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PBL 320 > Treaty Law > Flashcards

Treaty Law Flashcards

1
Q

What is the VCLT?

A

Vienna Convention on the Law of Treaties (VCLT), 1969:

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2
Q

Purpose of VCLT

A

The VCLT was intended to :

  • clarify rules of interpretation and definition,
  • to ensure a uniform approach is adopted in dealing with problems relating to treaties,
  • whether concerned with their formation,content or termination.
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3
Q

Article 1 of VCLT

A

Applies to treaties between States.

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4
Q

Article 3 of VCLT

A

It does not apply between two or more international organizations, or to unwritten international agreements.

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5
Q

Article 34 of VCLT

A

A treaty does not create either obligations or rights for a third State without its consent.

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6
Q

Why are treaties important?

A

➢ Much of International Law is regulated by treaty.
➢ Treaties are a more direct and formal method of international law creation.
➢ They are predictable and certain (compared to custom).

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7
Q

Definition of a Treaty

A

Article 2(1)(a) of the VCLT

▪ A treaty is
1. an international agreement
2. concluded between states
3.,in written form
4. and governed by international law,
5. whether embodied in a single instrument or two or more related instruments
6. and whatever its particular designation.

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8
Q

Other terms for treaties

A
  1. Conventions
  2. International Agreements
  3. Pacts
  4. General Acts
  5. Charters
  6. Protocols
  7. Statutes
  8. Covenants
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9
Q

Categories of treaties

A
  • Bilateral (two parties)
  • Multilateral (multiple parties),
  • Constitutive (consulting an international organization or a court, etc).
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10
Q

Formal Requirements for the Conclusion of a Treaty (Four Golden Questions (NB)

A

➢ Does the ‘document’ meet the elements of the definition of a
treaty?
▪ Article 2(1)(a) – VCLT
➢ Who can sign a treaty?
▪ Article 7 – VCLT
➢ Is there express consent to be bound by the treaty?
▪ Article 11 – VCLT
➢ Is the treaty registered?
▪ Article 80 VCLT – Registration

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11
Q

Q1. Does the ‘document’ meet the elements of the definition of a treaty?

A

➢ Article 2(1)(a) – VCLT
▪ International Agreement
▪ Concluded between states
▪ Written
▪ Governed by international law

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12
Q

Q2. Who can sign a treaty?

A

➢ Article 7 – VCLT
▪ Head of State
▪ Head of Government
▪ Minister of Foreign Affairs
▪ Head of Diplomatic Missions
▪ Representatives accredited by States to an international conference or to an international organization or one of its
organs.
▪ Any other person who produces full powers from the State.
* Article 2(1)(c) defines full powers as:
A document designating him/her as an
authorized person.

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13
Q

Q3. Is there express consent to be bound by the treaty?

A

➢ Article 11 – VCLT
➢ Article 26 – VCLT

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14
Q

Article 11 – VCLT

A

▪ Means of expressing consent to be bound by a treaty.
▪ The consent of a State to be bound by a treaty may be
expressed by:
* Signature,
* Exchange of instruments constituting a treaty,
* Ratification,
* Acceptance,
* Approval or accession, or
* By any other means if so agreed.

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15
Q

Article 26 – VCLT

A

▪ Every treaty in force is binding upon the parties to it and
must be performed by them in good faith.

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16
Q

Article 9 – VLCT

A

▪ Adoption
* The text of the treaty is formally agreed upon by states.
* Adoption does not create any binding obligations for
the States involved.
* It is reached by:
 Consensus,
 Two-thirds majority, or
 A different rule.

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17
Q

Article 12 – VCLT

A

Signature
* Signature by authorized person with full powers.
* Indicates a State’s initial consent to the treaty.
* If a treaty is subject to ratification, the signature does
not establish a consent to be bound.

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18
Q

North Continental Shelf Cases 1969, ICJ
(Under Article 12)

A

 A State that has signed but has not yet ratified a
treaty is obliged to refrain from acts that defeat the
object and purpose of such treaty.
 Thus, they cannot act contrary to the objects and
purpose of such a treaty.

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19
Q

Article 14 – VCLT

A

▪ Ratification, Acceptance, Approval
* The formal act by which a State expresses its content to be bound by a treaty.
* Ratification requires legislative approval (internal act of approval)
* States deposit their instruments (documents) for ratification, acceptance, or approval with a designated depositary.
* Upon ratification, acceptance, or approval, the State is legally bound by the treaty under international law

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20
Q

Article 15

A

▪ Accession
* The process by which a State can become party to a treaty it has not signed.
* This is typically used for States that wish to become parties to a treaty after it has already been negotiated and signed by other States.
* Accession has the same legal effect as ratification,
acceptance or approval.
* E.g. Rome Statute of the International Criminal
Court, Art. 25(3) – open to accession by all states

21
Q

Q4. Is the treaty registered?

A

➢ Article 80 VCLT – Registration

➢ Article 102 UN Charter – Registration of Treaties

22
Q

Article 80 VCLT – Registration

A

▪ After entry into force, the treaty must be registered/transmitted to the Secretariat of the UN, otherwise, it cannot be used in any dispute before/of the UN organs.

23
Q

Article 102 UN Charter – Registration of Treaties

A

▪ 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.
▪ No party to any such treaty or international agreement which has not been registered in accordance with the
provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations

24
Q

Observation of a Treaty

A

The binding nature of treaties is at the very heart of international law and is derived from the principle of pacta sunt
servanda.
Regulated by article 26 and 27 of VCLT

25
Q

Article 26 VCLT

A

Every treaty in force is binding upon the
parties to it and must be performed by them in good faith.

