INTERNATIONAL LAW, CONFLICT AND STRATEGY

FOUNDATIONS OF INTERNATIONAL LAW (I)

(1) What is International Law?

• public international law can be defined as ‘the body of legal rules and principles that apply
between sovereign States and other international actors in their mutual relations’
» West Rand Central Gold Mining Co. Ltd. v. The King [1905] 2 K.B. 391, 405
We adopt the language used by Lord Russell of Killowen in his address at Saratoga in
1896 on the subject of international law and arbitration: “What, then, is international
law? I know no better definition of it than that it is the sum of the rules or usages which
civilized States have agreed shall be binding upon them in their dealings with one
another.
• the traditional definition of international law (as in West Rand) as rules and principles that
govern relations between sovereign States is too limited: States are still principal actors and
subjects of international law, but have lost their exclusive position due to the emergence of new
actors and subjects of international law and changes to State sovereignty as a result of
globalisation
• the hallmark of the modern territorial State is that it has acquired a monopoly of legitimate
violence and as a result centralised the legislative (law-making), adjudicative and law-
enforcement functions within its territory
» Max Weber, ‘Politics as a Vocation’, in Weber, The Vocation Lectures (2004) 32, 38
…the modern state is an institutional form of rule that has successfully fought to create
a monopoly of legitimate physical force as a means of government within a particular
territory.
• by comparison with the modern territorial State, no similar form of government has arisen at the
international level, which is why international relations is often described as anarchical (not in
the sense of lawless and ungoverned, but as a sphere without a single government holding the
monopoly of legitimate violence)
• as a result of the anarchical nature of international relations, the international legal system is
not centralised; instead, the legislative (law-making), adjudicative and law-enforcement
functions are decentralised in character

(2) Sources of International Law

• the doctrine of the sources of international law tells us what norms qualify as valid rules of
international law
• Article 38 ICJ Statute widely recognised as authoritative statement of the sources of
international law, but also much criticised as inadequate and out of date
» Article 38(1), Statute of the International Court of Justice
The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.

(3) Treaties
• treaties are (usually written) instruments enabling State to adopt rules in their mutual
relationships and for specific circumstances; their importance lies in the fact that they enable
States to enter into legally binding relationships with relative ease and a lot of flexibility
» Article 2(1)(a), Vienna Convention on the Law of Treaties (1969)

