Sources and Methods of International Law

BASIC POINTS ABOUT PUBLIC INTERNATIONAL LAW

(1) IL is a separate legal system but not apart from domestic legal systems.

(2) Sources and Methods of IL are quite different from other sources and methods in domestic
systems (such as customary law which tracks state practice).

(3) IL is devoted to two fundamental values, which have a dynamic interplay and are often in
conflict with each other:

a. Preservation of state sovereignty

b. Protection of human rights

(4) IL will only become more relevant as more activities come into the ambit of its rules.

(5) Rules regarding the containment of sovereignty (Immunity, State sovereignty).

(6) Moderately successful at resolving dispute.

(7) IL is Real Law (darnit!!)

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NATURE and THEORY of INTERNATIONAL LAW
• Integral to understanding of sources and methods of IL
• What makes a state under IL?
Characteristics (descriptors)
Represents the will of the people (motivator and legitimator)

Theory . Sources . Doctrines . Predictable results.

1. Primitivists:

p Problem of sovereignty (undisputed will of states)

States are the only subjects and objects in IL
Natural law component

Debate over Sovereignty is central to Primitivism.

Assumptions:
1. Authentic state system in place (rather than Òworld governmentÓ)
2. States prefer order over anarchy.

Religion/Ideology play big role, since IL is predicated on higher laws and

values.

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 Oaths and divine intervention are the source of IL, so countries respect treaties.
Brezhnev Doctrine: Soviets could intervene in domestic affairs of other countries
to protect the socialist fraternity of states.

Conflict in IL between positive law (e.g. treaties) and natural law (which cannot
be abridged by government and which appeals to reason and religion).

Timeline:
1550—1850: Natural Law
1850—1945: Positive Law (IL by agreement)
1945—present: Amalgam of natural and positive law (e.g., HR)

2. Realists:

p Power Politics. Law depends on commands and coercion

(Macchiavelli). When pushed, states will not obey IL.

Reply to this argument:

a. Communitarianism (no standing as Òstate qua stateÓ). States aren’t

really legal persons. They are collections of the will of people and can’t
be separated from the people. Sets up the problem of conflict between
state values and individual values (sovereignty vs. HR).
b. Humanitarian intervention. Realists would respond that it is only about
Òpower politicsÓ.
c. Issue of consent. States willingly give up some of their sovereignty to
be part of the international system. Realists say that states can change
their minds, and ÒbreachÓ the international contract.

3. Functionalists:

p States cooperate for survival in a complex world. They are pragmatists.

Probably the predominant paradigm today, followed closely by Realism.

Elements:
International cooperation
Growing technology, management of common resources
Economic interdependence (Trade)

Difficult to explain Enforcement of IL:

a. Vertical enforcement (close to world government)
b. Horizontal enforcement (groups of countries against country which
violates).
• Self-help enforcement
• Horizontal enforcement is current situation

4. Critics:

p IL is just politics not law. IL is riddled with contradictions.

More extreme than Realists, who at least believe there is law, though not always
followed.

Attack on both realists and functionalists

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 Paradox: IL should be both normative (try to bind countries irrespective of their
behavior) and concrete (IL rules approximate real state behavior).

• If IL tries to be too normative it becomes Utopian and irrelevant.

• If IL panders too much to states, it becomes an apology for
sovereignty.
• Crits have no solution or legal alternatives for this paradox. DB
believe this is blasphemy because lawyers can successfully structure
human relations.

PRIMITIVIST REALIST FUNCTIONAL CRITIC

Sources Natural law Positive law Natural and Neither natural nor
positive law positive law
Doctrines Religion/ Power/consent Cooperation Power
(Organizing ideology
principles)
Enforcement Vertical (Higher Horizontal Vertical (Int’l orgs, NONE
(Mechanisms) Authority) UN) and Horizontal (Unenforceable)
(self-help)
Is IL ÒRealÓ? No, it’s Morality No, it’s Power or Yes, necessary for No, of course not!
(however you Yes, it’s Consent survival of
define it) countries in entire
Int’l community

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 SOURCES OF INTERNATIONAL LAW

PRIMARY SECONDARY

• Custom • Earlier decisions by national cts and int’l

tribunals (no such thing as stare decisis)

• Treaties (int’l agreements) • UN General Assembly Resolutions (Query:

Are they IL legislation and therefore binding,
or dispositive?)

