Treaties: I-Law Flashcards
Basic Articles; Form of Treaties (4 points)
[1] Art 1: Just states can make treaties (hence why in the montevideo convention treaty-making capacity is so important. Overlaps with self-determination);
[2] Art 2: For the purposes of the article, treaties must be written down but can be in any form;
[3] Art 3: nonetheless, this is with any prejudice to unwritten agreements which may still be governed by custom.
[4] Gabcikovo-Nagymaros: VCLT represents international custom
Non-State Actors making treaties [1]
[1] Government of Sudan vs People’s Liberation army: treaties with non-state actors are not valid, unless the non-state actor actually succeeds in forming the government, at which point the position is looked at retrospectively to qualify the non-state actor as an ‘incipient government’, and thus capable of forming treaties.
Form of treaty; ICLR; Minutes [6]
ICLR covered by Art 2(1)(a): ‘governed by international law’;
[1] Aegean Sea Continental Shelf: objective question of ‘terms and circumstances;
[2] Obligation to negotiate access to the sea (Bolivia v Chile): (1) Politial comments; (2) no references to obligations/committments; (3) references to negotiation were not enough because they did not specify a topic or lay out a clear obligation to discuss; (4) just mentioning a broad political topic is not enough.
[3] Maritime Delimitation Dispute (Bahrain v Qatar): very objective approach, constitutional deficiencies did not show lack of intent and even if they did this would not be fatal. Difference between setting out binding conditions and merely recording the agreement.
[4] Bay of Bengal: ICJ takes a more objective view, whereas ITCLOS is divided and places more emphasis on intent, suggesting lack of constitutional process shows a lack of intent to be legally bound (cf Art 46(1)). Also see the saliance of a reference to a later agreement.
[5] Oil Platforms: it is possible for select terms to fail to qualify and to instead act as political statements.
[6] Prosecutor v Kallon and Kamara: internal treaties/agreements are not treaties as they are primarily governed by domestic law.
States giving Consent (Agent) [3]
[1] A state is bound when its agent gives consent, however the agent must exhibit Art 7(1)(a) full powers; or (b) appear from the practice of the state their intent was to give him full powers; (2) that Heads of state; government; foreign affairs, all have full powers;
[2] And in the Bay of Bengal case ITLOS decided that there was no evidence the Burmese had intended to give the naval officer representative full powers, and that he did not fall under Art 7(2). However, nb ITLOS takes a much more subjective view that the ICJ (and maybe VCLT - art 7(1)(b) is ambiguous).
[3] Also note Armed Activities (New Application 2002), where it noted increasingly individuals outside Art 7(2) are increasingly authorised to bind their state in their areas of expertise (ie, Agriculture minister).
States giving Consent (Ratification; Signature) [4]
[1] States can also bind themselves after the agent has acted. If the agent lacked authority under 7(1)(a) and (b) (which might be subjective), then the state can affirm this through Art 8.
The ILC guide suggests that the state has the power to either affirm or deny the act of the unauthorised agent (seemingly regardless of whether the agent had ostensible authority). However, they might still bind themselves if they make it seem as if they are reaffirming he had acted effectively through implication arising from their actions. It remains unclear whether Art 7(1)(b) is objective. (cf art 46/47).
[2] Art 9(2): the 2/3’s majority justification. This has been since dispensed with and now the test has been replaced with the requirement of consensus in the absence of any objections (Aust).
[3] Art 11-14: states can be held to have consented by ratificiation or signature from: (1) Explicit effect in treaty; (2) conferring effect by agreement; (3) shown by conferring effect by giving full powers. Note that ratification can take many different forms and can be acheived by the agent as well.
[4] Art 18: after signature the state must refrain from acts which would defeat the purpose of the treaty.
Performance of Treaties [3]
[1] Art 26: treaties are to be performed in good faith (pacta sunt servanda)
[2] Art 28: a treaty will bind a state in respect of events occurring after the ratification, though if the treaty expresses retroactive effect it will apply backwards. Or, as in Chiragov v Armenia, where there is a continuing situation (ie, forced out of villages).
[3] Art 29: it binds the whole territory.
Domestic Exceptions? [1]
[1] Art 27: no domestic exception to justify a breach or a failure to perform. However, if the domestic law invalidating the consent is so manifest that it was objectively apparent to the other state then it will justify claiming the treaty was never entered to in the first place.
What are the three central tensions in treaties and how to they interract? [3]
[1] Tension 1: between a ‘contractual’ view and a ‘voluntarist’ view. Do states bind themselves by their objective behaviour (to produce certainty) or their consent? The answer is not clear, but it appears the court (or tribunal) will take different views depending on the circumstance.
Key areas of this debate are: Art 46; Art 7(1)(b) for an especially illustrative faultline; Art 8; Art 2(1)(a) and minutes. Also, Art 9(2) for majority approach being abandoned and a purely voluntarist approach being used.
[2] Tension 2: between interpretation which is functional and objective and interpretation which is?
[3] Tension 3: making it easy for parties to leave treaties to avoid parties breaching and making it hard so that international convention and cooperation are maintained. There is a focus on making it harder, though this has been subject to some serious criticism. The issue is not states necessarily trying to get out with an excuse (indeed, this suggests they respect the treaty system) it’s them trying to withdraw legitimately.
