The Law of Treaties

References
Chapter 10, DJ Harris, Cases and Materials on International Law Scott Davidson, The Law of Treaties Chapter 16, Malcolm N. Shaw, International Law Fifth Edition Chapter 13, Robert M Maclean, Public International law, 18th Edition Vienna Convention on the Law of Treaties 1969 http://www.gthr.net/default html http://untreaty.un.org/English/guide.pdf

Introduction Scope of VCLT 1969 Definition of treaty and criteria The making of treaty
Formalities Reservations Entry into force

Course structure

Validity and applications Interpretation of treaties Invalidity, suspension and termination of treaties

Introduction
Treaties are one of the means through which States deal with each other A source of law that the ICJ is bound to apply under Article 38 (1)(a) of ICJ Statute A precise method of regulating relations and conduct of states Knowledge of the law of treaties is essential to understand how international law works

 Treaties fulfil a broad range of functions and they cover wide variety of subject matter Treaties range from:1. Bilateral treaty through which two states secure reciprocal rights and obligations 2. Multilateral Treaties-comprehensive legal regime of uncertain durations for particular facet of international relations

The Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties

A coherent body of rules on the law of treaties begin to evolve starting from the Peace of Westphalia 1648 The rules include:a. The competence of various person to conclude treaties b. The nature of the acts which the state is bound c. The obligation to perform treaties d. Factors that might vitiate them

 In 1949 the International Law Commission (ILC) included the law of treaties in its list for codification The law of treaties has been codified in the Vienna Convention on the Law of Treaties (VCLT) in 1969 which came into force on 27 January 1980 Agreements between other international persons were not included in VCLT to avoid delay (incorporated in the 1982 VCLT between states and IOs) VCLT regulates treaties concluded between states (Art.1) and in written form(Art.2(1)(a) governed by the International Law.

 VCLT is applicable unless a particular treaty provides otherwise; or unless the parties agree otherwise; or if a different intention otherwise established (residual rule)

The formalities of a treaty

Definition
Art.2 Vienna Convention on the Law of Treaties 1969 treaty means an international agreement between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instrument and whatever its particular designation

It should be intended to create legal obligations

Written instrument or instruments between two or more parties

Criteria
It must be governed by international law Parties must be endowed with international personality

International Agreement concluded between states in written form

Although the VCLT does not apply to international agreements which are not made in writing, Article 3 of VCLT states that the legal force of such non-written agreements shall not be affected.

 A treaty may be described in a multitude of ways (nomenclature) such as convention, protocol, declaration, covenant, charter, pact and agreement. There is no exclusive or systematic use of nomenclature for particular types of transactions The Vienna Convention does not require that a treaty be in any particular form or comprise any particular elements. If there is a dispute concerning the status of a document as a treaty, an objective test is used taking into account its actual term and circumstances in which it was made.

 Case: Qatar v Bahrain The court does not find it necessary to consider what might have been the intentions of the Foreign Minister of Bahrain or for that matter those of the Foreign Minister of Qatar. The two ministers signed a text recording commitment accepted by their Governments, some of which were to be given an immediate application. Having signed such a text the Foreign Minister of Bahrain is not in the position subsequently to say that he intended to subscribe only to a statement recording political understanding and no to an international agreement.

Parties must be endowed with international personality

Art 6 VCLT provides that Every state possesses capacity to conclude treaties. Commentary by the ILC states that the term state in art 6 has the same meaning as in the UN Charter, the statute of court and the Geneva Convention on Diplomatic Relations, i.e it means a State for the purpose of international law States members of a federal union may possess a capacity to conclude treaties if such capacity is admitted by federal constitution and within the limits there laid down-eg Germany.

 Individuals have never been recognised as having the capacity to make treaties, with states or other international persons In Anglo-Iranian Case, ICJ rejected an argument to the effect that a contract between Iran and the Anglo-Iranian Oil Company was a treaty because of the part played by UK Government in its negotiation. The court held that it is a concessionary contract between a government and a foreign cooperation.

