Treaties

Question 1

What are the requirements for a valid treaty?

Answer 1

1) The parties - sovereign states who have full treaty-making capacity as the traditional subjects of international law.
2) Intention
3) Consent

Question 2

How does the Convention define reservations?

Answer 2

Reservations are unilateral (undertaken by one party) statements by States when signing, ratifying, accepting, approving or acceding to a treaty. These are for the exclusion and modification of the legal effect of certain provisions of the treaty in the reserving State’s application.

Question 3

Are declarations different from reservations?

Answer 3

Yes. Declarations are statements added by States when entering a treaty to indicate how they intend to interpret and apply the instrument.

Question 4

What are derogations?

Answer 4

Derogations are when treaties explicitly permit parties to depart from their commitments for a specified period of time under certain circumstances (commonly during periods of public emergency).

Question 5

What is the argument in terms of treaties that do not permit specific provisions to be derogable in relation to reservations?

Answer 5

It has been argued that treaties which make specific treaty provisions non-derogable should be interpreted to mean that any reservations to those provisions are inconsistent with the object and purpose.

Question 6

What is the effect of a reservation on a bilateral treaty?

Answer 6

In terms of bilateral treaties (between two states), a reservation operates as a rejection of the treaty while offering a counter-offer of another treaty. If the other party rejects the reservation no treaty is produced as the parties are not ad idem.

If the other party does accept the reservation then a consensus is reached and the treaty comes into force subject to the reservation.

Question 7

What is the effect of a reservation on multilateral treaties?

Answer 7

The International Court of Justice (ICJ) had to answer the following questions in order to answer the overall issue of reservations to multilateral treaties in the Prevention of Genocide Case:

1) Could a reserving State be party to the Convention if other States objected to its reservation?
A: The Court declared that the reserving State could still be regarded as a party to the treaty unless if the reservation made was incompatible with the object and purpose of the Convention.

2) What was the effect of a reservation vis-a-vis parties objecting and those accepting?
A: States refusing to accept the reservation need not regard the reserving State as a party.

3) What was the effect of an objection by a signatory which had not ratified the Convention, and an objection by a State which was entitled to sign but had not done so?
A: The Court held that signatories could object to reservations only on ratification. Thus arising three distinct situations in terms of objections to reservations:
1. When a State makes a reservation which all the other parties accept, the treaty comes into operation subject to the reservation.
2. When a reservation is not accepted by any other State, no treaty comes into operation between the State making the reservation and the other States.
3. When a State makes a reservation which some of the parties accept, if the intention of the parties was to bar reservations then the State making the reservation does not become a party to the treaty.
Conversely, if the parties intended to allow reservations, the treaty operates subject to the reservation between the States accepting it.
The full treaty without any reservation comes into operation between States objecting to the reservation.

Question 8

In terms of reservations, how does the Vienna Convention regulate them and its limitation thereof?

Answer 8

The Vienna Convention regulates the effect of valid reservations only. Meaning when a reservation is incompatible with the purposes of a treaty, then the consequences must be determined by the concerned States. The parties may terminate the treaty with the reserving State, or the reserving State may decide to amend or revoke the reservation.

Question 9

In terms of intention of the parties to conclude a valid treaty, what are the factors to be considered?

Answer 9

1) The parties must have intended to create legal obligations and meeting the criteria for this as set out in Article 2(1)(a) of the Vienna Convention. The legal obligation is conveyed in the wording - ‘governed by international law’ in the provision as meaning that by entering into a treaty, legal rights and duties have been created.
2) Although the obligations created by treaties are normally international law obligations, States may decide that an agreement is to be governed by municipal law.
3) Treaties are usually bilateral or multilateral undertakings, however a unilateral declaration by a State may also give rise to binding international obligations. Unilateral declarations are only binding if specific terms used in the content of the declaration indicate an intention to create a compulsory obligation that is legally enforceable. Unilateral declarations must be interpreted restrictively.

Question 10

What is ad idem?

Answer 10

In terms of consent as a requirement for a valid treaty, the parties to a treaty must consent to the same provisions.

Question 11

What is partial consent?

Answer 11

Parties consent occurs when a potential State party does not wholly agree with all the terms of the treaty agreement and therefore may make a reservation.

Question 12

What authority governs reservations and under what circumstances are they not permitted?

Answer 12

Article 19 of the Vienna Convention on the Law of Treaties permits reservations to treaties.

Unless:

• The treaty explicitly prohibits reservations.
• The treaty provides that only specific reservations may be made thus prohibiting other types of reservations.
• The reservation is incompatible with the object and purpose of the treaty.

Question 13

What are treaty derogations?

Answer 13

When treaties explicitly permit parties to depart from the commitments for a specified period of time under certain circumstances such as during periods of public emergency.

Question 14

What is the argument for treaties that do not permit derogations for certain provisions?

Answer 14

It has been argued that treaties which make specific treaty provisions non-derogable should be interpreted to mean that any reservations to those provisions are inconsistent with the object and purpose pf the treaty.

Question 15

What is the effect of a reservation on bilateral treaties?

Answer 15

A reservation in a bilateral treaty serves as a rejection of the treaty along with the counter-offer of another treaty. If the other party does not accept the reservation then no treaty is created because the parties were not ad idem (agree on the same provisions - a meeting of the minds).
But, if the other party accepts the reservation then a consensus is reached and therefore the treaty comes into force subject to the reservation.

