pakistan reserves the right to apply
the provisions of Article 3 so as to be in conformity with the provisions of its laws relating to
extradition and foreigners, and the provisions of Articles 4, 6, 12, 13 and 16 to the extent that they
are not repugnant to the provisions of the Constitution of Pakistan and the Sharia laws.

       The Government of Finland notes that a reservation which consists of a general reference to
national law without specifying its content does not clearly define to other Parties to the Convention
the extent to which the reserving States commits itself to the Convention and creates serious doubts
as to the o it e t of the ese i g “tate to fulfil its o ligatio s u de the Co e tio .  “u h
reservations are, furthermore, subject to the general principle of treaty interpretation according to
which a party may not invoke the provisions of its domestic law as justification for a failure to
perform its treaty obligations.

       The reservations to Articles 3, 4, 6, 12, 13 and 16 seek to restrict essential obligations of the
Islamic Republic of Pakistan under the Convention and raise serious doubts as to the commitment of
the Isla i Repu li of Pakista to the o je t a d pu pose of the Co e tio .  The Go e ent of
Finland wishes to recall that, according to Article 19 (c) of the Vienna Convention on the Law of
Treaties and customary international law, a reservation contrary to the object and purpose of a
t eat shall ot e pe itted.  It is i the o o i terest of States that treaties to which they have
chosen to become parties are respected as to their object and purpose and that States are prepared
to undertake any legislative changes necessary to comply with their obligations under the treaties.

       The Government of Finland therefore objects to the reservations made by the Islamic Republic of
Pakista i espe t of A ti les , , , , a d of the Co e tio .  This o je tio shall ot
preclude the entry into force of the Convention between the Islamic Republic of Pakistan and
Fi la d.  The Co e tio ill thus e o e ope ati e et ee the t o states ithout the Isla i
Repu li of Pakista e efiti g f o its ese atio s.

34
 The Go e e t of the United Kingdom of Great Britain and Northern Ireland has examined the
reservations made by the Government of Pakistan to the Convention [against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment] on 23 June 2010, which read:

[...]

 In the view of the United Kingdom a reservation should clearly define for the other States Parties to
the Convention the extent to which the reserving State has accepted the obligations of the
Convention. Reservations which consist of a general reference to a constitutional provision, law or
system of laws without specifying their contents do not do so.

The Government of the United Kingdom therefore objects to the reservations made by the
Government of Pakistan to Articles 3, 4, 6, 12, 13 and 16.

The United Kingdom will re-consider its position in light of any modifications or withdrawals of the
ese atio s ade the Go e e t of Pakista to the Co e tio .

As a result of the objections expressed by various States, Pakistan has withdrawn some of its
reservations, which are now as follows:

A ti le -- The Government of the Islamic Republic of Pakistan declares that pursuant to Article 8,
paragraph 2, of the Convention, it does not take this Convention as the legal basis for cooperation on
e t aditio ith othe “tates Pa ties’.

Article 28 -- In accordance with Article 28, paragraph 1, of the Convention, the Government of the
Islamic Republic of Pakistan hereby declares that it does not recognize the competence of the
Committee provided for in Article 20.

Article 30 -- The Government of the Islamic Republic of Pakistan does not consider itself bound by
A ti le , Pa ag aph of the Co e tio .

35
THE VALIDITY OF TREATIES: INTRODUCTION

Welcome back.

In order to have a complete overview of the making of treaties, the last question to turn to is the
issue of their validity.

Of course, we shall also study how treaties are applied, how they are interpreted and eventually
suspended or terminated.

But I leave those issues for a later week because they relate to the application of international law,
rather than to the making of international law which is our topic for this week.

Let me first introduce the concept, the notion of validity.

One must remember that a treaty is a legal act, it is an instrument governed by international law
which embodies the consent of the contracting parties to certain obligations, those obligations being
applicable to a certain object.

In order to be binding under international law, the treaty must be valid, that is it must comply with
some essential requirements.

Lacking those essential requirements, the instrument will simply not have entered within the realm
of international law.

So, the issue of the validity of treaties is really to determine whether the instrument that looks like a
treaty is somehow entitled to be part of international law and to carry with it the binding force of
international law.

If the treaty is invalid, the instrument will somehow be rejected out of the international legal order, it
will be null and void.

36
Of course, this would not make the instrument disappear from a material, factual, point of view, and
the negotiations leading to it would simply remain historical events that have taken place.

But, as the instrument would not be considered as binding under international law, it would not be
part of it and it would remain outside of it.

Lacking essential elements, the invalid treaty would have to be considered as not being part of
international law from its infancy, from the very beginning: invalidity is retroactive.

The grounds for invalidating treaties are listed in the Vienna Convention.

And Article 42, paragraph 1, of the Vienna Convention makes very clear that those grounds are in
limited numbers: only the grounds that are listed in the Convention can be invoked in order to
impeach the validity of a treaty.

The reason for this is legal security: as it is not easy to conduct international negotiations leading to
the conclusion of a treaty, all those efforts should not be lightly put in danger of being set aside later
if one of the contracting parties, having second thoughts about the treaty, could too easily get rid of
it by pretending that it is not valid.

However, on the other hand, there is a need to protect the integrity of international law itself: it
cannot be accepted that the force of the law be given to instruments which turn the law on its head;
instruments that indeed exist but only because some essential rules have been ignored.

And therefore any theory about invalidity of legal acts is precisely about establishing that balance
between legal security and the integrity of the legal order.

The invalidity of a treaty, as a legal instrument, can stem from three main reasons.

First, the treaty can be null and void because the contracting parties had no legal capacity to enter
into it.

Second, the treaty can be null and void because consent to it has not been properly given.

Third, the treaty can be null and void because its very object is impermissible.

37
Let me turn first to the issue of capacity.

It can be easily dealt with.

Article 6 of the Vienna Convention recalls a basic principle of international law which stems from the
equal sovereignty of States: "Every State possesses capacity to conclude treaties."

Hence, for States, the question of legal capacity is not an issue.

All States have the same and full legal capacity to conclude treaties.

For international organization, the issue is a little bit more complicated.

As you may recall, international organizations are specialized legal entities and their legal capacity
depends on the scope of their respective competences.

Article 6 of the 1986 Vienna Convention simply refers to the rules of the organization, that is most of
the time the treaty establishing the organization, to determine the extent of the capacity of the
organization to conclude treaties.

So, the capacity of international organizations to conclude treaties must be established on a case by
case basis, taking into account the organization concerned and the object of the treaty it intends to
conclude.

Additionally, if the capacity of the organization to conclude treaties is not explicitly addressed by its
rules, the implied powers doctrine (which has already been mentioned when talking about
international organizations), that doctrine may be used in order to consider that, despite the silence
of the treaty, the organization has some capacity to conclude treaties.

The implied powers doctrine has notably been used by the European Court of Justice back in 1971 in
a landmark case called the ERTA case (ERTA stands for European Road Transport Agreement), in
order to justify the conclusion of treaties by the European Economic Community at the time, now the
European Union.

There is no need to go too much into details about that case.

38
One should however remember that the legal capacity of any international organization, and the
scope of such capacity, should be appraised not only by looking at the written rules of the
organization on the issue, but also by taking into account the implied powers doctrine.

This is as far as the capacity to contract treaties is concerned.

In the next video, we'll explore the grounds for invalidity based on defect of consent.

