Treaty law - unit 2 Flashcards
3 principal sources of International Law as provided in Art.
38(1) of the ICJ Statute
a) international conventions
b) customary international law
c) the general principles of the law recognised by civilised
nations
contentious points:
* not an exhaustive list (missing unilateral
declarations, decisions of international
organisations e.g., binding resolutions
adopted by UN Security Council such as
Resolution 1373)
* superannuated wording (‘civilised nations’)
Treaties, forms and functions
Treaties (= agreements, communiqués, pacts, conventions, …)
establish binding legal obligations between subjects of international law, are a pre-eminent source of public
international law
forms: bilateral (e.g., Gruber-de-Gasperi Agreement 1947), multilateral (e.g., EU Treaties), regional character
functions: further international law, codify existing rules of customary international law, serve as constitutive
instruments (create IOs → UN Charter, or international courts → Rome Statute), ‘framework treaty’ (contains
general rules, is complemented by more detailed agreements concerning the same overarching theme)
=> As states are granted freedom concerning treaty-making, the agreements cover a wide variety of subject
matters.
! BUT treaties must not conflict with peremptory moral norms
(e.g., prohibition of genocide, slavery, torture)
jus cogens
= peremptory norms that
are hierarchically superior, introduced
by the Vienna Convention on the Law
of Treaties Art. 53 (only a type of
rule; not place or source of PIL)
covered in VCLT
- Treaties between states (treaties between states and other
non-state actors / between non-state actors covered in
‘Vienna Convention on the Law of Treaties between States
and International Organisations or between International
Organisations’ 1986) - Treaties must be in written form (don’t have to be contained
in one comprehensive document, need to include legal
commitment + concur with other points set out as definition
of a treaty in VCLT however) - Treaties regulated by provisions under international law
- Agreements don’t have to bear designation ‘treaty’ (could be
called convention, etc)
Agreements that technically constitute
treaties but are NOT within the scope to be
governed by VCLT:
- oral agreements
- Agreements between states and non-state
actors - Agreements between non-state actors
- Agreements governed by domestic law
- Treaties concluded before VCLT entered
into force (1980)
Treaty-making: the steps
1) Negotiations
lead to conclusion and adoption of
the treaty’s text
=> on informal or formal scale
=> international organisations
sometimes prepare draft provisions (e.g., International Law Commission)
2) States express their consent to be bound by the treaty
Art. 11 VCLT: ‘signature, exchange of instruments constituting a treaty,
ratification, acceptance, approval or accession, or by other means if so agreed’
* Signature: no subsequent ratification; only applicable where parties agreed
on it beforehand
* Ratification: domestic legislative body consents to treaty (e.g., Parliament)
* Accession: state wants to become party to a treaty once period of signature
and/or ratification is already over (treaty has already entered into force)
=> possibility to express consent by way of a single act (as opposed to
signature & ratification)
* Approval and Acceptance: less common (Art. 14 VCLT)
3) Entry into Force
Art. 24, VCLT: regulated by provisions contained in treaty or after all
negotiating states have expressed their consent
Multilateral treaties: specific number of ratifications required (e.g., 2004 UN
Convention on Jurisdictional Immunities of States and Their Property has
still not entered into force => not enough ratification instruments deposited)
Art. 18, VCLT: prohibition of defeating the object and purpose of a treaty
before it enters into force (e.g., USA signing and subsequently unsigning
Rome Statute that established the ICC)
Exceptions to entering a
reservation (Art. 19, VCLT):
- Treaty prohibits reservation
- Treaty permits only
specified reservations, which
do not include the
reservation in question - Reservation ‘incompatible
with object and purpose of
the treaty’
Reservations
= are entered to be able to exclude or modify certain provisions of a treaty and their legal effect
can be made regarding:
* Substantive provisions (e.g., scope of application)
* Procedural provisions of a treaty (e.g., dispute settlement clauses)
Legal effect of reservations (Art. 20 VCLT):
State parties to a treaty may react to a reservation by accepting it or objecting to it – possible reactions:
* no reaction (tacit acceptance 12 months after notification)
* objection => treaty still comes into effect between reserving
state and objecting state: provision that was objected to does
not apply between reserving & objecting state
=> however, does not determine whether a reservation is valid
* acceptance => reservation then reciprocally takes effect
between reserving state and accepting states
* Questions have remained regarding the legal consequences of
a reservation that is not permitted by the treaty or deemed
incompatible with the object and purpose of the treaty.
Performance of a Treaty
‘pacta sunt servanda’: states that consented
to being bound by the treaty must perform
their duties under the treaty in ‘good faith’
(Art. 26 VCLT)
Domestic law in conflict with the treaty: has
to be amended, repealed, or replaced
Scope of Application
temporal (no retroactive application; Art. 28)
territorial (if not otherwise mentioned,
treaty binds entire territory of a state; Art. 29)
third parties (are not bound without consenting
to it (Art. 34), obligations – consent must be expressed in writing, rights – assent is presumed (Arts. 35-36)
Interpretation of Treaties
must be interpreted in good faith (Art. 31(1), VCLT): different approaches
contextual interpretation: focus on intention of parties that are responsible for the draft
teleological interpretation: focus on object and purpose of the treaty
=> entails further approaches: dynamic interpretation, principle of effectiveness
textual interpretation: focus on the meaning of the text
Invalidity of Treaties
validity must be challenged
referencing a certain provision
2 categories of rules:
* Treaty is voidable (stays valid
until successfully invalidated
based on circumstances
relating to conclusion (e.g.,
corruption, error, fraud upon
conclusion)
* Treaty is void ab initio
(contravenes jus cogens – Art.
53, VCLT; or coercion of state
or its represen
Termination
= permanent withdrawal from treaty
obligations
Needed: termination clauses in treaty
itself or customary international law
grounds for termination in VCLT
No withdrawal permissible: peace
treaties, disarmament treaties, human
rights treaties (e.g., ICCPR),
constructive instruments that create
regimes such as those on Panama
Canal
Withdrawal permissible: treaties
concerning alliances, or commerce and
trade
Suspension
= temporary suspension of contractual
duties performed under treaty
Permissible if: (1) terms of treaty
permit suspension, (2) all parties
consent to suspension, (3) some human
rights treaties can be suspended
unilaterally in case of emergency
Forms: (1) unilateral suspension =>
treaty continues to exist for all other
parties; (2) all parties agree to suspend
=> treaty itself is suspended
specific grounds for termination &
suspension (Arts. 60-61, VCLT):
material breach, supervening
impossibilities of performance,
fundamental change of circumstances
