Week 4 - Treaties Flashcards
What parts of VCLT reflect CIL? (4)
1) Rules of interpretation (Kasikili/Sedudu Island)
2) Rules on Material breach leading to suspension/termination (Continued Presence of South Africa in Namibia)
3) Fundamental change of circumstances (Icelandic Fisheries)
4) Pacta sum servanda (Gabcikovo-Nagymaros)
What is the VCLT?
Vienna Convention on the Law of Treaties 1969
What is the purpose of VCLT?
deafult rules applying when States have not expressly provided for a situation
What is the scope of VCLT? (6)
1) Art 2(1)(a)
2) International agreements;
3) between states
4) in written form
5) governed by internaitonal law
6) whatever the particular designation
When can minutes of a meeting be a treaty? (3)
1) Maritime Delimitation and Territorial Questions between Qatar and Bahrain
2) Not merely account of discussions
3) Must enumerate commitments to which the parties consented
When can a Memorandum of Understanding be a treaty? (3)
1) Somalia v Kenya
2) Has a provision addressing entry into force
3) registration under Art 102 Charter of UN without prompt party objections
Aside from meeting minutes and MOA’s what else can be a treaty? (3)
1) Post-meeting joint declaraiotns (Land and Maritime Boundary between Cameroon and Nigeria)
2) Press releases/joint communiqués (Aegon Sea Continental Shelf)
3) requires sufficiently clear intention of parties to be bound
Treaties do not create right or obligations for third States without their consent
Art 34 VCLT
Domestic law cannot be invoked as reason for failure of treaty performance
Art 27 VCLT
When does obligation not to defeat object and purpose of treaty apply? (3)
1) Art 18 VCLT
2) after signing the treaty (subject to ratification) until making intention clear not to become party to treaty
3) it has expressed consent to be bound pending entry into force
What reservations may States make to treaties? (3)
1) Art 19 VCLT
2) such reservations permitted by the treaty
3) no reservation incompatible with the object and purpose of Treaty
What happens to treaties breaching jus cogens? (2)
1) Existing jus cogens: treaty is void ab initio (Art 53 VCLT)
2) subsequently formed jus cogens becomes void and terminates (Art 64 VCLT)
What is the treaty conclusion process and when do they become binding? (3)
1) negotiation –> drafting –> signature –> domestic process –> ratification
2) only binding upon ratification (if states so agreed) (Art 14)
3) signature if the states so agreed (Art 12)
Who may represent a State in treaty conclusions? (2)
1) Someone with full powers, or who appears in the circumstances to represent the State (Art 7(1))
2) Specific examples in Art 7(2)
Unauthorized acts of representatives?
1) A state can subsequently adopt an unauthorized act (Art 8)
2) can only be invalidated if restrictions on authority had been notified to other states (Art 47)
What is subsequently joining a treaty called? (2)
1) Accession
2) Art 15
What are Amendments and Modifications? (2)
1) Amendment changes effect for all parties and requires consent of all parties and other formalities for original conclusion (Arts 39 and 40)
2) Modifications simply require 2 or more States to consent and only change effect between consent parties (Art 41(1)) - certain conditions apply
What is a reservation? (3)
1) Art 2(1)(d)
2) unilateral statements purporting to exclude or modify legal effect of certain provisions
3) label is irrelevant
What is the difference between interpretative declarations and reservations? (2)
1) Reservation: e.g. making application of provision dependent on other States accepting interpretation (Anglo -French Continental Shelf)
2) ID: proposes a particular interpretation
When is a reservation incompatible with the object and purpose of the treaty? (2)
1) when it affects an essential element of the treaty so as to impair its raison d’être
2) ILC Guide to Practice
Do reservations require acceptance by other States? (3)
1) only if the treaty so provides (Art 20(1))
2) only if the limited number of parties and the treaty’s object and purpose indicates so (Art 20(2))
3) only by one other state for the treaty to bind the reserving party (Art 20(4)(c))
What is the effect of reservations? (3)
1) it takes effect between the reserving and accepting state (Art 21(1))
2) Soft objectors: are unaffected by the reservation (Art 21(3))
3) Hard objections: treaty does not come into force between reserving and objecting State (Art 20(4)(b))
What is the effect of hard objections under HR treaties? (2)
1) Belilos v Swtizerland (ECtHR)
2) States remain parties but reservation does not apply
What is the effect of reservations to HR treaties? (2)
