Part IV Treaty Application, 16 State Succession in Respect of Treaty Relationships

Progressive Development ◽

Current State ◽

State Succession ◽

State Of Affairs ◽

Order State

This chapter returns to the international frame, asking how treaties apply in cases of disruption to the international legal order — State succession — a topic addressed by the 1978 Vienna Convention on Succession of States in respect of Treaties (VCSST). The present state of affairs relating to treaty succession suggests that only some of the VCSST’s provisions can serve as a reliable guide to the current State of customary international law (e.g. Article 11’s continuation of all boundary regimes, Article 15’s ‘moving treaty boundaries’ rule). Others constitute progressive development of international law (e.g. Article 31 in cases of incorporation; Article 34 in cases of separation). In any case, modern treaty succession distinguishes not only among the different cases of State succession, such as merger or dismemberment, but also among specific categories of treaties that are subject to different rules or principles. It is therefore difficult to identify a generally applicable legal regime of treaty succession.

Choice and (the Awareness of) its Consequences: The ICJ's “Structural Bias” Strikes Again in the Marshall Islands Case

AJIL Unbound ◽

10.1017/aju.2017.26 ◽

2017 ◽

Vol 111 ◽

pp. 81-87 ◽

Cited By ~ 5

Author(s):

Andrea Bianchi

Keyword(s):

International Law ◽

Nuclear Weapons ◽

Third Parties ◽

Legal Order ◽

Marshall Islands ◽

Young Researcher ◽

International Treaty ◽

Rubber Stamp ◽

State Of Affairs

My very first publication, admittedly written in a language that many AJIL Unbound readers might be unable or unwilling to read, was an essay on the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its effects vis-à-vis third parties. Already back then, I found it difficult to justify how an international treaty could rubber-stamp such a highly uneven state of affairs. The overt acknowledgement of the discrimination between nuclear and nonnuclear states, the hypocrisy about “unofficial” nuclear states, and the Article VI obligation for nuclear states to negotiate effective measures of disarmament, largely ignored in the first twenty years of the treaty, were all elements that contributed to my perception of unfairness, if not blatant injustice. As a young researcher approaching international law with the enthusiasm of the neophyte, however, this looked like a little anomaly in an otherwise fair and equitable international legal order. It did not set off warning bells about the system as such. After all, international law was geared, at least in my eyes, towards enhancing the wellbeing of humanity. It must have been so. And it is not that I leaned particularly on the idealistic side; it seemed normal to me … at the time.

Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory

The American Journal of International Law ◽

10.5305/amerjintelaw.108.3.0389 ◽

2014 ◽

Vol 108 (3) ◽

pp. 389-434 ◽

Cited By ~ 12

Author(s):

Pierre-Hugues Verdier ◽

Erik Voeten

Keyword(s):

International Law ◽

Legal Order ◽

Explanatory Theory ◽

State Behavior ◽

The Social ◽

Social Scientific ◽

Vital Element ◽

Affect State

Customary international law (CIL) is widely recognized as a fundamental source of international law. While its continued significance in the age of treaties was once contested, it is now generally accepted that CIL remains a vital element of the international legal order. Yet CIL is also plagued with conceptual and practical difficulties, which have led critics to challenge its coherence and legitimacy. In particular, critics of CIL have argued that it does not meaningfully affect state behavior. Traditional CIL scholarship is ill equipped to answer such criticism because its objectives are doctrinal or normative—namely, to identify, interpret, and apply CIL rules, or to argue for desirable changes in CIL. For the most part, that scholarship does not propose an explanatory theory in the social scientific sense, which would articulate how CIL works, why states comply, and why and how rules change.

Part V Jus Cogens beyond the Vienna Convention, 23 The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?

10.1093/acprof:oso/9780199588916.003.0023 ◽

2011 ◽

Cited By ~ 4

Author(s):

Zemanek Karl

Keyword(s):

International Law ◽

Recent Trend ◽

Vienna Convention ◽

National Courts ◽

The Will ◽

Ordre Public ◽

Jus Cogens ◽

Peremptory Norms

When the Vienna Convention on the Law of Treaties confirmed the existence of peremptory norms of international law (jus cogens) they were conceived, like Roman jus publicum, as absolute law that could not be altered by the will of individual States. Scholars then transformed the concept into the manifestation of public policy (ordre public). They also argued for widening the scope of its application to unilateral legal acts and customary international law. A recent trend in academic theory assigns jus cogens an essential role in the constitutionalization of international law, postulating it either as hierarchically higher order or as embodying the constitutional principles. In view of the rashness of scholars in proclaiming the peremptory character of norms and also of the inexpertness of the European and national courts in applying supposedly peremptory international norms in their decisions, it seems better to keep jus cogens at its original task.