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 For the purposes of the present Convention: “treaty” means an international agreement
concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its
particular designation
• a useful distinction can be drawn between treaties that are more contractual in nature and
multilateral treaties that are setting generally applicable standards and thus more legislative in
character; treaties are the foundation for many international institutions and organisations and
in this role can be dynamic instruments, serving as a source for the creation of new,
subordinate rules (eg regulations under the Treaty on the Functioning of the European Union)
» UK Treaties: Guidance to the work of the Foreign and Commonwealth Office (FCO)
Treaty Section
• ‘an international agreement concluded between states’: VCLT only applies to treaties between
States (Article 1 VCLT), but does not apply to (a) treaties concluded with or between
international organisations and (b) instruments or contracts concluded with or between other
public or private actors (eg corporations)
» Anglo-Iranian Oil Co. Case (1952) ICJ Rep. 93, 111–112 (summary)
The United Kingdom maintains that, as a result of these proceedings, the Government
of Iran undertook certain treaty obligations towards the Government of the United
Kingdom. It endeavours to establish those obligations by contending that the
agreement signed by the Iranian Government with the Anglo-Persian Oil Company on
April 29th, 1933, has a double character, the character of being at once a
concessionary contract between the Iranian Government and the Company and a
treaty between the two Governments. …
The Court cannot accept the view that the contract signed between the Iranian
Government and the Anglo-Persian Oil Company has a double character. It is nothing
more than a concessionary contract between a government and a foreign corporation.
The United Kingdom Government is not a party to the contract; there is no privity of
contract between the Government of Iran and the Government of the United Kingdom.
• ‘in written form’: oral agreements are excluded from the scope of the VCLT (eg telephone
conversation between the Danish and Finnish Prime Ministers in 1992 concerning construction
of a Danish bridge across the Great Belt)
• ‘governed by international law’: reflects an intention to create obligations under international
law; if there is no such intention the instrument will not be a treaty; intention to be bound must
be gathered from the terms of the instrument itself and the circumstances of its conclusion, not
from what the parties say afterwards was their intention
» Aegean Sea Continental Shelf (1978) ICJ Rep. 3
95. The Brussels Communiqué of 31 May 1975 does not bear any signature or initials,
and the Court was informed by counsel for Greece that the Prime Ministers issued it
directly to the press during a press conference held at the conclusion of their meeting
on that date. The Turkish Government, in the observations which it transmitted to the
Court on 25 August 1976, considered it "evident that a joint communiqué does not
amount to an agreement under international law", adding that "If it were one, it would
need to be ratified at least on the part of Turkey" (para. 15). The Greek Government,
on the other hand, maintains that a joint communiqué may constitute such an
agreement. To have this effect, it says, "It is necessary, and it is sufficient, for the
communiqué to include-in addition to the customary forms, protestations of friendship,
recital of major principles and declarations of intent-provisions of a treaty nature"
(Memorial, para. 279). ...
96. On the question of form, the Court need only observe that it knows of no rule of
international law which might preclude a joint communiqué from constituting an
international agreement to submit a dispute to arbitration or judicial settlement (cf. Arts.
2, 3 and 11 of the Vienna Convention on the Law of Treaties). Accordingly, whether the
Brussels Communiqué of 31 May 1975 does or does not constitute such an agreement
essentially depends on the nature of the act or transaction to which the Communiqué
gives expression; and it does not settle the question simply to refer to the form-a
communiqué-in which that act or transaction is embodied. On the contrary, in
determining what was indeed the nature of the act or transaction embodied in the
Brussels Communiqué, the Court must have regard above all to its actual terms and to
the particular circumstances in which it was drawn up.
97. The relevant paragraphs of the Brussels Communiqué read as follows:

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 "In the course of their meeting the two Prime Ministers had an opportunity to give
consideration to the problems which led to the existing situation as regards relations
between their countries. They decided [ont décidé] that those problems should be
resolved [doivent être résolus] peacefully by means of negotiations and as regards the
continental shelf of the Aegean Sea by the International Court at The Hague. They
defined the general lines on the basis of which the forthcoming meetings of the
representatives of the two Governments would take place....”
100. This divergence of views as to the interpretation of the Brussels Communiqué
makes it necessary for the Court to consider what light is thrown on its meaning by the
context in which the meeting of 31 May 1975 took place and the Communiqué was
drawn up. ...
105. Consequently, it is in that context-a previously expressed willingness on the part
of Turkey jointly to submit the dispute to the Court, after negotiations and by a special
agreement defining the matters to be decided-that the meaning of the Brussels Joint
Communiqué of 31 May 1975 has to be appraised. When read in that context, the
terms of the Communiqué do not appear to the Court to evidence any change in the
position of the Turkish Government in regard to the conditions under which it was
ready to agree to the submission of the dispute to the Court.
106. The information before the Court concerning the negotiations between the experts
and the diplomatic exchanges subsequent to the Brussels Communiqué appears to
confirm that the two Prime Ministers did not by their "decision" undertake an
unconditional commitment to submit the continental shelf dispute to the Court.
107. Accordingly, having regard to the terms of the Joint Communiqué of 31 May 1975
and to the context in which it was agreed and issued, the Court can only conclude that
it was not intended to, and did not, constitute an immediate commitment by the Greek
and Turkish Prime Ministers, on behalf of their respective Governments, to accept
unconditionally the unilateral submission of the present dispute to the Court. It follows
that, in the opinion of the Court, the Brussels Communiqué does not furnish a valid
basis for establishing the Court's jurisdiction to entertain the Application filed by Greece
on 10 August 1976.
• elements to be considered to determine intention to be bound include: (1) title (2) parties (3)
formal elements (preambular paragraphs, final clauses) (4) substantive provisions
• non-binding agreements: absence of elements normally found in treaties may suggest that
there was no intention to be bound; practice of non-binding agreements and Memoranda of
Understanding (MoU)
» Memorandum of Understanding between the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of Ireland; 6 December 2006,
Cm 7002
This Memorandum describes the arrangement between on the one hand the
Government of the United Kingdom of Great Britain and Northern Ireland (“the UK
Authorities”) and on the other the Government of Ireland (“the IRE Authorities”) in
relation to the establishment and operation of a single wholesale electricity market in
Northern Ireland and Ireland. ...
The foregoing record represents the understandings reached between the Government
of the United Kingdom of Great Britain and Northern Ireland and the Government of
Ireland upon matters referred to therein. This Memorandum of Understanding is not
legally binding on the Authorities.
• legal effect of non-binding agreements: broad agreement that (1) breach does not give rise to
international responsibility (2) are not covered by VCLT (3) may have some legal effects or
implications in domestic and international law; disagreement as to what these legal effects may
be: (a) weak soft law thesis: non-binding agreements are simply a weak form of legal promise
(b) deniers of soft law thesis: non-binding agreements may be legally relevant facts, but do not
lead to ‘soft’ responsibility, ‘soft’ enforcement, ‘soft’ sanctions
• ‘whether embodied in a single instrument or in two or more related instruments’: treaties may
take the form of one single instrument or be concluded in less formal ways, in particular by
exchange of notes usually consisting of an initiating note and a reply note
» Qatar v. Bahrain (1994) ICJ Rep. 12
22. The Parties agree that the exchanges of letters of December 1987 constitute an
international agreement with binding force in their mutual relations.
» Exchange of Notes Concerning the Convention between the United Kingdom of Great

