II International Organizations, Sources of Law

II International Organizations, Sources of Law

Article 38(1) is generally recognised as a definitive statement of the sources of international law. It requires the Court to apply, among other things, (a) international conventions "expressly recognized by the contesting states", and (b) "international custom, as evidence of a general practice accepted as law". To avoid the possibility of non liquet, sub-paragraph (c) added the requirement that the general principles applied by the Court were those that had been "the general principles of the law recognized by civilized nations". As it is states that by consent determine the content of international law, sub-paragraph (d) acknowledges that the Court is entitled to refer to "judicial decisions" and the most highly qualified juristic writings "as subsidiary means for the determination of rules of law".

On the question of preference between sources of international law, rules established by treaty will take preference if such an instrument exists. It is also argued however that international treaties and international custom are sources of international law of equal validity; this is that new custom may supersede older treaties and new treaties may override older custom. Certainly, judicial decisions and juristic writings are regarded as auxiliary sources of international law, whereas it is unclear whether the general principles of law recognized by 'civilized nations' should be recognized as a principal or auxiliary source of international law.

It may be argued that the practice of international organizations, most notably that of the United Nations, as it appears in the resolutions of the Security Council and the General Assembly, are an additional source of international law, even though it is not mentioned as such in Article 38(1) of the 1946 Statute of the International Court of Justice. Article 38(1) is closely based on the corresponding provision of the 1920 Statute of the Permanent Court of International Justice, thus predating the role that international organizations have come to play in the international plane. That is, the provision of Article 38(1) may be regarded as dated, and this can most vividly be seen in the mention made to 'civilized nations', a mentioning that appears all the more quaint after the decolonization process that took place in the early 1960s and the participation of nearly all nations of the world in the United Nations.

Treaty

The first two pages of the Treaty of Brest-Litovsk, in (left to right) German, Hungarian, Bulgarian, Ottoman Turkish and Russian

A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the rules are the same.^[1]

Treaties can be loosely compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under international law.

Modern usage

A treaty is an official, express written agreement that states use to legally bind themselves.^[2] A treaty is that official document which expresses that agreement in words; and it is also the objective outcome of a ceremonial occasion which acknowledges the parties and their defined relationships.

Bilateral and multilateral treaties

Bilateral treaties are concluded between two states ^[3] or entities. It is possible however for a bilateral treaty to have more than two parties; consider for instance the bilateral treaties between Switzerland and the European Union (EU) following the Swiss rejection of the European Economic Area agreement. Each of these treaties has seventeen parties. These however are still bilateral, not multilateral, treaties. The parties are divided into two groups, the Swiss ("on the one part") and the EU and its member states ("on the other part"). The treaty establishes rights and obligations between the Swiss and the EU and the member states severally; it does not establish any rights and obligations amongst the EU and its member states.

A multilateral treaty is concluded among several countries.^[3] The agreement establishes rights and obligations between each party and every other party. Multilateral treaties are often regional. Treaties of "mutual guarantee" are international compacts, e.g., the Treaty of Locarno which guarantees each signatory against attack from another.^[3]

Role of the United Nations

The United Nations Charter states that treaties must be registered with the UN to be invoked before it or enforced in its judiciary organ, the International Court of Justice. This was done to prevent the proliferation of secret treaties that occurred in the 19th and 20th century. Section 103 of the Charter also states that its members' obligations under it outweigh any competing obligations under other treaties.

After their adoption, treaties as well as their amendments have to follow the official legal procedures of the United Nations, as applied by the Office of Legal Affairs, including signature, ratification and entry into force.

In function and effectiveness, the UN has been compared to the pre-Constitutional United States Federal government by some, giving a comparison between modern treaty law and the historical Articles of Confederation.

Pacta sunt servanda

In its most common sense, the principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that non-fulfilment of respective obligations is a breach of the pact.

In civil law jurisdictions this principle is related to the general principle of correct behaviour in commercial practice — including the assumption of good faith — is a requirement for the efficacy of the whole system, so the eventual disorder is sometimes punished by the law of some systems even without any direct penalty incurred by any of the parties. However, common law jurisdictions usually do not have the principle of good faith in commercial contracts; therefore it is inappropriate to state that pacta sunt servanda includes the principle of good faith.

