Extra Paper II - Foreign Policy and International Relations

Brief Notes on International Law (10.2)

Pratik Karki
I. DEFINITION AND GENERAL PRINCIPLES OF INTERNATIONAL LAW

UNDERSTANDING INTERNATIONAL LAW

 International Law was first used by Jeremy Bentham in 1780 replacing the older "law of nations"
and "droit de gens" which can be traced back to the Roman concept of ius gentium. 1 Hugo
Grotius is regarded as the father of international law.
 Until the period between the two world wars, there was no difficulty in finding a definition for
international law. In one way or the other, it was the law that governs the relations between states
amongst each other.

International Law has been variously defined as:

i. consisting of rules and principles of general application dealing with the conduct of states and of
international organisations and with their relations inter se, as well as some of their relations
with persons, whether natural or juridicial.

ii. a body of rules that govern relations between states, functioning of international
institutions/organisations and rights and duties of individuals.

iii. those customary and conventional rules considered by the civilised states as legally binding in
their mutual intercourse

iv. the law of the so called “international community” - the body of rules accepted by the general
community of nations as defining their rights and the means of procedure by which these rights
may be protected or violations of them redressed.

The scope of international law has also expanded from the traditional areas like Position of States, State
Succession, State Responsibility, Peace and Security, Laws of War, Laws of Treaties, Law of the Sea,
Law of International Water Courses, Conduct of Diplomatic Relations to newer areas such as
International Organisations, Economy and Development, Nuclear Energy, Air Law and Outer Space
Activities, Use of resources of the deep Sea, Communication, Environment, International Protection of
Human Rights etc. Thus, it is no longer possible to be a generalist in the field of international law.

DEVELOPMENT OF INTERNATIONAL LAW

While, development of international law is often dated back to the Treaty of Westphalia (1648), some
others contend that international law existed in the ancient times as well (Chanakya, Egyptian
civilisation etc). However, modern international law can be seen to emerge from 1919 onwards, when a

1
The ius gentium or jus gentium (Latin, "law of nations") is a concept of international law within the
ancient Roman legal system and Western law traditions based on or influenced by it. The ius gentium is
not a body of statute law or a legal code, but rather customary law thought to be held in common by all
gentes ("peoples" or "nations") in "reasoned compliance with standards of international conduct".
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fundamental transformation took place with attempts to organise the international community and to ban
the use of force. Thus the stages of the development of modern international law would include:

i. the creation of the League of Nations

ii. split in the international community in the wake of the Russian revolution
iii. establishment of the United Nations decolonisation
iv. further expansion of the international community at the end of the Cold War.

SOME CHARACTERISTICS OF INTERNATIONAL LAW

International law is a horizontal legal system lacking a supreme authority, the centralisation of the use of
force, and a differentiation of the three basic functions of law making, law determination and law
enforcement typically entrusted to central organs.

It is important to note that the UNGA is not a world legislature, the ICJ can operate only on the basis of
the consent of states to its jurisdiction, and the law enforcement capacity of the UNSC is both legally
and politically limited.

IS INTERNATIONAL LAW "LAW"?

Firstly, this is a moot point, especially given the divergence in views of the general concept of law and
its role in society. Secondly, a horizontal system of law operates on a different manner from a
centralised one and is based upon principles of reciprocity and consensus rather than on command,
obedience and enforcement. A system of laws designed primarily for the external relations of states
does not work like any internal legal system of a State. There is no reason to assume, that the
international legal system must or should follow the historical models of centralised systems of national
law.

SUBJECTS OF INTERNATIONAL LAW

A subject of international law is an individual, body or entity recognized or accepted as being capable of
possessing and exercising rights and duties under international law.

Members of the international community are subjects of International Law. Subjects have international
legal personality: capacity to have rights and duties under international law. Subjects of international
law relates to which entities have legal capacities under international law and the extent of that capacity
in terms of competence to perform certain acts:

i. Hold rights and duties under international law;

ii. Hold a procedural privilege of prosecuting claims before an international tribunal;
iii. Possess interests for which provision is made by international law; and
iv. Competence to conclude treaties with other States and international organizations

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Pratik Karki
Today, we consider States, individuals, multilateral and international organisations as those
entitled to direct benefits and/ or subject to duties and responsibilities under international law
with the ability to enforce claims under international law.

