treaty law

Question 1

Vienna Conventions

Answer 1

1. Vienna Convention on the Law of Treaties 1969 (1980),
2. Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations 1986 (not yet)
3. Vienna Convention on the Succession of States in respect of Treaties 1978 (1996, Austria not party)

Question 2

definition of treaty according to VCLT

Answer 2

(1) written
(2) between states
(3) governed by international law
(4) concluded after VCLT entered into force

Question 3

types of treaties

Answer 3

1. bilateral or multilateral
2. law-making or contract-type
3. open or relatively closed or closed
4. self-executing or non-self-executing

Question 4

persons authorised under VCLT to conclude treaties

Answer 4

• person acting or behalf must show that they have full powers
• Heads of State, Heads of Government and Foreign Ministers are assumed to have full powers
• Heads of diplomatic delegations accredited have the right to adopt the text but not to express consent.
• acts of other state officials have no legal affect until state confirms it.

Question 5

stages of treaty making

Answer 5

(1) negotiation and adoption of the text
(2) authentication
(3) consent to be bound
(4) deposit
(5) entry into force
(6) registration with UN

Question 6

negotiation and adoption of the text

Answer 6

for multilateral treaties, possible with an agreed majority (if not, then 2/3) or by consensus

Question 7

authentication

Answer 7

with initial or signature: expressing agreement to text to protect it from further changes

Question 8

consent to be bound

Answer 8

• signature if no further requirement
• ratification: internal approval and international act
• accession: formal declaration of state to be bound
• exchange of instruments, if they are declared to have this effect.

Question 9

deposit

Answer 9

transmission of instrument to depositary, which is usually one of the Contracting Parties or Secretary-General of UN. They are responsible for treaty-related exchange of information.

Question 10

entry into force

Answer 10

The treaty takes legal effect. When all negotiating states expressed consent to be bound or a date specified in treaty (specific date or after receipt or certain number of ratifications)

Question 11

objective entry into force

Answer 11

the date of entry into force agreed upon by the parties

Question 12

subjective entry into force

Answer 12

the date when the treaty becomes binding for a ratifying state that only expressed its consent to be bound later. It can only occur after the objective entry into force.

Question 13

obligation before entry into force

Answer 13

prohibition to defeat object and purpose of the treaty in Art. 18 VCLT, which follows principle of bona fides and applies until state makes it clear it does not want to be bound.

Question 14

reservation

Answer 14

a state is consenting to the content of a multilateral treaty but wishes to exclude or change certain provisions in the their application to that state.

Question 15

disallowed reservations

Answer 15

• treaty prohibits it
• treaty only permits specific reservations that do not include this reservation
• it goes against object and purpose of a treaty

Question 16

views on disallowed reservations

Answer 16

1. if not allowed, than treaty takes full legal effect without reservation
2. the state does not become party to treaty

ILC: entire treaty without reservation will bound state unless clear intention showing that it does not want to be bound in that situation.

Question 17

legal effect of reservation

Answer 17

1. accepted
2. tacitly accepted after 12 month
3. object: this provision does not apply between these states
4. object and declare exclusion of treaty relation between itself and reserving state

Question 18

pacta tertiis nec nocent nec prosunt

Answer 18

Third states need to consent to a treaty for it to have effect in them. Consent is presumed for rights, but a duty requires consent.
Revocation of rights also requires consent of third party unless revocation without this consent was intended.

Question 19

interpretation according to VCLT

Answer 19

(1) textual interpretation:
ordinary meaning

(2) contextual interpretation:
- treaty text + preambles and annexes
- subsequent agreements between parties
- subsequent treaty practice
- other relevant rules

(3) teleological interpretation: considering object and purpose

Question 20

consideration of preparatory work (travaux préparatoire)

Answer 20

historical or subjective method of interpretation:
may only be used to confirm a meaning obtained by above methods or if these interpretations leaves meaning ambiguous or absurd.

Question 21

amendment of multilateral treaty by some parties

Answer 21

(1) treaty does not prohibit it
(2) rights of other parties are not affected
(3) object and purpose is not impaired

Only those consenting to be bound by amendment will, the other remain bound by non-amended.

Question 22

grounds for invalidity of a treaty

Answer 22

(1) lack of consent: only if it was concluded in manifest violation of a rule of fundamental importance

(2) error: about a fact or situation which was essential for conclusion, but only if
- itself has not contributed to it or
- should not have noticed it.

(3) material defect: fraud, coercion of a state, corruption or coercion of state representative

(4) incompatibility with ius cogens: prohibition of use of force, genocide, apartheid, torture and slavery.

Question 23

manifest violation

Answer 23

objectively evident to any state conducting itself in accordance with normal practice and good faith

Question 24

termination conditions

Answer 24

• treaty has termination clauses
• customary law grounds summarised in VCLT
• peace treaties cannot be denounced unilaterally

Question 25

grounds for termination in VCLT

Answer 25

(1) material breach
(2) supervening impossibility of performance
(3) fundamental change of circumstances (clausal rebus sic stantibus)

Question 26

material breach of bilateral treaty

Answer 26

rejection of treaty as whole or violation of a provision essential for the object and purpose of treaty, entitles other party to terminate bilateral treaty

Question 27

material breach of multilateral treaty

Answer 27

1. either all parties agree unanimously to terminate treaty or
2. party affected by breach may suspend treaty with breaching state
3. if violation radically changes position of each party, all party except violating one may suspend it in its relation with all other parties

Question 28

supervening impossibility of performance

Answer 28

an object necessary for performance of treaty is destroyed or permanently disappears.
- the state that has caused impossibility has no right to terminate, suspend or withdraw, if it was caused by violating international law duties owed to other parties.
- cannot invoke change in domestic law as a reason

Question 29

fundamental change of circumstances (clausal rebus sic stantibus)

Answer 29

it no longer corresponds to political realities:
- relevant circumstances existed at conclusion
- they were essential
- change was unforeseen
- it radical reshapes treaty obligations
- party has not brought about change by violating international law
- it does not apply to border treaties

Question 30

desuetudo

Answer 30

eg. conflicting customary law has developed

Question 31

obsolescence

Answer 31

performance is no longer expected in new situation (military provisions of 1955 State Treaty of Austria)

Question 32

disputes about invalidity

Answer 32

• if about ius cogens: referred to ICJ
• otherwise: VCLT Annex optional rules for conciliation procedure

Question 33

effect of termination

Answer 33

usually ex nunc (from now)

if because of fraud or coercion or ius cogens violation: ex tunc (from beginning)

Question 34

codifications of customary law by ILC adopted in form of a treaty

Answer 34

• Vienna Convention on Diplomatic Relations 1961
• Vienna Convention on Consular Relations 1963
• UN Convention on State Immunity 2004

Question 35

treaty conclusion in Austrian law

Answer 35

• concluded by Federal President
• for law-making: consent of National Council
• for amending basis of EU: National Council with higher quorum
• if it falls in remits of Länder: consent of Federal Council
• for other: Federal President can delegate powers to conclude them to government or single ministers to corresponding authority in domestic law.
• Provinces can conclude treaties if it is in their sphere of competence with neighbouring states or their sub-units.
• it must be announced in Official Federal Journal (BGBl III)

Question 36

exclusion of direct applicability (Erfüllungsvorbehalt)

Answer 36

National Council can decide to implement a self-executing treaty as a domestic legal act