Good morning, ladies and gentlemen, I welcome you to our next session in our course on the
International Normative Framework on Sustainable Management.
I hope you all continue to do fine.
And of course, I first would like to apologize for the slide gap that we had between publishing
the previous session.
And this one, it's by now almost two weeks.
I hope you didn't get worried about this slide gap and especially you didn't get worried
about the course or about me in that regard.
In fact, there were some issues I had to deal with university related that prevented me
from providing you with an earlier recording in that regard.
But today on this pleasant and quiet Sunday morning, I find the time again to continue
our lecture on the basis of a new session that I'm currently recording.
There were basically two questions that were put by some of you in the meantime.
And I, of course, would like to briefly address them.
The first is more a technical one.
The issue was raised whether it wouldn't be possible to provide these videos under lecture
to go also with a download option.
I have obviously nothing against you downloading the respective videos until now.
I haven't fully found out how to activate this download possibility under lecture to
go as soon as I'm able to find this out.
Hopefully in the course of the next week that starts tomorrow, I will, of course, try to
activate this function and provide you with a download possibility.
I fully understand that for some of you, it's more convenient if you can actually download
the respective video and do not need to listen to it while being on the Internet.
That was one of the primary reasons that was put in favor of providing this download possibility.
Second issue concerns the final exam.
Of course, by now that we have mastered the recording technique, me and all other lecturers
are providing you with other digital means of lecturing in this semester, the exam is
and remains one of the most challenging issues in that regard.
We will have probably in the coming month the remaining exams for that were canceled
in the second half of March.
I don't know whether this concerns some of you or many of you.
The details are not yet known.
What is known that it will be a very, very, very challenging issue for a variety of reasons.
However, it seems by now clear that all written exams, the leftovers from the previous semester,
as well as the one from this summer semester that will start whenever, from the middle
of July onwards, will be undertaken in the form of written exams in the presence and
under the supervision of respective lecturers or other persons.
That of course involves a lot of organizational issues and will be surely very, very different
from exams with regard to the environment and the precautionary measures being taken
in that regard from exams you have until now taken in school and in university in the previous
month and years.
However, that's not what the question is about.
The question is about whether I could explain a little bit more about the form of the exam.
That's the first question.
I think it's now quite clear to me, uncertainties remain, of course, that the exams will be
basically undertaken from a very overarching perspective in the same way as written exams
have been undertaken in previous semesters.
I will provide you in the coming weeks, at the latest next month, with some sample questions
from which you can see in a little bit further details how the exam will roughly be structured,
how the questions will look like and what you can expect with regard to the exams you
are taking with regard to this course in the summer between July and October.
So you get some sample questions at the latest next month.
I will upload them under Stino, of course, and if you have any questions in that regard,
of course we can discuss in inverted commerce that issue again in the course of one of the
sessions that we will have in June.
Second issue that was raised with regard to the exam was the question whether you really
need to learn all the details of the course by heart, in particular also referring to
dates of respective documents, sessions, and others that I have given you, obviously you
do not have to know all these peculiar specific details with regard to dates.
What I expect from you is basically the same that you are expected with regard to all other
exams that you have make yourself familiar with the main dogmatic and other issues we
are discussing.
I'm introducing to you in the course of this lectures, including also based on the PowerPoint
slides and including everything that I'm saying in connection with these PowerPoint
slides, including some examples.
You do not need to learn the legal provisions because you will be allowed as always with
regard to legal exams.
Well, for some of you, it's the first law related exam that you are taking.
I know that particular applies to the MIBA's students in this context you are entitled
to use also all the respective legal materials that I have uploaded, understand in that connection
we can take them with you.
In the exam you do not need to learn any provisions, any articles or anything else from international
treaties in particular by heart for this course and you also do not need to learn any dates
in that regard.
By heart it's sufficient but also necessary that you make yourself familiar with the
main conceptual issues that we are discussing.
Obviously I'm unable to exclude or emphasize with regard to every individual issue whether
you need to know this for the exam or not that would prevent me from discussing with
you any other things but I think you probably have a roughly an idea now what is expected
from the exam.
It will be not that different from other types of exams you are taking.
If you are still unsure obviously there is always the possibility to raise again some
questions and then I will address them in respective subsequent sessions.
Okay ladies and gentlemen, that were the questions, there were not that many questions this time
that came up and no questions that were raised with regard to the other courses are actually
of relevance to you so you cannot really benefit from other ideas brought by students
from other courses in that regard and I take that as an indication that everything basically
works fine as far as it can work fine obviously under the present circumstances.
Hopefully maybe some of you, hopefully some of you have noticed that my voice on this
recording is hopefully a little bit clearer, has a little bit more volume that has nothing
to do with me taking trainings, having taken training sessions, voice training sessions
in the last two weeks I haven't done so.
