Lecture 2 PDF

Is International law a law? Also Read : https://www.legalserviceindia.com/legal/article- 14084-is-international-law-really-a-law-.html Not a law: There can be no law binding sovereign states. It is not a rule of conduct prescribed by a sovereign power. It is merely a body of rules establish in...

Is International law a law? Also Read : https://www.legalserviceindia.com/legal/article- 14084-is-international-law-really-a-law-.html Not a law: There can be no law binding sovereign states. It is not a rule of conduct prescribed by a sovereign power. It is merely a body of rules establish in custom or by a treaty or by which the intercourse between civilized nations is governed There exists no international legislative body Lack of World Government : No world government that can supervise its adherence, impose penalties and fines for its violations, While there exist the General Assembly of the United Nations, its resolutions are generally not binding on anybody Limited Judicial Authority : Although there are international courts and tribunals that carry out essential duties, they have circumscribed authority in contrast to local legal procedures. The International Court of Justice can bind states only when states consent to be bound. When local officials seemed to dislike the decision, invokes national policy or interest over international law. Problem of Enforeceability : Enforcement of international law is a real problem for several reasons. What can the UN/Security Council do if there are violations? Obedience to it is voluntary and cannot be enforced by a common sovereign power However, it is a fact that no state in the world could exist with written law only The coercive acts of the states, the forcible interference of a state in the sphere of interest of another state are, in principle, permitted only as a reaction against delict; Accordingly, employment of force for any other end is forbidden.  2 In other words, International Law is a true law if the coercive act undertaken as a reaction against delict can be interpreted as a reaction of the international legal community. Theoretical basis or what makes it a law. Command theory. - law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed. The reality is that nations see international law not as commands but as principles for free and orderly interaction. Consensual theory. Under this theory, international law derives its binding force from the consent of states. Treaties are an expression of consent. Likewise, custom, as voluntary adherence to common practices, is seen as expression of consent. The States voluntarily take part in the international treaties and agreements with a view of being subjected to legal liabilities arising under these contracts. Natural law theory. The natural law theory posits that law is derived by reason from the nature of man. International law is said to be an application of natural reason to the nature of the state-person. Much of customary law and what are regarded as generally accepted principles of law are in fact an expression of what traditionally was called natural law. Other Basis: Enforceability : Though there is no centralized enforcement framework on the enforcement of the international law and tribunal’s decision like in the local arena, there are ways and means in resolving it and implementing it. Resolutions of Disputes : States rely the international for settling their disputes and conflicts. Deterrence and accountability – States are legally liable for breaches thus commission of violations are deterred or discouraged. Fear of sanctions/isolations. Sources of International Law: Read : Pangilinan, et al vs. Cayetano, et al., G.R. No. 238875, March 16, 2021  3 Controversy on Philippines’ withdrawal from the International Criminal Court. On March 16, 2018, it formally submitted its Notice of Withdrawal through a Note Verbale to the United Nations Secretary-General's Chef de Cabinet. The Secretary General received this communication the following day, March 17, 2018. Domestic Laws? There is no problem of ascertaining what are those laws. Found in statute books and in collections of court decisions. International laws? Different. International law consists of a body of principles, customs, and rules that are recognized as effectively binding on States and international persons in their mutual relations. No centralized legislative, executive and judicial structure No single body able to legislate and there is no system of courts with compulsive power to decide what the law is nor is there a centralized repository of international law. There is the problem of finding out what and where the laws are. The difficulty in identifying the sources of international law is indicated in Article 24 of the Statute of the International Law Commission, which provides: The Commission shall consider ways and means for making the evidence of customary international law more readily available, such as the collection and publication of documents concerning state practice and of the decisions of national and international courts on questions of international law, and shall make a report to the General Assembly on this matter." Nevertheless, International Law exists and there are "sources" where the law can be found. Sources" of international law is mentioned in Article 38(1) of the Statute of the International Court of Justice (ICJ). Article 38 says: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:  4 a. international conventions, whether general or particular, establishing rules expressly recognized by contesting states b. international custom, as evidence of a general practice accepted as law; с. 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. Another statement of sources is the Restatement (Third) of Foreign Relations Law of the United States which says: 1. A rule of international law is one that has been accepted as such by the international community of states a. in the form of customary law; b. by international agreement; or c) by derivation from general principles common to the major legal systems of the world. 2. Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. 3. International agreements create law for the states parties thereto and may lead to the creation of customary international law which such agreements are intended for adherence by states generally and are in fact widely accepted. 4. General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreements, may be invoked as supplementary rules of international law where appropriate. The "sources" of international law are: 1. Custom; 2. Treaties and other international agreements/conventions;  5 3. Generally recognized principles of law; 4. Judicial decisions; and 5. Teachings of highly qualified and recognized publicists. Conventions and Treaties Perhaps the most authoritative body of rules that can be used as a definite source of international law at present are the law- making universal conventions, such as: Convention on International Civil Aviation (1944), Vienna Convention on Diplomatic Privileges and Immunities (1961), Geneva Convention on the Rules of War (1949), Vienna Convention on Consular Relations (1963), and Vienna Convention on the Law of Treaties (1961). Convention on the Prevention and Punishment of the Crime of Genocide Adopted on December 9, 1948 and entry into force on January 12, 1951. As of June 2024, there are 153 parties These conventions, which have been concluded as a general rule by the majority of States, are meant to take effect as law among the parties. Even nonparty States may adhere to these conventions and thus be bound by their provisions. The text of international conventions may: (1) merely restate a preexisting rule of custom; (2) crystallize an emergent rule, in statu nascendit; or, (3) serve as the focal point for a subsequent practice of states which, in due course, hardens into a customary rule. Treaties determine the rights and duties of states just as individual rights are determined by contracts. Their binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior. What is a Treaty A treaty is generally understood as an international agreement, contractual in nature, between States or organizations of States, creating legal rights and obligations between the parties. Treaties are generally binding only on the parties, the number of the contracting parties and the generality of the acceptance of  6 the rules created by the treaty can have the effect of creating a universal law in much the same way that general practice suffices to create customary law. One of the essential attributes of a State is the capacity and competence to enter into a treaty or a binding international agreement with other states. The capacity to enter into a treaty is in fact a vital evidence of statehood. The capacity to enter into relations with other States is a requirement of statehood and a manifestation of its independence, in law, from the authority of any other State. How a Treaty is defined in the Vienna Convention "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." The Vienna Convention applies to international agreements that satisfy the Convention's definition, specifically that they be in writing and reflective of the intention of the parties to be bound, and governed by international law. The names employed for the designation of the Instrument are now numerous. In addition to the ordinary term "treaty" or "convention" used in the past, there have come into use a wide range of terms, such as "pact", "protocol", "agreement", "arrangement" pacrotoco, declaration, dement, codas vivendi", "statute", "regulation", "provisions" "compromis", "concordat", "executive agreement", or "charter". Agreement, arrangement or accord are used interchangeably and refer to an instrument of a more limited subject and of lesser importance than a formal treaty or convention. Compromis is the agreement that specifies the subject matter of the dispute, the time and manner of appointing arbitrators, the place where the tribunal shall meet, and such other procedures as may be agreed upon. Compromis d' arbitrage is an agreement to submit a dispute to an arbitration or judicial settlement.  7 Concordat is an agreement by the Pope with heads of States on ecclesiastical affairs. Should treaties be in writing? While treaties are generally in written form, there are writers who hold that even an oral agreement can be binding. However, only written agreements that are new, come under the provisions of the Vienna Convention. Is there a particular form prescribed? In the case of Qatar v. Bahrain (1994 ICJ Report), the exchange of notes between the two heads of state was considered an international agreement. Bahrain maintains that the Minutes of the 25 December 1990 were no more than simple record of negotiations... did not rank as an international agreement. The ICJ Article 2, paragraph I of the Viena Convention defining the treaty as “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." The 1990 minutes refer to the consultation between the two foreign ministers of Bahrain and Quatar, in the presence of foreign minister of Saudi Arabia and state what was had been agreed between the parties. The minutes provide for good offices of the king Saudi Arabia to continue until May 1991 and exclude the submission of the dispute to the court prior thereto. The minutes are not simple record of a meeting but enumerate the commitments to which the parties have consented thus create rights and obligations in international law for the parties. Even a Unilateral declaration by a State may bind it. In the case of Australia vs. France (1933 and New Zealand vs. France, (1974 ICJ). This involves a Nuclear Test issue conducted in 1972 and 1973 by France protested by Australia and New Zealand. The case was written of the court’s list without a decision when France announced by a series of unilateral announcements that it would conduct no further tests in 1973. Function of treaties.  