The relations between treaties and custom

Chinese Journal of International Law

Volumn 9, Issue 1, 2010, Pages 81-109

  Jia, Bing Bing ^a  

^a TSINGHUA UNIVERSITY   (China)

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EID: 77749273726     PISSN: 15401650     EISSN: 17469937     Source Type: Journal    
DOI: 10.1093/chinesejil/jmq001     Document Type: Article

References (151)

1. 1155 UN Treaty Series, 331.
2. Such developments include, for instance, the Convention on the Law of Treaties between States and International Organisations or between International Organisations, Doc. A/ CONF.129/15, adopted at Vienna on 21 March 1986. Further see treaties.un.org/Pages, the UN Treaty Collection site of the UN Office of Legal Affairs (last visited 25 November 2009). As of 25 November 2009, the treaty has yet to enter into force, even though it has 41 parties. Among the 41 parties, 15 are international organizations, which are not counted as part of the requirement for entry into force as laid down under art. 85 of the treaty. The article requires ratifications or accessions by at least 35 States.
3. The best example is, of course, art. 38 of the Statute of the International Court of Justice (ICJ).
4. This inevitably gives rise to the question as to whether the Security Council can actually legislate, to which the ICTY Appeals Chamber seems to have answered in the affirmative: Prosecutor v. Dǔsko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para.133.
5. However, declarations of succession have since been quickly filed by some of these successor States, such as Croatia (11 May 1992) and Bosnia-Herzegovina (31 December 1992), with the depositary of the Geneva Conventions of 1949, the Swiss Federal Council. Such declarations were presumably made at the time due to the doubts surrounding the customary status of art. 34 of the 1978 Vienna Convention on Succession of States in respect of Treaties (1946 UN Treaty Series, 3; entry into force 6 November 1996). The doubts persist: I. Brownlie, Principles of Public International Law (7th edn. 2008), 661-662, 663-664.
6. Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, para.34.
7. A. Cassese, International Law (2nd edn. 2005), 224.
8. Cf. The North Sea Continental Shelf Cases, Judgment, ICJ Reports 1969, 3, para.76. It may not be correct to say that the Court "looked exclusively" to the conduct of non-parties in determining whether the treaty rule in question would be binding on all nations: R. Baxter, Treaties and Custom, 129 Recueil des cours (1970) 31, 64.
9. The Anglo-Norwegian Fisheries Case, Judgment, ICJ Reports 1951, 116, 131.
10. I. Brownlie, Principles of Public International Law (7th edn. 2008), 5;
11. H. Thirlway, International Customary Law and Codification (1972), 31.
12. Q.D. Nguyen, P. Daillier and A. Pellet, Droit international public (7th edn. 2002), 114-115.
13. A. Ross, A Textbook of International Law: General Part (1947; reprinted 2006), 83.
14. See above n.10, 111-112.
15. The origin of that distinction, however, probably lies in the writings of Sir John Salmond: W. Friedmann, The Uses of "General Principles" in the Development of International Law, 57 American JIL (1963), 279, n.2.
16. G. Fitzmaurice, Some Problems Regarding the Formal Sources of International Law, in: F. M. van Asbeck et al. (eds.), Symbolae Verzijl: Présentées au Professeur J. H. W. Verzijl á l'occasion de son LXX-ième anniversaire (1958), 154.
17. Cf. B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (1987; reprinted 1994), 1-6.
18. B.B. Jia, The Doctrine of Command Responsibility Revisited, 3 Chinese JIL (2004), 1, 7. Even general principles of law are more often used in international criminal proceedings than in proceedings arising from inter-State relations.
19. B.B. Jia, Judicial Decisions as a Source of International Law? Lectures given for the summer programme of the Xiamen Academy of International Law in 2008, and provisionally intended to be published by the Academy.