It's simply again a technical issue I bought a new external microphone realizing that this
recording thing will be something that will stay with me at least for this whole semester
and potentially also for some time to come afterwards so I have bought an external microphone
not this really big fancy one I'm not building up a recording studio here at home but at
least I have now probably a better microphone than I used to had before before I was simply
using the microphone of my laptop of which I don't even know where it is actually based
in the laptop that brings of course again up the issue of my technical inabilities and
lack of knowledge that I've mentioned already a few times but with this external microphone
maybe the recording is for you for me it obviously doesn't really matter whether I speak in an
external microphone or continue to speak to my laptop without knowing where the microphone
is but maybe for you that makes the whole thing a little bit more pleasant because it's easier to
understand me the voice is a little bit clearer in that regard I will see once I have made two
three tests in advanced of course and it sounded to me as if it is a little bit better we will see
whether you have the same impression when you listen to this session okay ladies and gentlemen
with that we continue of course now with the topics we intend to discuss we started in the
previous session to discuss the next main issue in our lecture namely the sources of law that make
up the international normative framework the lawmaking processes that bring this international
normative framework into being or modify respective aspects of it or ultimately also
terminate respective aspects of it and in that regard in the previous sessions we were first
discussing some general issues if you remember that about the lawmaking processes in the
international context that is obviously quite different from the domestic context of states
that we are all more familiar with due to the decentralized character of the international
system and as a direct consequence of that the decentralized also lawmaking and law enforcement
processes that characterize the international normative framework in general and the ones
dealing with sustainable management in particular and afterwards we turn to the individual sources
initially based on the respective listing provided in article 38 paragraph one of the statute of the
International Court of Justice and we first focus and that's what we will continue now also for some
time before we turn to the next source we focused on the practically most important
sauce in current public international law in the current international system namely treaties
international agreements and in that regard we learned already that the law on treaties that is
in the domestic context usually laid down in acts of Parliament civil law codes or others
are in the international system obviously having a different legal source because we do not have a
world parliament a central legislative authority and that's why also the law of treaties is actually
primarily today laid down in treaty law in particular in the Vienna Convention on the law
of treaties that was drafted by the International Law Commission a sub-body of the general United
Nations general assembly was adopted in 1969 and entered into force in 1980 was today roughly 115
120 states being contracting parties to this treaty on treaties the treaty that contains treaty law
we dealt extensively in the previous session with the question of what are the essential elements of
a treaty what distinguishes an international treaty from other international steering instruments
or from contracts under the domestic law of respective states and we want to continue now
by taking a look at some of the regulatory issues with regard to treaty law that are actually
stipulated regulated in this Vienna Convention on the law of treaties of 1969 that I've also
uploaded for you understand and that you otherwise can easily access for free on the internet of
course the Vienna Convention on the law of treaties covers many of the important issues dealing with
the formation of treaties the interpretation of treaties and other issues that we would briefly
take a look at on the subsequent slides however there are certain issues and this is explicitly
stated also in article 73 of the Vienna Convention on the law of treaties that are not regulated in
this agreement that are issues of state succession so the question if there is a breakup of a state
may it be because of a succession so a part of the state breaking up from the previous
state and forming a new one Sudan and South Sudan 2011 is a respective example
or even the dismemberment of a whole country a breakup of a country in a number of successful
states without the previously existing country continuing to exist Soviet Union is an important
example in that regard the former the breakup of the former Yugoslavia is another example in that
regard in all these issues in all these scenarios the issue come up what happens to the treaties
that the previous state either in a secession scenario or in dismemberment scenario that the
previous state has concluded do they cease to apply do they have no longer legal effects are the
successor countries automatically bound by all the treaties that the previous country has signed
that's the issue of state succession and treaties state succession gives issues to a number of
questions issues in state succession and state depths and and other questions but for the
purposes of the law of treaties at state succession and treaties and that's an issue
that is not covered by the Vienna Convention on the law of treaties of 1969 some of you might
remember that there is another Vienna Convention on precisely on state succession with regard to
treaties that has been also developed by the International Law Commission and has been adopted
in the 1970s but and entered into force with however a very limited number of countries 22-23
currently being contracting parties to it that's an issue covered by these other convention it's
not covered by the Vienna Convention on the law of treaties of 1969 same applies to issues of state
responsibilities state responsibility is comparable to tort law in the domestic realm
so what happens if a state violates a certain obligation under public international law what
are the consequences arising out of such a scenario this is equally with regard to treaty
violations not covered by the Vienna Convention on the law of treaties and another unfortunately
practically also still important issue in the international system is also not covered by the
Vienna Convention and that is the thorny and disputed question of the possible effects
of the outbreak of hostilities so the outbreak of an armed conflict between two treaty parties
on the respective treaties they have concluded during peace time well obviously some treaties
are precisely designed and adopted for dealing with armed conflict that in particular applies
to international humanitarian law the law that deals with the protection of civilians cultural
object wounded soldiers etc during armed conflicts they are precisely only of relevance during armed
conflict and of course continue to apply but what for example about a trade agreement a free trade
agreement concluded between two countries who are now locked in an armed conflict that's a very
thorny issue the ILC the international law commission has also been busy in that regard
