treaty law - slides

Question 1

Sources of International Law –
Art 38 ICJ Statute

Answer 1

Article 38
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting States;
b) international custom, as evidence of a general practice accepted
as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.[…]

Question 2

Source of Law of Treaties

Answer 2

Vienna Convention on the Law of Treaties
1969
* in force since 1980
* 2024: 116 parties to the treaty
* Austria acceded in 1979
* Many VCLT provisions are custom & default rules

Question 3

2. The notion of ‘treaty’ (general)

Answer 3

1. agreement of a suitably formal character
2. between 2 or more States (or other
   international legal persons)
3. intent to create legal relations governed by
   international law

Question 4

2. Notion of ‘treaty’ (VCLT)

Answer 4

1. agreement of a suitably formal character
2. concluded between 2 or more States
3. intent to create legal relations governed by
   international law
4. in writing
   VCLT’s scope of application limited to treaties postdating VCLT’s entry into force

Question 5

Bolivia v. Chile, para. 126 - ex

Answer 5

“[…] the Declaration of Charaña […] could be characterized as
a treaty if the Parties had expressed an intention to be bound
by that instrument or if such an intention could be otherwise
inferred. However, the overall language of the Declaration
rather indicates that it has the nature of a political document
[…] The engagement “to continue the dialogue, at different
levels […] cannot constitute a legal commitment to negotiate
Bolivia’s sovereign access to the sea, which is not even
specifically mentioned. [Ministers] did not go beyond
reaffirming “the need of continuing with
the negotiations”.

Question 6

Self executing vs. non self
executing treaties

Answer 6

Article 86 Rome Statute of the International Criminal
Court: General Obligation to Cooperate
‘States Parties shall, in accordance with the
provisions of this Statute, cooperate fully with the
Court in its investigation and prosecution of crimes
within the jurisdiction of the Court.’

Question 7

Means of expressing consent to
be bound by a treaty

Answer 7

• signature (if no ratification is needed)
• ratification (internal act of approval & declaration of
  acceptance)
• accession
• exchange of instruments constituting a treaty

Question 8

3. Treaties requiring ratification

Answer 8

1
st Phase: appointment of plenipotentiaries
2
nd Phase: adoption of text
3
rd Phase: signature
4
th Phase: domestic approval
5
th Phase: ratification
6
th Phase: deposit with United Nations

Question 9

Treaty requiring ratification: VCLT

Answer 9

Article 81 - Signature
The present Convention shall be open for signature by all States Members of the United
Nations or of any of the specialized agencies or of the International Atomic Energy
Agency or parties to the Statute of the International Court of Justice, and by any other
State invited by the General Assembly of the United Nations to become a party to the
Convention, as follows: until 30 November 1969, at the Federal Ministry for Foreign
Affairs of the Republic of Austria, and subsequently, until 30 April 1970, at United
Nations Headquarters, New York.
Article 82 - Ratification
The present Convention is subject to ratification. The instruments of ratification shall be
deposited with the Secretary General of the United Nations.
Article 83 - Accession
The present Convention shall remain open for accession by any State belonging to any
of the categories mentioned in article 81. The instruments of accession shall be
deposited shall be deposited with the Secretary-General of the United Nations.

Question 10

Stages of treaty-making –
no ratification

Answer 10

1
st Phase: Appointment of plenipotentiaries (Art 7)
2nd Phase: Adoption of text
3rd Phase: Signature / exchange of instruments
4th Phase: Deposit with UN (Art 102 UN Charter)

Question 11

Power to conclude treaties

Answer 11

• State have
  plenary capacity
  to conclude
  treaties (contrast
  with IOs)
• International legal
  persons
  determine which
  organs may
  conclude a treaty - If concluded without full
  powers: consent ex post
  (otherwise invalid)
• Full Powers
  by virtue of a
  person’s
  position
• Full powers
  (delegated)

Question 12

Delegated full powers (Art 7(1)
VCLT)

Answer 12

a) if a person produces appropriate full powers
b) a state may dispense with full powers
- authorization to represent a State can be
established if it appears from the practice of the State
concerned
- or from other circumstances that States intended to
consider that person as representing the State for
such purposes

Question 13

Automatic full powers (Art
7(2) VCLT)

Answer 13

Full Powers by virtue of a person’s functions
automatic, no need to produce full powers
a) Heads of State, Heads of Government and
Ministers of Foreign Affairs
b) Heads of diplomatic missions (adopting a treaty
between the accrediting state and the state they
are accredited to)
c) Representatives accredited by States to
international conferences or organizations or one
of its organs, for the purpose of adopting a treaty
in that conference/organization/organ