20. Cf. a slight different view: A. Ross, A Textbook of International Law: General Part (1947; reprinted 2006), 83.
21. A. McNair, La terminaison et la dissolution des traités, 22 Recueil des cours (1928-II), 459, 463. However, where writings are part of the evidence of a practice accepted as law, it is not advisable to ignore them. They are, as such, not those that only cite the writings of other writers, as opposed to judicial decisions or acts of State. The primary example of such writings is H. Lauterpacht's The Function of Law in the International Community (1933), where theoretical perusals are developed on the basis of a firm grasp of, above all, State practice.
22. Lauterpacht for one was not happy with confining his work to "a registration of the practice of States", so that no attempt could be made to relate that work to "higher legal principle", as he would aim for this latter function by way of juridical criticism and analysis: Lauterpacht, ibid., 438.
23. Prosecutor v. Tihomir Blǎskić, Case No. IT-95-14-A, Judgment of the ICTY Appeals Chamber, 29 July 2004, paras.598-602: on the finding of violation of the law and customs of war by the act of trench digging characterized as cruel treatment.
24. I. Brownlie, International Law at the Fiftieth Anniversary of the UN, 255 Recueil des cours (1995), 36.
25. K. Wolfke, Custom in Present International Law (2nd and rev. edn. 1993), 99-100. The author's criticism is somewhat concise.
26. See above n.6, para.63, where the Court referred to "the case of general or customary law rules and obligations".
27. P. Weil, Towards Relative Normativity in International Law? 76 American JIL (1983) 413, 425-430.
28. Cf. H. Thirlway, The Law and Procedure of the International Court of Justice: 1960-1989, 62 BYBIL (1991), 1, 60.
29. Cf. J. Brierly, The Law of Nations: An Introduction to the International Law of Peace (ed. by Waldock, 6th edn. 1963), 57-58.
30. Military and Paramilitary Activities in and against Nicaragua, Merits, ICJ Reports 1986, 14 ("the Nicaragua Merits Judgment"), para.188.
31. It may be recalled that, in its Judgment in the Nicaragua case of 1986, the ICJ found the United States, by its attacks on Nicaraguan territory, and by declaring a general embargo on trade with Nicaragua, to have acted in breach of its obligations under art. XIX of the bilateral Treaty of Friendship, Commerce and Navigation of 1956, and to be under an obligation to make reparation to Nicaragua for all injury caused to it through the breaches of the above-mentioned treaty. Ibid., para.292 (11 and 14).
32. J. Charney, The Persistent Objector Rule and the Development of Customary International Law, 56 BYBIL (1985), 1, 24.
33. G. Fitzmaurice, The General Principles of International Law: Considered from the Standpoint of the Rule of Law, Recueil des cours (1957-II), 5, 42.
34. It is noted that, in the North Sea Continental Shelf cases, the ICJ once considered that, as general or customary law rules and obligations "must have equal force for all members of the international community", they cannot be "the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour": ICJ Reports 1969, 3, para.63. The gist of that statement does not necessarily contradict the existence of the persistent objector rule.
35. Ibid., para.73, where the ICJ mentioned "a very widespread and representative participation".
36. Also see J. Crook, Contemporary Practice of the United States, 102 American JIL (2008), 169: where Deputy Secretary of State John Negroponte stated before the Senate Foreign Relations Committee on 27 September 2007, in relation to the US ratification of the 1982 United Nations Convention on the Law of the Sea, that "customary law is not universally accepted and, in any event, changes over time".
37. For instance, as of May 2008, Benin, Congo, Ecuardo, El Salvador, Liberia, Peru and Somalia had each maintained a 200-nautical mile territorial sea (www.un.org/Depts/los/LEGISLATIONANDTREATIES/claims.htm (last visited 9 December 2009)): the original information was published in Law of the Sea Bulletin, No. 54, 132, which does not seem to have changed by May 2008.
