Forbidden Treaties in International Law

Forbidden Treaties in Intl Law (1937 Verdross Article, p. 137)

• Writing at a time when Europe had beginnings of facism.
• Must try to find an ethical minimum recognized by all states in the intl community. Examples: maintenance of law/social order w/in the state, defense against external attacks, care for the bodily and spiritual welfare of citizens at home, protection of citizens abroad.
• Question at the time: Shld state consent be the basis of normativity?
• How do changes in norms come about? This article talks about terra nullius, but now there are some areas which are considered “global commons,” such as Antarctica. One impetus of change w/ the Law of the Sea was deep-sea mining. Norms have developed with this w/o state practice.
• Verdross is saying that non-consensual sources can trump treaties w/o state practice. He is saying some treaties won’t be enforced, such as immoral ones.
• With jus cogens and erga omnes, we tend to define with examples.
• Verdross concept is found in the Vienna Convention—very controversial.
• Ethical Minimum—have to look to fund. norms to find this. Can’t be answered in objective/universal way-can only find in context of given period.
• We can all agree that some treaties would be immoral whether it be b/c of (1) how they were made or (2) content.
• Morality may depend on context to some extent.