Governed by International law

ILC Fourth Special Rapporteur stated in his first report (1962): The commission felt in 1959 that the element of subjection to international law is so essential a part of an international that it should be expressly mentioned in the definition. There maybe agreements between states such as agreements for acquisition of premises for diplomatic missions or for some purely commercial transaction that are regulated by the local law of one of the parties or private law system to resolve the conflict.

 For example, during the period 1966-1968 Denmark entered into series of loan agreements between states which stipulate that the agreement and all rights and obligations shall be governed by Danish law

Intention to create legal relationship

The element is implicitly present in the phrase governed by international law. There are some international acts that may assume the form of international agreements but which were never intended to create legal obligations (soft law) States may reach an agreement as to political intent without making it legally enforceable. For example, The Final Act of the Helsinski Conference on Security and Cooperation in Europe was stated to be not eligible for registration under Article 102 of the UN Charter. It was understood that the Act would not have any binding effect in law.

Case: Oil Platforms (Preliminary Objections) although the treaty is legally binding, a particular provision in it may be drafted in terms so general that by itself it is not capable of generating legal rights and obligations.there shall be firm and ensuring peace and sincere friendship did not generate legal rights and obligations.

Unilateral acts
Acts and conduct by governments although not intended to formulate agreements may nevertheless results in legal effect. Case: Legal Status of Eastern Greenland Case: Denmark v Norway (1933) The Court Considers it beyond all dispute that a reply of this nature given by the Minister of Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs

 In the Nuclear Test Cases, the ICJ held that unilateral statements of states can have binding effect if the intention that they be legally binding is clear; that there is clear evidence regarding the circumstances in which they are made; and that the question is approached with due caution. The criteria for such obligation are:a. The intention of the State making the declaration that it should be bound according to its terms b. That the undertaking be given publicly. No subsequent acceptance of the declaration, nor even any reply or reaction from other States is required for the declaration to take effect.

The application of Article 2 of VCLT

South Africa (preliminary Objections) cases the Mandate for South West Africa was an international agreement having the character of a treaty Qatar v Bahrain The Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up

Vienna Convention on the law of Treaties (Scope of the Convention)

Art.1-4: Definition Art.-6-17: Conclusion and entry into force of treaties Art.18: Obligation not to defeat the object and purpose of a treaty prior to its entry into force Art 19-23: Reservations Art. 26: Pacta Sunt servanda Art 27: Prohibition against the use of domestic legislation Art. 28: Application of treaties

 Art. 31-33: Treaties interpretation Art. 36: Treaties and third party Art. 61: Supervening impossibility of performance Art. 46-53: Invalidity of treaties Art. 62: Fundamental Change of circumstances Art. 64: Emergence of Jus cogens Art. 71: Consequences of the invalidity of a treaty which conflicts with peremptory norms of international law

The making of treaties

Formalities
Can be concluded in any manner by the parties Depend upon the intention of the states concerned The power to make treaties depends upon each countrys municipal regulations, eg. In UK, the treaty making power is within the prerogative of the Crown. In US, the President is vested with the power to make treaties with the advice and consent of Senate and concurrence of 2/3 of the Senators

 Art. 7 of VCLT provides that persons representing states must have full power (document certifying status from competent state authorities) to conclude treaties Certain people such as heads of state and government, foreign ministers, heads of diplomatic missions, and accredited representatives do not need to produce full powers by virtue of their positions and functions Art. 8 of VCLT provides that any act relating to the making of a treaty by a person not authorized will be without legal effect unless the state confirms the act afterwards

 In 1951 a convention concerning the naming of cheeses, a delegate signed on behalf of Sweden and Norway. However, only Norway authorized him to sign. Both states later ratified the convention and entered into effect.