39
DEFECT OF CONSENT (COMPETENCE)

Because a treaty always results from the exchange of consent between the contracting parties, it is
important that the consent of each of them be properly given.

In order for consent to be properly given, it must, on the one hand, be expressed by a competent
organ to do so and, and on the other hand, if competent, that organ must have given a real and
informed consent.

In this video, I shall only address the issue of the competence to express consent to treaties.

The next video will deal with the issue of genuine and informed consent.

The question of the competence to express the consent of the contracting State is a matter which is
regulated under the domestic law of the State and under the internal rules of the organization when
the issue is the consent by an international organization.

However, States are not entitled to avail themselves of their domestic law provisions in order to
escape their international law obligations.

As recalled by Article 27 of the Vienna Convention: "A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty."

This is an axiomatic principle of international law, a principle without which international law would
simply not exist.

And this is easy to understand: if international law is indeed the result of the common will of States;
in contrast, domestic law is the result of the unilateral will of one State.

Therefore, if a State were entitled, in international law, to avail itself of its own will in order to legally
justify its failure to perform its international law commitments, such commitments could always be
easily disregarded.

40
And this would be legal under international law.

International law would therefore shoot itself in the foot if it accepted that a State could decide not
to obey international obligations for domestic law reasons.

So, as a matter of principle, no domestic or internal rule can be used in order to defeat an
international law obligation.

However, there is one and only one exception to that principle, and this exception relates to the
competence to express consent to a treaty.

That only exception is to be found in Article 46, paragraph 1, of the Vienna Convention, which reads
as follows: "A State may not invoke the fact that its consent to be bound by a treaty has been
expressed in violation of a provision of its internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and concerned a rule of its internal law of
fundamental importance."

See how the provision is drafted.

It starts from recalling the principle: A State may not invoke the provision of its internal law.

However, the provision states also the exception to that principle, together with the conditions to be
met.

There are three conditions for the exception to be successful.

One: the provision of internal law must be about the "competence to conclude treaties" and nothing
else.

However, two, not any internal law provision regarding the competence to conclude treaties can be
invoked: it must be a provision which can be considered "of fundamental importance".

Additionally, three, the rule of domestic law about the competence to conclude treaties which is of
fundamental importance must not only have been violated, but it must have been manifestly
violated.

41
It is only if all those 3 conditions are met that a State may rely on rules of its own domestic law to
escape its international treaty commitments by claiming its consent was not properly given.

Paragraph 2 of Article 46 of the Vienna Convention states that: "A violation is manifest if it would be
objectively evident to any State conducting itself in the matter in accordance with normal practice
and in good faith."

In the Cameroun v. Nigeria case, discussing the validity of the maritime delimitation established by
an agreement signed by the two Heads of States, the Court considered that constitutional rules
concerning the authority to conclude treaties are indeed rules of fundamental importance.

However, and because Heads of States are presumed under Article 7, paragraph 2, to have full
powers and that this presumption is, as we have seen, substantive, the Court added that: "a
limitation of a Head of State's capacity in this respect is not manifest in the sense of Article 46,
paragraph 2, unless at least properly publicized."

And because Nigeria never informed Cameroun of that rule, the Court rejected Nigeria's claim
according to which its consent to the maritime delimitation agreement was not properly given.

It is important to stress that, in that case, the Nigerian Constitution had changed several times
following internal turmoil.

And when the maritime delimitation agreement between the two Heads of States was concluded, in
the mid-1970's, Nigeria was governed by the military.

The government of Nigeria was, under its Constitution, the Supreme Military Council and the chair of
that Council, himself a member of the armed forces, was the Head of State.

According to the Nigerian Constitution at the time, it was for the Supreme Military Council, rather
than for the Head of State, to conclude treaties.

So, the Head of State should have submitted the agreement to the Supreme Military Council for
having it approved.

And this did not happen.

42
However, the violation of such a constitutional provision was not considered by the Court to be
manifest because Nigeria did not properly inform Cameroun of the specificity of its Constitution.

And Cameroun had no obligation, said the Court, to keep itself informed of the legislative and
constitutional developments in Nigeria.

So, from this case, we can conclude that in order for its violation to be manifest, the domestic rule of
fundamental importance about the competence to conclude treaties must have been made manifest
to the other contracting party.

The rule must have been manifested for its violation to be manifest.

43
DEFECT OF CONSENT (GENUINE AND INFORMED
CONSENT)

In addition to being expressed by the competent organ of the State, consent to be bound by a treaty
must be genuine and informed.

Therefore, the Vienna Convention establishes that consent can be invalidated if it results from an
error (this is Article 48), from a fraud (Article 49), from the corruption of the representative of the
State concerned (Article 50), or from coercion exercised on the representative of the State (Article
51), or coercion exercised on the State itself (Article 52).

I am not going to dwell upon the issues of error, fraud, corruption, and coercion on the
representative of the State.

Those issues are indeed clearly regulated by the Vienna Convention, they are not conceptually
difficult to grasp and, moreover, there is very little if not no practice in that regard.

This is because States will always be hesitant to confess that they concluded a treaty by error, by
fraud, corruption, etc.

Alleging any of those grounds is confessing some form of weakness, something that States do not like
to do.

This being said, Article 52 (which is coercion on the State itself) deserves a few words of explanation
because it reflects, in the law of treaties, the logical consequences stemming from the outlawry of
war.

The provision reads as follows: "A treaty is void if its conclusion has been procured by the threat or
use of force in violation of the principles of international law embodied in the Charter of the United
Nations."

First, the way Article 52 is drafted deserves some explanation.

44
It does not refer to the threat or use of force in violation of the Charter of the UN, but in violation of
the "principles of international law embodied in the Charter".

In 1969, this was to accommodate the presence of parties to the Vienna Convention that were not
yet members of the United Nations.

But this clearly indicates that the Charter rules on the threat or use of force are customary rules
binding on all States.

Those rules are called "principles" to stress their importance.

Second, it is important to consider the nature of the force whose threat or use may entail the
invalidity of the treaty.

Article 52 simply refers to the "threat or use of force", without any other qualification.

Does that mean that not only military force, but also economic or political coercion are grounds to
invalidate treaties?

Well the issue was hotly debated during the negotiation of the Vienna Convention, the negotiators
being divided between the Western powers that only accepted that military coercion could result in
the invalidity of a treaty -and the case at point being the ultimatum imposed by the Nazi government
on Czechoslovakia in 1938 by which the Sudetenland was annexed by Germany following the Munich
Agreement- between the Western States on the one hand and the newly decolonized and developing
States that wanted to be able to protect themselves against economic and political coercion.

The compromise that was found in Vienna was to limit coercion as a ground for invalidating treaties
to military coercion under Article 52, because the UN Charter only prohibits the threat or use of
military force.

While at the same time making clear in a Declaration which is part of the Final Act of the Vienna
Convention, making clear that economic and political coercion are also solemnly condemned and
that, in the future, no pressure should be exerted in any form by any State in connexion with the
conclusion of a treaty.

45
In other words, economic and political pressures should not be resorted to.

However, despite being condemned, those pressures are no grounds for invalidating a treaty.

This being said, one should not be too naive about it and one should not think that States always
refrain from exerting any form of pressure in order to help the conclusion of treaties.

Of course they do, and this is what diplomacy is largely about.

However, the most egregious forms of economic or political pressure could be considered as possible
grounds for international responsibility, which is something different from putting into question the
validity of the treaty resulting from it.

