LWN158: PUBLIC INTERNATIONAL LAW

SEMINAR WEEK 3: TREATIES

OBJECTIVES THIS WEEK To understand the nature of treaties and the manner in which

they are created To understand the process of entering reservations to treaties

and the effect of reservations To be able to analyse the legal effect of treaties and the rules

governing the interpretation of treaties To understand the rules relating to amendment and termination

of treaties

STATUTE OF ICJ: SOURCES OF LAW

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a) international conventions, whether general or

particular, establishing rules expressly recognized by the contesting states;

Art 38:

WHAT IS A TREATY?

For the purposes of the present convention, "Treaty" means 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;

Vienna Convention on the Law of Treaties (VCLT), art 2(1)(a):

APPLICATION OF VCLTThe fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.

VCLT art 3:

Note that VCLT is regarded as representing customary international law, so even where the treaty does not apply to a treaty, the rules of interpretation are largely the same.

‘AGREEMENT BETWEEN STATES’ Can be between as few as two states (bilateral),

or among many states (multilateral) Can have agreements with non-state actors (eg

international organisations) but not ‘treaties’ and VCLT doesn’t apply to them (see art 3)

States must consent to be bound Begins with negotiation and adoption of text

‘IN WRITTEN FORM’ VCLT applies only to treaties in written form, although

as per article 3 it is possible to have an unwritten treaty, and rules of interpretation would be the same.

Treaty-making process usually follows pattern of negotiation, adoption, signature and ratification (outlined below) – rarely negotiated other than in writing.

Oral statements can have legally binding force, but are usually viewed as unilateral statements of a state’s position, not equivalent to a treaty. Their legal consequences will depend on who made the statement and in what context.

TREATY -V- UNILATERAL DECLARATION

Unilateral declarations by a state can be legally binding, whether they are made in writing or orally.

Binding nature comes from importance of good faith in international relations (see principle of pacta sunt servanda)

Declaration will be binding even if it’s not made in the context of international negotiations.

Unilateral – doesn’t require anything from other states in order to be binding

So not ‘treaties’, because not an agreement, but demonstrates that oral statements can have binding legal effect.

UNILATERAL DECLARATION Nuclear Tests Case (Australia v France) (Merits) [1974] ICJ

Reports 253: ‘When it is the intention of the state making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking.’

Legal Status of Eastern Greenland Case (Denmark v Norway) (1933) PCIJ (Series A/B) No 53: Undertaking by Norway not to interfere with Denmark’s claim to Eastern Greenland, in exchange for Denmark doing the same re: Spitzbergen island.

Frontier Dispute case (Burkina Faso v Republic of Mali): declaration must be directed at particular recipient in order to be binding (statement at press conference not sufficient)

Armed Activities on the territory of the Congo (DRC v Rwanda): unilateral statement must be sufficiently specific to give rise to obligations

OTHER ELEMENTS OF DEFINITION

In one instrument or more: Treaties can be comprised of numerous

instruments forming a single, interrelated regimeWhatever the designation:

An instrument will be a treaty if it satisfies the definition, even if States call it by another name.

Eg convention, covenant, pact, agreement, charter, protocol

TREATY-MAKING PROCESS

Negotiation

Adoption of text Consent Entry

into forceRatificati

onBetween States

directly or at

international

conference

VCLT art 9: sets out

voting requireme

nts

VCLT arts 11-16:

different forms of consent

VCLT art 24:

according to terms of treaty

VCLT art 14

Depends on

domestic law

Example: VCLT opened for signature in 1969 and entered into force in 1980

Signature, acceptanc

e, approval

Accession

RATIFICATION OF TREATIES Ratification is the second of a two-step process of consent

– signature alone is not enough Ratification may be required by either:

The terms of the treaty (per article 11); or Domestic law - States sign the treaty subject to

ratification, and it’s only after ratification that they become bound by its terms.

Ratification may be considered necessary to ensure that the executive act of entering into a treaty is subjected to parliamentary scrutiny.

ENTRY INTO FORCE

A treaty will enter into force in accordance with the its terms (art 24) Usually when it has acquired the requisite number of signatures or

ratifications After the period for signatures has closed or the treaty has

entered into force, states can still indicate consent to be bound by depositing an ‘instrument of accession’ with the United Nations or relevant organisation.

After a treaty has opened for signature but before it has entered into force, states which have signed the treaty have an obligation not to act in a way which would defeat the object and purposes of the treaty (art 18)

APPLICATION OF A TREATY: PACTA SUNT SERVANDA

Once a treaty has entered into force, all parties are bound to perform its terms in good faith. This is known as the principle of pacta sunt servanda.

VCLT art 26: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’

Nuclear Tests Case: ICJ determined not to proceed with case because France had made declaration that it would cease atmospheric nuclear testing. Relying on this statement, and on the fact that France would perform it in good faith, Australia was said no longer to have a claim requiring adjudication.

RESERVATIONS AND DECLARATIONS Even though the text of a treaty has been negotiated

and adopted, a state may enter a ‘reservation’ which modifies the application of the treaty for that state.

‘a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.’

VCLT, art 2:

• A ‘declaration’ is a statement by which a state clarifies its interpretation of the meaning of a treaty provision.

RATIONALE FOR RESERVATIONS What is the purpose of allowing states to

enter reservations to the terms of a treaty?

Reservations to the Genocide Convention Case: may be more beneficial to encourage widespread participation by allowing states to sign on with varied terms, where the alternative is not having them sign on at all.

But need to maintain the integrity of the text.

WHAT IS THE LEGAL EFFECT OF RESERVATIONS?

