2: Treaties & Sources Flashcards
Sources: ICJ Statute
Art 38(1):
- international conventions
- international customs
- general principles
- subsidiary means (judicial decisions, publicists)
Sources: VCLT
Applies to treaties post 1980.
Treaty definition: international agreement between States.
Other forms of binding agreements:
Oral undertakings (legal status of eastern Greenland)
Writings of uncertain intent (Qatar v Baharain)
Consent to be bound by a treaty:
Art 12 - signature
Art 14 - ratification, acceptance or approval
Accession
Art 18: all parties to refrain from acts which would defeat the object and purpose of the treaty.
Entry into force:
Art 24: as specified in treaty
Art 26: pacta sunt servanda - every treaty is binding upon the parties to it, must be performed in good faith.
Legal obligations of a treaty:
Prevail over CIL (except for jus cogens):
27 - cannot be avoided by domestic law
28 - are prospective only
29 - apply to all of a state’s territory
30 - supersede obligations under earlier treaties
34 - bind only the parties except by consent of another state
35 - express consent to an obligation
36 - presumed (rebuttable) consent to a right.
Inconsistent Treaties:
later treaty overrides the earlier one (Art 30(3)).
Only some party to later one? inter se the later treaty overrides.
If some states only party to one? legal relations between those states inter se are governed by the treaty which both states are party to.
Treaty Interpretation:
VCLT Arts 31 & 32
Process of interpretation is in unity (equal combination)
31(1): interpreted in good faith, ordinary meaning, context, object and purpose.
31(2): context can include any agreement relating to the treaty + any instrument in connexion with the conclusion of the treaty. (subsequent agreements/practice).
31(3): supplementary means of interpretation -
subsequent state practice
any relevant rules of international law applicable.
32: Recourse may be used as supplementary interpretation to aid meaning/outcome of Art 31.
- if meaning is ambiguous or obscure,
- or leads to an unreasonable result
**can use traveaux preparatoires (predatory work), anything that indicates state’s intentions.
do not need this if text is sufficiently clear (Lotus).
Reservations to Treaties:
Definition: unilateral statement, whereby it purports to exclude or modify the legal effect of the treaty. Art 2(1)(d).
Purpose: to promote broad agreements to multilateral treaties - unlikely that eery state will agree on every provision.
Reservation permissible unless:
- reservation prohibited by the treaty
- treaty provides that only specific reservations, which don’t include the reservation in question
- incompatible with treaty object/purpose
Operation & Objection of reservations:
20(4) - acceptance and rejection by another State
21(1): an established reservation:
- modifies for the reserving state
- modifies to the same extend for the other party (reciprocal effect)
objections: art 20(4)(b) - objecting state can indicate the objection is to prevent treaty’s entry into force between itself and the reserving state.
Problems with reservations:
uncertainty with regard to invalid reservations - particularly human rights.
Invalidity of treaties:
treaties should be difficult to get out of, therefore limited circumstances where invalidity is possible:
- requires prompt action in becoming aware
- manifest violation
- notified to other states
- error of fact an essential basis for consent to be bound
- fraud, corruption, coercion, breach of jus cogens
Jus Cogens:
Def: legal obligation, a norm accepted and recognised by international community. no derogation is permitted.
Breach: treaty is void if it conflicts.
e.g. slavery, torture, discrimination, genocide, right to self-dertemination.
‘serious breach’ = gross of systematic failure by state to uphold. states shall bring an end to breach
no state can render assistance to maintain breach.
Erga Omnes:
essential distinction - obligations to international community vs. just other states.
what states owe each other by the very virtue of being states.
don’t have to be jus cogens, but usually are.