Lastly, it is important to note that it is not any threat or any use of armed force which is ground for
treaty invalidity.

Indeed, it is only if the threat or use of force is "in violation of the principles of international law
embodied in the Charter of the United Nations" that the treaty resulting from it is invalid.

Concretely, this means that a peace treaty imposed by the aggressor State would be invalid, whereas
a peace treaty imposed by the victim State acting in self-defence would be perfectly valid.

In other words, not every military coercion is illegal and not every treaty imposed as a result of the
use of force is invalid.

This is perfectly logic and reasonable: from the moment international law prohibits wars of
aggression as we shall see later in the lectures, treaties resulting from such wars cannot be
considered as being validly concluded.

Any other solution would turn the prohibition on the use of force on its head.

At the same time, a rule invalidating treaties that have been imposed as a result of a lawful use of
force would be totally counterproductive.

Indeed, it would practically mean that a lawful belligerent would never be entitled to put an end to
the war it won by a legal instrument.

And this would be an absurd result.

46
JUS COGENS

Next to capacity and defect of consent, the last reason for invalidating a treaty is that its very object
is illegal because one of its obligations conflicts with a fundamental rule of international law.

Under Article 53 of the Vienna Convention: "A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general international law.

For the purposes of the present Convention, a peremptory norm of general international law is a
norm accepted and recognized by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character."

In the title of Article 53, peremptory norms of general international law are called in Latin "jus
cogens" norms.

Let us first try to understand the very notion of jus cogens, before turning to its normative status, the
ways it is formed and, finally, give some concrete examples of peremptory norms.

As such, jus cogens is opposed to jus dispositivum.

What does that mean?

Simply, that some norms can be derogated from by agreement between contracting parties -and
those norms are called jus dispositivum, they can be freely disposed of- while others norms cannot
be set aside by mutual agreement.

And those norms are peremptory, they are jus cogens.

This dichotomy exists in every domestic legal system: some legal provisions apply in the absence of
any particular contract, while other legal provisions apply despite any contract.

47
And contracts that do not conform with those peremptory provisions cannot be upheld in a court of
law, they are invalid.

Peremptory norms embody the notion of ordre public.

If the notion of jus cogens is not difficult to understand, it is nevertheless quite troubling in a legal
order based on the sovereignty of States, and resulting from their consent.

Indeed, jus cogens means that despite their sovereignty, States are not entitled to validly consent
and make treaties about whatever they wish.

Jus cogens is out of the reach of States.

It is above them and they must always comply with it since they cannot escape it by concluding
treaties which would pretend to dispose of it.

Any such treaty would be null and void from the start, or, as stated under Article 64 of the Vienna
Convention, it would become void in case a new peremptory norm arises after the treaty has been
concluded.

The conceptual novelty introduced by jus cogens, and the perceived limitation to State sovereignty it
entails, were not easily accepted.

For many years, the issue of jus cogens has been very divisive.

However, international courts and tribunals, the European and the Inter-American Courts of Human
Rights, the International Criminal Tribunal for the former Yugoslavia, and finally the International
Court of Justice, those courts and tribunals have gradually referred to the concept of jus cogens, so
that its very notion is undoubtedly part of today's international law.

But what is the nature of jus cogens and how do jus cogens norms come to existence?

There have been endless debates about the nature of jus cogens.

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Is jus cogens part of customary international law or is it something completely different?

Does it belong to the category of general principles, or to another specific category of sources?

In a case between Belgium and Senegal about the failure by Senegal to prosecute the former Head of
State of Chad accused of acts of torture, the International Court of Justice briefly said this: "In the
Court's opinion, the prohibition of torture is part of customary international law and it has become a
peremptory norm (jus cogens)."

The Court went on to refer to practice and to opinio juris.

So, from the ICJ's point of view, it seems undisputable that jus cogens norms are part of customary
international law.

They come to existence through the usual customary process.

However, and because each and every rule of customary international law is not peremptory, jus
cogens norms are a special category of norms within customary international law.

This is because of the specific opinio juris that is required for their formation.

Article 53 of the Vienna Convention makes this very clear by saying this: "a peremptory norm of
general international law is a norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted and which can be modified only
by a subsequent norm of general international law having the same character."

This is the specific opinio juris.

This is all good and well, but which concrete norms can be said to appertain to jus cogens?

If one takes the threshold expressed by Article 53 seriously, not many rules of customary
international law can be said to be peremptory.

It is of course very tempting to resort to the language of jus cogens in order to affirm that a rule is
very important, but this should not be done lightly.

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So, for the time being, jus cogens is made of only a few norms.

And the collection of norms is not extensive.

There is no official exhaustive list of them, but from the case-law, the following jus cogens norms can
be gathered: the prohibition of wars of aggression; the prohibition of genocide, crimes against
humanity and war crimes; the prohibition of slavery; the prohibition of apartheid, and probably also
of racial discrimination or ethnic cleansing; the prohibition of torture, as recalled above from the
Belgium Senegal case.

There may be other rules appartaining to jus cogens and I do not pretend that this short list is
exhaustive.

But the prohibitions I mentioned certainly belong to the felt necessities of contemporary
international law.

And it is good to take stock of the progress they represent in the common conscience of humanity.

Let me make two final remarks about jus cogens.

And the first remark is as follows: the concept of jus cogens was introduced in the Vienna Convention
as a ground for contesting the validity of treaties, but so far States have hopefully refrained from
concluding treaties that would be contrary to peremptory norms.

So, invalidity of treaties for breach of jus cogens is rather hypothetical.

However, this does not mean that jus cogens is not important as a legal concept: on the contrary,
having peremptory norms within international law profoundly changes that legal order as it conveys
the idea that certain core values are common to mankind and must be protected by norms that
cannot be transgressed.

Moreover, and as we shall see later when discussing international responsibility, serious breaches of
peremptory norms entail specific consequences.

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My second remark: under the Vienna Convention, jus cogens is the only content-oriented ground for
treaty invalidity.

In other words, the fact that the treaty is substantially unequal, that one party takes all the benefit
from the treaty while the other bears all the cost of it, this is not a ground for invalidating the treaty.

This may sound unfair, but the substantial inequality of the respective parties' obligations under the
treaty is not a legal ground for considering that it is null and void.

This, of course, is without prejudice to a possible defect of consent, as we have studied earlier.

51
FINAL NOTE ON THE INVALIDITY OF TREATIES

The Vienna Convention contains additional rules pertaining to the issue of the validity of treaties. It is
impossible to detail them in this introductory course, but your attention is drawn to the following:

 As a matter of principle, defect of consent can only be invoked by the party whose consent
has been affected. The loss of the right to invoke a ground for invalidating a treaty is
governed by Article 45. Invalidity under Article 51 (coercion of the representative of the
State), Article 52 (coercion of the State) and Article 53 (jus cogens) can always be invoked
because of the gravity of the breach at stake.
 As a matter of principle, invalidity affects the whole treaty. However, Article 44 provides for
the separability of certain provisions, in order to "save" certain parts of the treaty and limit
the material scope of invalidity. Separability is excluded if the invalidity is based on Articles
51, 52 or 53.
 As a matter of principle, invalidity is retroactive. However, this principle is tempered
according to the rules contained in Articles 69 and 71 which govern the temporal scope of
invalidity.
 Articles 65 and 66 provide for a procedure to be applied between parties to the
Vienna Convention in case one of them alleges the invalidity of a treaty. In particular,
disputes relating to the alleged invalidity of a treaty based on Article 53 or Article 64 (i.e. jus
cogens) can be submitted to the ICJ. However, States are entitled to make reservations to
Article 66, so as to exclude their consent to the jurisdiction of the Court in that regard.