8 1. As sources of international law; 2. As the charter of international organizations; 3. To transfer territory; 4. To regulate commercial relations; 5. To settle disputes; 6. To protect human rights; 7. To guarantee investments; etc. Classification: The different kinds of treaties may be classified from the standpoint of their relevance as source of international law. The Multilateral treaties: open to all states of the world. They are either codification treaties or "law-making treaties" or they may have the character of both. Lawmaking treaties are generally accepted as sources of international law. A convention, generally, is a multilateral treaty or agreement, usually restricted to some technical matter. This term is now used by the United Nations for agreements involving all or almost all members of the United Nations on a particular subject, such as the Vienna Convention on Treaties. The Bilateral treaties - The greater number of treaties. They are sometimes called Contract treaties. Example : commercial trade treaties or treaties of alliance However, do not necessarily serve as a source of international law in general. Thus, do not necessarily create an international rule of conduct of general application. While treaties are generally binding only on the parties, the number of the contracting parties and the generality of the acceptance of specific rules created by the treaty can have the  9 effect of creating a universal law in much the same way that general practice suffices to create customary law. The making of treaties. Negotiation Bilateral treaties, and multilateral treaties among a small number, generally originate from the foreign ministries. Negotiation is done through foreign ministries. Larger multilateral treaties are negotiated in diplomatic conferences which are run like a legislative body. In the United Nations, member-state sent an Ambassador. The negotiators must possess powers to negotiate. An act relating to the conclusion of a treaty by one who has no proper authorization has no legal effect unless confirmed by his state: Authentication/ Adoption of text Negotiations conclude with the signing of the document. The signatures serve as authentication of the document. The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. Consent to be bound The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed. Ratification is next followed by either exchange of ratification, in bilateral treaties, or, in multilateral treaties, deposit of ratification: Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:  10 (a) their exchange between the contracting States; (b) their deposit with the depositary; or (c) their notification to the contracting States or to the depositary, if so agreed. Accession to a treaty States which did not participate in the initial negotiation may also express their consent to be bound by "accession." The main treaties of human rights law are given below: Convention on the Prevention and Punishment of the Crime of Genocide (1948) Philippines participated effective in 1951 but under Proclamation No. 259, February 16, 1956, with reservation Convention on the Elimination of All Forms of Racial Discrimination (1965) (Phil Accession : 1967) International Covenant on Civil and Political Rights (1966) (Phil : Accession: 1986) International Covenant on Economic, Social and Cultural Rights (1966) (Phil Accession : 1974) Convention on the Elimination of All Forms of Discrimination against Women (1979) (Phil Accession : 1981) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (Phil Accession : 1986) Convention on the Rights of the Child (1989) (Phil Accession : 1990) International Convention for the Protection of All Persons from Enforced Disappearance (2006) (Philippines no action) Optional Protocol to the Covenant on Economic, Social and Cultural Rights (2008) (Philippines no action; source OHCHR) Optional Protocol to the International Covenant on Civil and Political Rights (1966) (Phil Accession : 1989 Reservations In deference to the sovereignty of states, the Vienna Convention allows for "reservations." Article 2 defines reservations as "a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal  11 effect of certain provisions of the treaty in their application to that State." A proliferation of reservations in multilateral treaties can very well defeat the purpose of a treaty. In bilateral treaties, a reservation by one party means a rejection of the treaty and necessitates re-negotiation. Reservations, therefore, are meant only for multilateral treaties. Must a reservation be consented to by all parties for it to be effective? ICJ advisory opinion in Reservations to the Genocide Convention (ICJ Reports 1951)by seven votes to five: "a state which has made and maintained a reservation which has been objected to by one or more parties to the Convention but not by others, can be regarded as a party to the Convention if the reservation is compatible with the object and purpose of the Convention." The Court added that compatibility could be decided by states individually since "if a party to the Convention objects to a reservation which it considers incompatible with the object and purpose of the Convention, it can consider that the reserving state is not a party to the Convention." Under this view, it is possible for different legal relationships to arise among parties to the same treaty. This view some see as reflected in Article 19, supra, of the Vienna Convention. The Philippines and the 1982 Convention on the Law of the Sea In this connection, it should be noted that the provision on "archipelagic waters" found in the 1982 Convention on the Law of the Sea conflicts with the Philippine claim in Article I of the Constitution that the waters connecting the islands, irrespective of their breadth and dimension, are "internal waters." The Philippine