Consent
Art 9 provides that adoption in international conference takes place by the vote of 2/3 of the states present and voting, unless a different rule applied. Other than that, adoption will take place upon the consent of all states involved Art 11:-consent by signature (art 12), exchange of instruments constituting a treaty (art 13), ratification (art 14), acceptance, approval or accession(art 15 & 16) or by any other means Consent by signature (art 12 VCLT)-where the convention is subject to acceptance, approval or ratification, signature only mean that representatives agreed to the text of the treaty. Art. 18 VCLT stipulates that state must refrain from acts that would defeat the object and purpose of the treaty until its intention with regard has been cleared.

 Consent by ratification (art 14)- ratification by the competent authorities of the state to ensure that the representative did not exceed his power or instructions. Consent by accession (art 15)- a state becomes a party to a treaty it has not signed either because the treaty provides that signature is limited to certain states, and it is not such state, or because a particular deadline for signature has passed

Reservations to treaties
Definition- Article 2 VCLT a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, where it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. By excluding certain provisions, states may agree to be bound by treaty which otherwise they might reject entirely (multilateral treaties)

 The effect of reservation is to exclude the treaty provision to which the reservation has been made from the terms of the treaty in force between the parties. Reservations must be distinguish from other statements that are intended to have legal effect of a reservation such as political statements or interpretative declarations. Political statements or interpretative declarations does not have any binding consequences to the treaty.

 Case: Belilos v Switzerland in order to establish the legal character of such declaration, one must look behind the title given to it and seek to determine the substantive content Case: Anglo-French Continental Shelf case although reservation contained elements of interpretation, it also constituted a specific condition imposed by France on its acceptance..It had the purpose of seeking to exclude or modify the provisions of the treaty and thus constituted reservation.

 The statement will have to be interpreted in good faith in accordance to the meaning of the terms and context of the treaty and intention of the party. The classical doctrine of reservations provides that a state wishing to make reservation needs to get consent from all parties to the treaty. However, the court in the case of Reservation to the Genocide Convention did not accept this restrictive approach.

 First question A State which has made and maintained a reservation which has been objected to by one or more parties to the Convention but not by others can be regarded as a party to the Convention if the reservation is compatible with the object and purpose of the treaty 2nd Question a) if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of he Convention, it can consider that the reserving state is not a party to the Convention.

b) a party accepts the reservation as being compatible with the object and purpose of the Convention, it can consider that the reserving State is a party to the Convention Question 3 a) an objection to a reservation made by a signatory state which has not yet ratified the Convention, can have the legal effect only upon ratification b)an objection to a reservation by a state which has not sign or accede is without legal effect.

 Codification of the ICJs opinion in the Reservations to the Genocide Convention Case (Art. 19-21 VCLT) Art. 19-if a treaty is silent regarding reservations, a state is entitled to make reservation that is not incompatible with the object and purpose of the treaty Reservations may be made when signing, ratifying, accepting, approving or acceding to a treaty, but they cannot be made where the reservation is prohibited by the treaty, where only specified reservations may be made, or where the reservation is incompatible with the object and purpose of the treaty (Art 19)

 Art 20(2) VCLT- it appears from the limited number of the negotiating states and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty Art 20(4)- the general rule to the treaties not within art 20(2) and not constituent instruments of international organizations:

a) acceptance by another state of a reservation constitutes the reserving state a party to the treaty in relation to that other state if or when the treaty is in force for those states b) an objection by another contracting state to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving state unless a contrary intention is definitely expressed by the objecting states

c) an act expressing a states consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting state has accepted the reservation Art 21 VCLT-the effect of reservation A reservation established with regard to another party modifies, for the reserving state in its relation with the other party, the provisions of the treaty to which the reservation relates, to the extent of reservation

 Eg. The Libyan reservation to the 1961 Vienna Convention on Diplomatic Relations with regard to diplomatic bag (principle of reciprocity). Art 21 (3) VCLT- where a state objects to a reservation, but not to the entry into force of the treaty between itself and the reserving state, then the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation Case: Anglo-French Continental Shelf

the combined effect of the French Reservations and their rejection by UK is neither to render article 6 inapplicable in toto, as the French Republic contends, nor to render it applicable in toto, as the UK contends. It is to render the article inapplicable as between the two countries Issue:-who has the authority to determine whether the reservation is permissible or not/ whether the reservation incompatible with the purpose and object of the treaty?