With reference to international agreements, "every treaty in force is binding upon the parties to it and must be performed by them in good faith."^[2] Pacta sunt servanda is related to good faith, while pacta sunt servanda does not equate with good faith. This entitles states to require that obligations be respected and to rely upon the obligations being respected. This good faith basis of treaties implies that a party to the treaty cannot invoke provisions of its municipal (domestic) law as justification for a failure to perform. However, with regards to the Vienna Convention and the UNIDROIT Principles it should be kept in mind that these are heavily influenced by civil law jurisdictions. To derive from these sources that pacta sunt servanda includes the principle of good faith is therefore incorrect.

The only limits to pacta sunt servanda are the peremptory norms of general international law, called jus cogens (compelling law). The legal principle clausula rebus sic stantibus, part of customary international law, also allows for treaty obligations to be unfulfilled due to a compelling change in circumstances.

Stability and Growth Pact

The Stability and Growth Pact (SGP) is an agreement, among the 27 Member states of the European Union, to facilitate and maintain the stability of the Economic and Monetary Union. Based primarily on Articles 121 and 126^[1] of the Treaty on the Functioning of the European Union, it consists of fiscal monitoring of members by the European Commission and the Council of Ministers and, after multiple warnings, sanctions^[2] against offending members.

The pact was adopted in 1997^[3] so that fiscal discipline would be maintained and enforced in the EMU. Member states adopting the euro have to meet the Maastricht convergence criteria, and the SGP ensures that they continue to observe them.

The actual criteria that member states must respect are:

• 
  an annual budget deficit no higher than 3% of GDP (this includes the sum of all public budgets, including municipalities, regions, etc.)
  
• 
  a national debt lower than 60% of GDP or approaching that value.
  

Criticism

The Pact has been criticised by some as being insufficiently flexible and needing to be applied over the economic cycle rather than in any one year.^[4] They fear that by limiting governments' abilities to spend during economic slumps it may hamper growth. In contrast, other critics think that the Pact is too flexible; economist Antonio Martino writes: "The fiscal constraints introduced with the new currency must be criticized not because they are undesirable—in my view they are a necessary component of a liberal order—but because they are ineffective. This is amply evidenced by the “creative accounting” gimmickry used by many countries to achieve the required deficit to GDP ratio of 3 percent, and by the immediate abandonment of fiscal prudence by some countries as soon as they were included in the euro club. Also, the Stability Pact has been watered down at the request of Germany and France."^[5]

Some remark that it has been applied inconsistently: the Council of Ministers failed to apply sanctions against France and Germany, while punitive proceedings were started (but fines never applied) when dealing with Portugal (2002) and Greece (2005). In 2002 the European Commission President (1999–2004)^[6] Romano Prodi described it as "stupid",^[7] but was still required by the Treaty to seek to apply its provisions.

The Pact has proved to be unenforceable against big countries such as France and Germany, which were its strongest promoters when it was created. These countries have run "excessive" deficits under the Pact definition for some years. The reasons that larger countries have not been punished include their influence and large number of votes on the Council of Ministers, which must approve sanctions; their greater resistance to "naming and shaming" tactics, since their electorates tend to be less concerned by their perceptions in the European Union; their weaker commitment to the euro compared to smaller states; and the greater role of government spending in their larger and more enclosed economies. The Pact was further weakened in 2005 to waive France's and Germany's violations.^[8]

Reform 2005

In March 2005, the EU Council, under the pressure of France and Germany, relaxed the rules; the EC said it was to respond to criticisms of insufficient flexibility and to make the pact more enforceable.^[9]

The Ecofin agreed on a reform of the SGP. The ceilings of 3% for budget deficit and 60% for public debt were maintained, but the decision to declare a country in excessive deficit can now rely on certain parameters: the behaviour of the cyclically adjusted budget, the level of debt, the duration of the slow growth period and the possibility that the deficit is related to productivity-enhancing procedures.^[10]

Reform 2011

In March 2011, following the 2010 European sovereign debt crisis, the EU member states adopted a new reform under the Open Method of Coordination, aiming at straightening the rules e.g. by adopting an automatic procedure for imposing of penalties in case of breaches of either the deficit or the debt rules.^[12][13] The new "Euro Plus Pact" is designed as a more stringent successor to the Stability and Growth Pact, which has not been implemented consistently. The measures are controversial not only because of the closed way in which it was developed but also for the goals that it postulates.