Part I Conclusion of Treaties, 1 Are Agreements between States and Non-State Entities Rooted in the International Legal Order?

10.1093/acprof:oso/9780199588916.003.0001 ◽

2011 ◽

Author(s):

Olivier Corten ◽

Pierre Klein

Keyword(s):

International Law ◽

Political System ◽

Affirmative Answer ◽

Legal Order ◽

Vienna Convention ◽

Clear Cut ◽

Peace Agreements ◽

National Jurisdiction ◽

Made In

Can peace agreements concluded between a State and a non-State entity produce legal effects in the international sphere, as mentioned in Article 3 of the Vienna Convention on the Law of Treaties? Could it be considered that, following the conclusion of such agreements, some areas that were traditionally conceived as pertaining to the national jurisdiction of States (such as the use of violence within national borders, or the choice of a political system) are as of now governed by international law? On the basis of numerous agreements reviewed in this study, a clearly affirmative answer would appear excessive. As far as the international legal effects of such instruments are concerned, much will depend on the specificities of each agreement and on the way it has been implemented. Most of these agreements prove to be rather ambiguous, a significant portion of their components evidencing their rooting in the domestic legal order. This ambiguity finds confirmation in the very pragmatic treatment of peace agreements by the Security Council and States when they call for compliance with these instruments. In the vast majority of cases, such demands are made in the name of the maintenance of international peace and security, without much attention being paid to the characterization in legal terms of the parties' undertakings under these agreements. It therefore appears difficult to reach clear-cut conclusions as to the legal effects of such peace agreements in the international sphere — and, as a consequence, as to their possible characterization as ‘treaties’ under international law.

Part III Observance and Application of Treaties, 14 Treaties Establishing Objective Regimes

10.1093/acprof:oso/9780199588916.003.0014 ◽

2011 ◽

Author(s):

Salerno Francesco

Keyword(s):

International Law ◽

Legal Order ◽

Customary Law ◽

Vienna Convention ◽

Principle Of Relativity ◽

The Absolute ◽

The Law

The issue of treaties establishing objective regimes has been neglected by the Vienna Convention on the Law of Treaties. Building on the principle of relativity of treaties, the Convention only deals with the effects of specific treaty rules on third states. This chapter argues that third states never acquire the same status of states parties, even when they consent to the specific treaty rules that affect them. Analysing the significance of treaties establishing objective regimes under general international law, it clarifies that such treaties may affect third states even when they do not embody rules of customary law. Due to the relevance for the international legal order of the unique erga omnes regime created by the treaty, the situation regulated by it can no longer fall within the scope of the absolute ‘freedom’ previously accorded to third states.

The Place of Customary Norms in Climate Law: A Reply to Zahar

Climate Law ◽

10.1163/18786561-00803010 ◽

2018 ◽

Vol 8 (3-4) ◽

pp. 261-278 ◽

Cited By ~ 2

Author(s):

Benoit Mayer

Keyword(s):

Climate Change ◽

International Law ◽

Legal Order ◽

Harm Principle ◽

Legal Argument ◽

No Harm Principle

In his essay on the thesis of my book, Alexander Zahar objects to my characterization of customary international law as one of the sources of the international law on climate change and, in particular, to my conclusion about the relevance of the no-harm principle. I disagree. In the first part of his essay, Zahar’s analysis of the no-harm principle is limited to arguments by analogy, but a valid international legal argument can be based on deduction from axiomatic premises of the international legal order. In the second part of his essay, Zahar claims that the UNFCCC regime excludes the application of the no-harm principle when, in reality, the UNFCCC regime really seeks to facilitate the implementation of general international law.

Whither Democratic Legitimism?: Contextualizing Recent Developments in the Recognition and Non-recognition of Governments

AJIL Unbound ◽

10.1017/s2398772300002191 ◽

2014 ◽

Vol 108 ◽

pp. 213-218 ◽

Cited By ~ 1

Author(s):

Brad R. Roth

Keyword(s):

International Law ◽

Legal Order ◽

Democratic Legitimacy ◽

Balanced Assessment ◽

Current State ◽

State Practice ◽

Recent Developments

Erika de Wet has provided a useful and balanced assessment of the current state of the international law of governmental illegitimacy. Her account quite rightly concludes that “democratic legitimacy is not yet a requirement for the recognition of ade juregovernment under customary international law.” What follows below seeks to expand on her observations in two ways: by developing somewhat further the doctrinal linkages to which she alludes; and by explaining the failure of a consistently legitimist state practice to materialize, in light of the dynamics of the legal order within which the question of governmental illegitimacy is embedded.