SOURCES OF INTERNATIONAL LAW

Article 38(1) of the Statute of the International Court of Justice is widely recognised as the most
authoritative statement as to the sources of international law. It provides the following as sources of
international law:

a. international conventions, whether general or particular, establishing rules expressly recognised

by the contesting states; (treaties)
b. international custom, as evidence of a general practice accepted as law; (customary
international law)
c. the general principles of law recognised by civilised nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.

In international law, customary international law is a dynamic source of law in the light of the nature of
the international system and its lack of centralised government organs.

GENERAL PRINCIPLES OF INTERNATIONAL LAW

When there is no provision in an international treaty or statute nor any recognized customary principle
of international law available for application in an international dispute, the general principles of law can
be used to “fill the gap.” Examples include the principles of good faith, res judicata, estoppel, pacta sunt
servanda etc. Some other examples include mutual agreement, reciprocity etc.

Principles of International Law (UN Charter)

Peaceful settlement of disputes, non-use of force, noninterference, sovereign equality and territorial
integrity, principle of pacta sunt servanda

II. RECOGNITION OF STATES AND GOVERNMENTS

What is a State?

Article 1 of the Montevideo Convention on Rights and Duties of States, 1933 lays down the most widely
accepted formulation of the criteria of statehood in international law. It notes that the state as an
international person should possess the following qualifications:

 a permanent population [The existence of a permanent population is naturally required and

there is no specification of a minimum number of inhabitants, as examples such as Nauru
[9,322/2010] and Tuvalu [9,876/2013] demonstrate.]

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 a defined territory [Israel has been accepted by the majority of nations as well as the United
Nations as valid state despite the fact that its frontiers have not been finally settled and despite
its involvement in hostilities with its Arab neighbours over its existence and territorial
delineation. What matters is the presence of a stable community within a certain area, even
though its frontiers may be uncertain.]

 Government [Both Croatia and Bosnia and Herzegovina were recognised as independent states
by European Community member states and admitted to membership of the United Nations
(which is limited to ‘states’ by article 4 of the UN Charter at a time when both states were faced
with a situation where non-governmental forces controlled substantial areas of the territories in
question in civil war conditions. More recently, Kosovo declared independence on 17 February
2008 with certain Serb-inhabited areas apparently not under the control of the central
government.]

 capacity to enter into relations with other states [The capacity to enter into relations with
other states is an aspect of the existence of the entity in question as well as an indication of the
importance attached to recognition by other countries]

The Arbitration Commission of the European Conference on Yugoslavia declared that ‘the state is
commonly defined as a community which consists of a territory and a population subject to an organised
political authority.

RECOGNITION: International society is not an unchanging entity, but is subject to the ebb and flow of
political life. New states are created and old units fall away. New governments come into being within
states in a manner contrary to declared constitutions whether or not accompanied by force. Insurgencies
occur and belligerent administrations are established in areas of territory hitherto controlled by the
legitimate government. Each of these events creates new facts and the question that recognition is
concerned with revolves around the extent to which legal effects should flow from such occurrences.
Each state will have to decide whether or not to recognise the particular eventuality and the kind of legal
entity it should be accepted as. Recognition involves consequences both on the international plane and
within municipal law.

Recognition is a statement by an international legal person as to the status in international law of another
real or alleged international legal person or of the validity of a particular factual situation. As such,
recognition constitutes participation in the international legal process generally while also being
important within the context of bilateral relations and, of course, domestically. Recognition is usually
unconditional and irrevocable.

THEORIES OF RECOGNITION

Constitutive: The constitutive theory maintains that it is the act of recognition by other states that
creates a new state and endows it with legal personality and not the process by which it actually obtained

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independence. Thus new States are established in the international community as fully fledged subjects
of international law by virtue of the will and consent of already existing States. Recognition is
constitutive in a political sense, for it marks the new entity out as a state within the international
community and is evidence of acceptance of its new political status by the society of nations.