and has developed some draft articles in that connection but they haven't really emerged
in the form of an international convention yet because there is consider a disagreement
among states and considerable uncertainty based on previous state practice what the precise
effects of the outbreak of hostilities on treaties are and that's an issue which is equally not
covered by the Vienna Convention on the law of treaties basically as some of you might have
noticed by now all the issues that the negotiating parties of the Vienna Convention on the law of
treaties were unable to agree to they have simply excluded from the regulatory scope of application
of the Vienna Convention on the law of treaties and left that to future drafting efforts to provide
respective treaty regulations in that regard however aside from these and a number of equally
important issues many regulatory issues that are of relevance for treaties
are indeed of course covered by the Vienna Convention on the law of treaties and that
applies to give you only some examples to the question who can actually conclude treaties and
what procedures need to be observed in order for a treaty to enter into force and that's the subject
of the article six to article 18 of the Vienna Convention they are dealing with questions like
who is authorized to conclude a treaty for a state obviously not everybody is entitled to
bind the state to commit to legally commit a state based on a treaty there are some actors
who are based on their position already entitled to conclude treaties the head of state the head
of government the minister of foreign affairs are mentioned in article seven in that regard
others have to provide respective credentials respective full powers and the second major issue
the procedural one related to the conclusion of treaties is concerns the means of expressing
binding consent whether a treaty immediately enters into force once it has been signed
that's comparatively rare at least as far as important treaties are concerned rather normally
as most of you are in principle of course fully aware of have a like a two-step procedure in that
regard namely the adoption procedure and afterwards there's often the involvement the consent on the
side of the individual states of certain other state organs in particular parliaments required
and once parliament has given its consent to the treaty entering into force with regard to the
country at issue the treaty is ratified the head of state the head of government sends the
certificate the document of ratification to the respective signature state or in the case of a
bilateral treaty simply to the other contracting party there's no signatory no depository state
required in that regard so that's covered quite comprehensively by the vienna convention on the
law of treaties another issue that is covered by the vienna convention on the law of treaties and
quite thorny in practice is the issue of reservations reservations are not important
if we look at bilateral treaties but once you have more than two treaty parties can very well happen
that one of the potential contracting party says okay i'm basically fine with what we have agreed
here but there's one provision i cannot really live with so i would like to exclude the legal
effects of this provision as far as i am concerned reservations thus as also indicated by the legal
definition provided in article two para one literature d of the vienna convention on the
law of treaties are in essence unilateral statements made by states while signing ratifying
etc a treaty whereby they intend to exclude or modify the legal effects of certain
provisions with regard to the specific application of the state at issue of course
reservations have certain advantages because they enable a larger none in particular as far as
multilateral conventions are concerned they enable a larger number of countries to actually
enter the treaty regime to participate in the treaty regime make the treaty regime
more broadly as far as the members of the international community are concerned more
broadly applicable in the international context which is usually some laudable development
as far as the the progressive development of international law as a whole is concerned but
on the other side there of course there's also downsides that go hand in hand with
reservations because they somehow modify the structure of obligations between the contracting
parties because some parties those who have entered into reservations have in fact less
obligations than other parties or their obligations are to a certain extent modified
and that's why reservations have never been uncontroversial and in particular they even
entail the danger of compromising the regulatory effects that i attended with the treaty if a human
rights treaty intends to stipulate and protect certain human rights a number of different human
rights and one state party says okay i'm fine with freedom of assembly and freedom of speech
but freedom of religion and free movement of persons why i always had an issue with that
i would like to make a reservation then it's not comprehensively signing up to the respective
human rights obligations that i intended to be brought into force as a result of that treaty and
that might actually contravene the purpose of the respective treaty that's why article 19
of the Vienna Convention stipulates with regard to the possibility to make reservations that of
course the treaty itself can regulate that that reservations are prohibited or that regulation
that reservations are only allowed with regard to specific provisions or to a certain extent
quantitatively or qualitatively and finally most importantly the the reservations are
prohibited are not possible if they are incompatible with the object and purpose
of the treaty in question there are then other regulations in article 20 and the following
dealing with quite complex questions of how the other states have to react in that regard
that's really left to a specific not even a specific course on public international law
only would deal with that in further details it would rather take a specific course on international
treaty law to deal with that in further detail so we will not bother with these other details
however the last mentioned substantive point i made that a reservation is considered to be
impossible if it proves to be incompatible with the object and purpose of the treaty
is something that has developed already in in the international jurisprudence international
court decisions prior to the adoption of the Vienna Convention on the law of treaties and
customary law in court decisions and a famous decision that i briefly wanted to mention at
least in that regard is the advisory opinion handed down by the international court of justice
with regard to one of the central international multilateral agreements that have been concluded
after the second world war and obviously as you immediately all see in direct reaction
to the hilarious crimes in particular also involving genocide that were committed by Germany
during the second world war that's the convention on the prevention and punishment of the crime
of genocide in that regard this convention is stipulating a number of
respective obligations substantially wise it's of course the issue that
genocide is comprehensively outlawed however it also includes some procedural regulations
