This chapter deals with two separate but related matters: First, it gives an overview of international law, a significant part of which is concerned with treaties; and second, it looks at the Vienna Convention on the Law of Treaties.
International law is important both to the areas that give rise to supranational disputes (territorial and maritime boundary disputes and investor-State disputes) and to the supranational bodies that deal with these disputes.
Systems of law can be divided into three types:
i) municipal law;
ii) private international law;
iii) public international law.
Municipal law, or national law, is the domestic system of law that operates within a State. This law regulates the relationships between the State and its citizens and between citizen and citizen within that State.
English law, for example, comprises a complex and extensive framework of law based on both the Common Law and Statute. This framework covers criminal and civil matters. In the civil field, for example, statutes such as the Sale of Goods Act govern the relationships between buyers and sellers. In the field of dispute resolution, the Arbitration Act 1996 deals primarily with arbitration in the domestic sphere but in addition contains provisions dealing with the recognition and enforcement of "certain foreign awards" - namely, Geneva Convention awards and New York Convention awards.5
Written law in England dates back to the Anglo-Saxons (see Box 2). The Laws of King Alfred the Great (about AD 886) contained a series of 77 laws. While including the 'tariff' of compensation payable for wrongs and injuries caused, his laws also included other provisions: for example, provisions dealing with traders. The first of King Alfred's list of Laws is of particular interest:
"First we insist that there is particular need that each person keep his oath and his pledge carefully. If anyone be compelled to give either of these wrongly, either to support treachery to his lord or to provide any unlawful aid, then it is better to forswear than to fulfil. But if he pledge himself to that which it is right for him to fulfilPage 22 and fails, let him submissively hand over his weapons and his possessions to his friends to keep, and stay 40 days in prison in a property of the King. Let him undergo there whatever the bishop prescribes as penance...." 6
A sanctity of contracts rule? An Anglo-Saxon law on pacta sunt servanda (Latin: pacts must be respected / promises must be kept)?7 Compare this to the Vienna Convention on the Law of Treaties, which came into force over a thousand years later. Article 26 provides that: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith."
Box 2: Early English Law
Following the migration to Britain in the middle of the fifth century of the Germanic peoples - the Angles, the Saxons and the Jutes - the first written English laws were those of the Anglo-Saxon King Aethelbirht of Kent. Dated about the year 600, these were concerned with what might broadly be described as criminal matters. For example, they included a 'tariff' of compensation to be paid for crimes or injuries caused to others. The compensation for slaying a man was 100 shillings. The compensation to be paid for stabbing through the thigh was six shillings.
In the ninth century Alfred the Great, King of the West Saxons, collated earlier laws. The Preface or Introduction to his Laws is based on biblical material, especially Mosaic Law. The intention seems to have been to associate the concept of human law with divine law. The Preface refers twice to 'foreigners'. The West-Saxons were warned not to "harass visitors from abroad, and foreigners, for you were formerly strangers in the land of the Egyptians". And later: "Do not behave unkindly to foreigners and visitors from abroad; do not harass them with unjust acts."
Winston Churchill, in his History of the English-Speaking Peoples, states that King Alfred's Book of Laws set out the existing laws of Kent, Wessex and Mercia and "attempted to blend the Mosaic code with Christian principles and old Germanic customs".a Later Churchill says that the Laws of Alfred "continually amplified by his successors grew into that body of customary law, administered by the shire and hundred courts which, under the name of the Laws of St Edward (the Confessor), the Norman kings undertook to respect, and out of which, with much manipulation by feudal lawyers, the Common Law was founded".
Notes: a Generally on the Anglo-Saxon Dooms, AD 560-975: see The Medieval Source Book: www.fordham.edu/halsall/source/560-975dooms.html.
Private international law relates to the law within a State where there is a 'foreign' element. A trading contract made between two Englishmen in England is governed by English municipal law, but a trading contract between an Englishman and a Frenchman made in England and to be performed in France involves a foreign element. Unless the parties have made express provisions stating which law is to apply and which country's courts are to have jurisdiction, disputes may arise as to whether the contract is governed by English or French law, and whether the courts of England or France have jurisdiction over the contract and any dispute relating to it. Proceedings instituted in the English courts might, for example, involve an English judge applying French law for the purpose of resolving a dispute between the parties.
Many such 'foreign' cases are heard in the English courts. For example, it is estimated that approximately 80 per cent of the cases heard in the Commercial Court in London (part of the Queen's Bench Division of the High Court of Justice) involve a foreign element and/or foreign parties.
One of the functions of the Commercial Court is to deal with the enforcement of New York Convention arbitration awards.8 In this context the English Court is operating in a ' foreign' as opposed to municipal or domestic sphere, i.e., the enforcement in England of a foreign arbitral award.
The New York Convention is one of the three conventions mentioned earlier in the Manual as being of particular significance to international dispute resolution - and therefore to international trade generally. It is considered later in the Manual in the context of pure international commercial disputes (as opposed to supranational disputes).
Public international law is concerned with the relationship between States. It is a separate system of law. Unlike municipal law, public international law has no central law-making process and no system of courts.
Public international law - which will from now on be referred to simply as international law - derives from a number of sources. It is generally accepted that the Statute of the International Court of Justice (ICJ) sets out in Article 38 what can be regarded as the sources of international law (the Statute will be considered in more detail in Chapter 11 in the context of the ICJ itself).
Article 38 (1) provides that the Court:
"... whose function is to decide in accordance with international law such disputes as are submitted to it" is to apply:
"a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law." 9
For the purposes of this brief overview of international law, it may be convenient to take each of these sources in turn.
The first of the four categories referred to in Article 38 is concerned with conventions, also referred to by a number of different terms including treaties and agreements.
Article 38 (1) (a) refers to general and particular conventions. These can be broadly divided into:
(i) 'law-making' treaties, which are intended to have a general application to many States, and
(ii) 'treaty-contracts', which apply only to the limited number of States that are the parties to that particular treaty.
Treaty-contracts will involve only a small number of States and will be concerned with a specific, limited area. One example is bilateral investment treaties (BITs), which are considered in Chapter 11 in relation to investor-State disputes. These treaties involve two States and are concerned with attracting inward investment. Another example is the Agreement between Britain and Norway relating to the laying of submarine pipes under the sea between the British and Norwegian coasts (see Chapter 8).
Examples of general law-making treaties are the Hague Conventions of 1899 and 1907, considered later in relation to the Permanent Court of Arbitration (PCA), and the various Geneva...