Declaratory: The declaratory theory maintains that recognition is merely an acceptance by states of an
already existing situation. A new state will acquire capacity in international law not by virtue of the
consent of others but by virtue of a particular factual situation (usually fulfilling the attributes of
statehood). Thus, the act of recognition is merely a formal acknowledgment of an established situation
of fact. Recognition only provides evidence to such a fact. Recognition therefore indicates a willingness
of the recognising States to initiate international relations with the recognised State

Actual practice leads to a middle position between these two perceptions. The act of recognition by one
state of another indicates that the former regards the latter as having conformed with the basic
requirements of international law as to the creation of a state. Of course, recognition is highly political
and is given in a number of cases for purely political reasons.

The fact of non-recognition of a 'new state' by a vast majority of existing states will constitute tangible
evidence for the view that such an entity has not established its conformity with the required criteria of
statehood.

RECOGNITION OF GOVERNMENT

The recognition of a new government is quite different from the recognition of a new state and different
considerations apply where it is the government which changes. Recognition will only really be relevant
where the change in government is unconstitutional.

Recognition constitutes acceptance of a particular situation by the recognising state both in terms of the
relevant factual criteria and in terms of the consequential legal repercussions, so that, for example,
recognition of an entity as the government of a state implies not only that this government is deemed to
have satisfied the required conditions, but also that the recognising state will deal with the government
as the governing authority of the state and accept the usual legal consequences of such status in terms of
privileges and immunities within the domestic legal order.

It should be noted that recognition of a government has no relevance to the establishment of new
persons in international law. Where it is significant is in the realm of diplomatic relations. If a
government is unrecognised, there is no exchange of diplomatic envoys and thus problems can arise as
to the enforcement of international rights and obligations.

KINDS OF RECOGNITION

 Implied/Expressed Recognition, Single/Collective Recognition and De Facto/De Jure

Recognition

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Pratik Karki
 De facto recognition involves a hesitant assessment of the situation, an attitude of wait and see,
to be succeeded by de jure recognition when the doubts are sufficiently overcome to extend
formal acceptance.

Some examples to think about include Somaliland, Kosovo and Catalonia.

III. ON TREATIES

The International Law Commission (ILC) started the process of codification of treaties in 1949. This
heralded the era of the importance of treaties in international law. This process culminated in the Vienna
Convention on the Law of Treaties (VCLT), 1969, which is at the foundation of the law of treaties.
Treaties continue to be an important source in the development and continuance of international law.

What is a Treaty?

• A treaty is defined as an international agreement concluded between states in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation. [Article 2, VCLT, 1969]. The same
definition is given (substituting states and international organisations for states alone) in the
1986 Convention on Treaties between States and International Organisations and in draft article
2(1) of the ILC Draft Articles on the Effects of Armed Conflicts onTreaties,2007.

• “Treaty” means an agreement concluded in writing between two or more states, or between any
state and any inter- governmental organization and this term also includes any document of this
nature, irrespective of how it is designated. [Section 2 (a), Nepal Treaty Act, 2047]

Some Other Definitions of a 'Treaty'

1. International treaties are agreements of a contractual character between states or organisations of

states creating legal rights and duties. [Oppenheim - a renowned German jurist regarded by many
as the father of the modern discipline of international law ]

2. The object of a treaty is to impose binding obligations on the states who are parties to it. [Starke]

3. Treaties are agreements between subjects of international law creating a binding obligation in
international law. [Schwarzenberger]

There are no specific requirements of form in international law for the existence of a treaty, although it
is essential that the parties intend to create legal relations as between themselves by means of their
agreement. Typical examples of international instruments designated as "treaties" are Peace Treaties,
Border Treaties, Delimitation Treaties, Extradition Treaties and Treaties of Friendship, Commerce and
Cooperation.

The term “Parties/Contracting States", which appear in the header of each treaty, refers to States and
other entities with treaty-making capacity which has expressed their consent to be bound by the treaty.