52
GENERAL PRINCIPLES ACCORDING TO ARTICLE 38 OF
THE ICJ STATUTE

Let us turn now to general principles as a source of international law.

You may remember that among the sources of international law listed by Article 38 of the ICJ
Statute, paragraph 1, c), refers to "the general principles of law recognized by civilized nations".

This sentence is taken from the Statute of the Permanent Court of International Justice.

And as you know, that Statute was drafted in 1920 and this explains the reference to "civilized
nations", which sounds very Eurocentric and pretty outdated by now since all nations are today
presumed to be equally civilized.

Back in 1920, about a century ago, international law was not as much developed as it is today.

Therefore, the problem that the drafters of the PCIJ Statute were facing was the issue of non liquet,
that is the situation were the Court would be asked to decide a case but would not find any treaty
nor any rule of customary international law to be applied to the facts of the dispute.

And a court of law cannot simply say: I have jurisdiction, but I cannot judge this case because there is
no law to be applied.

So, the concept of general principles of law was introduced to fill the gaps as it were, the gaps that
could be left in case there would be no relevant treaty or custom.

Instead of leaving the Court the possibility of inventing new rules, the drafters directed the Court to
look at "general principles of law recognized by civilized nations".

What does that mean?

It is very clear that in 1920, the drafters of the PCIJ Statute meant to refer to rules of domestic law
that are common to the main legal systems of the world: civil law, common law, Chinese law, etc.

53
In other words, the legal principles that are common to domestic legal systems are, because they are
common, considered to be rules of international law.

As you can see, consent serves again as the foundation of international law.

True, there is no formal consent as with treaties and neither is there implicit consent nor
acquiescence, as with customary rules, but consent exists nevertheless because of the convergence
of domestic laws.

If States want the same rule for themselves, Article 38, paragraph 1, c) somehow presumes they do
not object that such rule, common to their respective domestic legal systems, be considered by the
Court as a rule of international law, in the form of a general principle of law.

At the same time, general principles transcend the issue of consent understood in a very narrow and
positivistic way.

Indeed, if similar rules are to be found in domestic legal systems all over the world, is it not because
they somehow derive from, and express, some essential requirements of law which do not depend
on voluntarism?

In that sense, general principles of law would be close to natural law, reflecting legal necessities
stemming from the common conscience of mankind wherever.

In other words, through general principles of law, the drafters of the PCIJ Statute managed to
reconcile two opposite schools of jurisprudence and legal theory: positivism and naturalism.

This being said, if one wants to go beyond some very elementary common rules making general
principles, the problem with such construction is that it would require the Court to embark on some
lengthy comparative law exercises.

This could prove very difficult due to the increase number of States and of the domestic legal
systems that would have to be taken into account and compared.

Morevover, it would considerably slow down the procedure if conducted in a very rigorous manner.

54
Hopefully, and because general principles were conceived as having a subsidiary character and apply
in the absence of treaty or custom, the extraordinary development of international law through
treaties and through customary rules has limited the need to rely on general principles within the
meaning of Article 38 to find rules filling the gaps as it were in the system of international law.

However, if you read carefully judgments of international courts and tribunals, notably those of the
International Court of Justice, you will notice that the words "general principles" are very often used.

But, most of the time, by those words the courts actually refer to customary international law.

And instead of referring to "general principles of law" as in Article 38, the judgments very often refer
to "general principles of international law".

By this, it is the importance or the well-established character of the customary rule at stake that is
emphasized.

Different words are used, but they point to rules having the nature of customary international law.

By the same token, Article 2 of the UN Charter for instance lists "Principles" according to which the
UN must act, and those principles include customary rules.

Also, the UN General Assembly adopted in 1970 a "Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States", which the International Court of
Justice has considered to reflect customary international law.

The Court has notably said so, first in the Nicaragua v. United States case and then in the advisory
opinion on the unilateral declaration of independance in respect of Kosovo.

So, there is nothing problematic in using the words "principles" or "general principles" when actually
speaking about custom.

Sometimes, the words "general principle of international law" are used to refer to an axiomatic
principle of international law, a principle without which international law would not be what it is.

For instance, the equal sovereignty of States or pacta sunt servanda, etc.

55
But there again, such basic principles have also a customary character.

In the following readings you will see how the words "general principles" are used in various ICJ
cases.

And this will serve to illustrate this video.

56
GENERAL PRINCIPLES IN ICJ CASES

1. "General principle of law" within the meaning of Article 38

The general principle of law is the "principle" as understood in Article 38 of the Statute of the ICJ. The
Court expressly pronounced a general principle of law in its advisory opinion of the 21 of June 1971.
The question put by the Security Council of the United Nations was:
"What are the legal consequences for States of the continued presence of South Africa in Namibia
notwithstanding Security Council resolution 276 (1970)?"
In 1966, the General Assembly adopted resolution 2145 (XXI) whereby it decided that the Mandate -
established under Article 22 of the Covenant of the League of Nations- was terminated and that
South Africa had no further right to administer the territory of South-West Africa (Namibia).

In 1971, acting on a request for an advisory opinion from the United Nations Security Council, the ICJ
ruled that the continued presence of South Africa in Namibia was illegal and that South Africa was
under an obligation to withdraw its administration from Namibia immediately. It also ruled that all
member states of the United Nations were under an obligation to recognise the illegality of South
Africa's presence in Namibia.
Discussing the power to terminate a mandate for misconduct of the mandatory, the Court observed
that according to a general principle of law the right to terminate a mandate on account of a breach
must be presumed to exist, even if unexpressed:
"President Wilson's proposed draft did not include a specific provision for revocation, on the
assumption that mandates were revocable. What was proposed was a special procedure reserving

57
'to the people of any such territory or governmental unit the right to appeal to the League for the
redress or correction of any breach of the mandate by the mandatory State or agency or for the
substitution of some other State or agency, as mandatory'. That this special right of appeal was not
inserted in the Covenant cannot be interpreted as excluding the application of the general principle
of law according to which a power of termination on account of breach, even if unexpressed, must
be presumed to exist as inherent in any mandate, as indeed in any agreement."
(ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion of 21 June 1971, ICJ Reports, p.16, para. 98)

2. "General principle" or "Principle"

The Court is using the word "principle" with the expression "general principle". The content of such
principles is immediately clarified.
Such an expression is rarely used, but the Court has notably affirmed, in relation to international
organizations, the "general principle of speciality" as we have already seen in the Legality of the Use
by a State of Nuclear Weapons in Armed Conflict advisory opinion. The Court pointed out that
international organizations do not, unlike States, possess a general competence, but are governed by
the "principle of speciality":
"It follows from the various instruments mentioned above that the WHO Constitution can only be
interpreted, as far as the powers conferred upon that Organization are concerned, by taking due
account not only of the general principle of speciality, but also of the logic of the overall system
contemplated by the Charter. If, according to the rules on which that system is based, the WHO has,
by virtue of Article 57 of the Charter, "wide international responsibilities", those responsibilities are
necessarily restricted to the sphere of public "health" and cannot encroach on the responsibilities of
other parts of the United Nations system. And there is no doubt that questions concerning the use of
force, the regulation of armaments and disarmament are within the competence of the United
Nations and lie outside that of the specialized agencies. "
(ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion
of 8 July 1996, ICJ Reports, p. 226, para. 26)
Thus, the Court considered that the question raised in the request for an advisory opinion submitted
to it by the WHO does not arise "within the scope of [the] activities" of that Organization as defined
by its Constitution.