 Unless the particular treaty otherwise provides, whether a reservation is impermissible is determine by the states parties themselves.

Restrictions to the Death Penalty case o Guatemala made a reservation to the guarantee of the right to life in the American Convention on Human Rights 1969. It did not accept the prohibition of the death penalty for crime related to political offences. Issues arise as to whether this reservation was impermissible as being contrary to the objective and purpose of the Convention.

o The American Court of Human Rights stated: Art 27 of the convention allows states parties to suspend in time of war, public danger, or other emergency that threatens their independence or security provided that they do not suspend or derogate from certain basic rights such as the right to life guaranteed under Article 4. Thus, a reservation which was designed to enable a State to suspend any of the non-derogable rights must be deemed to be incompatible with the object and purpose of the Convention and not permitted

 Reservations are deemed to have been accepted by states that raised no objections at the end of 12 months period after notification of the reservation or by the date on which the consent to be bound by the treaty was expressed Reservations, acceptance of it and objections to, must be in writing and communicated to the contracting states

Reservation to human rights treaties

The UN Human Rights Committee in its General Comment 24/52 of 2 November 1994 emphasized that the provisions in the ICCPR represented customary international law could not be the subject of reservations. Reservations to non-derogable provisions not falling in this category, states had a heavy onus to justify such reservations. The effect of an unacceptable reservation would be that the provision operated in full with regard to the party that made the reservation and not that the Covenant would not be in force at all.

The Committee regarded itself as the only body able to determine whether a reservation was or was not compatible with the object and purpose of the Covenant.

 The International law Commission adopted the Preliminary Conclusions on Reservations to Normative Multilateral Treaties including Human Rights Treaties in 1997 Reaffirmed the applicability of VCLT provisions on reservations to all treaties including the human rights treaties Accepted that the human rights monitoring bodies were competent to comment and recommend the admissibility of reservations However, emphasized that the reserving state has the responsibility of taking action in the event of inadmissibility and such state could modify or withdraw the reservation or withdraw from the treaty

Entry into force

Depend on the decision of the negotiating states In the absence of any agreement, a treaty enter into force as soon as consent to be bound by the treaty has been established for all the negotiating states (Art 24 VCLT). Some treaties specify that they will come into effect upon a certain date or after a determined period following the last ratification Eg. VCLT provides that it came into effect 30 days after the deposit of the 35th ratification

Applications
Art 28 VCLT-a treaty will not operate retroactively, it will not bind a party as regards any facts or situations prior to that state acceptance of the treaty unless a different intention appear. Art 29 VCLT-a treaty is binding upon each party in respect of its entire territory Art 34 VCLT-a treaty does not create either obligations or rights for a third states without its consent. (Art 35 VCLT) an obligation may arise for a third state from a term of treaty if the third state expressly accepts that obligation in writing

Interpretation of treaties
The purpose of interpretation is to discover the intentions of the parties as expressed in the text the purpose of interpreting a treaty is to establish the meaning of the text which the parties must be taken to have intended it to bear in relation to the circumstances with reference to which the question of interpretation has arisen

The intentions of the parties

Teleological school

Methods of interpreting a treaty

Objective or textual approach

Objective or textual approach

Gives precedence to the text of the treaty emphasis on the actual words of the treaty What did the parties say?

The intentions of the parties

Concerned with giving effect to the actual or presumed intentions of the parties real will of the states

Teleological school
To ascertain the object and purpose of the treaty and to give effect to this Inquire into the objects and purposes of the treaty taken as a whole To ascertain the original aims of the parties in concluding the treaty by referring to the entire course of negotiations and the circumstances of its conclusion.