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In the generic sense, a treaty has the following characteristics:

i. It is a binding instrument, which means that the contracting parties intended to create legal rights
and duties.
ii. The instrument must be concluded by states or international organizations with treaty-making
power.
iii. It has to be governed by international law.
iv. It has to be in writing.

Related Terminologies:

Conventions: Whereas in the last century the term "convention" was regularly employed for bilateral
agreements, it now is generally used for formal multilateral treaties with a broad number of parties.
Conventions are normally open for participation by the international community as a whole, or by a
large number of states. Usually the instruments negotiated under the auspices of an international
organization are entitled conventions (e.g. Convention on Biological Diversity of 1992, United Nations
Convention on the Law of the Sea of 1982, Vienna Convention on the Law of Treaties of 1969, the 1951
ILO Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal
Value, adopted by the International Labour Conference or the 1989 Convention on the Rights of the
Child, adopted by the General Assembly of the UN).

Protocol: The term "protocol" is used for agreements less formal than those entitled "treaty" or
"convention". The term could be used to cover the following kinds of instruments: Protocol of
Signature, Optional Protocol, Protocol based on Framework Treaty, Protocol to Amend Protocol as a
Supplementary Treaty etc.

Declaration: The term "declaration" is used for various international instruments. However,
declarations are not always legally binding. The term is often deliberately chosen to indicate that the
parties do not intend to create binding obligations but merely want to declare certain aspirations. [E.g.:
1992 Rio Declaration.]

Declarations can however also be treaties in the generic sense intended to be binding at international law
[E.g.: Universal Declaration of Human Rights, 1948]. It is therefore necessary to establish in each
individual case whether the parties intended to create binding obligations.

Exchange of Notes: An "exchange of notes" is a record of a routine agreement that has many
similarities with the private law contract. The agreement consists of the exchange of two documents,
each of the parties being in the possession of the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the offering State to record its assent.

Memorandum of Understanding: A memorandum of understanding is an international instrument of a

less formal kind. It often sets out operational arrangements under a framework international agreement.
It is also used for the regulation of technical or detailed matters. It is typically in the form of a single

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instrument and does not require ratification. They are entered into either by States or International
Organizations. The United Nations usually concludes memoranda of understanding with Member States
in order to organize its peacekeeping operations or to arrange UN Conferences. The United Nations also
concludes memoranda of understanding on cooperation with other international organizations.

Charter: The term "charter" is used for particularly formal and solemn instruments, such as the
constituent treaty of an international organization. The term itself has an emotive content that goes back
to the Magna Carta of 1215. Well-known recent examples are the Charter of the United Nations of 1945
and the Charter of the Organization of American States of 1952

Reservation: A unilateral statement, however phrased or named, made by a state or by an international

organisation when signing, ratifying, formally confirming, 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 or to that organisation. [Article 2(1) (d), VCLT between States and International
Organisations, 1986]

Where a state is satisfied with most of the terms of a treaty, but is unhappy about particular provisions, it
may, in certain circumstances, wish to refuse to accept or be bound by such provisions, while consenting
to the rest of the agreement. The effect of a reservation is simply to exclude the treaty provision to which
the reservation has been made from the terms of the treaty in force between the parties. Reservation has
the purpose of seeking to exclude or modify the legal effect of certain treaty provisions with regard to
their application by the reserving state.

Importance of Treaties

1. It is a primary source of international law. The value of treaties in international law can be
compared to the value of national laws in the municipal sphere.
2. It is important for the maintenance of relations between States, which can include political,
economic, social as well as cultural relationships.
3. Treaties help in the development as well as creation of international law. In addition, they serve
to clarify the law, especially when treaties codify existing customs.
4. Treaties can also be helpful in the development of municipal law.[Eg: Human Rights Treaties
often serve as a model for national laws.]
5. Treaties are the basis for the formation of international organisations. [Eg: UN Charter]
6. Treaties, (along with custom) due to their character as a primary source of international law are
used by the ICJ to resolve disputes.
7. Treaties help in the creation of accepted norms in the international community. [Eg: Vienna
Convention on Diplomatic Relations, 1961]
8. Treaties can be used to ensure that all of humanity benefit from the resources of the planet. [Eg:
The treaties related to space and moon.]