Question 16

Which case dealt with the effect of reservations to multilateral treaties?

Answer 16

Case that determined the effect of reservations to multilateral treaties is: The Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Case.
The principles set out in this case have been incorporated into the Vienna Convention on the Law of Treaties.

Question 17

What are the modes of expressing consent according to the Vienna Convention on the Law of Treaties?

Answer 17

Signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession by an other means if so agreed.

Question 18

What occurs if a State’s system of municipal law has no clear rules on the need for ratification in order to bind the State in a treaty and thus be regarded as full consent to the treaty by a State?

Answer 18

The Vienna Convention provisions apply:

• The treaty itself may demand either signature or ratification.
• The parties may specifically agree that signature or ratification indicates full consent.
• A State might have indicated that signature or ratification was intended to be binding in the powers given to representatives at the start of or during negotiations.

Essentially, there are various ways and stages in which a State can be said to be fully bound to a treaty, and that is dependent on whether municipal laws of full consent were applied or one of the above three provisions from the Vienna Convention on the Law of Treaties determining when a State has become bound to a treaty.

Question 19

What accession to a treaty and does it have the same effect as a signature and ratification in terms of expressing consent?

Answer 19

Accession is a form of consenting to a treaty - and is done by States that did not partake in the negotiations leading up to the treaty but is permitted to join later by the other parties.

Yes, accession does have the same effect as signature and ratification.

Question 20

When is Accession permitted?

Answer 20

Only if the treaty makes provision for it or if all the parties agree that other states should be permitted to accede to the treaty.

Question 21

Explain an exchange of instruments as a mode of expressing consent?

Answer 21

In the absence of a contrary provision, this method is deemed to constitute consent. Parties usually agree to deposit instruments with a third party, which is generally the Secretariat of the United Nations.

Question 22

Is the entry into force of a treaty and consent the same thing?

Answer 22

No. Entry into force of a treaty may take place at the same time as consent is given or it can be delayed due to the need for negotiating parties to adjust their domestic laws and policies to meet the demands of their international law obligations. Therefore treaties may provide that a treaty will come into force only after a certain number of ratifications have been received.

Question 23

What is the procedure of registering a treaty?

Answer 23

The United Nations Charter has adopted the rule that member States are obliged to register their treaties with the UN Secretariat which also publishes the registered treaties.

Question 24

Are unregistered treaties valid?

Answer 24

Yes, unregistered treaties are valid, however they may not be invoked before any organ of the United Nations including the International Court of Justice.

Question 25

What is ius cogens?

Answer 25

Ius cogens is a body of overriding rules of international law which States are always bound to observe.

Question 26

What happens if a treaty does not observe to ius cogens?

Answer 26

If a treaty does not conform to the overriding rules of ius cogens it is invalid to the extent of the conflict. This is according to Article 53 of the Vienna Convention on the Law of Treaties.

Question 27

What are the peremptory norms of general international law?

Open-ended list

Answer 27

• The prohibition against acts of aggression, apartheid or genocide
• The right to self-determination
• Article 103 of the UN Charter provides that in the case of a conflict between a member State’s obligations under the UN Charter and an obligation under any other international agreement, the UN Charter obligation prevails.

Question 28

What does the South African Constitution say about who can represent the country in treaty negotiations?

Answer 28

In terms of section 231(1) of the Constitution, read with Chapter 5, the President and the national executive have the power to negotiate and sign international agreements.

And then, in terms of section 231(2) of the Constitution, the National Assembly and National Council of Provinces have the power to ratify or accede to treaties.

Question 29

Are oral treaties also governed by the Vienna Convention on the Law of Treaties?

Answer 29

No. If am agreement is to be governed by the Vienna Convention, it must be in writing.

Question 30

When can a valid treaty be avoided?

Answer 30

If it is flawed due to: fraud, corruption, ,mistake of fact, coercion, or conflict with a provision of domestic law.

These grounds of avoidance of a treaty are premised on the notion that there was no proper consent by the aggrieved party.

Question 31

Are treaties still valid if a Head of State who, according to Domestic Law, is not permitted to conclude treaties without the prior consent of the legislature?

Answer 31

The treaty is still valid in this scenario only if the other parties of the treaty were not aware that that Head of State was breaching their municipal laws.

A representative’s powers may be subject to special restrictions, however, failure to observe these restrictions may not be invoked as a ground for invalidating the treaty UNLESS the restriction was notified to the other negotiating States prior to expression of consent.

Question 32

When is a treaty’s invalidity relative and when is it absolute invalidity?

Answer 32

1) In the case of fraud, corruption, mistake of fact and conflict with provisions of domestic law, the invalidity is relative. Meaning the aggrieved State can choose to be repudiated of its treaty obligations or allowing the treaty to operate in spite of the defect in consent.

2) However, on the grounds of
personal coercion, the result is absolute invalidity. Meaning the treaty is automatically void and of no legal effect.

Personal coercion is duress applied to a negotiating representative and can lead to repudiation and avoidance of the treaty.

However, coercion applied to the State itself at large is not necessarily a ground for avoidance - i.e. peace settlements during war. However, in terms of the UN Charter treaties obtained in terms of unlawful military duress may be repudiated by the victim. Political, diplomatic and economic coercion is, however, permissible.

Question 33

Are treaties with inequalities (of power) considered legally binding although they undermine the legitimacy of the treaties in question>

Answer 33

Yes, they are still legally binding.