Law of Treaties + Diplomatic Law Flashcards
Which of the following statements is NOT true?
a) Article 27 of the 1969 Vienna Convention says that a state cannot use its national law to claim that a treaty is invalid. This Article is without prejudice to Article 46
b) Ordinary Treaties are considered concluded and valid after the step of “Exchange of Ratification”
c) The 1969 Vienna Convention on the Law of Treaties (VCLT) regards treaties between states and treaties between states and international organizations
d) Even when the treaty is not binding, state have an obligation that comes from customary international law to deal honestly and fairly with each other (bona fide)
c: The 1969 Vienna Convention on the Law of Treaties regards only treaties between states; for treaties between states and international organizations we have the 1986 Vienna Convention
When can national law be used to claim that a treaty is invalid, according to the 1969 Vienna Convention?
The only two condition in which national law can be used to claim that a treaty is invalid are expressed in Article 46 of the 1969 Vienna Convention and are the following:
1. When the violation of such national law is manifest (self-evident)
2. When the violation of national law concerned a rule of fundamental importance (e.g: constitution)
What are the steps necessary to conclude an Ordinary Treaty?
- Negotiation -> conducted by politicians and diplomats; at the end of this step a legal text is written
- Signature -> At this stage the treaty is not legally binding, still states have an obligation that spends from customary international law (bona fide)
- Ratification or Acceptance or Approval
- Exchange of Ratification -> the treaty is concluded and valid at the end of this fourth step
- Registration and Publication -> after the entry into force, the treaty shall be transmitted to the Secretariat of the United Nations for registration and publication; this is an additional step which does not effect the validity of the treaty (the treaty is valid after the fourth step: “Exchange of Ratification”
What obligation do the State have after the signature of the (ordinary) treaty?
After the Signature, State have an obligation that comes from customary international law to deal honestly and fairly with each other (bona fide). This means that the State is obliged to refrain from acts which would defeat the object and purpose of a treaty, even if, at this point (meaning after the signature), the treaty is not binding yet
Which of the following statements is NOT true?
a) A state can decide not to agree with a certain provision and still ratify the treaty. By doing so it is making a reservation
b) An Interpretative Reservation is when a state declares that according to him a certain provision of a treaty should be interpreted in a certain way; this, however, does not exclude that provision if not interpreted as the state suggested (meaning the provision is binding on the state even if interpreted differently from how the state suggested)
c) In classical international law a State could only make reservations if all other parties would agree
d) States can use “objections” to react to another state’s reservation. Objections, however, do not preclude the entry into force of the treaty between the objecting state and the reserving state unless the objecting state specifically claims so.
b: that is an Interpretative Declaration, not Reservation (in an Interpretative reservation the State does not recognize the provision as binding unless it is interpreted in the way decided by the state –> e.g: Malta on Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (1979)
Which of the following statements is NOT true:
a) Invalidity prevent the treaty from having legal effects from the moment a treaty becomes binding for the contracting states, operating ex nunc
b) Termination is when a perfectly valid treaty stops having effect at some point –> Termination operates ex tunc
c) if a clause of absolute invalidity is found even in only one article of the treaty, the treaty as a whole becomes invalid: there is no separability of the invalid provisions for absolute invalidity
d) In the case of relative invalidity, if the state that could invoke the ground of invalidity does not invoke it, then the treaty becomes automatically valid because, by not invoking the ground of invalidity, that state expressed a tacit consent (regularization of invalidity)
a and b:
Invalidity –> ex tunc
Termination –> ex nunc
Briefly summarize the content and topic of the following Articles of the 1969 Vienna Convention on the Law of Treaties:
a) Article 48
b) Article 31
c) Article 53
d) Article 52
e) Article 33
f) Article 60
a) Article 48 VCLT: Error -> if there is an error and these two conditions are presented: 1. the error is an essential basis of the state’s consent 2. the state did not contribute to the error + it was not aware nor should have not been aware the error; then, the treaty is invalid
b) Article 31 VCLT: Treaty should be interpreted in good faith + gives 3 criteria for the interpretation of treaties: 1. Literal Interpretation; 2. Systematic Interpretation; 3. Teleological Interpretation
c) Article 53 VCLT: Defines jus cogens: a peremptory norm of general international law from which no derogation is permitted + it says that if a treaty conflicts with jus cogens, the treaty is invalid
d) Article 52 VCLT: Threat of use of force –> Treaty is invalid if its conclusion has been procured by the threat or use of force. There are 3 clarifications to be made on this article: 1. only refers to arm forces 2. The “force” has to be in violation with the Charter of the United Nation 3. Not clear if this Article should be applied also to treaties produced before 1945
e) Article 33 VCLT: Treaty written in more than one official language –> the text is presumed to have the same meaning in official languages; in case of conflict, the meaning which best recognizes the object and purpose of the treaty shall be adopted
f) Article 60 VCLT: Termination as a Consequence of the Violation of the treaty -> In the case of Bilateral Treaty, if one party violates the treaty, the treaty is TERMINATED (stops being valid); in Multilateral Treaties if the treaty is violated by one state the treaty remains valid but the “guilty” state is suspended. This does not apply to Human Rights treaties which are never suspended.