among them the stipulation not uncommon in conventions that in case there is any dispute
between the parties as to the interpretation of this genocide convention the parties agree
to submit their dispute to the international court of justice so something like an automatic
jurisdiction of the international court of justice for respective disputes
such a regulation was fine for most western countries however in particular the countries
of the emerging eastern blocked soviet union and others were a little bit wary about submitting
anything to the internet i'm simplifying that of course now a little bit we're a little bit hesitant
to submit any issue to the jurisdiction of the international court of justice
and were thus entertaining the idea of of course subscribing to the genocide convention in principle
but including making a reservation with regard to these provisions stipulating the
jurisdiction of the international court of justice and the issue that arose in that regard was of
course as all of you can guess whether such a reservation is permitted or whether it is
not permitted because it is incompatible with the object and purpose of the treaty in question here
the genocide convention and in that regard the international court of justice stated that
these procedural requirements were not adding anything to the substantive obligations to prevent
and punish genocide under any circumstances but were rather a means of dispute settlement
that could be settled by other peaceful means of dispute settlement negotiations mediation
a talk arbitration or a talk submission to the jurisdiction of the international court of justice
though a reservation with regard to this procedural provisions is not touching upon the
essence of the treaty the central object and purpose the treaty with its with which is
substantially wise to prevent and punish the crime of genocide and that's why such reservations
actually were permitted the situation would be different of course if a country it's me a
theoretical scenario now that i'm making up of course if a country would entertain the idea of
exceeding to the genocide convention however entertaining the idea of making a reservation
that well in principle i'm obviously against genocide but there might be certain situations
where i cannot really completely exclude the possibility of taking recourse to some
genocidal acts at times and i would like to fix the legality of these actions in the form of a
reservation that would clearly as all of you obviously see against the central object and
purpose of the treaty and such reservations would be prohibited in that regard okay so much to
reservations another issue since in the same way as domestic legal norms that are often phrased
at least with regard to some legal terms in rather vague wordings are open to different
understandings of what the provision actually means in particular if they are if these
provisions are applied to specific cases to specific situations the question comes up as
i say in the same way as in domestic law also with regard to international treaty provisions which
might be also open to different understandings with regard to the meaning of certain terms on
the meaning of certain provisions as a whole by which means based on which approaches are these
treaty provision specified concretize in order to apply them to specific cases that's one of the
central legal methodological issues namely the interpretation of laws including of course
the interpretation of respective international treaties and thus the vienna convention on the
law of treaties also addresses quite comprehensively as you see from the article 30 1 to 33 the
different means the different methods that have to be taken recourse to in order to concretize to
specify to interpret in other words respective provisions under international law some of you
will know the means of interpretation that we take recourse to in the domestic setting
among them of course the wording of the respective provisions the ordinary wording
of the respective terms that are laid down in these provisions systematic interpretation
to see the respective provision in the context of all the other provisions in the respective
legal statute in the respective treaty that issue then there is next the so-called teleological
interpretation which looks at the object and purpose of the statute of the treaty regime or
the provision as a whole that interprets a respective term of the individual provision
in light of this object and purposes pursued by the law an issue which interpretation is best
serving is best implementing most effectively optimally implementing the respective
purposes object and purpose teleological interpretation from telos the purpose in
greece has nothing to do with religion so it's not a theological interpretation it's teleological
interpretation based on telos the object and purpose in that regard and finally you can also
take recourse to the drafting history of the respective statute by looking at the
understanding and the intentions of the drafters of the respective statutes also have adopted it
that's called historical interpretation and basically although these interpretory means
are laid down in considerable details in the vienna convention basically the same applies
to the interpretation of treaties you see this already when you take a look at article 31
paragraph one of the vienna convention which states that a treaty shall be interpreted
in good faith in accordance with the ordinary meaning to be given to the terms of the treaty
in their context and in light of its object and purpose so here you have ordinary meaning
wording as the first means of interpretation context systematic interpretation object and
purpose teleological interpretation that is further spelled out in the remaining parts of article
31 article 32 stipulates then that historical interpretation is merely a supplementary
mean of interpretation it's also in line with what domestic law is favoring in principle that's
disputed with regard to detail but in principle and article 33 is dealing with an issue that
doesn't really come up under domestic law that often namely the interpretation of treaties
that are authentic in two or more languages a lot of international agreements multilateral
agreements are not only authentic in one language but rather in a number of languages take the
example of the charter of the united nations article 111 final article of the UN charter
stipulates that the present charter of which the chinese the french the russian the english and
the spanish texts are equally authentic meaning the UN charter is authentic in a number of
languages and then the issue of course comes up what if there are deviations between the meaning
of terms in different languages that's something which is more comes up much more often in public
international law in the domestic realm and that's why there that's also the reason why a specific
article namely article 33 is stipulated that issue but in principle you should bear in mind
as stated in article 31 paragraph one the means of interpretation that we take recourse to in
the domestic context are in principle also applicable wording systematic approach and
object and purpose teleological approach are in principle also applicable to international
treaties and that's simply reflection of the fact that they are more or less universally
agreed to be recognized objective means of interpretation in all legal systems all over