1 HRC General Comment 24
2) reservations offending jus cogens or CIL HR are incompatible with object and purpose of ICCPR and therefore severable from declaration to be bound
How should treaties be interpreted? (4)
1) Art 31(1)
2) ordinary meaning of terms
3) in their context; AND
4) in light of object and purpose
A treaty’s context includes what? (2)
1) ARt 31(2)
2) preambles and annexes, subsequent agreements but all parties
What shall be considered alongside a treaty’s context? (3)
1) Art 31(3)
2) subsequent agreements between the parties regarding interpretation
3) subsequent practice of the parties establishing agreement as to interpretation
What counts as subsequent practice of the parties when interpreting treaties? (2)
1) Not unilateral acts for internal purposes (Kaskili/Sedudu)
2) it must respect parties’ commen intention at time of treaty conclusion (Navigational and Related Rights)
What are supplemetary means of interpretation? (4)
1) Art 32
2) Travaux preparatoires
3) circumstances of Treaty’s conclusion
4) may be resorted to when Art leaves meaning ambiguous or leads to unreasonable result
What is the difference between relative and absolute grounds for invalidity? (2)
1) Relative: treaty becomes voidable between invoking and offending party
2) absolute: renders the treaty void ab initio between all parties
What are the relative grounds for invalidity? (5)
1) manifest violation of fundamentally important internal rule (Art 46)
2) state rep. unable to bind state + knowledge (art 47)
3) Errors (Art 48)
4) Fraud (Art 49)
5) Corruption of state rep (Art 50)
What are the absolute grounds for invalidity? (3)
1) Coercion of state rep (Art 51)
2) Coercion of State by force (Art 52)
3) treaty violating jus cogens (Art 53)
What is the difference between termination of, suspension of and withdrawal from treaties? (3)
1) Termination: ends treaty for all parties
2) Withdrawal: ends treaty for withdrawing states
3) Suspension: stops treaties operation temporarily
How may treaties be terminated by consensual means? (2)
1) By all parties’ consent (Art 54)
2) by subsequent treaties succeeding the previous one (Art 59)
How may states withdraw from treaties? (1)
1) withdrawal may only occur if parties intended to allow it, or where such a right is implied in nature of treaty (Art 56)
How may a treaty be suspended? (2)
1) by consent of all parties (Art 57)
2) multilateral treaties may be suspended inter se if so provided OR not contrary to object/purpose (Art 58)
What are the non-consensual means of terminating treaties? (3)
1) Material breach (Art 60)
2) Supervening Impossibility of performance (Art 61)
3) Fundamental change in circumstances (Art 62)
What is required for material breach? (4)
1) unsanctioned repudation of treaty or breach of provision essential for object/purpose (Art 60(3))
2) mere reciprocal breaches are insufficient (Nagymaros)
3) the breach must be of the treaty purported terminated (Nagymaros)
4) does not apply to HR treaties (Art 60(5))
What is required for supervening impossibility of performance? (3)
1) performance must be permanently impossible (Art 61(1))
2) the invoking party must not have caused it (Art 61(2))
3) risk of irreparable environmental harm insufficient (Nagymaros)
What is required for a fundamental change in circumstances?
1) increase in burden of the obligation to the extent of rendering the performance something essentially different from originally undertaken (Icelandic Fisheries Jurisdiction)
2) it must have been unforesen (Nagymaros)
3) econ/pol conditoins are only relevant if related to object/purpose and radically alters extent of obligation (Nagymaros)
4) decrease in profitability is insufficient per se (Nagymaros)
5) only in exceptional cases (Nagymaros)
What is the effect of invoking ‘necessity’ under Stateres (or any other ground for precluding wrongfulness under StateRes)
Only precludes wrongfulness for failure to comply but does not terminate treaty (Nagymaros)
What happens upon termination/withdrawal not in compliance with VCLT? (2)
1) Art 73
2) leads to StateRes
What are 5 interpretation choices courts make? (6)
1) Pauwelyn and Elsig
2) Dominant Hermeneutic (text, intent, objective)
3) Timing (evolutionary interpret?)
4) Activism (gap-filling?)
5) Precedent (following precedent?)
6) Linkage (self-contained or look to broader IL)
What causes variation in court’s interpretation choices? (3)
1) Pauwelyn and Elsig
2) Demand side factors leaving space for interpretation (textual incompleteness, control/objections by States)
3) Supply side factors (tribunal’s legitimacy, competition with other tribunals, legal tradition)
