Treaties

Question 1

Court looks at the following in treaty interpretation

Answer 1

1. Plain meaning of treaty;
2. Teleological approach: purpose of treaty;
3. Exec branch interpretation;
4. Other countries’ interpretation (esp. Chile);
5. Publicists and experts.

Question 2

ADOPTION of the treaty

Answer 2

Through discussions, clarifications in the language and stipulations are made. After a while someone calls this is good enough and the states vote.
If a majority (2/3rds) votes in favor of this particular draft instrument, then that instrument becomes ADOPTED as the definitive text about how the particular problem should be dealt with [Art. 9 VCLT].

Question 3

AUTHENTICATION of the treaty

Answer 3

After adoption of the treaty they, then make sure everything is fine, commas is where they are etc., text then is AUTHENTICATED [Art. 10 VCLT].

Question 4

SIGNING of the treaty

Answer 4

The next step after authentication is the SIGNATURE [Art. 12 VCLT]. The states sign, because this is a ritualistic commitment, through that public form of expression. This represents a level of affirmation of commitment.
Now the states have the refrain from behavior that defeat the object and purpose of the treaty. [Art. 18 VCLT].

Question 5

RATIFICATION of the treaty

Answer 5

The signed, authenticated, adopted treaty will be debated by the domestic legislatures.
Legislative involvement is an operational necessity b/c in a separation of powers government, the executive needs the input of the legislative to properly make a treaty binding and enforce it.
A treaty has a limited amount of time to ratify the treaty. Not all states can get it done within the prescribed period.

Question 6

Three possibilities why a state cannot ratify

Answer 6

1. They run out of time.
2. They were not at the original conference. They cannot ratify it because they have not signed it (yet).
3. State didn’t exist yet when the treaty was adopted, authenticated, and signed.

Question 7

ACCESSION to a treaty

Answer 7

States that did not originally draft a treaty can still join the treaty. This is called ACCESSION. They can still sign it and submit it to their domestic legislature. Same result as ratification.

Question 8

Entry into force of the treaty

Answer 8

Many int’l treaties have entry into force provisions. [Art. 55 VCLT]. The treaty only becomes fully binding once a certain number of states ratify it. Customary law = 20 states, but the treaty can say otherwise. [Art. 24 VCLT].

Question 9

Who can sign a treaty?

Answer 9

States and some int’l organizations that have int’l legal personality (some UN organization). Overwhelmingly states. The hallmark of international legal treaties is consent.

Question 10

RESERVATION to a treaty

Answer 10

A RESERVATION means that a state signed and ratifies the treaty except for a couple of things that we do not agree with. This has to be in writing. [Art. 2 VCLT].
This is allowed IF the reservation does not defeat the object and purpose of the treaty. [Art. 19 VCLT]. It cannot be fundamental. Some treaties can forbid reservations.

Question 11

Responding to a Reservation

Answer 11

The reservation is deposited at a specified place — states respond. They can:

• Accept;
• Accept and act reciprocally: issue the same reservation with regards to that state;
• Object: This can mean (1) there is no real consequence OR (2) a state can say I object and it changes our relationship and the states does not consider itself bound to the reserving party.

Question 12

Modification/Amendments to a treaty

Answer 12

Art. 41: changes to the treaty across the board, contractual obligations that are being amended. “Renegotiation” is possible under Art. 41, IF (1) the treaty allows amendments and (2) it doesn’t affect other party’s advantages of the treaty AND (3) it doesn’t derogate from the object and purpose of the treaty.

Question 13

Validity of Treaties (Art. 46): Invalid if

Answer 13

1. The agent of the state did not have the necessary authority (Art. 47)
2. Error or mistake (Art. 48)
3. Fraud (Art. 49)
4. Corruption (Art. 50)
5. Coercion (art. 51)
   Any of these five make a treaty non-enforceable toward that state.

Question 14

Withdrawl and Denunciation

Answer 14

Any state can withdraw (multilateral treaties) or denounce (bilateral treaties) from a treaty at any time because they are based on state consent.

Question 15

Remedy to breach of a treaty

Answer 15

There is a presumptive remedy for breach = termination. If breach occurs the other states that are parties to the treaty can (1) suspend or (2) terminate the breaching state.
The breach has to be material/fundamental.

Question 16

Set aside a treaty

Answer 16

Changed circumstance or impossibility allow for a treaty to be set aside. (Art. 61 and 62).

Question 17

Treaty INTERPRETATION

Answer 17

Interpretation of the treaty provision in good faith in accordance with the ordinary meaning in light of the object and purpose of the treaty.
⇨ Plain language rooted in theological interpretation.

Question 18

When can we bring in supplemental means of interpretation?

Answer 18

Only if the plain language interpretation leads to (1) a result that is manifestly absurd or (2) obscured/ambiguous, then we can bring in supplemental means of interpretation (Art. 32: that is draft treaties, circumstances, preparatory works, conversations about it).
⇨ The treaty lists official languages that are authoritative regarding the interoperation.