58
The Court also qualified the obligation to make reparation in an adequate form to be "the general
principle on the legal consequences of the commission of an internationally wrongful act" in
the Avena and other Mexican Nationals case. On 9 January 2003, Mexico instituted proceedings
against the United States of America in a dispute concerning alleged breaches of Articles 5 and 36 of
the Vienna Convention on Consular Relations of 24 April 1963 in relation to the treatment of a
number of Mexican nationals who had been tried, convicted and sentenced to death in criminal
proceedings in the United States.
Having concluded that in most of the cases brought before the Court by Mexico, there has been a
failure to observe the obligations in the Vienna Convention relating to consular assistance, the Court
proceeded to the examination of such breaches and of the legal remedies therefore:
"The general principle on the legal consequences of the commission of an internationally wrongful
act was stated by the Permanent Court of International Justice in the Factory at Chorzow case as
follows:
'It is a principle of international law that the breach of an engagement involves an obligation to make
reparation in an adequate form.' (Factory at Chrozow, Jurisdiction, 1927, P.C.I.J., Series A, No. 9, p.
21).
What constitutes 'reparation in an adequate form' clearly varies depending upon the concrete
circumstances surrounding each case and the precise nature and scope of the injury, since the
question has to be examined from the viewpoint of what is the 'reparation in an adequate form' that
corresponds to the injury."
(ICJ, Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of
31 March 2004, ICJ Reports, p. 12, para. 119)
In the case of the Frontier Dispute (Burkina Faso/Republic of Mali), the ICJ qualified uti possidetis as
follows:
"It is a general principle, which is logically connected with the phenomenon of the obtaining of
independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability
of new States being endangered by fratricidal struggles provoked by the challenging of frontiers
following the withdrawal of the administering power."
(ICJ, Frontier Dispute (Burkina Faso/Republic of Mali), Judgment of 22 December 1986, ICJ
Reports, p. 554, para. 20)
3. "Principle" as customary law
In the WHO advisory opinion, Avena case and Burkina Faso / Mali case referred to above, the
customary nature of the principles found by the Court to exist was not made explicit.

59
However, in the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) case, the Court was explicit about the customary nature of the principle it
affirmed:
"A further confirmation of the validity as customary international law of the principle of the
prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United
Nations may be found in the fact that it is frequently referred to in statements by State
representatives as being not only a principle of customary international law but also a fundamental
or cardinal principle of such law."
(ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Judgment of 27 June 1986, ICJ Reports, p. 14, para.190)
The principle formulated in the Charter is considered as being of customary nature.
In the advisory opinion on the Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, the Court recalls that:
"[...] the principle of territorial integrity is an important part of the international legal order and is
enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4 [...]"
(ICJ, Accordance with international law of the unilateral declaration of independence in
respect of Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports, p. 403, para. 80.)

60
UNILATERAL ACTS OF STATES

As we have seen, the creation of international law very much depends on the existence of an
agreement between States.

International law comes into existence as a result of consent of several subjects.

Reciprocity is at the heart of the creation of international law.

In a very classical way, a new obligation results from the acceptance of an offer.

Moreover, the sovereign equality of States is repugnant to the idea that one of them could impose
legal obligations on the others, absent their consent.

This would indeed be tantamount to an imperial legal order and it is completely alien to the
fundamentals of the international legal order.

However, why would it not be possible for a State to bind itself vis-a-vis other States by its own will?

If imposing obligations on others without their consent is impossible, what about imposing
obligations on oneself, through what can be called a unilateral act?

That issue arose in the Nuclear Tests cases, a dispute between Australia and New Zealand on the one
hand, and France on the other.

The case was decided in 1974, at a time France was still conducting atmospheric tests of nuclear
weapons in the South Pacific Ocean.

The main firing site was the Mururoa atoll, some 6000 km to the East of the Australian mainland.

Australia and New Zealand claimed that those atmospheric tests were not consistent with applicable
rules of international law and they requested the Court to order France not to "carry out any further
such tests".

61
France contested the jurisdiction of the Court.

It decided not to appear in the proceedings and simply asked the Court to remove the case from the
list.

By two separate judgements of 20 December 1974, the Court decided that the claims by Australia
and New Zealand no longer had any object and that it was therefore not called to give any decision
thereon.

As you see such outcome was very much favorable to France, but it also came with a legal cost for
France.

And let me explain why.

The Court reached its conclusion following some public statements made by the highest authorities
of the French Republic: President Giscard d'Estaing, then also Prime Minister Jacques Chirac,
together with the French Foreign Affairs Minister and the Minister of Defence, all of them had made
consistent and public declarations according to which the ongoing atmospheric tests by France would
be the very last of this type conducted by the Republic.

The Court considered that when it is the intention of the State making such declarations to become
bound according to its terms: "that intention confers on the declaration the character of a legal
undertaking, the State being thenceforth legally required to follow a course of conduct consistent
with the declaration."

And the Court went on: "An undertaking of this kind, if given publicly, and with the intent to be
bound, even though not made within the context of international negotiations, is binding.

In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of
the declaration, nor even any reply or reaction from other States, is required for the declaration to
take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the
juridical act by which the pronouncement by the State was made."

62
Of course, not every unilateral act or declaration implies an obligation: everything depends on the
intention conveyed by the language used and the surrounding circumstances, irrespective of the
written or oral form of the undertaking.

To know whether a unilateral declaration is a binding undertaking can only be decided on a case by
case basis, but the Nuclear Tests cases made clear that there is no inherent impediment for the
creation of new international obligations through unilateral acts of States.

And as a matter of fact, the Court famously stressed the following: "One of the basic principles
governing the creation and performance of legal obligations, whatever their source, is the principle
of good faith.

Trust and confidence are inherent in international co-operation, in particular in an age when this co-
operation in many fields is becoming increasingly essential.

Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the
binding character of an international obligation assumed by unilateral declaration.

Thus interested States may take cognizance of unilateral declarations and place confidence in them,
and are entitled to require that the obligation thus created be respected."

So, said the Court, France is legally bound to respect its promises.

The logical consequence of taking the French declarations as binding unilateral undertakings was to
consider that the objective of both applicant States had in effect been accomplished: France had
promised not to carry out any further nuclear tests in the atmosphere.

Cessation of those tests was at the heart of the request by Australia and New Zealand and cessation
was legally guaranteed by the French undertakings.

Therefore, the dispute brought before the Court had disappeared and there was no reason for the
Court to adjudicate any further.

Of course, had Australia or New Zealand claimed reparation for the possible environmental pollution
resulting from the nuclear fall-out, the Court would still have had to decide on that claim.

But because they did not make any reparation claim, the case was simply dismissed by the Court.