38. Presidential Proclamation 5928 on the Territorial Sea of the USA, 27 December 1988, Law of the Sea Bulletin, No. 12, 18; US Presidential Proclamation of 1988; Japan's Law of the Territorial Sea and the Contiguous Zone (Law No. 30 of 1977, as amended by the Law No. 33 of 1996), art. 1, in Law of the Sea Bulletin, No. 35, 76. The law entered into force in July 1996.
39. See Weil above n.25, 434.
40. While the concept of jus cogens or peremptory norms is accepted in several fields of international law and argued as a necessity in the system of modern international law, it may not be one that is opposable to France, which has objected to that concept ever since it was incorporated in arts. 53 and 64 of the 1969 Vienna Convention on the Law of Treaties. Cf A. Orakhelashvili, Peremptory Norms in International Law (2006), 28, 577. However, the concept seems to be one that is still developing, with a considerable amount of writings but somewhat short on State practice (with the exception of the above treaty rules, to which France has objected, and some cases). The mechanism established under art. 66 of the 1969 Convention to settle disputes over the application and interpretation of art. 53 or 64, while aimed, in part, at leaving the matter of jus cogens in the hands of the ICJ, has not been generally accepted by the States parties.
41. See the reservations to art. 66 filed by Algeria, Armenia, Brazil, China, Russia and Saudi Arabia, to name but a few, at treaties. un.org/Pages/ ViewDetailsIII.aspx?&src=TREATY&mtdsg-no=XXIII∼1&chapter= 23&Temp=mtdsg3&lang=en, being the official website of the UN Treaty Section (last visited 9 December 2009).
42. See Charney, above n.30, 24.
43. The 200-nautical mile limit adopted by Peru, for instance, has been maintained well over 60 years: J. Roach and R. Smith, United States Responses to Excessive Maritime Claims (2nd edn. 1996), 158, n.16. The limit was definitive, in that it has been twice written into the Peruvian Constitution (1979 and 1993). The text of art. 54 of the 1993 Constitution is reported in Law of the Sea Bulletin, No. 25, 82. Together with Ecuardo and El Salvador, Peru remains a non-party to the 1982 United Nations Law of the Sea Convention.
44. Ibid., Roach and Smith, 153-161.
45. See Charney, above n.30, 19.
46. M. Akehurst, Custom as a Source of International Law, 47 BYBIL (1974-1975) 1, 17-18.
47. Ibid., 18.
48. ICJ Reports 1951, 116, 131. Maybe it is more proper to speak of a "common international law", as in the French version of the Judgment of the Court.
49. Cf. Judge Koretsky's dissenting opinion in the North Sea Continental Shelf cases, ICJ Reports 1969, 3, 156. The Judge's view on the difference between general international law and customary law is partly supportive of the third meaning described here, but the Judge did not elaborate further in this regard.
50. This view is based on the wording of art. 38(1). Lauterpacht thought that art. 38 pursued a middle road between the naturalist and the positivist, by incorporating general principles of law as a source: H. Lauterpacht, The Function of Law in the International Community (1933), 57.
51. However, there are other views. Cf. W. Friedmann, The Uses of "General Principles" in the Development of International Law, 57 American JIL (1963), 279, 280.
52. According to the ICRC Press Release No. 06/96 of 21 August 2006, the accessions by the Republic of Nauru and the Republic of Montenegro to the 1949 Geneva Conventions confirmed the status of these conventions as the universally accepted treaties and represented a landmark in the development of protection for victims of armed conflict: www.icrc.org/web/eng/siteeng0.nsf/htmlall/geneva- conventions-news-210806?opendocument (last visited 25 November 2009). Nauru acceded to the four Geneva Conventions on 27 June and Montenegro on 2 August, bringing the number of States party to these instruments to 194.
53. This fact was in fact behind the US policy of mounting operational challenges to excessive claims over maritime zones in disregard of the 1982 United Nations Convention on the Law of the Sea: J. Roach and R. Smith, supra n.39, 5-6.
