Lesson 6/7/8 Flashcards
What is the concept of international treaty?
An international treaty is a legally binding agreement which creates reciprocal rights and obligations between international legal persons, recognised as having treaty-making
capacity
Main feature of international treaties:
i. At least between 2 parties (States or international organizations)
ii. Concordant agreement of wills
iii. Typically written (but there is debate on oral treaties)
iv. Establishing rights and obligations governed by international law
■ These rules are found in the Vienna Convention
v. Single instrument or two or more related instruments
vi. what ever its designation (Doesn’t need to be called “treaty” - can be called a convention, pact, agreement, etc.)
Definition of a treaty is found in which article of the Vienna Convention on the Law of Treaties?
- Agreement of concordant wills
- Written
- Between two or more States (bilateral / multilateral)
- Establishing rights and obligations governed by int’l law
- Single instrument or two or more related instruments
- Whatever its denomination –> substance over form
Examples of unique treaties
Maritime delimitation and territorial questions between Qatar and
Bahrain (Qatar v. Bahrain), [2001] ICJ Rep 40 = joint communique (treaty)
Aegean Sea continental shelf case (Greece v. Turkey), [1978] ICJ Rep 3
- minutes of a meeting (treaty)
Types of International Treaties (Classifications)
A) by number of parties (bilateral vs multilateral)
B) by subject (i.e., b/w states or b/w states and ios)
C) by object of the treaty (e.g., trade, environment, human rights, cultural, political)
D) by the duration of the treaty (determined duration or undetermined duration)
E) By openness of the treaty (open to all, closed to original states, semi0closed)
F) Scope of the treaty (contract law, law-making, constituting IOs)
The Codification of the Law of Treaties?
Vienna Convention on the Law of Treaties (1969)
What are the Basic Principles of VCLT?
(1) Free Consent
(2) Good Faith & Pacta Sent Servanda
What is representative of consent?
(1) Relative character of int´l treaty law: States are only obliged by treaty rules to which they give explicit consent
(2) Reciprocal character of int’l treaty-based obligations: States are only obliged by a rule vis-a-vis other States that also consent to that same rule (= contract-like)
(3) Dispositive character of int´l treaty norms: treaty rules can be modified by the consent of States
(4) Particular character of int´l treaty law: many rules only apply to States that gave consent, creating a “particular” set of obligations aplicable only inter partes
What is state consent?
expression of the State’s free will
What limits the relevance of State consent?
peremptory norms
What are the stages of consent in conclusion of international treaties? (4 stages)
(1) Negotiation
(2) Adoption of the text (Art. 9 VCLT)
(3) Authentication of the text (Art. 10 VCLT)
4. Expression of consent (Art. II(i) ff VCLT)
Art. 9 VCLT
Adoption of the text
Art. 10 VCLT
Authentication of the text
Art. II(i) ff VCLT
Expression of consent
Why is good faith relevant?
(1) It constitutes the basis of all legal relations
(2) One of the most prominent general principles of law,
(Art 38 ICJ Statute)
(3) It governs the creation and performance of legal obligations, whatever their source, in all legal systems
(4) UN Charter requires all Members to fulfill their Charter obligations in good faith à similar ethos in
Art 26 VCLT regarding Treaty obligations at large
(5) Importance emphasized by ICJ several times, e.g.
Gabčíkovo-Nagymaros (Hungary/Slovakia) [1997] ICJ Rep 7
When has the ICJ emphasized the importance of good faith?
Gabčíkovo-Nagymaros (Hungary/Slovakia) [1997] ICJ Rep 7
Which International Law Subjects have Treaty Making Power?
(1) States
(2) International Organizations
Article 6 VCLT
gives States the capacity to conclude treaties
Who within the State can conclude treaties?
(1) People with full power
(2) Other People by virtue of their function, if so authorized)
Art. 7(1) VCLT
People with full power can conclude international treaties
Art. 7(2) VCLT
People, who by virtue of their function, if so authorized, can conclude treaties
Which Articles of the Spanish Constitution Provide the Framework for the Conclusion of Treaties?