• General principles of domestic law: • Writings of renowned publicists

(1) Statute of ICJ. State law (academics, IL geeks like DB)
(recognized by Òcivilized nationsÓ)
elevated to the int’l plane.
(2) Used as a Ògap fillerÓ (e.g.
statutes of limitations, estoppel, good
faith)
(3) Promotes consistency between
legal systems by staying at the highest
level of abstraction.

Custom and Treaty are co-equal sources of IL, creating an interesting dynamic between them.
(Restatement 3d, ¤ 102) [DB says to take the Rest. with a grain of salt]

TOPCO v. Libya
(Int’l Arbit. 1977)

Facts: In violation of a contractual agreement, Libya nationalized the property of two

American oil companies.
Issue: Is a General Assembly resolution that is supported by a majority of states binding
IL?
Rule: A GenAss Res is binding when accepted by a majority of nations only if that
majority includes members of all various political, geographical, and economically
developed groups.

Filartiga v. Pe–a-Irala
(2d Cir. 1980)

Facts: Jurisdiction was asserted under the US Alien Tort Statute, which granted
jurisdiction to the US for acts in violation of the law of nations. Two Paraguayans
brought a wrongful death action in an American court for acts committed in Paraguay
by the Paraguayan chief of police.
Issue: can a UN declaration that was not intended to be binding on the parties at the
time of its adoption become binding as customary law?
Rule: A UN declaration that was not initially intended to be binding on the parties may
become customary law provided:
(1) it is adopted by a large majority of states;
(2) it creates an expectation of adherence to its rules;
(3) state practice justifies that expectation.

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 CUSTOM
How do you prove customary IL?

Which should matter more in the development of custom: what a country does or what it says?
Actions are better indicators of custom.

Where do you look to find custom?

• Historical conduct of a state (seen in case law or in publications)
• Written evidence of an unwritten rule

When we do a custom analysis, we can focus on either an individual country or we can look
globally (or both), depending on the issue.

Custom
[Objective element] [Subjective element]
State Practice + Opinio Juris
(Ògeneral practiceÓ) (Òobligatory practice
accepted as lawÓ)

Most IL work is with the objective, state practice element.

Opinio juris: How do you prove that the state follows a practice as a matter of obligation? It is
bound be a rule or as a matter of convenience.

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CUSTOM: Paradigmatic Cases

The Paquete Habana

(US 1900) cb 58

Facts: During the Spanish-American War, the US condemned as prizes of war two
Spanish fishing vessels that were fishing in Cuban coastal waters. Fishing vessels were
traditionally exempt from wartime capture.
Issue: Is the conduct of other nations under similar circumstances evidence of a rule of
IL?
Rule: In the absence of a specific treaty, governmental act, or judicial decision, the
customs and usages of nations may be used as evidence of the existence of a rule of
international law, as may the works of jurists and scholars in the field.

Law of Prize: spoils of war go to the captor.

What is the proper military conduct of the US in times of war?

ÒInternational law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction as often as questions of right depending
upon it are duly presented for their determination.
ÒFor this purpose, where there is no treaty and no controlling executive or legislative
act or judicial decision, resort must be had to the customs and usages of civilized
nations, and, as evidence of these, to the works of jurists and commentators who by

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 years of labor, research, and experience have made themselves peculiarly well
acquainted with the subjects of which they treat.
ÒSuch works are resorted to by judicial tribunals, not for the speculations of their
authors concerning what the law ought to be, but for trustworthy evidence of what the
law really is.Ó [cb 60-61]

The S.S. Lotus

(France v. Turkey)
(PCIJ 1927)

Facts: A French steamer collided with a Turkish steamer on the high seas. The Turkish
ship sunk and eight Turks died. When the French ship reached Turkey, Turkish
authorities criminally prosecuted the French officer on watch as the time of the collision.
Issue 1: Must a state opposing jurisdiction prove the absence of customary law that
permits jurisdiction?
Rule 1: Because all acts that are not expressly forbidden under international law are
permitted, the BOP is on the state opposing an act to show that there is a rule or custom
that does not allow such an act to be exercised.
Issue 2: Does customary abstention of a state from certain actions create an obligation
under customary law to continue to refrain from committing those acts?
Rule 2: That most states have abstained from certain actions in particular circumstances
does not prove that they are obligated to do so, only that they have chosen to do so.
Dissent: The BOP should be on the state seeking to show that it has jurisdiction. IL
does not permit everything that is not explicitly forbidden.