63
TIMOR-LESTE AND AUSTRALIA AT THE ICJ

On 3 December 2013, in the Australian Capital Territory, agents of Australia acting under the
Australian Security Intelligence Organisation Act seized documents and data from the business
premises of a legal adviser working for the Democratic Republic of Timor-Leste in a pending
arbitration between Timor-Leste and Australia under the Timor Sea Treaty of 20 May 2002.
Two weeks later, Timor-Leste filed an Application at the International Court of Justice against
Australia for what it considered to be various breaches of international law. Timor-Leste also
requested from the Court several provisional measures pending a decision on the merits, notably
that the documents seized by Australia be immediately sealed and delivered into the custody of the
ICJ and that Australia destroy all copies of those documents and stop interfering with Timor-Leste's
legal team.
Australia resisted Timor-Leste's request for provisional measures, arguing that they were not
necessary following the written unilateral undertaking made in the name of Australia by its Attorney-
General in the course of the ICJ proceedings. The Attorney-General's written undertaking read as
follows:
that u til fi al judg e t i this p o eedi g o u til fu the o ea lie o de of the Cou t:
1. I will not make myself aware or otherwise seek to inform myself of the content of the Material or
any information derived from the Material; and
2. Should I become aware of any circumstance which would make it necessary for me to inform
myself of the Material, I will first bring that fact to the attention of the Court, at which time further
undertakings will be offered; and
3. The Material will not be used by any part of the Australian Government for any purpose other than
national security purposes (which include potential law enforcement referrals and prosecutions); and
4. Without limiting the above, the Material, or any information derived from the material, will not be
made available to any part of the Australian Government for any purpose relating to the exploitation
of resources in the Timor Sea or related negotiations, or relating to the conduct of:
(a) these proceedings; and
(b) the p o eedi gs i the A it al T i u al [ o stituted u de the Ti o “ea T eat ].
The Court duly took note of that undertaking and elaborated further:
"44. The Court further notes that the Agent of Australia stated that 'the Attorney-General of the
Commonwealth of Australia [had] the actual and ostensible authority to bind Australia as a matter of
both Australian law and international law'. The Court has no reason to believe that the written

64
undertaking dated 21 January 2014 will not be implemented by Australia. Once a State has made
such a commitment concerning its conduct, its good faith in complying with that commitment is to
be presumed." (ICJ, Questions relating to the seizure and detention of certain documents and
data (Timor-Leste v. Australia), Provisional measures, 3 March 2014 (underscored))
The Court recognized that the undertaking made "a significant contribution towards mitigating the
imminent risk of irreparable prejudice" to Timor-Leste’s ights, pa ti ula l its ight to the
confidentiality of the material seized being duly safeguarded, but that it did not, however, "remove
this risk entirely."
For that reason, the Court ordered on 3 March 2014 some provisional measures. The Order of 3
March 2014 was modified by an Order of 22 April 2015, upon the request of Australia, after it
indicated its willingness to return the documents and data seized, together with any copies thereof.

65
UNILATERAL ACTS OF INTERNATIONAL ORGANIZATIONS

As we have seen during the second week of this course, the principles of speciality and conferral are
basic principles of the law of international organizations: international organizations are each
established for specific purposes, they receive competences from their member States and their legal
personality is accordingly limited.

Despite their similarities, international organizations are different by their respective purposes and
institutional frameworks.

In some organizations, organs are established to embody the organization and they are each
differently tasked.

Sometimes, those organs are conferred a law-making capacity.

In other words, the basic instrument establishing the organization creates a typology of juridical acts
that the organization is entitled to adopt through its various organs.

The basic instrument will also detail the procedure for the adoption of those acts and the legal effect
they have for the member States of the organization, and eventually also the effect they have on the
individuals and corporations within those member States.

Those acts are unilateral acts of the international organization and their basic legal effect is
determined by the basic instrument.

When unilateral acts of the organization are binding, they are sometimes referred to as forming
together a body of rules called "secondary legislation" of the organization or the "internal law" or
"internal rules" of the organization.

And the European Union offers the most striking example of an organization entitled to adopt
regulations, directives and decisions legally binding on its member States and eventually also on the
citizens of the Union.

66
As a matter of principle, this does not raise any theoretical problem: the founding members of the
organization have consented to its basic instrument, knowing that under that instrument the
organization could, according to the conditions stated therein, take the binding measures, and those
measures being binding on them.

The consent given to the basic instrument, and therefore to the rules it contains for the creation of
unilateral acts by the organization, that consent explains why the binding character of those acts
exist as determined by the basic instrument, it does not contradict the principle of State sovereignty.

Thus, unilateral acts of international organizations derive from their respective basic instruments and
are subordinate to it; they take their binding force from the basic instrument, which in turn, as a
treaty, takes its binding force from consent given to it.

Two considerations follow from this basic articulation between the treaty establishing the
organization and the unilateral acts adopted thereunder.

One: because unilateral acts of international organizations derive from and are subordinated to the
basic instrument establishing the organization, their validity depends on their conformity with the
rules and procedures established under the basic instrument for their adoption.

In other words, there is a hierarchy between the basic instrument and the secondary legislation, and
the latter must conform with the former.

If unilateral acts do not conform with the basic instrument, they should be considered as null and
void, and therefore deprived of any legal effect.

Sometimes, a court is established within the organization to adjudicate on the validity of its
secondary legislation.

This is the case, for instance, with the European Court of Justice as the Court of the European Union.

Two: There is not only a normative chain of validity between the basic instrument establishing the
organization and the unilateral acts adopted by the organization under the basic instrument.

67
The same normative chain also creates a continuity between the legal nature of the basic treaty and
the secondary legislation.

If the treaty establishing the organization has an international legal character, then the unilateral acts
of the organization will share the same legal nature.

In other words, they will also be considered, from the point of view of international law, as
instruments of international law, as sources of international law.

The next reading will illustrate that last point.

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KOSOVO ICJ'S ADVISORY OPINION

In 2008, the General Assembly of the United Nations requested the International Court of Justice to
deliver an advisory opinion on the conformity of the unilateral declaration of independence in
respect of Kosovo with international law.
Among the various questions that arose, one related to the legal nature of what has been called the
"Constitutional Framework for Provisional Self-Government" of Kosovo.
If that Constitutional Framework was considered to have an international legal character, the Court
had to examine the conformity of the declaration of independence with it. If the Constitutional
Framework was rather considered to have a domestic law character, there was no need to assess the
conformity of the declaration of independence with it because the Court had only been requested to
assess the conformity of the declaration of independence with international law.
So, the question was: was the "Constitutional Framework" to be considered as international law or as
internal law?
It was clear that, by its name, object and content, that Framework very much resembled some
domestic constitutional document. However, the ICJ considered that it had an international
legal character, rather than an internal law character.
The reason for this was that the Constitutional Framework was a regulation adopted by UNMIK, the
UN mission to Kosovo, which was established by the Security Council resolution 1244 (1999),
which in turn had been adopted under the UN Charter.
In other words, the Court ruled that the Constitutional Framework had an international
legal character and had to be considered as international law because it derived its binding force
from a Security Council resolution, itself deriving its binding force from the Charter. The international
law nature of the Charter is shared by the unilateral acts, and sub-unilateral acts, adopted under it:
"88. The Court observes that UNMIK regulations, including regulation 2001/9, which promulgated
the Constitutional Framework, are adopted by the Special Representative of the Secretary-General
on the basis of the authority derived from Security Council resolution 1244 (1999), notably its
paragraphs 6, 10, and 11, and thus ultimately from the United Nations Charter. The Constitutional
Framework derives its binding force from the binding character of resolution 1244 (1999) and
thus from international law. In that sense it therefore possesses an international legal character.