54. It has been mentioned that, during the drafting of the Statute for the Permanent Court of International Justice, Baron Descamps explained his proposal for the sources of international law to be applied by the Court, by making the interesting distinction between certain "secondary" principles of justice, which were basically the sources of law now entrenched in art. 38(1), and the fundamental law of justice and injustice: V. Degan, Sources of International Law (1997), 47.
55. E. Jiménez de Aréchaga, International Law in the Past Third of a Century, 159 Recueil des cours (1978), 1, 14-22.
56. The Nicaragua Merits Judgment, para.177.
57. Also see art. 38 of the 1969 Vienna Convention on the Law of Treaties.
58. C. de Visscher, Coutume et traité en droit international public, 59 Revue générale de droit international public (1955), 353, 360.
59. ICJ Reports 1969, 3, para.71.
60. Ibid., para.72.
61. For comment, see A. Cassese, International Law (2nd edn. 2005), 199. However, as already indicated above, n.34, the notion of jus cogens is one of controversy in terms of its content and application.
62. Arts. 53 and 64 of the Vienna Convention on the Law of Treaties.
63. See above n.37.
64. R. Jennings and A. Watts (eds.), 1 Oppenheim's International Law (9th edn. 1992), 33, n.12.
65. H. Thirlway, International Customary Law and Codification (1972), 100. Of course, the author later pointed to the practical side of the question.
66. Ibid.
67. ICJ Reports 1950, 266, 277.
68. The futility of a comprehensive codification of the entire body of international law has long been noted: Lauterpacht, above n.46, 58.
69. The Nicaragua Merits Judgment, para.174.
70. Ibid., para.176.
71. Ibid.
72. The Nicaragua Merits Judgment, para.176.
73. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 223, para.41. The Court then observed that "the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law".
74. A. Randelzhofer, "Article 51", in: B. Simma (ed.), i The Charter of the United Nations: A Commentary (2nd edn. 2002), 794-796.
75. The Nicaragua Merits Judgment, para.176.
76. Ibid.
77. Ibid., para.177.
78. Ibid., para.178 (and this would also seem to have disposed of the separate issue of the supremacy of art. 103 of the Charter over all other arrangements: Military and Paramilitary Activities in and against Nicaragua, Merits, ICJ Reports 1984, 392, para.107).
79. Ibid.
80. Published by the Cambridge University Press in 2005 in three volumes of some 4400 pages.
81. The Study, vol. i, xxix.
82. Art. 8(2)(b)(xvii) of the Rome Statute of the International Criminal Court.
83. The Study, vol. i, 252-253. The Rome Statute of the International Criminal Court does not criminalize the weapon's use in non-international armed conflict.
84. Ibid.
85. Letter entitled "US Initial Reaction to ICRC Study on Customary International Law" (3 November 2006), by John Bellinger and William Haynes, reported in 101 American JIL (2007), 639-641.
86. Contra, Judge Schwebel's Dissenting Opinion in the Military and Paramilitary Activities in and against Nicaragua Case, Merits, ICJ Reports 1986 14, 304, para.95. The Judge considered it to be "artificial" to consider the United States and Nicaragua, both being members of the UN, as bound only by customary law that was the same in content as art. 2(4) of the UN Charter.
87. The Study, vol. i, xxviii.
88. Ibid. Also see L. Moir, The Law of Internal Armed Conflict (2002), 1.
89. See the official website of the ICRC: www.icrc.org/IHL.nsf (last visited 24 December 2009). The notable absentees from the protocol's roster of States parties include the United States, India, Iran, Iraq and Mexico, to name but a few.
90. Above n.4, para.117;
91. Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, para.610;
92. Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, S/2000/915, 4 October 2000, para.14.