 Art. 31 VCLT A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose Art 31 (2):- interpretation would include looking at preamble and annexes, agreement and instrument made in connexion with the conclusion of the treaty

 Art 31 (3) VCLT:-Interpretation would take into account any subsequent agreement relating to the treaty, any subsequent practice in the application of the treaty, applicable rules of international law. Art 31 (4) VCLT: special meaning Art 32 VCLT: Supplementary means of interpretation- preparatory work of the treaty, circumstances of its conclusion.

 Art. 31 and 32 of VCLT give precedence to the textual or literal approach to interpretation but do not exclude other forms of interpretation Possible recourse to teleological approach The usage of supplementary materials to avoid a meaning that is ambiguous, manifestly absurd or unreasonable.

Relative grounds Absolute grounds Art 46-50 Render a treaty voidable at the instance of an affected state Invalidity of treaties

Art 51-53 Treaty is rendered void ab initio and without legal effect

 Art 46-the failure to comply with internal law regarding competence to conclude a treaty. This may only be a ground for invalidating consent to be bound if that failure was manifest-objectively evident to any state conducting itself in the matter in accordance with normal practice and good faith Cameroon v Nigeria limitation of his capacity would not be manifest unless publicisedthere is no obligations for states to keep themselves informed of legislative and constitutional developments in other states Art. 47-the representatives purporting to conclude a treaty were acting beyond the scope of their instructions

 Art 48-error as vitiating ground. A state may only invoke error in a treaty if it relates to facts that formed an essential basis of its consent Temple case plea of error cannot be allowed as a vitiating consent if the party advancing it contributed by its conduct or error, or could have avoided it.the qualifications of persons who saw Annex 1 map on Siamese side would made it difficult for Thailand to plead error Art 49 & 50-fraud and corruption

 Art 51-coercion of a representative e. pressure exerted on the President of Yugoslavia to sign treaty with German in 1939 to establish German Protectorate over Bohemia andMoravia. Art 52-coercion of a state 1973 Fisheries Jurisdiction Case there can be little doubt as implied in the Charter of the UN and recognised in Art. 52 VCLt, that under contemporary international law an agreement concluded under the threat or use of force is void Art.53-conflict with norms of jus cogens, (international public policy), consequences can be found in art 71 VCLT

Material breach -Art 60 VCLT

Termination of Treaties

Supervening impossibility of performance -Article 61 VCLT

Fundamental Change of circumstances-Article 62 VCLT

Material breach
May occur when (Art 60 (3) VCLT) : o there is repudiation of a treaty that is not sanctioned by the Convention o there is violation of a provision essential to the accomplishment of the object and purpose of the treaty Namibia (Advisory Opinion) 1971 Rainbow Warrior (Arbitration (New Zealand v France) 1990

Gabkovo-Nagymaros Case 1977

only material breach of the treaty itself by state party to it which entitles the other party to rely on it for grounds of termination

 The permanent disappearance or the destruction of an object indispensable for the execution of a treaty rendering the performance of a treaty impossible Example: a) The submergence of an island b) The drying up of a river c) Destruction of a dam by an earthquake Gabkovo-Nagymaros Case 1977

Supervening impossibility of performance

Fundamental Change of circumstances

The change is of circumstances existing at the time of the conclusion of the treaty; The change is fundamental; The change was not foreseen by the parties (when they conclude the treaty) The existence of the circumstances constituted an essential basis of the consent of the parties to be bound by the treaties The effect of the change was to radically to transform the extent of the obligations still to be performed under the treaty Cannot be invoked if the treaty establishes boundary and the result of a breach by a party (invoking it)

Fisheries Jurisdiction Case (Jurisdiction) 1974

In order that a change of circumstances may give rise to aground for invoking the termination of a treaty it is also necessary that it should have resulted in a radical transformation of the extent of the obligations still to be performed. The change must have increased the burden of the obligations to be executed rendering the performance something essentially different from that originally undertaken

Gabkovo-Nagymaros Case 1977

A fundamental change of circumstances: a) must have been unforeseen; b) must have constituted an essential basis of the consent of the parties to be bound by the treaties c) Applied only in exceptional cases