Chapter 3 Flashcards
What is the VCLT?
Primary rules in the law of treaties is found in the 1969 Vienna Convention on the law of treaties (VCLT)>
Legal basis of a treaty obligation and article
Consent. Article 34 VCLT.
When a state has consented it must comply with the terms, pacta sunt servanda
Article 26
Pacta sunt servanda
treaty in force is binding upon the parties to it
Article 46
- a state may not invoke the facts that its consent to a treaty has been expressed in violation of its national laws as invalidating its consent unless the violation of national law was manifest and concerned a national rule of fundamental importance.
- the violation of internal law itself in the matter of accordance with normal practice and good faith. High threshold.
Artcile 8 VCLT
A state can reject a person’s unauthorized act but may also choose to accept it later. If the state accepts the act, it becomes legally binding. Even without an explicit statement, acceptance can be implied if the state relies on the treaty’s terms or behaves as if the act is valid.
Can International organizations have treaty-making powers?
Yes, for example the EU and the UN.
Consent te be bound
Article 11 VCLT
consent may be expressed by signature, an exchange of the instruments, ratification, acceptance, approval or accession ‘or by any other means if so agreed.’ The VLCT is pretty flexible. Today, there is a widespread practice of expressing consent by signature (=definitive signature).
Accession
Article 15.
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. Accession usually occurs after the treaty has entered into force.
Ratification
Article 14 VCLT
a subsequent confirmation by the state that intends to be bound by the treaty= ratification. The purpose of ratification is to allow the signing state a period of time before it gives its binding consent.
If it is not specified that ratification is needed, there is a presumption that it is not required.
Entry into force + interim period
Article 24 VCLT
A bilateral agreement, the treaty goes into force when both parties sign. But it can take longer with a multilateral treaty. A treaty that has not yet entered into force cannot create any legal obligations.
But good faith requires that a state is not entirely free to act as it pleases when it has given consent to be bound or expressed an intention to be bound, but still needs to ratify. This is an interim period.
Article 18
states must refrain from acts that would ‘defeat the object and purpose of the treaty’ when (=see article).
Whether an act refrains the purpose of a treaty must be determined on a case-by-case basis. It will probably only be in those cases where a state’s behaviour in relation to a treaty appears to be ‘unwarranted and condemnable’ and potentially motivated by bad intentions that it will be found to violate its interim obligations.
Validity
With exception of treaties in violation of jus cogens, the underlying rationale of a claim of invalidity will be that consent would not have been given had it not been for the circumstance in question.
Invalidity
Rules of invalidity are in article 46-53, and 64 VCLT. They illustrate how difficult a claim of invalidity is. Predictability, stability and mutual trust dictate that once agreed and entered into, even seemingly unequal or unreasonable treaties must be considered valid and legally binding.
Reservations
A reservation is when a state changes or limits how a treaty applies to them.
Reservations to treaties are not always permitted. Article 19 VCLT names three circumstances that are excluded
What articles deal with important issues regarding acceptance/ objection to reservations?
Article 20 and 21.
What happens if a treaty reservation is invalid?
An invalid reservation can make the whole treaty invalid for the reserving state.
Some argue the reservation should just be ignored, but this conflicts with the idea of consent.
The ILC suggests a compromise:
The state is presumed to remain a party without the invalid reservation.
But if the state insists it will only join with the reservation, it is not bound at all.
The interpretation
Relevant principles in article 31 and 32+33 VCLT. They key is the intention.
Articles about parties wanting to alter their rights/ obligations on an issue covered by a treaty (as time passes)
Article 39, 40 and 41
States can use a framework convention to allow gradual updates.
When a treaty becomes outdated, states may negotiate new obligations.
Updates can supplement or replace the old treaty.
Reasons for changes: increased global commitments, new technology, etc.
Articles about termination and withdrawal
The provisions for the termination and suspension of treaties in articles 60-62 VCLT reflect customary international law. The consequences are in 70-72.