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 Britain and Northern Ireland and the Federal Republic of Germany for the Avoidance of
Double Charging of Bank Levies, done on 7 December 2011, Treaty Series 016/2017:
CM 9483
• ‘whatever its particular designation’: title of instrument may indicate whether or not it is a treaty;
however, title is not determinative of the issue; in practice, very wide range of designations are
in use (MoU, agreement, exchange of notes, convention, declaration, agreed minute, terms of
reference)

(4) Rules of Interpretation

• the rules of treaty interpretation are of special interest, not only because many disagreements
involving treaties turn on questions of their interpretation, but also because the same principles
guide the interpretation of other written instruments of international law
» Article 31, Vienna Convention on the Law of Treaties (1969)
1. 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 the light of its object and
purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in
connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the
conclusion of the treaty and accepted by the other parties as an instrument related
to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of
the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the
parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.
» Article 32, Vienna Convention on the Law of Treaties (1969)
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine the
meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.

(5) Customary International Law

• customary international law refers to those rules of international law that have formed through
the normative behaviour of States; custom consists of two elements: State practice and opinio
juris (a belief that the conduct in question is legally mandatory)
» North Sea Continental Shelf Cases (1969) ICJ Rep. 3, para. 77 (summary)
Not only must the acts concerned amount to a settled practice, but they must also be
such, or be carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a
belief, i.e., the existence of a subjective element, is implicit in the very notion of the
opinio juris sive necessitatis. The States concerned must therefore feel that they are
conforming to what amounts to a legal obligation. The frequency, or even habitual
character of the acts is not in itself enough. There are many international acts, e.g., in
the field of ceremonial and protocol, which are performed almost invariably, but which
are motivated only by considerations of courtesy, convenience or tradition, and not by
any sense of legal duty.
» Mohammed and others (Respondents) v Ministry of Defence (Appellant) [2017] UKSC
2 (Lord Sumption) (summary)