93. Also see art. 8(2)(e) of the Rome Statute of the International Criminal Court.
94. Above n.4, para.126; the UK Ministry of Defence, The Manual of the Law of Armed Conflict (2004), 387-395.
95. Art. 103: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail".
96. ICJ Reports 1996, 223.
97. Ibid., para.40.
98. The article, unlike so many others of the Charter, does not contain any reference to "a State" or "all States". The inherent right of self-defense cannot, however, be confined thereby to the Members of the UN. In this light, the right in art. 51, though generally mirroring its customary version, leaves room for the argument that it does not exactly copy the customary right. On this point, the majority opinion in the 1986 Nicaragua case is justified.
99. ICJ Reports 1996, 223, para.41.
100. Ibid., para.44.
101. Ibid., para.40.
102. Ibid., para.34.
103. The Nicaragua Merits Judgment, para.200.
104. The Court at a later passage of the Judgment stated in clearer terms that "in the context of that law [i.e. customary law], the reporting obligation enshrined in Article 51 of the Charter of the United Nations does not exist": Ibid., para.235.
105. Ibid., 200.
106. Cf. however, Y. Dinstein, War, Aggression and Self-Defence (3rd edn. 2001), 189.
107. The Nicaragua Merits Judgment, para.200.
108. C. Gray, International Law and the Use of Force (2nd edn. 2004), 101-104.
109. This must be a reason that custom is as important as it always is. Cf. M. Virally, The Sources of International Law, in: M. Sørensen (ed.), Manual of Public International Law (1968), 128-129;
110. V. Degan, Sources of International Law (1997), 179.
111. Contra. C. de Visscher, Thé-ories et réalités en droit international public (4th edn. 1970), 174.
112. The Study, vol. i, 392.
113. Ibid., 394.
114. Also, vol. ii, 2586-2587.
115. Ibid.
116. A. Aust, Modern Treaty Law and Practice (2000), 212.
117. The UNGA passed Resolution 95(I) on 11 December 1946 to affirm the principles of international law recognized by the (Nuremberg) Charter of the International Military Tribunal of 1945 and the Nuremberg judgment of 1946. By Resolution 177(II) (21 November 1947), the UNGA, having established the International Law Commission by Resolution 174(II) of the same date, requested the Commission to formulate the principles and to start work on a Draft Code on Offences against the Peace and Security of Mankind. At its second session in 1950, the principles were adopted by the Commission: UNGA OR, 5th session, Supp. No. 12, UN Doc. A/1316 (1950).
118. R. Baxter, above n.8, 92-93.
119. Ibid., 95.
120. The Study, vol. i, Rule 153.
121. Prosecutor v. Delalić et al., Case No. IT-96-21.
122. Prosecutor v. Enver Hadzihasanović and Amir Kubura, Case No. IT-01-47-PT, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003.
123. Prosecutor v. Tihomir Blǎskić, Case No. IT-95-14-A, 29 July 2004.
124. Prosecutor v. Enver Hadzihasanović and Amir Kubura, Case No. IT-01-47-A, 22 April 2008, paras.36-42. However, the Trial Chamber in the first instance of that case thought otherwise: Prosecutor v. Enver Hadzihasanović and Amir Kubura, Case No. IT-01-47-T, 15 March 2006, para.192.
125. G. Mettraux, The Law of Command Responsibility (2009), 194-195.
126. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies ("Moon Treaty"), UN Treaty Series, vol. 1363, 3.
127. UN Doc. A/34/664, 12 November 1979; A/RES/34/68, 14 No. 1979.
128. Also see art. 19(3) of the Moon Treaty.
129. The ratification record can be found at www.oosa.unvienna.org/ which is the official website of the UN Office for Outer Space Affairs (last visited 24 December 2009).