Ct. decided that Turkey did have authority to arrest French officer under the Treaty of
Lausanne (1923). Sovereignty is so important that, if you are challenging the jurisdiction
of a sovereign state, you have BOP. IL is a system of freedom — countries can do
anything which is not expressly prohibited. This case is considered the high mark of
positivism: states must agree to restraints on sovereignty.

Ct. decided that France and Turkey had concurrent jurisdiction over the cases arising
aboard a French flag vessel on the high seas. Subsequent treaties have overruled this
finding: only the flag state has jurisdiction. But BOP is still good law.

Asylum Case
(Colombia v. Peru)
(ICJ 1950) [cb 72]

Facts: Colombia granted political asylum to a Peruvian political leader at Colombia’s

embassy in Peru. Peru refused to allow the political leader to leave the country (Òsafe
passageÓ).
Issue: May a government unilaterally invoke regional customary law against another
state?
Rule: A state may unilaterally rely on regional custom, but it has the BOP that this
custom has become binding. To do so, a state must prove that:
(1) the custom is the subject of continuous and uniform practice by the
states in question,
(2) such rule was invoked by the state exercising it as a right, and
(3) the rule is respected by the states against whom it has been enforced as
a duty.
After the existence of a custom is established, it must be shown that the state against
whom the custom is being enforced has not repudiated the custom through non-
adherence to it.

Ct. says that the regional custom was not evident and that Peru repudiated the custom
by not signing a treaty.

Rule of silence:
(1) Globally: assumption that the country has acquiesced or agreed to it. It
is up to states to object to the formation of that custom.

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 (2) Regionally: silence equals rejection.

Ct. sets up a harder rule for regional custom because it doesn’t like a world which is
fractured into regional variations. ICJ’s global lawmaking role is done by a direct attack
on regional custom.

Case Concerning Right of Passage Over Indian Territory

(Portugal v. India)
(ICJ 1960) [cb 75]

Facts: India obstructed the right of passage claimed by Portugal through Indian
territory that surrounded Portuguese enclaves located on the Indian peninsula.
Issue: In the absence of an express recognition of a claimed right, may such a right be
established on the basis of a long-standing constant and continual course of dealings
between nations (local custom)?
Rule: A local customary right may be established as the result of a constant and
continual practice by a nation if, over a substantial period of its existence, it has not been
formally opposed by other affected nations. However, if a course of conduct has been
subject to the approval of an affected nation in the past or such conduct has been
protested by affected nations, a right has not been established. The granting of approval
does not establish a right.
Note: Customary law as established by a course of conduct between two states does not
depend on general international customary law.

Special custom between parties to the case is like a Òcourse of dealingÓ in contractual
law. Here, the special custom was like a property easement, covering people and goods,
but not military movements. The issue of comity is the negation of opinio juris.

Some Conclusions about Custom:

1. Unique source of strength and legitimacy in the int’l system because it ensures
that IL is current with needs and expectations of states.

2. Two elements:

a. Consistent general practice of majority of states is proved through an

objective inquiry.
b. Opinio juris. The idea that a state’s behavior stems from legal obligation.
The subjective/psychological element of custom which is hard to prove,
so you infer it.

3. Methods of proving custom are subtle (Paquete Habana).

4. States’ actions matter more than what they say they do.

5. Sovereignty notions play key role in identifying and proving custom (Lotus;
Right of Passage Case).

6. Tendency to narrow focus of custom. Hard to prove global custom, so ct. often
looks at special custom between the parties. ICJ doesn’t like regional custom
because of conflict between regions.

7. Custom is often inferred from state silence.

NB: It is hard for a state to get out of custom if at first it accepted or acquiesced (cf.
contract theory, but what abt. efficient breach?).

Jus cogens: custom where it doesn’t matter if a state objects or tries to opt out through
treaty (e.g. genocide, apartheid). There is a limit to tolerance of diversity. There is a
close relationship between jus cogens and natural law (no positive law Òcop outÓ)

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 Ù
TREATIES

ÒA treaty is a treaty is a treatyÓ: there is no difference in nature or effect depending on what

you call an instrument (pact, treaty, etc.). Whether an agreement has legally binding force as a
treaty depends on the intent of the parties. Under US law, ÒtreatyÓ does have a special
constitutional meaning (agreed by the President, advised and consented by the Senate). US
Const. Art. II, ¤ 2.