government is clearly aware of these possible conflicts. Hence, upon its ratification of the Convention on the Law of the Sea on August 5, 1984, it added the following reservation: The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines;  12 Also in the Convention on the Prevention and Punishment of the Crime of Genocide (1948) WHEREAS, the Senate of the Congress of the Philippines, by its Resolution No. 9 adopted on February 28, 1950, concurred in the ratification by the President of the Philippines of the aforesaid Convention in accordance with the Constitution of the Philippines, subject to the following reservations: “1. With reference to Article IV of the Convention, the Philippine Government cannot sanction any situation which would subject its Head of State, who is not a ruler, to conditions less favorable than those accorded other Heads of State, whether constitutionally responsible rulers or not. The Philippine Government does not consider said Article, therefore, as overriding the existing immunities from judicial processes guaranteed certain public officials by the Constitution of the Philippines. “2. With reference to Article VII of the Convention, the Philippine Government does not undertake to give effect to the said Article until the Congress of the Philippines has enacted the necessary legislation defining and punishing the crime of genocide, which legislation, under the Constitution of the Philippines, cannot have any retroactive effect. “3. With reference to Article VI and IX of the Constitution, the Philippine Government takes the position that nothing contained in the said Article shall be construed as depriving Philippine courts of jurisdiction over all cases of genocide committed within Philippine territory save only in those cases where the Philippine Government consents to have the decision of the Philippine courts reviewed by either of the international tribunals referred to in said Articles. With further reference to Article IX of the Convention, the Philippine Government does not consider said Article to extend the concept of State responsibility beyond that recognized by the generally accepted principles of international law.” Entry into force of treaties Treaties enter into force on the date agreed upon by the parties. Where no date is indicated, the treaty enters into force once consent has been given. Multilateral treaties generally contain a provision which says how many states have to accept the treaty before it can come into force. Provisional application (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed.  13 Application of treaties The first fundamental rule : pacta sunt servanda. "every treaty in force is binding upon the parties to it and must be performed by them in good faith." A second fundamental rule : a "party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." As to the territorial scope of its applicability : "Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory." Treaty-Making Power of the State A treaty is the instrument through which the State puts on record any agreement with one or more States. As an ubiquitous instrument through which all kinds of international transactions are conducted, a treaty is the closest analogy to legislation in international law. Each State is left free by international law to provide its own constitutional arrangements for the exercise of its treaty-making power. Article VII, Section 21 of the 1987 Philippine Constititions reads: "No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." The actual application of the provision may cause some disputes between the Philippine Senate and the executive branch of the government as to whether any international agreement requires the concurrence of 2/3 of the Senate. Even under the 1935 Constitution which provided that "The President shall have the power with the concurrence two-thirds of all members of the Senate.... to make treaties, Questions have been raised as to whether agreements entered into by the Executive branch of the Government are treaties which require the concurrence of the Senate of the Philippines or  14 merely executive agreements which do not need such concurrence. In USAFEE Veterans vs. Treasurer of the Philippines, (105 Phil 1030 ) the Philippine Supreme Court ruled that the Romulo-Synder Agreement negotiated and signed by then Foreign Affairs Secretary Carlos P. Romulo was an executive agreement and did not need the concurrence of the Philippine Senate. A similar ruling was made in Commissioner of Customs us. Eastern Trading where the Supreme Court also distinguished between a treaty and an executive agreement. In their deliberations of the present provision (Article VII, Section 21) the members of the Constitutional Commission recognized the distinction between a treaty and an executive agreement as interpreted by the Supreme Court in the case of USAFEE Veterans us. National Treasurer of the Philippines and in Commissioner of Customs vs. Eastern Trading, supra. When is an international agreement is deemed to be an executive which need not be submitted to the Philippine Senate? Who will determine whether said document is a treaty or international agreement as an executive agreement? Generally, treaties are usually concurred in by the respective constitutional bodies of the states Signatories. The modern practice, however, is that States have been entering into several varieties of international agreements denominated as act, agreement, arrangement, accord, covenant statute, concordat, or charter. A second type of agreement which do not possess the character of a treaty are exchange of notes, executive agreement, modus vivendi pact, protocol. Generally, international agreements involving basic political issues or changes of a national policy and those involving international arrangements of a permanent character usually take the form of treaties which should be submitted to the Senate of the Philippines for its concurrence. International agreements embodying adjustments of detail carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.  