Question 14

Consent to be bound -
Austria

Answer 14

1. Conclusion (Art. 50, full powers, President)
2. Signature (full powers, President)
3. Ratification (after approval by NC, FC)
4. Deposit with the depositary / exchange with
   contracting States
5. Entry into force
6. Publication BGBl. III

Question 15

Invalidity

Answer 15

pacta sunt servanda
Art 26 VCLT
a party may not invoke the
provisions of its internal law as
justification for its failure to
perform a treaty (Art 27 VCLT)
except manifest violation of
internal and fundamental law
regarding competence
(Art 27 & 46 VCLT)

Grounds of
Invalidity
Procedure for
invoking
invalidity

Question 16

Invalidity – lack of competence

Answer 16

• manifest violation of a rule of domestic law
  of fundamental importance (Art 46)
• Acts of a person lacking the competence to
  represent the state
  – violation of internal law governing
  competence (Art 46)
  – omission to observe a restriction of the
  authority of a representative (notification
  needed) (Art 47)

Question 17

ICJ, Cameroon v. Nigeria, Land and
Maritime Boundary, 2002 (1)

Answer 17

265. Nigeria’s argu[es] that its constitutional rules regarding the conclusion of
     treaties were not complied with […] Article 46 (1) VCLT provides that “[a] State
     may not invoke the fact that its consent to be bound by a treaty has been
     expressed in violation of a provision of its internal law regarding competence to
     conclude treaties as invalidating its consent”. It is true that the paragraph goes on
     to say “unless that violation was manifest and concerns a rule of its internal law
     of fundamental importance”, while Article 46 (2) provides that “[a] violation is
     manifest if it would be objectively evident to any State conducting itself in the
     matter in accordance with normal practice and in good faith”. The rules
     concerning the authority to sign treaties for a State are constitutional rules of
     fundamental importance. However, a limitation of a Head of State’s capacity in
     this respect is not manifest in the sense of Article 46, paragraph 2, unless at
     least properly publicized

This is particularly so because Heads of State belong to the group of
persons who, in accordance with Article 7, paragraph 2, of the
Convention “[i]n virtue of their functions and without having to produce
full powers” are considered as representing their State. The Court
cannot accept Nigeria’s argument that Article 7, paragraph 2, of the
VCLT is solely concerned with the way in which a person’s function as a
state’s representative is established, but does not deal with the extent of
that person’s powers when exercising that representative function. [As
the ILC said] “Heads of State . . . are considered as representing their
State for the purpose of performing all acts relating to the conclusion of a
treaty”.

Question 18

ICJ, Cameroon v. Nigeria, Land and
Maritime Boundary, 2002 - (2)

Answer 18

[Regarding Nigeria’s argument that Cameroon knew, or ought to have
known] the Court notes that there is no general legal obligation for States
to keep themselves informed of legislative and constitutional
developments in other States which are or may become important for the
international relations of these States. In this case the Head of State of
Nigeria had in August 1974 stated in his letter to the Head of State of
Cameroon that the views of the Joint Commission “must be subject to the
agreement of the two Governments”. However, in the following
paragraph of that same letter, he further indicated: “It has always been
my belief that we can, both, together re-examine the situation and reach
an appropriate and acceptable decision on the matter.“

Contrary to Nigeria’s contention, the Court considers that
these two statements, read together, cannot be regarded
as a specific warning to Cameroon that the Nigerian
Government would not be bound by any commitment
entered into by the Head of State. And in particular they
could not be understood as relating to any commitment to
be made at Maroua nine months later. The letter in
question in fact concerned a meeting to be held at Kano,
Nigeria, from 30 August to 1 September 1974.

This letter seems to have been part of a pattern which
marked the Parties’ boundary negotiations between 1970
and 1975, in which the two Heads of State took the initiative
of resolving difficulties in those negotiations through
person-to-person agreements, including those at Yaoundé
II and Maroua.
…
268. In these circumstances the Maroua Declaration, as
well as the Yaoundé II Declaration, have to be considered
as binding and as establishing a legal obligation on Nigeria.

Question 19

Other grounds of Invalidity

Answer 19

• error (mistaken impression of facts) (Art 48)
• fraud and corruption (Art 49 & 50)
• coercion of a representative of a State (Art 51)
• coercion of a State by the threat or use of force
  (Art 52)
• Incompatibility with jus cogens (Art 53)

Question 20

Notion and types of
reservations

Answer 20

Art 2(1)d VCLT
- excluding a treaty
prov isio n
- m odifyin g the leg al effec t
of a provisio n

Question 21

5. Saudi Arabia’s
   reservation to CEDAW

Answer 21

1. In case of contradiction between any term of
   the Convention and the norms of Islamic Law,
   the Kingdom is not under obligation to observe
   the contradictory terms of the Convention.
2. The Kingdom does not consider itself bound
   by Paragraph 2 of Article 9 of the Convention
   and Paragraph 1 of Article 29 of the
   Convention.