Types of Treaties

Basis of Classification Types of Treaties

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Purpose Law Making/ Contractual
Number of Particpants Bilateral/Multilateral /Universal
Opportunity of Participation Open/Closed
Geography Regional/Universal
Time Period Limited/Unlimited
Subject Matter Economic, Political, Military, Foreign Aid, Technical Aid,
Human Rights etc

TREATY MAKING PROCEDURE

The steps to making a treaty can be outlined as:

1. Diplomatic Preparation: The who, where, when and how is involved in this step.
2. Appointment of Negotiators: This process involves the conferring of necessary authority (full
powers through a duly signed letter of credentials), also known as accreditation of Negotiators
[Full Powers as per Article 7, VCLT]
3. Negotiations and Adoption of Text
4. Consent [Article 11, VCLT; signature, exchange of instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any other means if so agreed. Is also dependent on the
internal laws of the state (municipal laws. It can also include the reservation of the States, duly
noted.]
5. Entry into Force [as per the provisions of the concerned treaty]
6. Registration and Publication [Article 102. UN Charter - transmitted to the UN Secretariat for
registration and publication.]
7. Enforcement and Application

Regarding Validity of Treaties

I. State Cannot Invoke
1. Article 46 [Internal law regarding competence to conclude treaties]
2. Article 47 [Specific Restrictions on Authority to Express the Consent of a State]

II. State may invoke to invalidate consent

1. Article 48 [Error] VCLT
2. Article 49 [Fraud],
3. Article 50 [Corruption of State Representative],
4. Article 51 [Coercion of State Representative]
5. Article 52 [Coercion of the State by threat or use of force]
6. Article 53 [Treaty Conflicting with jus cogens norms]
7. Limits to Pacta Sunt Servanda (See Below)
8. Unequal treaties or treaties with unequal rights and duties.
9. The Context of State Succession
10. The loss of international personality

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Pratik Karki
Pacta Sunt Servanda: This Latin phrase, which may be roughly translated as “treaties shall be
complied with,” or that “treaties are binding upon the parties to them” describes a significant general
principle of international law. This rule is one of the oldest principle of international law and underlies
the entire system of treaty-based relations between sovereign states. This underlies every international
agreement for, in the absence of a certain minimum belief that states will perform their treaty obligations
in good faith, there is no reason for countries to enter into such obligations with each other.

Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are
universally recognized, [Preamble, VCLT] +Article 26, VCLT: Every treaty in force is binding upon the
parties to it and must be performed by them in good faith.

However, it is important to note that there are certain limits to Pacta Sunt Servanda, such as:

1. Force Majeure – Occurrence of an irresistible force or of an unforeseen event, beyond the control of
the State, making it materially impossible in the circumstances to perform the obligation.(also known as
"Act of God")
2. Supervening Impossibility of Performance [Article 61, VCLT]
3. Fundamental Change of Circumstances [Article 62, VCLT] (also known as Rebus Sic Stantibus)

Rebus Sic Stantibus: The doctrineof rebus sic stantibus (things thus standing) is a principle in
customary international law providing that where there has been a fundamental change of
circumstances since an agreement was concluded, a party to that agreement may withdraw from or
terminate it.

It is justified by the fact that some treaties may remain in force for long periods of time, during which
fundamental changes might have occurred. Such changes might encourage one of the parties to adopt
drastic measures in the face of a general refusal to accept an alteration in the terms of the treaty. It might
(theoretically) be used to justify withdrawal from treaties on rather tenuous grounds.

The modern approach is to admit the existence of the doctrine, but severely restrict its scope. The
stability of treaty relations requires that the plea of fundamental change of circumstances should be
applied only in exceptional cases.

Also see:

 Constitutional Provisions on International Law, Treaty Provisions etc;

 Nepal Treaty Act;
 Nepal as a signatory to various international human rights conventions,
 the use of international law by the Supreme Court of Nepal in its judgments and
 the 'disruption of supplies'/'blockade' in the context of the promulgation of the
Constitution of Nepal
 the usage of international law to boost diplomatic ability

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 the importance of international law to Nepal

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