the world another issue that is important with regard to domestic contract law
and also finds its manifestation in the vienna convention on the law of treaties because it
equally applies to international treaties is the question of the relationship between
international treaties concluded between a limited number of states and those countries
that have for whatever reasons decided not to join the regime are they in any way affected
by the respective treaties well many of us know some of us know already from the domestic context
that in principle applies to all legal systems in the world that a contract between concluded
between two uh private parties does not automatically give rise and in particular
does not automatically create obligations for third private person so if i conclude a contract
with my wife that one of you has to pay us 20 euro every month you will immediately see
that this is not only for reasons of fairness but also for structural legal structural reasons
a rather doubtful legal transaction because you were not even asked whether you were willing to
provide us with 20 euros every month and you thus legitimately ask yourself why should i be bound
by this agreement which is creating obligations for me without being actively involved in this
contract and that's why also and the same applies to the scenario of states that's why article 34
of the vienna convention on the law of treaties stipulates as the general rule hardly surprising
that a treaty does not create either obligations or rights for third state without its consent
the requirements with regard to consent are in the subsequent articles a little bit lowered
when it comes to the creation of rights for obvious reasons because rights is something that
you normally not have too many reservations about and these respective requirements are of course
tightened when it comes to the creation of obligations for third states which are in
principle requiring an explicit consent on the side of the third state at issue so far the general
practice hardly surprising to anybody who knows a little bit about domestic contract law
and the same applies to international law however there's one peculiar phenomenon
in the international normative framework that i briefly would like to draw your attention to
that somehow is very difficult to reconcile with this general rule in a very specific context
and that's the context of so-called objective regimes objective regimes and i've given here
you some examples are in principle treaties that are concluded by a limited number of countries
often only three four ten twelve however that create not only rights and obligations among
the contracting parties but rather create an objective regime for a certain territory
in particular that can only work if all countries in the world are actually
following the respective uh obligations stipulated in the treaties although they are
not parties to the treaties so in essence it's creating something like obligations for third
state that was very abstract that's why i've given you some examples an arctic treaty of 1959
the issue came up what is antarctica well today we all know antarctica is not belonging to any
country there are no territorial claims recognized with regard to antarctica it's an extra territorial
area that doesn't belong to the terra from the perspective of individual states it doesn't
belong to individual states that didn't came automatically but was laid down in an antarctic
so-called antarctic treaty of 1959 whereby 12 countries no more than that 12 countries decided
that territorial claims with regard to antarctica would not be recognized obviously this regime and
that's why it's an almost perfect example in that regard wouldn't work if only the 12 countries
would adhere to it and all the other by now um more than 180 countries in the world would say
oh fine a few 12 don't uh make territorial claims for parts of antarctica we do because we are not
bound by the antarctic treaty so that's the first example another one very closely related although
playing literally in a very different realm is an agreement governing the activities of states on
the moon and other celestial bodies once space technology was so advanced that humans were able
to enter space to land on the moon approach other celestial bodies
by means of unmanned spaceships and others a similar issue came up
to put it bluntly what about the effect of the americans putting the flag on the moon when
armstrong was first setting its foot on that in 1969 does this make the moon the 50
51st state of the united states of america or something else is it the protectorate of
the united states can it exclude other countries from entering the moon etc and there in the same
light and same line as the antarctic treaty the countries quickly concluded a number of countries
that outer space should not be open to territorial claims by individual states there are other
related issues in that regard the um prohibition to install weapons in outer space in particular
nuclear weapons that are laid down basically in this agreement and some other agreements that
have been concluded at the same time or subsequently but again you see they have established an
objective regime because this regime only works if not a non-member a non-contracting party would
simply say oh fine i want the moon um so objective regimes other issue maritime grave established
after the sinking of the ms estonia in 1994 between three countries finland sweden and estonia
that's those in respect of the the drowned people that are that couldn't be recovered from the
shipwreck laying there on the on the ground of the Baltic sea and so they created a maritime
grave we have a number of maritime graves in the world which essentially prohibit divers
and others from exploiting these shipwrecks and and uh being around there so it's a prohibited
area for them again initially only between finland sweden and estonia so if germany would say well i
want to take a closer look at what is going on down there 25 years later 26 years later
where the ms estonia is laying on the ground the Baltic sea they are not immediately bound by it
however such a maritime grave of course only makes sense if uh everybody adheres uh to it
another issue i haven't mentioned are nuclear free zones in a number of regions of the world
a number of countries have established nuclear free zones that's an even more tricky issue whether
this also binds non-contracting parties Africa Southeast Asia Latin America and others are
examples um for that approach legal issue is obvious by now to all of you these are treaties
that can only work if they create obligations for non-treaty parties so how are they reconcilable
with the article 34 and the following well in principle they are not reconcilable with
that but nevertheless such objective regimes are recognized based on the ratio that these regimes
or the countries that concluded the treaties establishing that regimes are actually um
are actually thereby promoting a common concern of mankind a global interest
that all other countries need to respect as well but from a legal perspective technically
quite difficult issue to deal with
finally another issue that is of course also addressed in the Vienna convention on the law
of treaties is the issue of invalidity so when does a treaty become void or is it already from
the very beginning on void because it violates certain other uh legal requirements um how can