Question 22

Austria’s objection to Saudi
Arabia’s CEDAW reservation

Answer 22

[Para. 1 of Saudi Arabia’s] reservation […] does not clearly specify the
provisions of the Convention to which it applies and the extent of the
derogation therefrom raises doubts as to the commitment of the Kingdom of
Saudi Arabia to the Convention.
Given the general character of this reservation […] Austria considers the
reservation as not affecting any provision the implementation of which is
essential to fulfilling the object and purpose of the Convention […] the
reservation in question is inadmissible to the extent that its application
negatively affects the compliance by Saudi Arabia with its obligations under
the Convention essential for the fulfilment of its object and purpose. […]
As to the reservation to Paragraph 2 of Article 9 of the Convention
Austria is of the view that the exclusion of such an important provision of
non-discrimination is not compatible with object and purpose of the
Convention. Austria therefore objects to this reservation.
This position, however, does not preclude the entry into force in its
entirety of the Convention between Saudi Arabia and Austria.

Question 23

UK reservation, CEDAW

Answer 23

none of [the UK’s] obligations extend to the
succession to, or possession and enjoyment of,
the Throne, the peerage, titles of honour, social
precedence or armorial bearings, or as
extending to the affairs of religious
denominations or orders or to the admission into
or service in the Armed Forces of the Crown

Question 24

US reservation, UN-CAT

Answer 24

the United States considers itself bound by the
obligation under Article 16 to prevent “cruel,
inhuman or degrading treatment or punishment,”
only insofar as the term “cruel, inhuman or
degrading treatment or punishment” means the
cruel, unusual and inhumane treatment or
punishment prohibited by the Fifth, Eighth,
and/or Fourteenth Amendments to the
Constitution of the United States.

Question 25

Spain, UNCLOS - reservation

Answer 25

In ratifying the Convention, Spain wishes to make it known that this
act cannot be construed as recognition of any rights or status
regarding the maritime space of Gibraltar that are not included in
article 10 of the Treaty of Utrecht of 13 July 1713 concluded between
the Crowns of Spain and Great Britain. Furthermore, Spain does not
consider that Resolution III of the Third United Nations Conference
on the Law of the Sea is applicable to the colony of Gibraltar, which
is subject to a process of decolonization in which only relevant
resolutions adopted by the United Nations General Assembly are
applicable.

Question 26

Prohibited reservations

Answer 26

Art 19 VCLT
- the treaty prohibits
a reservation
(a)
- the treaty provides that only
specific reservations may
be made
(b)
- a reservation is
incompatible with the object
and purpose of a treaty
(c)

Question 27

Legal effect of reservations

Answer 27

Reactions to a
Reservation
Art 20(4,5) VCLT:

Art 20(4)a
explicit acceptance

Art 20(5)
tacit acceptance - bilateral treaty relations
accepting State  reserving State- modifies the provisions of the treaty (Art 21
VCLT)

Art 20(4)b
simple objection - No intention to preclude
treaty’s entry into force - the provision to which the reservation relates does
not apply as between the two States to the extent
of the reservation (Art 21(3) VCLT)

Art 20(4)b
qualified objection - precludes treaty’s entry
into force- Art 20(4)b VCLT: no bila

Question 28

Entry into force
(Art 24 VCLT)

Answer 28

When agreed by the parties
Art 24(1)

In the absence of agreement,
when all the states have
consented to the treaty
Art 24(2)

Question 29

Entry into force – Art 24 VCLT

Answer 29

1. A treaty enters into force [objectively] in such manner
   and upon such date as it may provide or as the negotiating
   States may agree.
2. Failing any such provision or agreement, a treaty enters
   into force [objectively] as soon as consent to be bound by
   the treaty has been established for all the negotiating
   States.
3. When the consent of a State to be bound by a treaty is
   established on a date after the treaty has come into force,
   the treaty enters into force [subjectively] for that State on
   that date, unless the treaty otherwise provides.

Question 30

VCLT’s entry into force

Answer 30

Article 84 VCLT
1. The present Convention shall enter into force on
the thirtieth day following the date of deposit of the
thirty-fifth instrument of ratification or accession.
2. For each State ratifying or acceding to the
Convention after the deposit of the thirty-fifth
instrument of ratification or accession, the
Convention shall enter into force on the thirtieth day
after deposit by such State of its instrument of
ratification or accession.

