3 - Law of Treaties

Question 1

Which treaty governs the rules of treaties?

Answer 1

1969 The Vienna Convention on the Law of Treaties

Question 2

When did the VCLT 1969 come into force?

Answer 2

1980.

Question 3

If a treaty was created in 1968, does the VCLT cover it?

Answer 3

No

Question 4

What is jus cogens?

Answer 4

Peremptory norms from which no derogation was permitted.

Question 5

Can international organisations enter into treaties?

Answer 5

Yes. The leading instrument is the 1986 VCLT with or between International Organisations.

Question 6

Is the 1986 VCLT w/ IO in force?

Answer 6

No.

Question 7

What two important conceptual choices did the drafters of the 1969 VCLT make?

Answer 7

1) VCLT ‘naturally came to reflect a contractual outlook rather than a more public-law-inspired outlook.
2) Focused on the form of treaties (treaties as instrument) rather than substance of treaties (treaties as obligations)

Question 8

Can the rules of the VCLT be applied to multinational companies and rebel movements?

Answer 8

Yes, through customary international law.

Question 9

What are the two basic principles of treaties?

Answer 9

1) Free consent - treaties need to be based on the free consent of states (IE Lotus case)
2) Pacta sunt servanda - agreements must be kept.

Question 10

Is contrary domestic law an excuse for not performing a treaty>

Answer 10

No, the Vienna Convention proclaims its own priority over domestic law (although domestic law could be the same - no meta-rule exists to which one is right).

Question 11

What names can a treaty come under and will it have the same legally binding status as a treaty?

Answer 11

A treaty can come under any name - covenant, charter, treaty, convention, pact, protocol, agreed minutes etc. All have the same status - except an MoU.

Question 12

What is a ‘Memorandum of Understanding’?

Answer 12

An MoU is a type of treaty that would signify an intention not to be legally bound and thus be of great legal relevance however this has not been approved by the ICJ.

Question 13

What case suggests that ICJ doesn’t make a distinction between MoUs and treaties?

Answer 13

Qatar v Bahrain 1994

Question 14

What happened in Qatar v Bahrain 1994?

Answer 14

Bahrain’s Foreign Minister claimed he had never intended, when concluding an agreement with Qatar, actually to conclude a legally binding document. ICJ nonetheless viewed it as a treaty.

Question 15

Why would a state choose an MoU over a treaty?

Answer 15

To create flexibility outwith the law. They will choose between the two by weighing the benefits of flexibility against the costs of a less robust commitment.

Question 16

What is a treaty?

Answer 16

A treaty is a legally binding agreement between two or more states.

Question 17

Why does the VCLT only apply to treaties between states?

Answer 17

Because that is the scope of the VCLT.

Question 18

Does a treaty have to be written?

Answer 18

If a treaty is written it can be governed by the VCLT. Oral agreements may carry legally binding arrangements but these are not governed by the VCLT.

Question 19

How can the consent of a State be shown?

Answer 19

Under the VCLT, the consent of a state to be bound by a treaty may be expressed by signature, ratification, acceptance, approval or accession.

Question 20

Do treaties bind third-state parties?

Answer 20

Under the VCLT, Treaties do no create obligations or rights for third States without their consent.

Question 21

How are treaties to be interpreted?

Answer 21

Treaties are to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Question 22

What is a ‘material breach’ of the treaty?

Answer 22

‘Material breach’ is the repudiation or a significant violation of the treaty and serves as a ground for the unilateral termination of the treaty.

Question 23

What does the ‘fundamental change of circumstances’ entail for the treaty?

Answer 23

A fundamental change of the circumstances which constituted an essential basis of the consent of the parties to be bound by the treaty and which was not foreseen by the parties, may be invoked as a ground for terminating or withdrawing from the treaty.

Question 24

What happens when someone who does not have ‘full powers’ signs the treaty?

Answer 24

The treaty is invalid unless it is clear the states can trust eachother - not necessary in this case

Question 25

What obligations does signature normally impose?

Answer 25

States which has signed or ratified a treaty has the obligation to refrain from acts which would defeat the object and purpose of that treaty prior to its entry into force

Question 26

Can the obligations imposed by signature be cancelled?

Answer 26

If a party has materially violated or breached its treaty obligations, the other parties may invoke this breach as grounds for temporarily suspending their obligations to that party under the treaty. A material breach may also be invoked as grounds for permanently terminating the treaty itself.

Question 27

What is ‘Accession’?

Answer 27

“Accession” is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states

Question 28

What happened in the wimbledon case?

Answer 28

The courts said that entering into treaties is an attribute of state sovereignty