a treaty be terminated so no longer having effect either with regard to individual contracting
parties or with regard to all contracting parties and what about suspension of treaties
suspension and termination are distinguished by the fact that suspension are referring to a
temporary to a time-wise limited non-applicability of the treaty while terminations bring the life
of a treaty basically to an end there are thorny issues comprehensively you see a number of
considerable number of articles in the Vienna convention on the law of treaties are devoted
to this respective question um they
uh the invalidity is an issue that concerns
uh the certain aspects that make a treaty void that uh either up in issue or afterwards one
issue we saw already in that regard that is jews kogan's article 53 and 64 of the Vienna convention
on the uh law of treaties if a treaty violates a peremptory norm of international law the
prohibition on the use of force the prohibition of genocide prohibition of slavery and other
limited circle of jews kogan's norms it is void we saw this already in the beginning where we talked
about the development of a certain limited hierarchy of norms in public international law
other issues are addressed in other provisions of the Vienna convention article 52 uh for example
dealing with treaties that have been forced upon a certain member state by the threat
or use of force actually that would be also covered of course by article 53 because
prohibition of the use of force is a norm that is recognized as being peremptory in character
so norm of jews kogan's um other issues you see in the Vienna convention is corruption of a
representative of the state article 50 um or coercion of a representative of the state which
does not necessarily amount to a threat or use of force against the state as a whole they make a
treaty invalid basically we have again the same rules with regard to domestic contract law also
being applicable to international treaty of course to a certain extent modified by the different
circumstances in the international system and the fact that we are in principle dealing with
international actors in the form of states here not with natural persons in the form of individuals
but in principle we find quite similar regulations also with regard to domestic contract law that we
find here with regard to international treaties final issue that i briefly want to mention in
that regard is the termination of treaties that is for example regulated in article
54 of the Vienna convention on the law of treaties
stating that the termination of a treaty or the withdrawal of a party withdraw means that there
is a multilateral agreement with a number of contracting parties and only one of them
wants to exit the regime which doesn't in principle affect the legal validity of the
treaty with regard to the other contracting party so that's legally refer from legal terminology
be referred to as withdrawal while termination means bringing the life of the multilateral
agreement as a whole to an end and in case of bilateral agreements of course there is no
distinction between termination and withdrawal every withdrawal leads to a termination because
you cannot be the only party to a treaty under normal circumstances as all of you immediately
realize they can take place of course again there you see this general structure of the
Vienna convention of the law of treaties by providing the specific contracting parties
with a lot of leeway how they want to design their respective agreements so the parties can always
under most circumstances can agree on other rules and the rules of the Vienna convention
on the law of treaties only apply by default if there is no specific rule in the treaty in the
specific treaty at issue so article 54a in conformity with the provision of the treaty
so the treaty itself can lay down and that's actually quite often the case lay down specific
rules how a termination takes place or withdrawal often with the notification requirement
with a certain waiting period of 12 months whatsoever until the termination or withdrawal
becomes effective that's all up to the individual contracting parties to regulate
to negotiate for themselves in their individual treaty regimes however equally if all parties
are in agreement if they all agree that a treaty should end they do not need to observe the
provisions they have previously agreed to they can also agree even if the contract and the treaty
in question stipulates that there is a 12-month waiting period before the termination becomes
effective if all treaty parties are in agreement that should be immediately terminated without
this 12-month period they can very well do that and that's laid down in article 54
literature b at any time by consent of all the parties the underlying perception is something
we find in european union law but also an international more generally recognized even
in public international law namely the idea that the contracting parties are and remain the masters
of the treaty it was them who brought this treaty into being who brought this treaty to life
and it is them who can decide jointly to end the respective life of the treaty which is undisputed
and without major challenges if the treaty only gives rise to rights and obligations for the
contracting parties themselves this general approach can as many of you probably see become
challenging once the treaty has established rights in particular for private actors
and the most important example in that regard are obviously human rights treaties human rights
treaties do not create rights in any meaningful sense between the contracting parties but they
in particular create rights for entities that are not even part of the treaty namely all of us
as natural persons the respective human rights stipulated in such a treaty
in that case it is debated whether the treaty parties can simply end the human rights treaty
and thus deprive us again of our human rights however in principle that is perfectly
possible under general international law as you see in article 54 of the Vienna convention on the
law of treaties actually in europe we have more recently an example for that approach and that
is the brexit the exiting of the united kingdom from the european union brought to an end certain
individual rights enjoyed by british citizens when being on the continent and enjoyed by the
citizens of the remaining 27 member states when being in the uk individual rights that are not
human rights in the narrow sense of the meaning but certain freedom rights of a secondary character
not fundamental human rights but freedom rights and if the states agree so they were the ones who
granted these rights they are the ones who take can take away them without the individuals being
able to do anything in that regard that only to illustrate to you once again the very very central
position that sovereign states still occupy in the international system when it comes to law
making processes and when it comes to designing the scope of rights and obligations in particular
of other actors an issue that is obviously of central relevance for sustainable management
and the question whether private individuals but in particular so private corporations have certain
obligations and how they can come into being and how they can be terminated again with regard to
the promotion of certain sustainability issues such as the protection of human rights such as