Art. 149.1.3 CE: the State has exclusive competence in matters of “International Relations”
Art. 97 CE: the government directs foreign policy
Art. 63.2, 93 96 CE : procedure for concluding international treaties at the domestic level
What is an International Treaty?
(1) written agreement between a State and other IL subjects
(2) governed by IL
What is an International Administrative Agreement?
(1) not an international treaty, but covered by IL
(2) by organs, organisms and entities of a subject of IL
(3) has a technical nature that executes or concretizes a treaty
What is a non-regulatory international agreement?
(1) Held by the state, government, organs of the General Adm.
of the State, Autonomous Communities, Universities, etc.
(2) good faith
(3) does not generate international obligations nor is governed by international law
Two Types of Application of Treaties?
(1) Direct application or “self
executing”: rules of clear, precise and unconditional writing that can be applied immediately by the powers of the state
(2) Indirect application or “ non self
executing “: rules that require the
approval of relevant laws or
regulations, immediate application is not allowed
What does Article 38 of the ICJ Convention Stipulate?
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(1) international conventions , whether general or particular, establishing rules expressly recognized by the contesting states;
(2) international custom, as evidence of a general practice accepted as law;
(3) the general principles of law recognized by civilized nations
What does Article 59 of the ICJ Convention Stipulate?
judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
What are the Phases of Conclusion of Treaties?
(1) Negotiation
(2) Adoption
(3) Authentication
(4) The Manifestation of Consent
Who Prepares a Treaty Draft?
ILC - body of experts responsible for helping develop and codify international law
Who elects the ILC?
GA
What is the mission of the ILC?
initiate studies and make
recommendations for the purpose of … encouraging the progressive
development of international law and
its codification
How is Authentication usually done and subject to which article of the VCLT?
signature and 10 VCLT
Which article of the VCLT deals with the consent to be bound by a treaty?
Art. 11
The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty e.g . diplomatic notes)notes), ratification, acceptance,
approval or accession, or by any other means if so agreed.
Art. 12-17 VCLT also.
Art. 12
consent to be bound expressed by signature
Art. 13
consent to be bound expressed by an exchange of instruments constituting a treaty
Art. 14
consent to be bound expressed by ratification, acceptance or approval
Art. 15
consent to be bound expressed by accession
Art. 16
consent to be bound expressed by exchange or deposit of instruments of ratification, acceptance, approval or accession
Is there a time-frame for ratification?
The institution of ratification grants states the necessary time frame to seek the required approval for the treaty on the domestic level to enact the necessary legislation to give
domestic effect to that treaty
Who gets custody of the treaty?
depositary
Art. 76 and 77 VCLT
Bilateral treaties : each p arty is left with an authenticated copy of the
treaty
Multilateral treaties, a depositary ” is appointed, which will retain the
authenticated text of the treaty and centralize all notifications
Who is the depositary?
The depositary may be a state or more states ) or an international
organization
What is the function of the depositary?
One of the functions of the depositary is to “register” the treaty with the UN
S ecretariat once the treaty has entered into force
77 VCLT
function of a depositary
What is the rational for the registration of treaties?
To promote a greater degree of transparency in the conduct
of international relations + provid e a comprehensive source of
international agreements for practical and research purposes
Registration with whom?
UN Secretariat
Art. 80 VCLT
Registration and publication of treaties
Art. 130 of the Charter
Every treaty and every international agreement entered into by any Member of the United
Nations after the present Charter comes into force shall as soon as possible be registered with the
Secretariat and published by it.
What Articles fo the VCLT deal with reservations to treaties?
Art. 19-23
what is the concept of restoration?
Unilateral declaration made by a State when giving its consent to an international treaty with the intention of excluding or modifying the legal effects of certain provisions of the international treaty
Which Article of the VCLT governs whether a reservation is valid?
19
When can a state not formulate a reservation?
- The reservation is prohibited by the treaty e.g . Statute of the
International Criminal Court) - The treaty provides that only specified reservations are permitted ,
which do not include the reservation in question implicit prohibition )
3.The reservation is incompatible with the object and purpose of the
treaty comaptibility test what is the object & purpose of a treaty ?)
How is a reservation made?