What are the four types of State Succession (name + content)
- Incorporation: a state ceases to exist and it becomes part of another pre-existing state
- Unification: occurs when 2 or more state unify and form a brad new state, with a new legal order (in unification both states cease to exist and a completely new state is created)
- Secession: part of the state separates from the rest and either becomes part of an already existing state (annexation) or becomes independent
- Disintegration: it occurs when a state brakes up in many different state and the former, the initial State, doesn’t exist anymore (e.g: Yugoslavia)
What happens to Treaties when a state cease to exist? Or when a new state is created?
3 principles of customary international law apply:
1. In the case of incorporation the treaties of the preexisting state automatically apply to the entire State when it grows
2. When a new state is created, the principle of tabula rasa (clean slate) applies, which says that: no treaty obligations shall be put on a new State. However, a new state can, in the case of open multilateral treaties deliver a “notification of succession”, proclaiming that it will keep being part of the multilateral treaty of which it was previously part of.
3. Principle of continuity in localized treaties: those treaties regarding specific parts of the territory of a State remain binding even when a new state is created
Which of the following statements is NOT true?
a) There is a specific convention (1978 Vienna Convention) regarding what happens to treaties in the case of state succession, however it it has very few parties and it is generally considered not to reflect in its entirety the customary laws of the international community
b) With the unification of state the new state that is created has in its legal order a mix of both legal orders of the two previous states; this also applies to treaties, meaning that a new state that comes from unification of two states is bound to the treaties that the “old” two states were a part of
c) The two main differences between Relative and Absolute invalidity are that Relative invalidity can be regularized while Absolute can’t and that in relative invalidity we have a separability of the invalid provisions, meaning that if a clause of invalidity is found for example in Article 2, the rest of the treaty remains valid; with Absolute invalidity, instead, if a clause of invalidity is found even only in one article, the treaty as a whole is considered invalid
d) The 3 criteria of interpretation of a provision given in Article 31 of the 1969 Vienna Convention (ossia: literal interpretation, systematic interpretation and teleological interpretation) should be used all at the same time; there is no priority between these 3 criteria
b
Which Article of the 1969 Vienna Convention talks about Errors? What does it say?
Article 48 of the 1969 Vienna Convention talks about Errors: it says that if there is an error in the treaty, the treaty is invalid. However, 2 conditions must be respected for this to apply:
1. The error must be an essential basis of the consent of the state (meaning the error must effect the state’s consent to the treaty)
2. The treaty is invalid only if the state did not contribute to the error and was not or shouldn’t have been aware of the error
Which Article of the 1969 Vienna Convention talks about Fraud? Which is a case of probable state’s fraudolent behavior?
Article 49 of the 1969 Vienna Convention talks about fraud. It says that: if a state has been induced to take part in a treaty by the fraudulent behavior of another state, then the state is allowed to claim the invalidation of its consent.
A case in which a state’s consent to be bound by a treaty was probably obtained to fraudolent behavior is the Treaty of Uccialli between Italy and Ethiopia. This treaty was written by an Italian Commission in both Italian and Amharic (Ethiopian language). However, there was a discrepancy between the two versions of the treaty: the Italian version made Ethiopia an Italian protectorate, while the Ethiopian version only gave Ethiopia the option to use Italian’s diplomacy to maintain foreign relations. Considering that in the West side of the world none spoke Amharic, the version that was accepted by other countries was the Italian one.
(This situation is the casus belli for the Abissinia war)
Which Article of the 1969 Vienna Convention reads the following:
“The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect.” ?
a) Article 62
b) Article 31
c) Article 33
d) Article 51
e) Article 54
d
What does Article 52 of the 1969 Vienna Convention say? What clarifications should be made on this article?
Article 52 –> THREAT OR USE OF FORCE:
Article 52 states as it follows: “a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations”
Three clarifications must be made on this article:
1. It only refers to armed forces (no politic or economic forces -> a Declaration was added to the 1969 Vienna Convention, which condemns any kind of physical, economic or political coercion; the Declaration, however, is not binding)
2. The “force” has to be in violation with the Charter of the United Nation
3. It is unclear whether this type of invalidity only applies to treaties concluded after 1945 (when the use of force became prohibited in International law) or also before 1945
What is the “innovation” of Article 53 of the 1969 Vienna Convention?
Article 53 of the 1969 Vienna Convention is of fundamental importance because it recognizes the existence of jus cogens.
The ground of invalidity provided by Article 53 (which says that a treaty is invalid if it conflicts with jus cogens) is unique when compared to others because it is the only one that is not vice of consent: Article 53 describes a treaty that is invalid not because there is no consent, but because of the content of the treaty