Treaty Development:
There is a distinction between codification and progressive development.
Codification: Writing down custom for signature and ratification. This is Òbig
businessÓ for the UN.
1. Vienna Convention on Law of Treaties (1969) [LoT]: Rule book for how to
make, interpret and break treaties. Coverage: any int’l agreement
concluded between states, in writing, governed by IL (LoT, Art 2(1)).
2. International Law Commission [ILC]: Debates proposals for codification
treaties.
3. Verbal agreements (Nuclear Test Cases, cb 422): What is the significance
of oral agreements, especially unilateral?

Progressive Development: Legislation in the absence of pre-existing custom.

Treaty and Custom:

Problems created by the relationship between and interaction of the two sources of IL.
Treaties and custom are given equal weight. If conflicting, the intent of the parties is
controlling. Query: Can a treaty between two state parties affect the interests of a non-
party? Depends on whether you are imposing obligations or conferring benefits.

North Sea Continental Cases

(ICJ 1969)

Facts: NL and DK claimed that the boundaries between their continental shelf
territories and FRG territories should be determined by the principle of Art. 6 of the
Geneva Convention (1958). FRG was not a party to the Convention.
Issue 1: May the provisions of a ratified, multi-national convention become customary
law that is binding on non-party states?
Rule 1: In order for a provision of a multi-national convention to be considered
customary law that is binding on non-party states, state practice must:
(1) be extensive and virtually uniform and
(2) show a general recognition that a legal obligation is involved.
Issue 2: May a decision of international law be influenced by equitable principles?
Rule 2: Equity may be used as a rule of construction of existing international laws so
that states under similar circumstances will not be subject to an unjustifiable difference
in treatment.
Dissent: Many different states participate in the process of forming the provisions of an
international convention, and subsequent acceptance or acquiescence to those

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 provisions by other states should be seen as a ratification of general rules of
international law sufficient to make them customary law.

According to DK and NL, the treaty codified a customary IL. Ct says the 1958 treaty
was not codification; rather it was progressive development.

DK/NL then say that, between 1958—1969 (when the case was decided), there was a
development of custom. Ct. says that there was no opinio juris and decides in favor of
FRG. Ct. says that sometimes a treaty can be good evidence of dev’t of a custom, but
not here. (Ultimately, there was a compromise between the parties following
negotiation.)

Wimbledon Case
(ICJ 1920) [not in cb]

First case decided by ICJ.

Facts: Shipping case. Germany built a canal linking North Sea with Baltic. Treaty of
Versailles, ending WWI, obliged Ger to keep the canal open. Treaty not signed by
Russia. Russia was at war with Poland. UK was sending munitions to Pol through the
canal. Ger refused passage to UK shipments through the canal because Ger were
neutral.
Wimbledon Paradox: Ger can’t follow the treaty and customary law at once. The key
fact is that Russia was not a party to the treaty.
Rule: Ct. says that Ger should obey the Treaty. But a treaty doesn’t always trump
customary law, because parties may be different (i.e. party to the custom but not to the
treaty).

Treaties and Reservations

Definition: Reservations in IL are similar to a counter-offer (reflecting a party’s
ÒregretÓ), setting ratification subject to conditions. A unilateral statement by which a
state excludes or varies the legal effect of certain terms of the treaty. Reservations can’t
be made to bilateral treaties.

Example: US refusal to ratify the Treaty of Versailles (Senate imposed dozens of

conditions on Pres. Wilson’s signed participation). As a result, we didn’t become a state
party to the League of Nations.

Problem: Reservations in a multi-lateral treaty (If a signatory party makes reservations to which
some but not all other parties do not assent, is the reserving state a party to the treaty with
respect to the objecting parties?).

Reservations to the Convention on Genocide

(ICJ, Advisory Opinion, 1951) [cb 446]

Issue 1: May a reserving state remain party to a convention if the reservation is objected
to by some of the other parties to a convention?
Rule 1: A state may not make a reservation to a convention that was intended to be
universal in scope. However, if the parties to a multilateral treaty intend to allow
reservations, the reserving party will be a party to the convention even if the reservation
is not approved by all of the parties, as long as the reservation is not contrary to the
object and purpose of the treaty.

Issue 2: What is the effect of a reservation as between the reserving state and the parties
that object to a reservation?
Rule 2: No state can be bound by a reservation to which it has not consented.
Therefore, a convention may not be in force between a state that makes a reservation
and a state that does not accept that reservation, unless the state objecting to the
reservation does not object on the grounds that the reservation is contrary to the object
and purpose of the treaty and consents to allow the treaty to be in effect between them
except for the clauses effected by the reservation.

