unit 2 - lecture (treaty law)

Question 1

most important source

Answer 1

law of treaties (mentioned in article 38 of the ICJ statute)

• May be faster to create treaties than it is for costumes to emerge
• Nowadays states often conclude agreements, that arent treaties

Question 2

Vienna Convention on the Law of Treaties 1969

Answer 2

= VCLT; in force since 1980, itself a treaty, 2024: 116 parties to the treaty; Austria ratified in 1979, many VCLT provisions are custom and default rules; bc most VCLT provisions are custom, they still apply to countries that are not parted to the VCLT; ex: France not a part of the VCLT

• almost all rules of the VCLT can be put aside (= flexible, framework to conclude treaties, provides rules that we apply, if we can’t find any more specific rules)
• VCLt wanted to move from custom based to treaties
• 1969 VCLT only applies to states, BUT 1979 applies to other international orgs.
• 3rd state= country not part of the treaty (often costumes of treaty still applies)
  VCLT doesn’t address “failure to comply w a treaty”, only mentions “material breach” (if they commit material breach, other states are allowed to terminate the treaty)
  → only mention of breaches
• much of the VCLT, are rules that parties are allowed to adopt, but don’t have to (can also adopt another rules)
• u can sign treaty, without having obligations ( u need to consent to be bound first)
• signing treaty could be seen as accepting it as customs (but some states will clarify that it is not the case)
• france opposes ius cogens (article 53 of the VCLT)
• VCLT only open to states (Taiwan and Greenland are questionable today)
• VCLT does NOT apply to treaties concluded before it went into force (the ICJ has applied it though, bc relevant notions of the VCLT are custom and customs can be applied to treaties before the VCLT went into force)
• in some cases u just sign treaty and it is binding, but sometimes u have signature and then ratification ( w an internal procedure) ===> difference is that in second case, state that has signed has no rights/obligations under treaty

Question 3

material breach

Answer 3

= an impermissible repudiation of the treaty or a violation of a provision essential to the treaty’s object or purpose

• any breach of a treaty = international wrongful act

Question 4

notion of a treaty

Answer 4

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) ===> especially important, bc non-binding agreements can also be joined or states want legal relation governed by national law (so only treaty, if it is governed by international law!!)
4. in writing (VCLT’s scope of application limited to treated post - dating VCLT’s entry into force)

for ex: check ppt (see Qatar v. Bahrain or maritime access Somalia v Kenya)
have to register a treaty w the UN, otherwise if it got broken, u cant go in front of ICJ/other international orgs, but it is still a valid treaty
no treaty ex: Chile and Bolivia
u can have bilateral and multilateral treaties (bilateral = two states; multilateral = more than two states)
self executing v non self executing (non self executing = needs further steps to decide how/when u cooperate) (self executing= formulated in a way, where u dont have to take further steps)

Question 5

ways to express consent to be bound by a treaty

Answer 5

= signature (if u dont need ratification; does not mean consent, just says u recognize that it was the result of the negotiations); ratification (internal act of approval and declaration of acceptance), accession (when u join treaty late; ) , exchange of instruments constituting a treaty

Question 6

treaties requiring ratification , phases:

Answer 6

1. appointment of plenipotentiaries (plenipotentiaries= representatives)
2. adoption of text
3. signature
4. domestic approval
5. ratification
6. deposit w the UN (==> binding)

Question 7

treaties, not needing ratification, phases:

Answer 7

1st 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 8

power to sign treaty

Answer 8

• some ppl have full powers bc of their position (ex: ambassadors or foreign ministers, heads of states, heads of diplomatic missions, representatives ccredited by states to international conferences or orgs. or one of its organs, for the purpose of adopting a treaty in that conference/org/organ)
• if person concludes treaty without real power = treaty might not be valid
• delegated full powers (Article 7 (1) VCLT) : 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 9

Consent to be bound - Austria

Answer 9

Conclusion (Art. 50, full powers, President)