the protection of the environment core labor and social standards and other respective issues
okay ladies and gentlemen that concludes our discussion of treaty law with that we move to
the next important source in the with regard to the international normative framework
and that's customary international law customary international law contrary to most treaty law
is unwritten international law we saw in the previous session that of course treaties in
principle can also be concluded orally something which happens today very rarely in the international
system usually treaties for a variety of reasons that we discussed are concluded
in a written way next to these written sources of international law we have however also a number
of important unwritten sources of international law and the most important among them
to the general principles of law we will turn afterwards
in the next session the most important unwritten source is customary international law
customary law unwritten rules of law traditionally played a very very important role in the
international system simply because of the fact that in former times states had not concluded so
many treaties many issues were not codified in the form of multilateral agreements that a
considerable number of states have adhered to take the examples of treaty law that we just discussed
everything that we are now able to discuss on the basis of specific provisions of the Vienna
Convention on the law of treaties of 1969 were until 1969 well actually until 1980 when the
Vienna Convention entered into force and still as of today for those countries that are not
contracting parties to the Vienna Convention even in 2020 lay down in customary international law
there are unwritten rules dealing with treaty law in the sense the question of reservations the
question of interpretation the question of termination the question of treaties and their
relationship to third parties were not unregulated prior to the entry into fourth of the Vienna
Convention that they were laid down in unwritten rules of customary international law they existed
already before they were partially modified a codification undertaking always amounts also to
a certain extent to a modification reformation of these unwritten rules but in principle they
existed before this process of codification has started in the domestic legal systems of most
countries much earlier than in the international system and much more forcefully in particular
on the basis of acts of parliament i do not want to reiterate that again the central importance of
acts of parliament in a domestic legal system and they also of course played a very important role
when it came to the codification of previously unwritten rules well still in domestic legal
systems we also have certain unwritten rules of law in the realm of civil law in the realm of
administrative law in germany for example until roughly 60 years ago the large part of administrative
law was customary law it was unwritten law not laid down in respective acts of parliament
same applies to even constitutional law even under the german constitution the the basic law
the grunge that we have certain concepts that are unwritten constitutional law recognized
in the jurisprudence of the federal constitutional court and that indicates already that
in the identification and specification with regard to its content with regard to its existence
and its content of customary law courts often play a very important role assisted by legal
scholars and their respective writings what are now the prerequisites for
rules of customary law in the international normative order article 38 paragraph one
literature b gives us a certain indication in that regard you remember article 38
paragraph one literature a was dealing with treaty law international agreements and article 38
one literature b deals with customary international law and characterizes customary international law
as evidence of a general practice accepted as law and from that formulation you can infer already
that there are actually two elements involved in the formation of customary international law
a general practice and this general practice second has to be accepted as law
and that already brings us to the two central elements that need to be fulfilled in order
for a rule of customary international law to exist namely an objective element a general practice
and a subjective element accepted as law as it is formulated in article
38 paragraph one literature b of the statute of the international court of justice
the objective element general practice as it is referred to in article 38
is usually translated into the requirement of a constant and virtually uniform state practice
so this element of general practice is specified with regard to the actors the states it's a
practice of states that primarily counts in that regard which is not surprising to all any of you
by now anymore considering the central role of states in the oh sorry i have switched the slide
forward um i don't really know whether i can switch it backwards because that might
as it happened once before not in this course in another course um
terminate the whole recording session which is by now one hour and six minutes and if as it
happens to me once before a whole recording session is gone you can imagine my mood at least
for that day has changed considerably to the negative so we are working with the previous slide
to which i cannot return without risking losing anything everything which means that i
wouldn't be in the mood to record anything for at least three days obviously um but i have already
forwarded the respective slide to the final slide because i just got slightly disturbed and as a
reaction i wanted to stop the recording and press the wrong button uh that's life i mean it's what
we experienced this semester thanks to corona is true raw homemade teaching as i always uh call it
it's completely different from anything we ever experienced before uh in our life when it came to
a university teaching and same of course applies to school teaching in that regard so sometimes
things happen uh that obviously do not happen if we meet in class like in other semesters so we
simply have to live with it that we are already have already moved to the next slide however
still talk about the previous slide but i'm sure all of you since you can print this out
are perfectly able to deal with this issue the objective element of general practice as stated
in article 38 is translated into or specified into state practice and is general practices
specified with regard to two elements namely constant and virtually uniform state practice
constant state practice refers to time element constant mean that for a long period of time
there has to be a respective practice by states not only for a few years but in theory for a few
decades and even longer and it has to be virtually uniform in the sense that most countries in the
world have to adhere to it of course that gives rise to a number of questions among them what
counts as state practice what is state practice well in principle it's not only the practice of
the government but it's a practice of all state organs so the practice of parliaments acts of
parliament adopted by legislative bodies judicial acts domestic court decisions can be
state practice and in principle when it comes to the question whose state practice is whose practice