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 14. To establish the existence of a rule of customary law, two things are required. First,
there must be a uniform, or virtually uniform practice of states conforming to the
proposed rule, reflected in their acts and/or their public statements; and, secondly, the
practice must be followed on the footing that it is required as a matter of law (opinio
juris). It follows that although the decisions of domestic courts may be evidence of
state practice or of a developing legal consensus, they cannot themselves establish or
develop a rule of customary international law: see Jones v Ministry of the Interior of the
Kingdom of Saudi Arabia [2007] 1 AC 270 at para 63 (Lord Hoffmann).
• State practice includes verbal and physical practice; to count as evidence of the existence of a
rule of customary international law, such practice must be (a) consistent across States (b) be
general in nature and (c) have a degree of temporal persistence
» Asylum Case (1950) ICJ Rep. 266, at 276–277:
The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party. The
Colombian Government must prove that the rule invoked by it is in accordance with a
constant and uniform usage practised by the States in question, and that this usage is
the expression of a right appertaining to the State granting asylum and a duty
incumbent on the territorial State. This follows from Article 38 of the Statute of the
Court, which refers to international custom "as evidence of a general practice accepted
as law".
» North Sea Continental Shelf Cases (1969) ICJ Rep. 3, paras 73–74:
With respect to the other elements usually regarded as necessary before a
conventional rule can be considered to have become a general rule of international
law, it might be that, even without the passage of any considerable period of time, a
very widespread and representative participation in the convention might suffice of
itself, provided it included that of States whose interests were specially affected. …
Although the passage of only a short period of time is not necessarily, or of itself, a bar
to the formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement would be that within
the period in question, short though it might be, State practice, including that of States
whose interests are specially affected, should have been both extensive and virtually
uniform in the sense of the provision invoked; and should moreover have occurred in
such a way as to show a general recognition that a rule of law or legal obligation is
involved.
» Nicaragua Case (Merits) (1986) ICJ Rep. 14, at para. 186:
It is not to be expected that in the practice of States the application of the rules in
question should have been perfect, in the sense that States should have refrained, with
complete consistency, from the use of force or from intervention in each other's internal
affairs. The Court does not consider that, for a rule to be established as customary, the
corresponding practice must be in absolutely rigorous conformity with the rule. In order
to deduce the existence of customary rules, the Court deems it sufficient that the
conduct of States should, in general, be consistent with such rules, and that instances
of State conduct inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new rule. If a State acts
in a way prima facie incompatible with a recognized rule, but defends its conduct by
appealing to exceptions or justifications contained within the rule itself, then whether or
not the State's conduct is in fact justifiable on that basis, the significance of that attitude
is to confirm rather than to weaken the rule.
» Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth
Affairs (Appellant) [2017] UKSC 2 (Lord Sumption) (summary)
31. To identify a rule of customary international law, it is necessary to establish that
there is a widespread, representative and consistent practice of states on the point in
question, which is accepted by them on the footing that it is a legal obligation (opinio
juris): see Conclusions 8 and 9 of the International Law Commission’s Draft Conclusions
on Identification of Customary International Law (2016) [A/71/10]. There has never
been any clearly defined rule about what degree of consensus is required. The editors
of Brownlie’s Principles of Public International Law, 8th ed (2012), 24, suggest that
“complete uniformity of practice is not required, but substantial uniformity is”.
• opinio juris is the belief or understanding held by States that the conduct in question is legally
obligatory; this turns a mere usage or habit into a rule of customary international law

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 » S.S. Lotus (1927) PCIJ Series A, No 10, at 28 (background)
In this connection, the Agent for the French Government has drawn the Court's
attention to the fact that questions of jurisdiction in collision cases, which frequently
arise before civil courts, are but rarely encountered in the practice of criminal courts.
He deduces from this that, in practice, prosecutions only occur before the courts of the
State whose flag is flown and that that circumstance is proof of a tacit consent on the
part of States and, consequently, shows what positive international law is in collision
cases.
In the Court's opinion, this conclusion is not warranted. Even if the rarity of the judicial
decisions to be found among the reported cases were sufficient to prove in point of fact
the circumstance alleged by the Agent for the French Government, it would merely
show that States had often, in practice, abstained from instituting criminal proceedings,
and not that they recognized themselves as being obliged to do so; for only if such
abstention were based on their being conscious of having a duty to abstain would it be
possible to speak of an international custom.
» North Sea Continental Shelf Cases (1969) ICJ Rep. 3, para. 77:
Not only must the acts concerned amount to a settled practice, but they must also be
such, or be carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it.
• problems associated with opinio juris: (a) how can new rules of customary international law
emerge if States have to believe that their previously non-legal conduct is in fact legally
required? (b) where to find evidence of opinio juris and how to avoid ‘double counting’?
» Nicaragua Case (Merits) (1986) ICJ Rep. 14, para. 207:
Reliance by a State on a novel right or an unprecedented exception to the principle
might, if shared in principle by other States, tend towards a modification of customary
international law.

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