Worksheet 3

Question 1

What does the VCLT apply to?

Answer 1

Treaties entered into after 1980s

Question 2

What is done when the vclt is inapplicable?

Answer 2

Turn to customary international law

Question 3

What are the three fundamental principles of the law of treaties?

Answer 3

1. The principle of free consent: state must freely consent to be bound by the treaty
2. The principle of good faith: states have to send people with clear intentions to negotiate the treaty
3. Pacta sunt servanda

Question 4

Which two principles go hand in hand?

Answer 4

The principle of good Faith & pacta sunt survanda

Question 5

What is the statute behind the principle of free consent?

Answer 5

VCLT article 34: a treaty does not create either obligation or rights for a third state without consent

Question 6

What is the meaning of pacta sunt servanda?

Answer 6

Agreements must be kept

Question 7

What is the statute behind pacta sunt servanda and the principle of good Faith

Answer 7

Article 26: every treaty in force is binding upon the parties to it and must be performed by them in good faith

Question 8

What is the definition of the reservations of treaties?

Answer 8

Article 2(1)(d) VCLT defines a reservation as a unilateral statement however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purposes to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state

Question 9

What characteristics must a reservation to a multilateral treaty have?

Answer 9

1. Must be in writing
2. Certain, to the extent possible, the reason why it is being made
3. Must be communicated to the other contracting parties and entities who are entitled to become a party to the treaty, so they can, within 12 months, accept the reservation or reject it, by formulating an objection

Question 10

Can reservations be withdrawn?

Answer 10

Yes but withdrawal must be formulated in writing and communicated to the contracting parties

Question 11

Article 19 VCLT distinguishes between permissible and non-permissible reservations. What are permissible reservations?

Answer 11

Permissible reservations are those which are expressly permitted by the relevant treaty and which are compatible with the object and purpose of the treaty.

Question 12

Article 19 VCLT distinguishes between permissible and non-permissible reservations. What are non-permissible reservations?

Answer 12

Non-permissible reservations are reservations prohibited by the relevant treaty as well as treaties which are not included in the list of reservations expressly allowed under the relevant treaty and reservations which are incompatible with the object and purpose of the relevant treaty

Question 13

How does entry into force work?

Answer 13

The conditions for entry into force are normally specified by the treaty otherwise a treaty is presumed to enter into force as soon as all the negotiating states have expressed their consent to be bound by it

Question 14

What is the statute behind a depository?

Answer 14

VCLT article 76 (1)

Question 15

What is a depository?

Answer 15

The custodian of the treaty and performs administrative tasks relating to it

Question 16

What is the depository not entitled to determine?

Answer 16

The legal effect of any instrument or communication received from a party and they are not used to settle disputes

Question 17

What is registration of a treaty? Reference statute

Answer 17

Article 102 of the UN charter requires all treaties and agreements entered into by any member of the UN to be registered with the UN secretariat

Question 18

What are the consequences of failing to register a treaty?

Answer 18

There is no effect on its validity

Question 19

How does treaty publication work?

Answer 19

Subsequent to registration, a treaty will be officially published in the UN treaty series (unts) so that anyone can consult it

Question 20

What does article 42(1) of the VCLT state?

Answer 20

The validity of a treaty or of the consent of a state to be bound by a treaty may be impeached only through the application of the present convention

Question 21

What does the doctrine of unequal treaties state?

Answer 21

That treaties which are unequal either because of their substance or because of an unequal procedure are not legally binding

Question 22

What is an example of being unequal beccease of substance?

Answer 22

The treaty imposes only obligations on one party and grant rights only to the other party - or impose extreme instructions on the sovereignty of the one party

Question 23

What is an example of unequal procedure?

Answer 23

The treaty is concluded under political, or economic coercion

Question 24

How does territorial application of treaties work? Reference the statute

Answer 24

Under article 29 VCLT, in the absence of any territorial clause or other indication to the contrary, a treaty is presumed to apply to all the territories for which the contracting states are internationally responsible

Question 25

How does conflict between treaties work?

Answer 25

A conflict between treaties is resolved either on the basis of A conflict clause contained in one or both treaties or upon interpretation, aided by reference to maxims such as lex posteriori and lex specialis

Question 26

How does effect of treaty on a third party work? Reference statute and state exceptions

Answer 26

Article 34 VCLT: a treaty applies only between the parties to it
Exceptions:
1. Treaty provision may become binding on a third party is and when it becomes part of customary internationa law
2. If a treaty confers, a right on a third party, the third party must, in order to Take the benefit of the right, consent to it

Question 27

What is required for amendment and modification of treaties? - reference statute

Answer 27

Under the principle of pacta sunt servanda, amendment requires the unanimous consent of all parties to the relevant treaty

Question 28

If the modification/amendments cannot be done through pacta sunt servanda, what is the course of action?

Answer 28

Article 40 (4) VCLT provides that amendments will not be binding on a party that has not accepted them

Question 29

What is the modification of a treaty?

Answer 29

When some of the parties to a treat formally agree to modify the effects of the treaty among themselves, while continuing to be bound by the treaty in their relations with the others parties - article 41 VCLT

Question 30

Are treaties still valid when suspended

Answer 30

Yes but its operation is suspended temporarily either for all or some of the parties

Question 31

How do you know the circumstances of treaty suspension?

Answer 31

The treaty should say but in the absence of any clause, refer to article 42 VCLT

Question 32

What does article 57 of the VCLT?

Answer 32

The situations in which suspension of a treaty may take place
a.in conformity with the provisions of the treaty
b. Where all contracting parties agree to suspend its operation, or some of its provisions

Question 33

What does article 58 of the VCLT state?

Answer 33

Provides that two or more parties may agree to suspend its operation temporarily between themselves provided the suspension does not impair the enjoyment by other parties of their rights under the treaty, does not effect the performance of their obligations and is compatible with the object and propose of the relevant

Question 34

What are the grounds under which a treaty can be suspended or terminated

Answer 34

Article 59: implied by conclusion of later treaty
Article 60: as a consequence of breach
Article 61: supervening impossibility of performance
Article 62: fundamental change of circumstances

Question 35

Does the severance of diplomatic or consular relations affect on the legal relations established between states by the treaty? - reference the statute

Answer 35

No, save & except it the existence of diplomatic or consular relations is indispensable to the application of the treaty - article 63 VCLT

Question 36

What does article 64 of the VCLT say?

Answer 36

The emergence of a new peremptory norm of general international law terminates and voids any existing treaty which conflicts that law

Question 37

Which statute sets out the termination and/or suspension of a treaty?

Answer 37

VCLT articles 65 - 68

Question 38

Which articles set out the consequences of termination or suspension?

Answer 38

Articles 70 & 72

Question 39

A treaty may be terminated under what circumstances?

Answer 39

When it contains provisions to that effect and a contradicting party acts in conformity with that provision
When there is no provision for termination or withdrawal article 56(1) VCLT allows:
- if it is established that the parties intend to admit the possibility of denunciation or withdrawal
- a right of denunciation or withdrawal can be implied by the nature of the treaty
Article 62(2) (b) vclt: when all contracting parties agree
When a new jus cogens has emerged and an existing treaty is in conflict