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[...]
93. From the foregoing, the Court concludes that Security Council resolution 1244 (1999) and the
Constitutional Framework form part of the international law which is to be considered in replying to
the question posed by the General Assembly in its request for the advisory opinion."
(ICJ, Accordance with international law of the unilateral declaration of independence in respect
of Kosovo, Advisory Opinion of 22 July 3010, ICJ Reports, p. 403).
This is what the ICJ ruled, and it did so from the point of international law. In some organizations, and
notably within the European Union, the secondary legislation produced by the organization is also
said to be part of an autonomous legal order, distinct from international law.
However, one needs to keep in mind that the international legal character (or nature) of certain rules
does not exclude the possibility that the same rules share also the legal character of another legal
order, so that they might be considered in some settings as rules of international law, and in other
settings as rules of a distinct legal order. For a legal rule, having a dual legal nature is not impossible.
"89. At the same time, the Court observes that the Constitutional Framework functions as part of a
specific legal order, created pursuant to resolution 1244 (1999), which is applicable only in Kosovo
and the purpose of which is to regulate, during the interim phase established by resolution 1244
(1999), matters which would ordinarily be the subject of internal, rather than international, law.
Regulation 2001/9 opens with the statement that the Constitutional Framework was promulgated
[f]o the pu poses of de elopi g ea i gful self-government in Kosovo pending a final settlement,
and establishing provisional institutions of self-government in the legislative, executive and judicial
fields through the participation of the people of Kosovo in free and fair- ele tio s .
The Constitutional Framework therefore took effect as part of the body of law adopted for the
administration of Kosovo during the interim phase. The institutions which it created were
empowered by the Constitutional Framework to take decisions which took effect within that body of
law. In particular, the Assembly of Kosovo was empowered to adopt legislation which would have the
force of law within that legal order, subject always to the overriding authority of the Special
Representative of the Secretary-General."
(ICJ, Accordance with international law of the unilateral declaration of independence in respect
of Kosovo, Advisory Opinion of 22 July 3010, ICJ Reports, p. 403).

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UN GENERAL ASSEMBLY RESOLUTIONS AND
CUSTOMARY LAW

As you certainly know, the General Assembly of the United Nations consists of all the members
States, each having one vote at the Assembly.

The General Assembly has very wide functions and, as under Article 10 of the Charter, it may "discuss
any questions or any matters within the scope of the present Charter".

Later in the course, when discussing the rules relating to international peace and security, we shall
see the interplay between the General Assembly and the Security Council and we shall also closely
study the powers and the functions of the Security Council, and the legal effects of its resolutions.

In contrast with its very wide functions, the General Assembly has limited powers.

Of course, it has some administrative powers, on matters internal to the UN.

For instance, under Article 17 of the Charter, the General Assembly approves the budget of the
organization; under Article 18 and Article 23, it elects non-permanent members of the Security
Council; under the Statute of the ICJ, which is part of the Charter, it takes part to the election of
judges of the Court.

However, outside those few internal administrative powers, the General Assembly has no power to
take binding measures on member States.

The General Assembly is not a parliament of the world; it does not make law for the planet as it may
only make recommendations to member States.

Not decisions, recommendations.

As we shall see later in the course, this is in sharp contrast with the powers of the Security Council.

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Therefore, as a matter of principle and outside the internal administrative scope of its
responsibilities, the General Assembly and the resolutions it adopts are not binding under
international law.

Therefore, they should be considered as political documents, rather than as legal instruments.

Resolutions of the General Assembly offer a clear example of unilateral acts of an international
organization lacking any legal effect, because the basic instrument establishing the organization, in
this case, the UN Charter, because that basic instrument says so.

Of course, resolutions of the General Assembly can have an important political impact and this is why
States often spend a considerable amount of time and energy lobbying and negotiating every single
word of certain resolutions addressing a specific crisis in the world, or a specific subject in more
general terms.

But, as such, again, those resolutions are not binding as such.

However, and despite being deprived of any binding character as unilateral acts of the UN, some
resolutions adopted by the General Assembly may nevertheless convey rules of international law.

This is because they reflect pre-existing customary rules.

In other words, some resolutions of the General Assembly can be considered as having a declaratory
character: they declare, they make explicit, rules of customary international law that exist already.

As mentioned earlier, a clear example of this phenomenon is to be found in Resolution 2625 of 1970,
which is entitled "Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States".

As I said earlier, that resolution has been considered in several cases by the ICJ to reflect customary
international law.

Of course, not every resolution can be said to reflect customary rules and, on a case by case basis,
one must pay special attention to the object of the resolution, the words it uses, the debates leading

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to its adoption and the political support it enjoyed when being adopted: Was it a unanimous or near
unanimous vote, or were States deeply divided along political or geographical lines?

Did they make declarations about the legal content of the resolution and what did they say?

Does the resolution use verbs like "must" or rather "encourages", "shall" rather than "should", etc.

On the other hand, some General Assembly resolutions may not reflect customary international law
on the very day of their adoption, but they may help to bring about new customary rules by the fact
that they encourage States to behave in a certain way while at the same time expressing a certain
collective opinio juris.

For instance, it may be argued that Resolution 1514 on the "Granting of Independence to Colonial
Countries and Peoples", that this Resolution was not really conveying existing customary rules when
it was adopted in December 1960.

However, it expressed a strong collective opinio juris of States and encouraged the practice of
decolonization that was already under way.

So much so that 10 years later, when Resolution 2625 was adopted in October 1970, it was very clear
by then that the "principle of equal rights and self-determination of peoples", understood as the
right of colonial peoples to become independent States, that this principle had undoubtedly become
a "principle of international law", that is a basic rule of customary international law.

To conclude this video, let me sum up by quoting from an advisory opinion of 1996 relating to the
legality of the threat or use of nuclear weapons, where the ICJ said the following: "The Court notes
that General Assembly resolutions, even if they are not binding, may sometimes have normative
value.

They can, in certain circumstances, provide evidence important for establishing the existence of a
rule or the emergence of an opinio juris.

To establish whether this is true of a given General Assembly resolution, it is necessary to look at its
content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as
to its normative character.

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Or a series of resolutions may show the gradual evolution of the opinio juris required for the
establishment of a new rule."

Resolutions adopted by the UN Security Council constitute important unilateral acts of the UN. As
announced in the video above, they will be extensively addressed later in the course, i.e. on Week 8
when addressing international peace and security. The powers of the Security Council, voting
procedure and legal effects of its resolutions will be closely studied then.

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LAST YEAR'S GENERAL ASSEMBLY RESOLUTIONS

The General Assembly meets every year in regular sessions.

You will find here , the 300+ resolutions adopted during the 68th session of the UN General
Assembly.

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SOFT LAW

All the sources reviewed so far -customary international law, treaties, general principles of law,
unilateral acts of States and unilateral acts of international organizations- all those sources are clearly
binding under international law when the conditions for their coming into legal existence are met.

The question to be asked now is whether those formal sources and those formal processes are the
only ones by which rules of international law can be created or whether international normativity
can also arise through other processes, processes that are probably less formal and less
institutionalized, but that neverthess result in instruments having some legal character.

The word "soft law" has been coined to cover this phenomenon.

It refers to a wide range of instruments and documents adopted by a great variety of actors;
instruments whose normative status is unclear but which nevertheless carry a certain weight and a
certain influence which brings them close to having the status of legal norms.