is required it's in principle applicable to all states in the world all states in the world have
to participate obviously there are certain areas of public international law but that's now very
specific where the practice of some states is more important than the practice of others
take space law we just had the example in connection with objective regimes of respective
treaties dealing with issues of outer space here when it comes to custom the practice of
those states that have the technological possibilities to actually act in outer space
obviously counts more in the formation of custom than of other countries or take law of the sea
as an example landlocked countries have not that much to say when it comes to customary
international law of the law of the sea creation of respective maritime zones elimination of borders
and respective approaches then countries will actually have a code another issue in that
regard is the question what counts more words or actions the so-called words versus action
a problem that came up in practice in the Nicaragua case between Nicaragua and the
United States and deals with the issue what is it if there is a discrepancy between the
what states say in public in international fora and what they in fact do there might be
states who say we of course are always have been a strong adherent and supporter of the
prohibition on the use of force but nevertheless they might finance insurgency groups in
neighboring countries or providing them with new weapons thus destabilizing other countries in
potential violation of the prohibition on the use of force or countries who proclaim that
torture is a terrible thing outlawed fortunately by public international law but nevertheless
somewhere in the dark corners of some buildings of these countries torture is nevertheless
practiced unknown the court has stated facing this difficult issue well ultimately what counts is
what states say they do so not what they do but actually what they say they do because if a state
says torture is a terrible thing rightly outlawed by public international law nevertheless tortured
it somehow has a bad feeling about it because it does not openly admit that it tortures or that
it supports insurgency groups with weapons and neighboring countries that was the issue in
Nicaragua a case between Nicaragua and United States so it's what words count more than actions
one can combine them the subject of element accepted as laws is so called opinion juris
which basically means accepted that law which is intended to separate customary international law
from something we have seen already when we dealt about the character of law in general
at the very beginning of our lecture and that was politeness courtesy of course there are certain
general practices constant time wise and virtually uniform such as the famous textbook example is
always rolling out a red carpet when welcoming a foreign head of state officially visiting a
country there is a constant and virtually uniform state practice however it's not accompanied
by the perception of the states that they are actually legally obliged to adhere to this
respective practice and if a country decides for whatever reasons not to roll out a red carpet
if a head of states visits them then it is an impolite egg but not a violation of international
law that might give rise to countermeasures reprisals or claims for compensation under
the law of state responsibility in that regard so much to the objective element and the subjective
element in practice and that's also clarified and that's the final point for this session which
already got a little bit longer but i'm getting used to that and i initially hoped it would be
some if this situation with corona continues i sometimes at a certain point have to ask the
university to provide me on my university computers not with powerpoint 2016 but powerpoint 2019
that would help a lot but for the time being i live with what i have and i teach you with what i have
available with my means and that's only powerpoint 2016 where you have to think always in advance
how long your presentation will be how many powerpoint slides you do and then you are
basically stuck with it and have to get through it somehow although i thought well although you
might sometimes think well break might be a good thing now longer break might be a good thing now
or maybe ending the session and addressing this issue in a new session would be a good thing
but i learned to live with that in previous weeks and obviously i will be able to deal with it in
the coming weeks and cope with this issue as well and it's also more recently
assessed and clarified by the international law commission ultimately it is of course
the decisions of international courts in particular that play a very important role
in the identification of custom we will come in the next session
next week in further details to the deficits associated with custom which also led to the
perception that international treaty law has by now superseded customary international law and
it's important but one of them is obviously the fact that it's if you have an unwritten source of
law it's very uncertain whether it really exists it's laid down nowhere and in particular also what
the specific content of this rule is and that makes it quite challenging from the perspective
of legal certainty an important perspective ultimately it is often said of course only as
a rule of the thumb that only once the international court of justice has recognized the existence of a
customary rule of international law that this customary rule of international law actually
exists from a legal dogmatic perspective there's of course nonsense because the court doesn't make
law it only recognized what was already there but once an international court or tribunal has
affirmed the existence and specified the content states are more secure when dealing with such a
norm in their international relations the issue as i said is currently evaluated by the
international law commission the same body established by the united nations general
assembly as i said already today that has also drafted the vienna convention on the law of
treaties and many other documents this year is not intended to become an international convention
but rather an assessment of what actually are the lawmaking processes that are of relevance
when it comes to the creation or modification of customary international law and in that regard
the isc has provided already some draft conclusions as to the relevant actors and as to the relevant
procedures to be followed just only as a piece of information we will continue with our elaboration
of customary international law with some other issues however not now but rather in the next
session that i will upload sometimes next week i hope this was despite the interruption and some
certain challenges in between again informative maybe even interesting for a larger number
of you i thank you all for your attention for your patience and connection with this
of course suboptimal mode of teaching as obviously everybody recognizes and i am
sincerely hoping that the situation is changing soon and we can see each other again in class
although with regard to this lecture period until the middle of july this is probably
more pipe dream unfortunately so i'm referring then to subsequent semesters i thank you for
your attention wish you all the best until next week and hope to let you all listen again i phrase
it that way thank you and bye bye