Do other states parties have to accept another state’s reservation?

Is the reserving state is still a party to the treaty?

How does a reservation affect a state’s relationship with other states parties?

RESPONSE TO RESERVATIONS When a state enters a reservation, other states can

1. Accept the reservation2. Object to the reservation, but not to the state becoming a party

(VCLT art 20.4)3. Object to the state becoming a party to the treaty (VCLT art

20.4) If the treaty permits reservations, it does not need to be accepted

by other States (VCLT art 20.1) If the nature of the treaty means that States need to agree to all

terms, reservations must be accepted by all States (art 20.2) If a state doesn’t object within 12 months of being notified of the

reservation, or by the date specified in the treaty, they will be deemed to have accepted the reservation (art 20.5)

LEGAL EFFECT OF RESERVATIONS Where another state accepts the reservation, the

terms of the treaty are modified according to the reservation for both states (art 21.1)

Where a state objects to the reservation, the reserving state can still be a party to the treaty (art 20.4) The provision to which the reservation relates will not

apply as between the two states to the extent of the reservation (art 21.3)

If a state has objected to the reserving state becoming a party to the treaty, the treaty will have no effect between them (art 20.4)

IMPERMISSIBLE RESERVATIONS

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty

VCLT Art 19:

A

B

C

D

Multilateral treaty framework

Reservation

B accepts A’s reservation.Treaty in force as between A & B, on terms of reservation

C objects to A’s reservation, but not to A’s being a party to the treaty.Treaty in force as between A & C, but without the provision to which the reservation relates, to the extent of the reservation

D objects to reservation and to A’s being a party to the treaty. Treaty is not in force as between A & D.

SHOULD RESERVATIONS BE PERMITTED TO HUMAN RIGHTS TREATIES?

Reservations to human rights treaties are common. Question is whether reservation is contrary to object and purpose of the treaty – does it relate to core human rights protections?

European Court of Human Rights: unacceptable reservations can be severed, with the effect that the provision applies in full, as if the reservation had never been made.

Human Rights Committee: a state cannot reserve the right to engage in slavery, torture, genocide (all jus cogens). Reservation contrary to object and purpose of ICCPR can be severed.

DISCUSSION QUESTION

Do you think reservations undermine the effectiveness of international law?

INVALIDITY OF TREATIES Treaties can be invalid if there is a flaw in the way they have been

made: Violation of state’s domestic laws for conclusion of treaties Lack of authority of state’s representatives Error of fact or situation Fraud, corruption, coercion, threat Conflict with jus cogens

In some cases the invalidity will render the treaty void, in others it will render only certain parts of it void, and in some cases it will give an innocent party an option of choosing whether the treaty is void or valid.

See VCLT Section 2 (arts 46-53)

AMENDMENT OF A TREATY

Requirements for amendment are usually set out in the treaty Eg unanimous agreement may be required, or only majority

agreement If a party does not agree to the amendment, they

are usually bound only by the original terms A sub-group of parties can agree to amend the terms

as between themselves, provided this doesn’t defeat the object and purpose of the treaty, and doesn’t affect the rights of other parties.

VCLT arts 40 & 41

TERMINATION OF A TREATY A treaty will end:

according to the terms of the treaty (VCLT arts 42, 44)

by implication if the treaty has been completed by subsequent agreement of the parties (art 54) by implication where subsequent treaty is agreed

to on the same subject matter by the same parties (art 59)

Termination by one or more parties allowed where: Material breach by one or more parties (art 60) Supervening impossibility (art 61) Fundamental change of circumstances (arts 62,

63)

MATERIAL BREACH (ART 60) Namibia (Advisory Opinion) – treaty could be terminated in

the case of ‘deliberate and persistent violation of obligations which destroys the object and purpose of the relationship.’

Gabcikovo-Nagymaros – only an innocent state who has suffered an injury as result of the breach can terminate; not where there have been reciprocal breaches.

Bilateral treaty: material breach terminates the treaty in whole or in part

Multilateral treaty: all other parties can decide to terminate the treaty in whole or in

part, either between all parties or just between themselves and the defaulting state.

Or a party specially affected by the breach can elect to terminate as between itself and the defaulting party

SUPERVENING IMPOSSIBILITY (ART 61)

Where it has become impossible to perform the treaty because of the ‘permanent disappearance or destruction of an object indispensable for the execution of the treaty’

Includes situation where breach of one party has made it impossible for the other parties to perform their obligations

But may not be invoked by a party which has breached the treaty itself

FUNDAMENTAL CHANGE IN CIRCUMSTANCES (ART 62)

Where the circumstances were an essential basis of a state’s consent in the first place

And the effect of the change is to radically transform the nature of their obligations

Provided the change was not foreseen by the parties

May be invoked as a ground for terminating or withdrawing from the treaty

TREATY INTERPRETATION To interpret the meaning of the terms of a treaty, the

following rules apply:1. Apply terms in good faith and according to their ordinary

meaning (art 31.1)2. Look for any definitions set out in the treaty (art 31.4)3. Interpret the words consistently with the object and purpose

of the treaty (art 31.1)4. Interpret the words in the context of the preamble,

annexures or related agreements (art 31.1 and 31.2) 5. Take into account any subsequent agreements between the

parties (31.3(a)) or state practice (31.3(b)) which indicates the meaning of terms

TREATY INTERPRETATION CONT/…

Art 32: Where the meaning is still unclear, absurd or unreasonable, look at supplementary means of interpretation, including Preparatory work of the treaty (travaux

preparatoires) Circumstances surrounding its adoption Statements made by states during drafting

process