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 Issue 3: What is the effect of a reservation as between the reserving state and the parties
that accept the reservation?
Rule 3: If a party accepts the reservation of another state, the convention is in force as
between those two states, with the exception of the clause that was reserved.

Dissent: A reservation to a treaty should be required to be unanimously accepted

unless the treaty expressly provides for reservations.

Analytical Tests:
(1) Is it a reservation?
a. Yes, if the purpose is to change the legal effect of the treaty.
b. Otherwise, not a reservation, but perhaps an ÒunderstandingÓ going to
questions of treaty interpretation.
(2) Do the internal rules of the treaty itself allow for reservations?
(3) Does the reservation offend (or ÒfrustrateÓ) the object and purpose of the treaty?
This is a judicial inquiry, but Òladen with politics.Ó (cf. Guat. reservation to the
Death Penalty treaty).
(4) Do other state parties accept the reservation? What is their ÒreactionÓ?
Partial enforcement may result.

Acceptance of a Reservation: Whether reservations may be made to a treaty

depends on the intent of the parties a multilateral treaty intended to allow
reservations, the reservation need not be approved by all of the parties. Unless
expressly or impliedly prohibited, the reservations are assumed permissible.

a. Acceptance by a party: If a party accepts the reservation of

another state, the treaty is in force as between those two states,
but not as between the reserving state and other states of the
convention who do not accept the reservation.
i. If the reservation omits provisions, neither the reserving
state nor the accepting state are bound by the reserved
provisions.
ii. If the reservation modifies provisions, then the state that
accepts the modifications is bound by the changed
provisions.
b. Non-acceptance by a party: If a party does not accept the
reservation of another state, the treaty is still in effect between
them, except for the clauses affected by the reservation, unless
the objecting state clearly expresses a contrary intention.

The analysis of treaty reservations is especially important when treaties have the character of
progressive legislative development rather than codification.

Treaty Interpretation
Case Study: US-Iran Claims Tribunal
[supp]

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 Claims Settlement Declaration (CSD) sets up the tribunal and prescribes the jurisdiction.

It is a treaty, in compliance with LoT. It is also perfectly symmetrical, with advantage

for neither US nor Iranian claimants before the tribunal.

Issue: Dual nationality. Does the tribunal have jurisdiction over claims by dual
nationals (in effect, Iranians against Iran)? CSD, Art. 2(1). See Art. 2(1), definition of
Ònational.Ó

Interpretive Tools:

(1) Textualism: Look to the plain meaning of the words for the legal instrument
(LoT, 31). Query, How do you remove ambiguity, if you want to?
(2) Intentionalist: What is the intent of the drafters (LoT, 32)? Look at the
preparatory work (travaux prŽparatoires), similar to US legislative history.
(3) Teleological: Look at the object and purpose of the treaty (LoT, 31). Test of the
dominant effective nationality for dual nationals.

NB: Usually you interpret a treaty by a mix of the three interpretive tools.

Treaty Amendments and Invalidity

Pacta sunt servanda: Idea that treaties are usually created with the intention that they will last
indefinitely. How then do we accommodate change?

Solutions:

(1) Parties can agree to modify the treaty. Inter se agreements are made when a
small group of parties to a treaty agrees to modify a treaty as between
themselves only (e.g. a regional agreement). In order for an inter se agreement
to be concluded:
a. Treaty must provide for such modification;
b. Modification proposed must not be incompatible with the treaty;
c. Modification must not adversely affect the rights of other parties to the
treaty; and
d. Other parties to the treaty must be given notice of the agreement.

(2) Amendment, but change requires consent by both parties. Protocols are one
way of amending. (Montreal Protocol). In multilateral treaty amendments, the
change shall come into force when it shall have been adopted by two-thirds of
the parties and:
a. All parties to the treaty have been notified of any proposed amendment;
b. All parties to a treaty have been given the opportunity to participate in
the negotiation of the amendment, as well as the right to become a party
to the amendment;
c. Each state that becomes a party to an amendment is a party to the
amended, and a party to the unamended, treaty vis-ˆ-vis any party to the
treaty not bound by the amendment.

Termination of treaties:
(1) State succession:
Issue: When a country goes out of existence, what are the obligations of the new
country?
Rule: Former colonies enjoy the ÒClean Slate Rule.Ó They can decide not to
continue the obligations that were set by the colonial power. (Exception:
territorial use rights, cf. Right of Passage Case, a custom, not a treaty, case)

(2) Non-breaching party in a material breach:

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 Issue: Who decides the question of materiality?
Rule: Initially, it is the give and take of diplomatic relations. If unresolved, then
international tribunal (such as ICJ). LoT, Art. 60.