26
Q

Article 27 VCLT

A

A party may not invoke the provisions of its internal law as a justification for its failure to perform a
treaty.

27
Q

Process of Treaties

A

➢ Negotiation, Adoption and Signature
➢ Ratification, Acceptance or Approval
➢ Depositing Instruments
➢ Entry into Force
➢ Registration

28
Q

❖ Reservations of Treaties

A

The VCLT allows a state to refuse to be bound by a provision of a treaty it does not agree with – while consenting to be bound by the rest.

29
Q

Which article regulates reservation of treaties

A

Article 2(1)(d) VCLT
❖ A reservation is:
➢ A unilateral statement
➢ Made by a State
➢ When entering into a treaty
➢ Aim to exclude or to modify the legal effect of certain provision(s) of the treaty
➢ In its application to that State

30
Q

Factors to Consider in Reservations

A

– Article 19 VCLT
❖ Factors that need to be taken into account regarding reservations:
➢ Whether a treaty prohibits reservations
➢ Whether a treaty provides only for specified reservations
➢ Whether the reservation is incompatible with the object and
purpose of treat

31
Q

The Traditional Rule on reservations

A

❖ Article 20(1) and 20(2)
➢ Reservations must be made with the consent of all the other States involved.
➢ (1) There is no need for acceptance of reservation by all states if the treaty expressly authorizes it.
➢ (2) Reservation requires acceptance of all states if it is clear from the negotiating states and from the object and purpose of the treaty that for it apply in its entirety it requires the consent of each state to be bound.

32
Q

Reservations vs Interpretative Declaration

A

❖ Interpretative Declaration
➢ Unilateral statements
➢ Made by a State or International organisation
➢ Clarifying the meaning or scope of a treaty or its provisions
➢ Without altering its legal effect

Reservation
➢ Statements
➢ By a State or International Organization
➢ Which modify the legal effect of certain treaty provisions
➢ Allowing them to exclude or alter the application of those
provisions

33
Q

Invalidity of a treaty

A

Article 53
➢ Treaties conflicting with a peremptory norm of general
international law (jus cogens).
➢ A treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law.

34
Q

What is a peremptory norm

A

A peremptory norm is: a norm accepted and recognized by the international community of States as a whole

35
Q

Conditions for invalidity of a treaty under article 53

A

▪ No derogation is permitted
▪ Can be modified only by a subsequent norm of general
international law having the same character

36
Q

Invalidity of a Treaty – Article 64

A

➢ Emergence of a new peremptory norm of general international
law (jus cogens)
➢ If a new peremptory norm of general international law
emerges, any existing treaty which is conflict with that norm
becomes void and terminates.

37
Q

What is jus cogens according to Article 53 of the VCLT

A

It is a peremptory norm of General International Law… accepted and recognized by the international community of states as a whole and from which no derogation permitted and which can only be modified by a subsequent norm of general international law having the same character.

38
Q

The Four Criteria of Article 53

A

➢ Must have the status of general international law
➢ It must be accepted by the international community as a whole
➢ It must be non-derogable
➢ It may only be modified by a new norm having the same status

39
Q

The Nature of Jus Cogens

A
  • They reflect and protect fundamental values of the international community.
  • They are universally applicable
  • They are hierarchically superior to all other rules of international law.
40
Q

What is the most common basis for
peremptory norms of general international law

A

Customary International Law

In other words, most jus cogens norms find their origins from customary
international law norms or rules.

41
Q

Examples of ways in which customary international law is basis for peremptory norms

A

➢ Prohibition of aggression
➢ Prohibition of genocide
➢ Prohibition of crimes against humanity

42
Q

What are Obligations Erga Omnes?

A

❖ Obligations that a state has towards the international community as a whole.

43
Q

Nature of these obligations:

A
  • They have universal applicability,
  • are non-derogable (can’t be removed)
  • call for collective responsibility in their enforcement.
44
Q

Barcelona Traction case

A

▪ There is a distinction between erga omnes obligations and
treaty obligations.
▪ Erga omnes obligations are the concern of all states and all states can be held to have a legal interest in their
protection.
▪ Treaty obligations are only of concern to the parties to such a particular treaty.

45
Q

Link between Jus Cogens and Obligations Erga Omnes

A

❖ Many Jus Cogens norms to give rise to erga omnes obligations
because of the nature and character of jus cogens norms – which
often demand a collective responsibility in terms of their enforcement.

❖ The prohibition of genocide is a jus cogens norm which gives rise
to obligations erga omnes. All states must prevent and punish
genocide and can incur responsibility for failing to do so.

46
Q

Article regulating Termination or Withdrawal of a Treaty

A

Article 54 of the VCLT

47
Q

The Rules for Termination or Withdrawal of a Treaty

A

Termination can happen under its provisions or by consent of the parties

48
Q

How must termination take place?

A

▪ In conformity with the provisions of the treaty; or
▪ At any time by consent of all the parties after consultation with the other contracting states.

49
Q

Distinguishing the two options under Artcle 54 of VCLT

A

➢ Termination = The entire treaty ends
➢ Withdrawal = Only one State chooses to leave but the treaty
remains in existence

PBL 320 (5 decks)

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