Week 4 - Treaties Flashcards
(44 cards)
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