15 The use of Executive Agreements originated as American practice. Unlike a treaty concluded by the President or his authorized representative which requires submission to the U.S. Senate for "advice and consent", an executive agreement does not all require approval by the Senate. Nevertheless, it is a binding international obligation by the executive branch of the Government on the basis of prior congressional authorization and within the limits set by Congress, or even without prior congressional authority but within the power generally recognized as vested in the President. Caution, however, have been made by the United States Department as shown in its Circular No. 175 dated December 3, 1955 providing that Executive Agreements shall not be used when the subject matter should be covered by a treaty (Memorandum for the Senate Legislative Counsel and the Legal Adviser of the State Department 14 ILM (1975) p. 1588). The Executive Agreement shall be used only for agreements which fall into one or more of the following categories: 1. Agreements which are made pursuant to or in accordance with existing legislation or a treaty: 2. Agreements which are made subject to Congressional approval or implementation; or 3. Agreements which are made under and in accordance with the President's Constitutional Power (Department of State Circular No. 175, Dec. 13, 1955, 50 AJIL 785). The United States has never denied the binding effect of an executive agreement even on the ground of Presidential succession. in international law, an executive agreement is as binding as a treaty." Executive agreements fall under two classes: (1) agreement made purely as executive acts affectioning external relations with or without legislative authorization which may be called presidential agreements, and (2) agreements entered into in pursuance of acts of Congress, which have been designated as Congressional Executive agreements. To resolve questions as to whether an agreement is a treaty or an executive agreement, the United States State Department issued Circular (No. 175) providing that where there is any serious question as to whether an international agreement should be made in the form of a treaty or in the form of an executive  16 agreement made by the president alone, the matter shall be brought to the attention of the Secretary of the Department of State by a memorandum prepared by the officer responsible for the intended negotiation. This memorandum shall first be routed to the Legal Adviser... x x x Resolutions and Declarations It is usual during conferences that representatives of States adopt resolutions or declarations. Opinion is divided on whether these resolutions or declarations are sources of international law. One opinion is that since ratifications are not required, resolutions or declarations are not binding and cannot attain the character of law-making treaties. At most, they are merely recommendatory in nature. Another opinion, held by Latin American states, considers resolutions or declarations as legally binding, hence, a source of regional law. The general view is that declarations and resolutions adopted by the General Assembly do not have obligatory force. Article 13 (1) of the United Nations Charter authorizing the General Assembly to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification. It may ripen into Conventions or a multilateral treaties. Examples of important law-making resolutions are the resolution which affirmed the principles of international law recognized by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal; the resolution on Prohibition of the Use of Nuclear Weapons for War Purposes; the Declaration on the Granting of Independence to Colonial Countries and Peoples; the Declaration on Permanent Sovereignty over Natural Resources; and the Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space. Some examples of these declarations are the Universal Declaration of Human Rights. International Customs Custom as a source of international law generally means a usage or practice observed by a number of States for a considerable period of time, consistent with prevailing international law and commanding the general acquiescence of other States.  17 A difficulty might arise when a custom developed from a usage of a small number of States, usually, the powerful ones, is imposed as an obligation on the weaker States, and is eventually accepted and practiced without protest by a number of States until it grows to be considered as a new rule of law. It bears emphasis that a mere usage without the concurrent existence of a legal obligation does not represent a rule of law, but is merely an act of "comity" among states, that is, a usage based essentially on expediency or courtesy and not yet possessed of an obligatory character. The required duration (diuturnitas) can be either short or long. An example of customary law that is the result of long, almost immemorial, practice is the rule affirmed in The Paquete Havana on the exemption of fishing vessels from capture as prize of war. We are then brought to the consideration of the question whether, upon the facts appearing in these records, the fishing smacks were subject to capture by the armed vessels of the United States during the recent war with Spain. By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. In the North Sea Continental Shelf Cases, however, the Court indicated that a short duration, by itself, will not exclude the possibility of a practice maturing into custom provided that other conditions are satisfied: Duration therefore is not the most important element. More important is the consistency and the generality of the practice. The basic rule on consistency, that is, continuity and repetition, was laid down in the Asylum Case (ICJ Reports 1950). The facts