For instance, one can think about technical or industrial standards adopted by associations of certain
manufacturers, or informal decisions taken by the central bankers of the major economies of the
world, or tests designed by education professionals in order to rank schools, etc.

All those instruments, those documents, are not legal instruments sensu stricto, but they
nevertheless exert a great influence across national borders.

To a certain extent soft law instruments are complied with and are used as instruments of
governance.

However, the word "soft law" is ambiguous because it gives the impression that law would exist in
various degrees.

The law resulting from the processes that we have studied so far would be "hard law", and the rest,
all the other documents having some normative pretention, would be "soft law".

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The problem is that if law comes in various degrees (hard and soft), it runs the risk of loosing its
specificity, which is precisely its bindingness.

Let me make this clear: there is no doubt that legal obligations can be quite different from each
other.

For instance, an obligation of means is not to be confused with an obligation of result.

Despite their variety in terms of what must be done in order to comply with them, all those different
obligations are nevertheless equally binding in law.

An obligation of means is not less binding than an obligation of result, if both are for instance to be
found in treaties.

The problem with "soft law" is that the notion seems to suggest that there might be some
instruments that are less binding, as it were, than others, but that would still be legal instruments.

This is problematic and doubtful.

Either there is a legal command, or there is no legal command.

Either obligations are owed as legal obligations, or they are not.

It cannot really be in between.

Sometimes, it is very clear that the document at stake is not a legal instrument.

This is notably the case when the people drafting the document have no authority to make law.

For instance a professional association of manufacturers issuing technical standards for the making
and size of bicycle tires.

Or if they have some authority to make law, the drafters have clearly no intention to bind themselves
under the law.

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This is the case, for instance, when States contract gentlemen's agreements that look like treaties but
are on purpose not legally binding, or when the G8 heads of States issue a statement, or when a
world conference makes an action plan to combat poverty.

In all those cases and despite having eventually a great influence on the conduct of governments,
those instruments are clearly not legally binding and they do not appertain to any category of law, be
it hard or soft.

But what happens when things are not as clear as that?

Should one presume some legal force, until and unless it is established that the instrument, the
document, is not binding?

Or should one presume the opposite: not legal until proven legal? Let me submit that legal certainty
requires the latter: international law is presumed to come into existence through the formal
processes that we have studied, while it should be presumed that any other process does not result
in the creation of new rules of international law, unless otherwise established.

This being said, some documents that are clearly not legal instruments can not only have a great
bearing on the behaviour of a variety of actors, but they can also be used as benchmarks for the
purpose of establishing whether an international law obligation has been duly complied with or not.

Let me take an example to make that clear.

Under a treaty, the riparian States of a river agree that they have an obligation to prevent the
pollution of the river.

In particular, they agree that industrial plants under their control that are discharging effluents in the
river should always use the best available technologies.

In such a situation and in order to assess whether the obligation to prevent pollution through the
duty to impose the use of the best available technologies in industry has been complied with, it is
necessary to turn to the industry standards.

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Those standards may not be legally binding instruments, but they will need to be referred to in order
to assess whether the legal obligation has been complied with or not.

Therefore, indirectly, those standards have a legal bearing.

But I submit that it would be a wrong conceptual shortcut to consider that they are legally binding as
such.

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READING: ICJ PULP MILLS ON THE RIVER URUGUAY
CASE

The example used in the last part of the previous video is taken from a case decided in 2010 by the
ICJ.
Please read the following excerpts of the judgment and try to identify the additional legal element
which explains that the Court had no difficulty in using the "ICCP--BAT" document of the European
Commission as the relevant instrument for assessing Uruguay's compliance with its substantive
obligations under the 1975 Uruguay River Statute.
"220. Argentina maintains that Uruguay has failed to take all measures to prevent pollution by not
e ui i g the ill to e plo the est a aila le te h i ues , e e though this is e ui ed u de
Article 5 (d) of the POPs Convention, the provisions of which are incorporated by virtue of the
efe al lause i A ti le a of the “tatute. A o di g to A ge ti a, the e pe ts’ epo ts it
cites establish that the mill does not use best available techniques and that its performance is not up
to international standards, in the light of the various techniques available for producing pulp.
Uruguay contests these claims. Relying on the CIS, the second Hatfield report and the audit
o du ted AMEC at the IFC’s e uest, U ugua asse ts that the O io Bot ia ill is, i tue of
the technology employed there, one of the best pulp mills in the world, applying best available
techniques and complying with European Union standards, among others, in the area.
. A ge ti a, ho e e , spe ifi all iti izes the a se e of a te tia t eat e t of efflue t
(i.e., a third round of processing production waste before discharge into the natural environment),
which is necessary to reduce the quantity of nutrients, including phosphorus, since the effluent is
discharged into a highly sensitive environment. The mill also lacks, according to Argentina, an empty
emergency basin, designed to contain effluent spills. Answering a question asked by a judge,
Argentina considers that a tertiary treatment would be possible, but that Uruguay failed to conduct
an adequate assessment of tertiary treatment options for the Orion (Botnia) mill.
. U ugua o se es that the e pe ts did ot o side it e essa to e uip the ill ith a te tia
t eat e t phase . A s e i g the sa e uestio , U ugua a gued that, though feasi le, the additio
of a tertiary treatment facility would not be environmentally advantageous overall, as it would
significantly increase the energy consumption of the plant, its carbon emissions, together with sludge
generation and chemical use. Uruguay has consistently maintained that the bleaching technology
used is a epta le, that the e e ge asi s i pla e a e ade uate, that the ill’s p odu tio of

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synthetic chemical compounds meets technological requirements and that the potential risk from
this production was indeed assessed.
223. To begin with, the Court observes that the obligation to prevent pollution and protect and
preserve the aquatic environment of the River Uruguay, laid down in Article 41 (a), and the exercise
of due diligence implied in it, entail a careful consideration of the technology to be used by the
industrial plant to be established, particularly in a sector such as pulp manufacturing, which often
involves the use or production of substances which have an impact on the environment. This is all
the more important in view of the fact that Article 41 (a) provides that the regulatory framework to
be adopted by the Parties has to be in keeping with the guidelines and recommendations of
international technical bodies.
224. The Court notes that the Orion (Botnia) mill uses the bleached Kraft pulping process. According
to the December 2001 Integrated Pollution Prevention and Control Reference Document on Best
A aila le Te h i ues i the Pulp a d Pape I dust of the Eu opea Co issio he ei afte IPPC-
BAT , hi h the Pa ties efe ed to as the i dust sta da d i this se to , the K aft p o ess al ead
accounted at that time for about 8 pe e t of the o ld’s pulp p odu tio a d is the efo e the
most applied production method of chemical pulping processes. The plant employs an ECF-light
(Elemental chlorine-free) bleaching process and a primary and secondary wastewater treatment
involving activated sludge treatment.
225. The Court finds that, from the point of view of the technology employed, and based on the
documents submitted to it by the Parties, particularly the IPPC-BAT, there is no evidence to support
the claim of Argentina that the Orion (Botnia) mill is not BAT-compliant in terms of the discharges of
effluent for each tonne of pulp produced. This finding is supported by the fact that, as shown below,
no clear evidence has been presented by Argentina establishing that the Orion (Botnia) mill is not in
compliance with the 1975 Statute, the CARU Digest and applicable regulations of the Parties in terms
of the concentration of effluents per litre of wastewater discharged from the plant and the absolute
amount of effluents that can be discharged in a day".
ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ
Reports, p. 14)

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