Question 31

. Entry into force – Paris Agreement

Answer 31

Article 21
1. This Agreement shall enter into force on
the thirtieth day after the date on which at
least 55 Parties to the Convention
accounting in total for at least an estimated
55 per cent of the total global greenhouse
gas emissions have deposited their
instruments of ratification, acceptance,
approval or accession.

Question 32

Treaties & Third States

Answer 32

• agreements neither harm nor benefit third parties
  (pacta tertiis nec nocent nec prosunt)
• only if a third State consents, can a treaty
  produce effects for it (Art 34)
• if a treaty benefits a third State, we assume such
  consent (Art 35)
• If a treaty obliges a third State, consent needs to
  be in writing (Art 36)

Question 33

Treaty Interpretation: Art 31 VCLT

Answer 33

3 Elements combined in a single operation in good faith
a) Ordinary meaning/text
b) Context
* Preamble
* Annexes
* material related to the conclusion of the treaty;
* any mutual agreements or mutually accepted
instruments made in connexion with the conclusion of
the treaty
c) Object & purpose

Question 34

Treaty Interpretation: Art 31 VCLT

Answer 34

• auto interpretation by states and others because often no
  compulsory jurisdiction; conflicting interpretations co-exist
• some treaties:
• treaty organ given task to interpret treaties (e.g. CEDAW)
• Courts/arbitral tribunals resolve (conflicting) interpretations
  authoritatively
• ECHR → ECtHR
  Article 32 – Jurisdiction of the Court
  The jurisdiction of the Court shall extend to all matters concerning the
  interpretation and application of the Convention and the Protocols
  thereto
• OP VCCR → ICJ
  Article 1
  Disputes arising out of the interpretation or application of the
  Convention shall lie within the compulsory jurisdiction of the
  International Court of Justice and may accordingly be brought before
  the Court by an application made by any party to the dispute being a
  Party to the present Protocol.

Question 35

Treaty Interpretation: Example

Answer 35

Interpreting the
meaning of ‘aircraft’
under the Warsaw
Convention for the
Unification of
certain rules
relating to
international
carriage by air

Laroche v. Spirit of Adventure, [2008] EWHC 788 (QB)

Question 36

Treaty Interpretation: subsequent practice

Answer 36

United Nations Charter, Article 27(3)
Decisions of the Security Council on all other
matters shall be made by an affirmative vote of
nine members including the concurring votes of
the permanent members […]

South West Africa, Advisory Opinion, ICJ Rep.
1971, p. 16

Question 37

Discontinuance of Obligations

Answer 37

Suspension
(Art 72) (temporary)

Termination
(Art 70) ( final)

bilateral - termination
multilateral - withdrawal

Question 38

Termination/suspension

Answer 38

*States can terminate/suspend a treaty
in conformity with the treaty’s provisions
* by consent of the parties (at any time)
* Because conflicting customary international law
has developed

Question 39

Termination and suspension
(VCLT and CIL)

Answer 39

• material breach of a treaty (Art 60)
• supervening impossibility of performance (Art 61)
• fundamental change of circumstances (Art 62)
  (clausula rebus sic stantibus)
• Desuetude/obsolescence (CIL)

Question 40

Treaty on European Union
Article 50 (1)-(3)

Answer 40

1.Any Member State may decide to withdraw from the Union in
accordance with its own constitutional requirements.
2.A Member State which decides to withdraw shall notify the
European Council of its intention. […] the Union shall negotiate and
conclude an agreement with that State, setting out the
arrangements for its withdrawal, taking account of the framework
for its future relationship with the Union. […]
3.The Treaties shall cease to apply to the State in question from the
date of entry into force of the withdrawal agreement or, failing that,
two years after the notification referred to in paragraph 2, unless the
European Council, in agreement with the Member State concerned,
unanimously decides to extend this period.

Question 41

Paris Agreement on Climate
Change (2015)

Answer 41

1. At any time after three years from the date
   on which this Agreement has entered into force for a
   Party, that Party may withdraw from this Agreement by
   giving written notification to the Depository.
   Any such withdrawal shall take effect upon expiry from
   one year from the date of receipt by the Depository of
   the notification of withdrawal, or on such later date
   as may be specified in the notification of
   withdrawal. […]

Question 42

Rome Statute establishing the
ICC, Art 127

Answer 42

A State Party may, by written notification
addressed to the Secretary-General of the
United Nations, withdraw from this Statute.
The withdrawal shall take effect one year after
the date of receipt of the notification, unless
the notification specifies a later date.