A reservation must be put into writing and then sent to either the
depository of the treaty, in the case of a multilateral treaty, or directly to
the other s tates party to the treaty
Can a state withdraw a reservation?
yes, at any time.
What responses are available to other states in regards to reservations?
accept or object
What are the two types of acceptance to reservations?
a) Tacit / implicit acceptance
b) Express / explicit acceptance
What are the two types of objections to reservations?
a) simple (reservation does not apply between them, still a member of the treaty)
b) qualified (no relationship between the objecting and reserving state, objecting state does not consider the reserving state as a party to the treaty)
Art. 29 VCLT
effect on space
4 effects of treaties
(1) space
(2) time
(3) respect to states parties
(4) respect to third states
Entry in force of the treaty? (effect of time)
(1) In force in the manner and on the date provided for in the
treaty.
(2) If it says nothing, consent of all negotiating states
(3) In multilateral treaties : ratification is usually required
(4) General / particular entry into force
Example of Effect of Time on Treaties
Convention Against Torture
Art 26 VCT
Application of the principle
Pacta Sunt Servanda: every treaty in force is binding on the parties and must be performed in good faith
27 VCLT
general rule: a State party may not invoke the rules of domestic law to
justify non compliance with
an international treaty
Art. 34 VCLT
General principle of the relative effect of treaties: a treaty does not create obligations or rights for a third State without its consent
General principle of the relative effect of treaties
a treaty does not create obligations or rights for a third State without its consent
Art. 35 VCLT
treaties establishing obligations for third parties
Art. 36 VCLT
treaties granting rights in favor of a third State
Art. 38 VCLT
treaties that have their origin in an international custom
What is the purpose of the rules of interpretation?
to determine the meaning and scope of the terms and clauses used in a legal business or in a rule
Which article of the VCLT stipulates the general rule of interpretation?
31
Which article of the VCLT stipulates the complementary means of interpretation?
32
what are the complementary means of interpretatio?
1) preparatory work
2) historical context
Which article of the VCLT stipulates the rules for interpreting a treaty authenticated in several languages?
33
Three Types of Interpretation?
1) According to methodology
2) According to the body
3) According to results
Types of Norms Contained in Treaties
1) direct application (self-executing)
2) indirect application (non-self-executing)
Which principles govern when a state wants to break free from its commitments?
◦ Principle of binding treaties: Pacta sunt servanda
◦ Principle of freedom of consent of States
Which Article of the VCLT govern the general rules of invalidity, termination, and suspension?
42
Are treaties often found to be invalid?
no
Absolute grounds of invalidity?
- coercion against a State representative; coercion against the State as a whole; incompatibility with jus cogens
- any state party to the treaty can invoke the invalidity of a treaty
relative grounds of invalidity?
- error, fraud, corruption, manifest violation of internal law, restriction of powers of the State representative that concluded the treaty
- can only be invoked by the state that has been the victim and can be amended
Consequences of the invalidity of treaties
(1) The provisions of a null treaty have no legal force
(2) The parties may demand a return to the status quo as far as possible
(3) Acts of good faith will not be unlawful
If the treaty is contrary to a rule of
Jus Cogens
- the parties must eliminate any act performed based on the provisions that incur nullity
- Adjust their mutual relations to the peremptory norm
Causes of termination:
- By common will of the parties
- Denunciation or withdrawal
- Termination at the initiative of a party motivated by specific
causes
Consequences of termination
- It exempts the parties from continuing to comply with the
treaty - It shall not affect rights acquired during the term of the Treaty
Termination can take place:
- In accordance with the provisions of the treaty
- At any time by consent of all parties
The suspension may be adopted when:
◦ It is provided for by the treaty
◦ By the will of the parties
Forms of suspension
◦ Simple (express agreement between parties, if it
follows from a later treaty)
◦ As an alternative to termination (temporary impossibility of compliance, fundamental change of
circumstances, violation of the treaty by a party)
Which article of the VCLT lists the consequences of suspension of treaties?
Temporary character
It exempts the parties from complying with the treaty during the suspension
It does not affect the legal relations established by the treaty
The parties shall refrain from any action which might impede the
resumption of the application of the Treaty.