Suspension of the Intermediate-Range Nuclear Forces Treaty prior to its withdrawal: the content of custom

Cambridge International Law Journal ◽

10.4337/cilj.2021.01.07 ◽

2021 ◽

Vol 10 (1) ◽

pp. 143-164

Author(s):

Kazuki Hagiwara

Keyword(s):

United States ◽

International Law ◽

The United States ◽

Vienna Convention ◽

Nuclear Forces ◽

Intermediate Range ◽

Progressive Development ◽

State Practice ◽

The Law

The United States suspended the Intermediate-Range Nuclear Forces Treaty (INF Treaty) ‘in accordance with customary international law’. However, State practice prior to the International Law Commission's codification of the law of treaties did not contribute to clarifying the extent of a right to suspend and the proper conditions for its exercise under customary international law. The few instances regarding suspension due to a serious breach did not demonstrate how the treaties in question were suspended but were a mere reference to a right of suspension in diplomatic or political documents. Against that backdrop, this article seeks to delineate what customary rules the United States believed it was observing and to clarify to what extent those rules are identical to or different from the codified rules on suspension in the Vienna Convention on the Law of Treaties (Convention). Because the codified procedural safeguards or the mechanism of acquiescence under Article 65 of the Convention were considered as the progressive development of international law, it appears possible to suspend the INF Treaty unilaterally outside the Convention and under the customary rules by which the United States is bound. The INF Treaty was suspended by the United States and by Russia in sequence. That Russian suspension appears to have been an exceptio non adimpleti contractus to prevent the asymmetric execution of the INF Treaty that had been previously suspended by the United States.

Jus Cogens: A Complex Case of Constitutional Reasoning in International Law

Rechtsphilosophie ◽

10.5771/2364-1355-2020-3-249 ◽

2020 ◽

Vol 6 (3) ◽

pp. 249-262

Author(s):

Miodrag Jovanović

Keyword(s):

International Law ◽

Legal Order ◽

Complex Case ◽

Vienna Convention ◽

International Governance ◽

Teleological Argument ◽

State Actor ◽

Jus Cogens ◽

Peremptory Norms

Article 53 of the Vienna Convention on the Law of Treaties famously introduced a special class of international legal rules - jus cogens norms - without specifying its content. The paper proceeds by adopting the heuristic framework of constitutionalization of international law, arguing that jus cogens norms contribute to at least two constitutionalist functions - that of limiting the international governance and hierarchizing international legal order. Hence, it is possible to argue that jus cogens reasoning is a specific type of constitutional reasoning. Despite stipulated formal qualities of jus cogens norms, in trying to establish their content state actors are in the situation similar to constitutional adjudicators dealing with underdetermined legal content of a constitutional text. What directs the process of jus cogens reasoning is, thus, the particular nature of the subject-matter with which those norms deal. The last part of the paper provides the analytical reconstruction of the jus cogens constitutional reasoning, focusing on the process of ascertainment, which is to be taken by the community of states. It is argued that what ascertainment requires is, inter alia, resorting to a unique interpretative tool - reverse teleological argument - with the use of which the state actor can extract from the fundamental values of international legal order a class of peremptory norms of international law.

Preamble

10.1093/law/9780198703969.003.0002 ◽

2016 ◽

Author(s):

Denza Eileen

Keyword(s):

International Law ◽

Theoretical Basis ◽

Character Theory ◽

Vienna Convention ◽

Diplomatic Relations ◽

Progressive Development ◽

International Law Commission ◽

The Relationship ◽

Law Commission

This chapter describes the Preamble of the Vienna Convention on Diplomatic Relations set forth by the International Law Commission, the main legal body which promotes the progressive development of international law and oversees its codification. It briefly describes three theories that form as the basis of the statements written at the Preamble —the ‘exterritoriality’ theory, the ‘representative character’ theory, and the ‘functional necessity’ theory. All of these theories heavily influence matters regarding diplomatic privileges and immunities. Ultimately, the Preamble to the Convention has two important legal functions—to state the view of the participating States on the theoretical basis of diplomatic privileges and immunities, and to make explicit the relationship between the Convention and customary international law.