The four broad strategic goals are:

• 
  fostering competitiveness
  
• 
  fostering employment
  
• 
  contributing to the sustainability of public finances
  
• 
  reinforcing financial stability.
  

• 
  tax policy coordination
  

International Institute for the Unification of Private Law

The International Institute for the Unification of Private Law, abbreviated UNIDROIT, is an intergovernmental organization on harmonization of private international law; its projects include drafting of international conventions and production of model laws. As of 2012, UNIDROIT had 63 member states.

Conventions

Unidroit has over the years prepared the following international Conventions, drawn up by Unidroit and adopted by diplomatic Conferences convened by member States of Unidroit: ^[1]

• 
  Convention relating to a Uniform Law on the International Sale of Goods (The Hague, 1964)
  
• 
  Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (The Hague, 1964)
  
• 
  International Convention on Travel Contracts (Brussels, 1970)
  
• 
  Convention providing a Uniform Law on the Form of an International Will (Washington, D.C., 1973)
  
• 
  Convention on Agency in the International Sale of Goods (Geneva, 1983)
  
• 
  Unidroit Convention on International Financial Leasing (Ottawa, 1988)
  
• 
  Unidroit Convention on International Factoring (Ottawa, 1988)
  
• 
  Unidroit Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995)
  
• 
  Convention on International Interests in Mobile Equipment (Cape Town, 2001) (including Protocols on Aircraft (2001) and Railway rolling stock (2007) and Space assets (2012)
  
• 
  Geneva Securities Convention (Geneva, 2009)
  

United Nations Convention on Contracts for the International Sale of Goods

The United Nations Convention on Contracts for the International Sale of Goods (CISG; the Vienna Convention)^[1] is a treaty offering a uniform international sales law. As of August 2010, it had been ratified by 77 countries which account for a significant proportion of world trade, making it one of the most successful international uniform laws. Benin was the most recent state to ratify the Convention.

The CISG allows exporters to avoid choice of law issues, as the CISG offers "accepted substantive rules on which contracting parties, courts, and arbitrators may rely".^[2]

The CISG was developed by the United Nations Commission on International Trade Law (UNCITRAL), and was signed in Vienna in 1980. The CISG is sometimes referred to as the Vienna Convention (but is not to be confused with other treaties signed in Vienna). It came into force as a multilateral treaty on 1 January 1988, after being ratified by 11 countries.^[3] CISG has been regarded as a success for UNCITRAL, as the Convention has since been accepted by States from "every geographical region, every stage of economic development and every major legal, social and economic system".^[4] Countries that have ratified the CISG are referred to within the treaty as “Contracting States”. Unless excluded by the express terms^[5] of a contract, the CISG is deemed to be incorporated into (and supplant) any otherwise applicable domestic law(s) with respect to a transaction in goods between parties from different Contracting States.^[6] Of the uniform law conventions, the CISG has been described as having "the greatest influence on the law of worldwide trans-border commerce".^[7]

The CISG has been described as a great legislative achievement,^[8] and the "most successful international document so far" in unified international sales law,^[9] in part due to its flexibility in allowing Contracting States the option of taking exception to certain specified articles. This flexibility was instrumental in convincing states with disparate legal traditions to subscribe to an otherwise uniform code. A number of countries that have signed the CISG have made declarations and reservations as to the treaty's scope,^[10] though the vast majority – 55 out of the current 76 Contracting States – has chosen to accede to the Convention without any reservations.

The CISG is the basis of the annual Willem C. Vis International Commercial Arbitration Moot held in Vienna in the week before Easter (and now also in Hong Kong). Teams from law schools around the world take part. The Moot is organised by Pace University, which keeps a definitive source of information on the CISG.