Signature (full powers, President)

Ratification (after approval by NC, FC) (FC= federal council)

Deposit with the depositary / exchange with contracting States

Entry into force

Publication BGBl. III

Question 10

invalidity

Answer 10

• treaties ought to be fulfilled (when there has been given consent) (ex: if treaty goes against ius cogens it is immediately invalid)
• invalidity very rare
• 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 regardiing competence (Art 27 and 46 VCLT)
• pacta sunt servade (Art 26 VCLT)
• lack of competence:
  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)

reasons why treaty might be invalid
- 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)
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 11

reservations.

Answer 11

• Art 2 (1)d VCLT (excluding a treaty provision, modyfying the legal effect of a provision)
• for examples check ppt: Saudi arabia (does not accept article 9 of the Convention on the Elimination of All forms against women, which states equality between men and women) , UK, Austria, US (US says that if there is conflict between UN convention and US convention, the US convention will take precedence), Spain (interpretive declaration)
• u have reservations, interpretive declaration and general political statements
  reservations = permitted
• non permitted reservations (article 19 VCLT) = if the treaty says u cant make reservation (either in general or specific) , if treaty says u can only make specific reservations, if the reservation is incompatible w the object and purpose of the treaty (if reservation diminishes the treaty)

Question 12

4 types of reservations

Answer 12

• art 20 (4) a explicit acceptance (see graph)
  art 20 (5) tacit acceptance (see graph)
  art 20 (4) b simple objection (see graph)
  art 20 (4) b qualified objection (see graph)
• if there is qualified objection, treaty does not take into force
• being silent for a longer amount of time (12 month period, or longer/ time period can be outlined in treaty) = acceptance of the treaty
• if u make reservation, the rest of the treaty still applies (simple objection) —> if there is a qualified objection treaty does not take into force
• reservations can only happen w multilateral treaty, after reservation that one country applies, some countries can stay silent, some can object, some can accept it, the reservation still applies to the country that made reservation
• qualified objection = state objects clearly, and say they don’t want treaty to have legal effect, bc the article the country reserves, reserves an article that is so important (article of treaty the country reserved, no longer applies to state that made qualified objection)
• qualified objection = very uncommon
  simple objection= treaty still valid

Question 13

entry into force

Answer 13

can be long time before the treaty enters into force
entry into force (art 24 VCLT)= when agreed by the partied or in absence of the agreement, when all the states have consented to the treaty

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 14

VCLT entry into force:

Answer 14

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 15

Paris Agreement (article 21):
- enter into force

Answer 15

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 16

Third states

Answer 16

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)
treaties don’t create rights/obligations for third parties

Question 17

Interpretation:

Answer 17

3 Elements combined in a single operation in good faith (article 31 VCLT):
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 and purpose

• everything in treaty needs to be effective
  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.

• example: Warsaw Convention, question of interpreting word “aircraft”, question of wherever a hot air balloon is an aircraft, after discussing they concluded that hot air balloon are aircrafts in relation to this treaty (doesn’t mean it always is considered that)
• other example: UN charter, article 27 (3), South West Africa advisory opinion of the ICJ (1971), provision clear (need affirmative vote of nine members,including the votes of the 5 permanent members), what if the state doesn’t vote? article implies that all 5 permanent members need to vote, but ICJ says that them abstaining is ok and does not prevent decision to pass

Question 18

Modification

Answer 18

amendment (for all parties)
revision (clerical errors)
modification (for some parties)

Question 19

Termination/Suspension

Answer 19

just bc treaty is signed doesnt mean its always applicable
termination = permanent (art 70)
suspension (art 72) = temporary
withdrawal of bilateral treaty = termination (both need to agree)
multilateral = withdrawal
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
termination VCLT and CIL:
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 20

termination examples : TEU, Paris Agreement

Answer 20

Example treaty on EU, article 50 (1)-(3):
Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
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. […]
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.

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. […]