Vienna Convention on the Law of Treaties (1969) (44, 46, 49-50, 58, 61-2, 66-7) US has never ratified. Don’t want to privilege way of interpreting treaties over SCOTUS’ decision.
But it might be CUSTOM – US might be bound.
If not, how would they analyze the thousands of treaties to which the US is a party?
They never internationally contest the VC – treat it as if, in its entirety, it reflects customary law
Not a party, by treaty, but get clarity and precision anyway.
Turkish minority on Island wants to merge with Turkey. Several agreements (Basic Structure, Treaty of Guarantee, Treaty of Alliance). Cyprus became independent, but Turk minority received tons of power.
Treaty of Guarantee Article IV
If there’s a breach, Greece, Turkey and UK will “undertake to consult together” to decide what’s next. If can’t come up with “common or concerted action” each has the right to “take action” to re-establish the status quo.
Why do they want to create these treaties?
Turkey and Greece – advantage to having it clarified.
UK – get out of colonialist situation, but protect security interests
Cypriots – get independence!
Civil disorder erupts. Greece stages coup. Turkey invades, and occupies northern third of line. Creates current line of demarcation.
Turkey tries to justify action by relying on Treaty of Guarantee
Greek Cypriots say all 1960 treaties invalid for lack of representation.
Makarios – said he was coerced
General argument – UNEQUAL TREATIES.
West says – no unequal treaties. We’re all equally sovereign.
Does Treaty of Guarantee article IV conflict with UN Charter, article 103 (prohibition on use of force?)
UN Charter always TRUMPS.
Session Four – Customary and Soft Law Customary Law
Consistent practice on the part of states which occurs in the belief that the states are actually obligated to act in this way
Very circular argument
Also features notions of “progressive development”
Treaties which - Identify rules which you aspire to make universal, but, for the time, only applies to those states that ratify the treaty.
When do those become customary?
Allows states to get custom and precision of treaty structures w/o actually signing on
US and Vienna Convention
US and Law of the Sea – US accepts as customary law all the provisions that are important to them, but hasn’t ratified treaty
Does not include international court decisions (but a court finding that customary law exists could be persuasive evidence to that effect)
Opinio Juris – YOUR opinion of law – people’s subjective idea of what their int’l responsibilities are
Acting a particular way because you think you’re legally obligated to
Whether it’s essential is VERY contested concept – TWO VIEWS:
Look at OJ, if didn’t think you were legally obligated, no custom. No matter how “extensive” the state practice. (i.e. no one thinks they’re LEGALLY OBLIGATED to roll out red carpet).
Woven in as part of evaluation of state practice
What happens when you have radical change in customary law?
Ex. Truman post-WWII declared that countries had rights to continental shelves on their borders. Bunch of other countries agreed. But couldn’t have thought it was dictated by law as required by OJ.