130. S. Spitz, Note on Space Law, 21 Harvard ILJ (1980), 579.
131. Summary of the Review of US Human Space Flights Committee, 8 September 2009: www.nasa.gov. The site also contains the testimonies given by the Committee's Chairman before committees of the US Senate and House of Representatives in September 2009. Also see: Russian Federal Space Programme for 2006-2015, at www.federalspace.ru/main.php?id=85; Japanese Aerospace Exploration Agency or JAXA',www.jspec.jaxa.jp/e/enterprise/moon.html, on its successive plans to launch spacecraft for landing on the Moon between 2007-2015 and beyond; White Paper, China's Space Activities in 2006, on www.cnsa.gov.cn/n1081/n7484/98351.html, the official website of the China National Space Administration; the news bulletin of 3 September 2006, on the website of the European Space Agency: www.esa.int/esaCP/Pr-31-2006-p-EN.html, on the crash landing by SMART-I on the surface of the Moon (all of the above sites last visited 24 December 2009).
132. Art. 11(1) of the Moon Treaty.
133. B. Cheng, The Moon Treaty: Agreement Governing the Activities of States on the Moon and Other Celestial Bodies within the Solar System Other than the Earth, in: B. Cheng (ed.), Studies in International Space Law (1997; reprinted 2004), 357.
134. Art. 11(5), the Moon Treaty.
135. Cheng, above n.120, 367.
136. Cf. C. Christol, The Modern International Law of Outer Space (1982), 286.
137. K. Rao, Common Heritage of Mankind and the Moon Treaty, 21 Indian JIL (1981), 275;
138. C. Joyner, Legal Implications of the Concept of the Common Heritage of Mankind, 35 ICLQ (1986), 191.
139. This is referred to as the geostationary orbit, lying some 35 871 kilometers above the Earth's equator, over which eight equatorial States have claimed sovereignty. C. Christol, Space Law: Past, Present and Future (1991), 178-182.
140. Law of the Sea Bulletin, Special Issue IV (1994). The document is numbered as UN Doc. A/ 48/L.60 and Add.1.
141. The entry into force required 40 ratifications, which included, as required, at least seven pioneer investors and at least five developed countries: art. 6, the 1994 Agreement.
142. For the status of the Agreement, see the information provided by the UN Office of Legal Affairs, Division on Ocean Affairs and the Law of the Sea, on its webpage: www.un.org/Depts/los/reference-files/status2008.pdf (last visited 24 December 2009).
143. The US accession to the UNCLOS (and the Agreement) is closer to reality: J. Duff, A Note on the United States and the Law of the Sea Convention: Looking Back and Moving Forward, 35 Ocean Development of International Law (2004), 195-219.
144. However, the Senate still needs to bring it to a full vote: J. Crook, Contemporary Practice of the United States, 102 American JIL (2008), 159, 168-169.
145. Section 2, para.3 of the 1994 Agreement's Annex. Annex IV to the UNCLOS contains the Statute of the Enterprise.
146. Section 3, para.3 of the 1994 Agreement's Annex.
147. Cf. M. Koskeniemi and M. Lehto, The Privilege of Universality: International Law, Economic Ideology, and Seabed Resources, 65 Nordic JIL (1996), 533-555.
148. R. Churchill and V. Lowe, The Law of the Sea (3rd edn. 1999), 237.
149. Governments and international lawyers may favour a relatively easy passage of treaty rules into general norms binding on all: O. Schchter, Entangled Treaty and Custom, in: Y. Dinstein and M. Tabory (eds.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989), 716, 722.
150. Y. St-Fleur, Aerial Belligerency within a Humanitarian Rhetoric: Exploring the Theorizing of the Law of War/Terrorizing of Civilians' Rights Nexus, 8 Chinese JIL (2009) 347, 356-358. Where the attempt at treaty-making staggers, customary law fills the gaps in practice.
151. That the customary process and its results are vague, slow, malleable and uncertain; but that treaties can be made relatively spontaneously in specific terms. However, the making of a multilateral treaty is recognized as a cumbersome process that may well outlast the formation of a custom outside its framework; many norms created by the UNCLOS can testify to the verity of this proposition.