Week 4 - Treaties

Question 1

What parts of VCLT reflect CIL? (4)

Answer 1

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)

Question 2

What is the VCLT?

Answer 2

Vienna Convention on the Law of Treaties 1969

Question 3

What is the purpose of VCLT?

Answer 3

deafult rules applying when States have not expressly provided for a situation

Question 4

What is the scope of VCLT? (6)

Answer 4

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

Question 5

When can minutes of a meeting be a treaty? (3)

Answer 5

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

Question 6

When can a Memorandum of Understanding be a treaty? (3)

Answer 6

1) Somalia v Kenya
2) Has a provision addressing entry into force
3) registration under Art 102 Charter of UN without prompt party objections

Question 7

Aside from meeting minutes and MOA’s what else can be a treaty? (3)

Answer 7

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

Question 8

Treaties do not create right or obligations for third States without their consent

Answer 8

Art 34 VCLT

Question 9

Domestic law cannot be invoked as reason for failure of treaty performance

Answer 9

Art 27 VCLT

Question 10

When does obligation not to defeat object and purpose of treaty apply? (3)

Answer 10

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

Question 11

What reservations may States make to treaties? (3)

Answer 11

1) Art 19 VCLT
2) such reservations permitted by the treaty
3) no reservation incompatible with the object and purpose of Treaty

Question 12

What happens to treaties breaching jus cogens? (2)

Answer 12

1) Existing jus cogens: treaty is void ab initio (Art 53 VCLT)
2) subsequently formed jus cogens becomes void and terminates (Art 64 VCLT)

Question 13

What is the treaty conclusion process and when do they become binding? (3)

Answer 13

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)

Question 14

Who may represent a State in treaty conclusions? (2)

Answer 14

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)

Question 15

Unauthorized acts of representatives?

Answer 15

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)

Question 16

What is subsequently joining a treaty called? (2)

Answer 16

1) Accession

2) Art 15

Question 17

What are Amendments and Modifications? (2)

Answer 17

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

Question 18

What is a reservation? (3)

Answer 18

1) Art 2(1)(d)
2) unilateral statements purporting to exclude or modify legal effect of certain provisions
3) label is irrelevant

Question 19

What is the difference between interpretative declarations and reservations? (2)

Answer 19

1) Reservation: e.g. making application of provision dependent on other States accepting interpretation (Anglo -French Continental Shelf)
2) ID: proposes a particular interpretation

Question 20

When is a reservation incompatible with the object and purpose of the treaty? (2)

Answer 20

1) when it affects an essential element of the treaty so as to impair its raison d’être
2) ILC Guide to Practice

Question 21

Do reservations require acceptance by other States? (3)

Answer 21

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))

Question 22

What is the effect of reservations? (3)

Answer 22

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))

Question 23

What is the effect of hard objections under HR treaties? (2)

Answer 23

1) Belilos v Swtizerland (ECtHR)

2) States remain parties but reservation does not apply

Question 24

What is the effect of reservations to HR treaties? (2)

Answer 24

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

Question 25

How should treaties be interpreted? (4)

Answer 25

1) Art 31(1)
2) ordinary meaning of terms
3) in their context; AND
4) in light of object and purpose

Question 26

A treaty’s context includes what? (2)

Answer 26

1) ARt 31(2)

2) preambles and annexes, subsequent agreements but all parties

Question 27

What shall be considered alongside a treaty’s context? (3)

Answer 27

1) Art 31(3)
2) subsequent agreements between the parties regarding interpretation
3) subsequent practice of the parties establishing agreement as to interpretation

Question 28

What counts as subsequent practice of the parties when interpreting treaties? (2)

Answer 28

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)

Question 29

What are supplemetary means of interpretation? (4)

Answer 29

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

Question 30

What is the difference between relative and absolute grounds for invalidity? (2)

Answer 30

1) Relative: treaty becomes voidable between invoking and offending party
2) absolute: renders the treaty void ab initio between all parties

Question 31

What are the relative grounds for invalidity? (5)

Answer 31

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)

Question 32

What are the absolute grounds for invalidity? (3)

Answer 32

1) Coercion of state rep (Art 51)
2) Coercion of State by force (Art 52)
3) treaty violating jus cogens (Art 53)

Question 33

What is the difference between termination of, suspension of and withdrawal from treaties? (3)

Answer 33

1) Termination: ends treaty for all parties
2) Withdrawal: ends treaty for withdrawing states
3) Suspension: stops treaties operation temporarily

Question 34

How may treaties be terminated by consensual means? (2)

Answer 34

1) By all parties’ consent (Art 54)

2) by subsequent treaties succeeding the previous one (Art 59)

Question 35

How may states withdraw from treaties? (1)

Answer 35

1) withdrawal may only occur if parties intended to allow it, or where such a right is implied in nature of treaty (Art 56)

Question 36

How may a treaty be suspended? (2)

Answer 36

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)

Question 37

What are the non-consensual means of terminating treaties? (3)

Answer 37

1) Material breach (Art 60)
2) Supervening Impossibility of performance (Art 61)
3) Fundamental change in circumstances (Art 62)

Question 38

What is required for material breach? (4)

Answer 38

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))

Question 39

What is required for supervening impossibility of performance? (3)

Answer 39

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)

Question 40

What is required for a fundamental change in circumstances?

Answer 40

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)

Question 41

What is the effect of invoking ‘necessity’ under Stateres (or any other ground for precluding wrongfulness under StateRes)

Answer 41

Only precludes wrongfulness for failure to comply but does not terminate treaty (Nagymaros)

Question 42

What happens upon termination/withdrawal not in compliance with VCLT? (2)

Answer 42

1) Art 73

2) leads to StateRes

Question 43

What are 5 interpretation choices courts make? (6)

Answer 43

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)

Question 44

What causes variation in court’s interpretation choices? (3)

Answer 44

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)