Public International LawBernas 2009 Chapter 3 The Law of Treaties - 1 CHAPTER 3: THE LAW OF TREATIES Public International LawBernas 2009 Chapter 3 The Law of Treaties - 2 The law on treaties is found in the 1969 Vienna Convention on the Law of Treaties. It entered into force in January 1980. While the document is not retroactive in effect, it does contain customary law precepts antedating 1969. Treaties can assume various names: Conventions, covenants, charters, protocols, concordat, modus vivendi, etc. In the absence of an international legislative body, international agreements are a convenient tool through which states are able to project common expectations. A convention on the Law of Treaties Between States and International Organizations was adopted on March 26, 1986. Public International LawBernas 2009 Chapter 3 The Law of Treaties - 3 Definition of treaties Public International LawBernas 2009 Chapter 3 The Law of Treaties - 4 The Vienna Convention defines a treaty as an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. The Vienna Convention applies to international agreements that satisfy the Covenants definition, specifically that they be in writing and reflective of the intention of the parties to be bound, and governed by international law. Generally in written form Some writers agree that even an oral agreement can be binding oSee Quatar v. Bahrain ICJ 1994 (Bernas 2009, Page 23 to 26) Public International LawBernas 2009 Chapter 3 The Law of Treaties - 5 Not in written form Norway v. Denmark Public International LawBernas 2009 Chapter 3 The Law of Treaties - 6 Norway v. Denmark The case involved a dispute between Denmark and Norway over sovereignty in Eastern Greenland. In the course of negotiations, Denmark had offered certain concessions important for Norway for the purpose of persuading Norway not to obstruct Danish plans in regard to Greenland. In reply, the Norwegian Government accepted the offer: I told the Danish Minister today that the Norwegian Government would not make any difficulty in the settlement of this question. The Court found this declaration sufficient to bind the Norwegian government. Public International LawBernas 2009 Chapter 3 The Law of Treaties - 7 Not in written form Nuclear Test Case Public International LawBernas 2009 Chapter 3 The Law of Treaties - 8 Australia v. France, New Zealand v. France France was a signatory to the Nuclear Test Ban Treaty and thus continued to conduct tests in the South Pacific until 1973. The tests conducted in 1972 and 1973 led to the filing of protests by Australia and New Zealand. The case, however, was taken off the Courts list without a decision when France announced b a series of unilateral announcements that it would conduct no further tests after 1973. The court nevertheless stated: It is well-recognized that declarations made by way of unilateral acts concerning legal or factual situations, may have effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its termsthe State being thenceforth legally required to follow a course of conduct consistent with the declaration. Two characteristics: 1.The commitment was very specific; and 2.There was a clear intent to be bound. Public International LawBernas 2009 Chapter 3 The Law of Treaties - 9 Function of treaties And Classification as to relevance as a source Public International LawBernas 2009 Chapter 3 The Law of Treaties - 10 Treaties have many functions: 1.They are sources of international law; 2.They serve as the charter of international organizations; 3.They are used to transfer territory, regulate commercial relations, settle disputes, protect human rights, guarantee investments, etc. Classification as to relevance as a source of international law: 1.Multilateral treaties open to all states of the world; and 2.Treaties that create norms which are the basis for a general rule of law which are either: a.Codification treaties; b.Law making treaties; and c.Those that have the character of both of the above. Public International LawBernas 2009 Chapter 3 The Law of Treaties - 11 Function of treaties Treaties that create collaborative mechanisms and bilateral treaties Public International LawBernas 2009 Chapter 3 The Law of Treaties - 12 Treaties that create a collaborative mechanism 1.These can be universal scope (e.g. regulation of allocation of radiofrequencies); or2.Regional (e.g. fishing agreements). They operate through the organs of different states. Bilateral treaties Many of these are in the nature of contractual agreements which create shared expectations such as trade agreements of various forms. (Contract Treaties) Public International LawBernas 2009 Chapter 3 The Law of Treaties - 13 Function of treaties Effect of creating a universal law Public International LawBernas 2009 Chapter 3 The Law of Treaties - 14 While treaties are generally binding only on the parties, the number of the contracting parties and the generality of the acceptance of specific rules created by the treaty can have the effect of creating a universal law in much the same way that general practice suffices to create customary law. Public International LawBernas 2009 Chapter 3 The Law of Treaties - 15 The making of treaties Negotiation and the power to negotiate Public International LawBernas 2009 Chapter 3 The Law of Treaties - 16 Negotiation Bilateral treaties, and multilateral treaties among a small number generally originate from the foreign ministries. Negotiation is done through the foreign ministries. Larger multilateral treaties are negotiated in diplomatic conferences which are run like a legislative body. Power to negotiate The negotiators must possess powers to negotiate. An act relating to the conclusion of a treaty by one who has no proper authorization has no legal effect unless confirmed by his state. Public International LawBernas 2009 Chapter 3 The Law of Treaties - 17 Article 7. Full powers Public International LawBernas 2009 Chapter 3 The Law of Treaties - 18 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: a. He produces appropriate full powers; or b. It appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full power. 2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: a. Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; b. Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which are accredited; c. Representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization. Public International LawBernas 2009 Chapter 3 The Law of Treaties - 19 Authentication of text Article 9 Public International LawBernas 2009 Chapter 3 The Law of Treaties - 20 Negotiations conclude with the signing of the document. The signatures serve as authentication of the document. Article 9. Adoption of the text: 1.The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. 2.The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. Public International LawBernas 2009 Chapter 3 The Law of Treaties - 21 Authentication of text Article 10 Public International LawBernas 2009 Chapter 3 The Law of Treaties - 22 Article 10. Authentication of the text: The text of a treaty is established as authentic and definitive: a.By such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or b.Failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text. The authentication of a treaty makes the text authoritative and definitive. It is necessary so that the states will know definitively the contents of the text and avoid any misunderstanding as to the terms. Public International LawBernas 2009 Chapter 3 The Law of Treaties - 23 Authentication of text Consent to be bound Public International LawBernas 2009 Chapter 3 The Law of Treaties - 24 Consent to be bound Once the document has been signed, there are stages which follow and culminate in making the document binding. The most important step is the consent to be bound. There are various ways by which consent to be bound is expressed: Article 11. Means of expressing consent to be bound by a treaty: The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constitutinga treaty, ratification, acceptance, approval accession, or by any other means if so agreed.