in the case were as follows: On October 3rd, 1948, a military rebellion broke out in Peru; it was suppressed the same day. On the following day, a decree was published charging a political party, the American People's Revolutionary Party, with having prepared and directed the rebellion. The head of the Party, Victor Raúl Haya de la Torre,  18 was denounced as being responsible. With other members of the party, he was prosecuted on a charge of military rebellion... On January 4th, 1949, the Colombian Ambassador in Lima informed the Peruvian Government of the asylum granted to Haya de la Torre, at the same time he asked that a safe-conduct be issued to enable the refugee to leave the country. On January 14th, he further stated that the refugee had been qualified as a political refugee. The Peruvian Government disputed this qualification and refused to grant a safe-conduct. A diplomatic correspondence ensued which terminated in the signature, in Lima, on August 31st, 1949, of an Act by which the two Governments agreed to submit the case to the International Court of Justice. The decision of the ICJ was against Colombia: Finally, as regards American international law, Colombia had not proved the existence, either regionally or locally, of a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State. The facts submitted to the Court disclosed too much contradiction and fluctuation to make it possible to discern therein a usage peculiar to Latin America and accepted as law. It therefore followed that Colombia, as the State granting asylum, was not competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru. Uniformity and generality of practice need not be complete, but it must be substantial. In Nicaragua v. United States (ICJ Reports 1986), the Court said that the practice need not be "in absolute conformity" with the purported customary rule. It said: 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. Treaties and custom  19 Whether or not treaties override custom depends on the intention of the parties. If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law. Normally, treaties and custom can be complementary. As seen, for instance, in Nicaragua v. United States, adherence to treaties can be indicative also of adherence to practice as opinio juris. What happens, however, when treaty and custom contradict each other? Different situations may have different solutions. If a treaty comes later than a particular custom, as between the parties to the treaty, the treaty should prevail. A treaty manifests a deliberate choice of the parties and the principle of pacta sunt servanda should be followed. Thus, for instance, in the Wimbledon Case (PCIJ 1923), although the PCIJ recognized that customary international law prohibited belligerents from ferrying armaments through a neutral state, the Court said that Article 380 of the Treaty of Versailles opened the Kiel Canal to passage "to the vessels of commerce and of war of all nations at peace with Germany on terms of entire equality." The Kiel Canal cut through Germany linking the Baltic and North Sea. The Court said: The Court considers that the terms of Article 380 are categorical and give rise to no doubt. It follows that the canal has ceased to be an internal and national navigable waterway, the use of which by the vessels of states other than the riparian state is left entirely to the discretion of that state, and that it has become an international waterway intended to provide under treaty guarantee easier access to the Baltic for the benefit of all nations of the word... However, if a later treaty is contrary to a customary rule that has the status of jus cogens, custom will prevail. This is because of Article 53 of the Vienna Convention on the law of Treaties: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.  20 In a situation, where custom develops after a treaty, the rule is not clear. The logical rule perhaps should be that the later custom, being the expression of a later will, should prevail. But such an approach would militate against the certainty of treaties. In practice, however, an attempt is made to keep the treaty alive by efforts at reconciling a treaty with the developing custom. An example given of this reconciliation is the Anglo-French Continental Shelf Case (1979). The issue was the applicability of the equidistance principle in the delimitation of the continental shelves of the United Kingdom and France. The Court said: Article 6... does not formulate the equidistance principle and "special circumstances" as two separate rules. The rule there stated in each of the two cases is a single one, a combined equidistance-special circumstances rule.... The Court does not overlook that under Article 6 the equi- distance principle ultimately possesses an obligatory force which it does not have in the same measure under the rules of customary law, for Article 6 makes the application of the equidistance principle a matter of treaty obligation for Parties to the Convention. But the combined character of the equidistance- special circumstances rule means that the obligation to apply the equidistance principle is always one qualified by the condition "unless another boundary line is justified by special circumstances... General principles of law recognized by civilized nations. The third source cited by the Statute are "the general principles of law recognized by civilized nations." This is also referred to by the Restatement as "general principles of law recognized by or common to the world's major legal systems." This has reference not to principles of international law but to principles of municipal law common to the legal systems of the world. They may, in a sense, be said to belong to no particular system of law but are evidence rather of the fundamental unity of law. Most of these principles, however, have either become part of customary law or have been incorporated into conventional international law.