Termination by breach (Art. 60): Breach of a treaty, however serious, does not
itself terminate a treaty.

a. The breach must be material for the treaty to be voidable by the injured
party.
b. Bilateral treaty: The injured party may terminate or suspend operation
of the treaty in whole or in part. This right is without prejudice to the
injured party’s right to present an int’l claim for reparation.
c. Multilateral treaty:
i. All parties affected by breach: by unanimous agreement, other
parties may terminate or suspend the treaty in whole or in part
as between themselves and the breaching party or all parties.
ii. Parties specially affected by breach: An indiv party may alone
react to the breach by another party to a multilateral convention
if the breach affects it in particular. In this case, the indiv party
may only suspend operations as between itself and the
breaching state. Its relations with the other parties remains
unaffected.
iii. Breach that undermines treaty regime: Where a breach
undermines the treaty as a whole and materially changes the
position of all parties to a treaty, any party to the treaty may
revoke the treaty without first consulting the other parties.

(3) Fundamental change in circumstances (rebus sic stantibus) (LoT, Art. 62).
Rule: In order to terminate, change must be:
a. Fundamental
b. Unforeseen
c. Circumstances before the breach were an essential part of the treaty-
making process.
d. Radical transformation in obligations of the parties.
e. Obligations under the treaty were not yet performed (i.e. no estoppel).

(4) Hostilities/State of War.

The Fisheries Jurisdiction Case

(UK v. Iceland)
(ICJ 1973)

Facts: Iceland and UK agreed by exchange of notes that UK would recognize an

extension of Iceland’s fishery limit to 12 miles if Iceland would agree to submit any
disputes to the ICJ. Subsequently, when the customary law of territorial fishery limits
extended beyond 12 miles, Iceland refused to allow UK to fish at the 12 mile limit or
recognize the court’s jurisdiction, claiming fundamental change of circumstances.
Issue: may a change in IL constitute a fundamental change of circumstance that is an
obligatory ground for revocation of a treaty?
Rule: For a fundamental change of circumstances to constitute a ground of revocation
of a treaty, the change must have increased the burden of the obligations to be executed
to the extent of rendering the performance something essentially different from that
which was originally undertaken.

Techt v. Hughes
(Ct. Appeals, NY 1920)

Facts: An Austro-Hungarian had a claim to an inheritance in NY based on a treaty

between the US and Austria-Hungary. War broke out between the two countries just
before the inheritance could take effect.

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Issue: Are all treaties between warring nations voided due to war?
Rule: treaties whose execution is not incompatible with a state of war will remain in
effect, unless expressly terminated. Such treaties may be disregarded only to the extent
and time required by war.

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SOURCES AND METHODS OF INTERNATIONAL LAW...................................................................1
BASIC POINTS ABOUT PUBLIC INTERNATIONAL LAW.................................................................1
NATURE AND THEORY OF INTERNATIONAL LAW...........................................................................1
SOURCES OF INTERNATIONAL LAW................................................................................................ 4
TOPCO v. Libya.................................................................................................................................................4
Filartiga v. Peña-Irala.......................................................................................................................................4
CUSTOM................................................................................................................................................. 5
CUSTOM: PARADIGMATIC CASES............................................................................................................ 5
The Paquete Habana...........................................................................................................................................5
The S.S. Lotus..................................................................................................................................................... 6
Asylum Case........................................................................................................................................................ 7
Case Concerning Right of Passage Over Indian Territory................................................................................7
Some Conclusions about Custom................................................................................................................8
TREATIES............................................................................................................................................... 8
Treaty Development.....................................................................................................................................9
Treaty and Custom.......................................................................................................................................9
North Sea Continental Cases..............................................................................................................................9
Wimbledon Case...............................................................................................................................................10
Treaties and Reservations..........................................................................................................................10
Reservations to the Convention on Genocide...................................................................................................10
Analytical Tests..........................................................................................................................................11
Treaty Interpretation..................................................................................................................................12
Case Study: US-Iran Claims Tribunal.............................................................................................................12
Treaty Amendments and Invalidity...........................................................................................................12
Termination of treaties...............................................................................................................................13
The Fisheries Jurisdiction Case.......................................................................................................................14
Techt v. Hughes................................................................................................................................................14

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