Evolving Meaning [3]
[1] The courts will give some treaties and evolving meaning. So in the case of Nicarague v Costa Rica the court found that the parties had intended the document to have an evolving meaning which would change over time. A similar approach may have justified Gabcikovo-Nagymaros’s conclusion that environmental law and attitudes towards enviro-safety have changed. Another particularly blatant example of a ‘living instrument’ (HR treaty - relevant) was in Al-Saadoon and Mufdhi, where the court found that human rights standards were to be interpreted in light of present standards rather than those in the past.
[2] However, cf the approach in Whaling in the Antarctic, where the court found that the charter did have an evolving character (ie, in response to the IWC and other recommendations), but that the practice was not widespread enough, and that it needed to be universal (pushing back against multilateral treaty cooperation and upholding certainty). This may have totally clashed with Niaragua v Costa Rica, or it could be distinguished because the practice wasn’t unanimous so didn’t come under it.
A difficulty lies in the split. It seemed to apply the Art 31(b) requirement of unanimity but did also state it was an evolving instrument (which could feasibly allow IWC resolutions to change its meaning). Are they separate, or the same? cf Judge Bedjaoui’s criticism of Art 31 being overwritten in Gabcikovo.
[3] Lastly, there is a principle of contemporanity whereby the standards of parties are to be interpreted by those substisting at the time of the contract (ie, land dispute, cameroon v nigeria), interpreting ‘head of the river’, but cf Legal Consequences question where the court applies self-determination assuming it is timeless.
Art 31 and Traditional approaches to interpretation [4]
[1] Art 31 outlines a variety of different ways in which treaties are interpreted, and thus (as McNair notes) it can be seen as incoporating the different approaches. Art 31 specifies interpretation is to be carried out ‘in good faith’, using the ‘ordinary meaning of words’, using ‘context’ and with reference to the treaty’s ‘object and purpose’ (interim award). ‘Context’ is narrowly defined as agreements before or any instruments agreed (31(b). However, note these will be rarely proven and when they are they will usually just be taken as factual rather than determinative. As a starting point ‘ordinary meaning’ should be used (Territorial Dispute, Libya v Chad).
[2] Further, according to Art 31(a) subsequent agreements can be taken into account, subsequent practice insofar as they reveal a sbsequent agreement, and the relevant rules of international law.
[3] Subsequent practice under Art 31(3) must be open (Kasikili); Japan taxes on alcoholic beverges: it must be concordant, common and consistent. A good example of this is Legal consequences, where the court found that subsequent practice accepted P5 abstention. Further, it may be seen as an example of the court’s departing from the intent of the parties at the time and developing the law to match political reality, whilst also aiming to extend the cooperation forward by binding parties to shared practice.
[4] This approach was applied as custom in Qatar v Bahrain.
Art 31 and traveux preparatoires debate
This debate emerges from Art 31(3) and the use of preparatory materials. Schewbel’s dissent in Bahrain v Qatar is particularly useful to look at and reveals the usefullness of using TP when the language is ambiguous. Cf Physical casenote.
Nicaragua v Costa Rica’s three requirements + example of where it was applied.
Eg, Aegean Sea Continental Shelf, where it was held the treaty’s referral to the continental shelf was in reference to the standards as they were understood by the international community, something liable to change.
3 Requirements:
(1) Where a generic term was used in the treaty;
(2) The parties necessarily having been aware of the fact its meaning would evolve;
(3) Where the treaty is long or continuing;
Note as well this seems to be different merely from subsequent practice being used to ‘interpret the treaty’ in hindsight. This is because (A) it is an intent at the time of making the treaty, and (B) the meaning does not solely change in reference to the subsequent practice revealing agreement but could reflect, amongst other things international law (or standards for environmental safety).
Treaties and Third Parties
Art 34-37
Domestic law and Acts of Agents
Art 46: the state cannot rely on defects in its internal law unless they are objectively manifest and important enough.
Art 47: the state is still bound by an agent who is purporting to carry out an act which binds the state finally even if they put a restriction on his power to do so (ie extent), unless the other state is given notice. This does not apply for instances when the agent is merely carrying out the first stage - if the state does subsequently ratify it then they are taken to have confirmed his ability to do so.
This would be circumstances where the states have dispensed with the requirement of showing consent through ratification, or where the individual has the pwoer to ratify under domestic law directly.
Termination of Treaty for Breach
When it comes to a state terminating for a breach, according to Art 60 the breach needs to be material. This is a high standard and reflects the courts trying to uphold agreements (courts are not the destroyer of contracts).
[1] Gabcikovo Nagymaros: the standard was not met by one side preparing to breach, and it seemed Hungary prejudiced any right they might have by pre-emptively terminating themselves. Also note, damages might be granted before a treaty can be terminated for breach.
[2] Interim award: the breach was not serious enough. Further, the termination must be in response to the breach. Greece’s actions were not a response to the flag flying.
[3] for art 60(4) an example of one instance is arms treaties, where breach by one state justifies the others to suspend performance to arm and defend themselves.
