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Treaties






 

6.3.1 General

 

· Agreements – a merger of wills of two or more international subjects for purposes of regulating their interests, using international rules

 

· Treaties only bind parties to them, the states which have agreed to be bound by their provisions.

o Certain German Interests in Polish Upper Silesia, ICJ, 1926 – a treaty only creates law as between the states which are party to it.

· For third states, treaties have no legal consequence.

· Third states may derive rights and obligations from a treaty only if they consent to assuming the obligations or exercising rights laid down in treaty (has been codified in Art. 35-36 of 1969 Vienna Convention on Law of Treaties) Rights can be presumed, obligations must be in writing

· Therefore, nothing can be done without or against will of a sovereign state.

 

6.3.2 The ‘old’ and the ‘new’ law

 

Traditional law rested on principle of utmost state freedom in making treaties. Due to pressure from socialist and developing countries, new rules were introduced and old ones codified in 1969 Vienna Convention on Law of Treaties, entered into force in 1980.

 

Formal aspects of law enacted through the Convention

· Most of its provisions either codify customary law or have given rise to rules belonging to the corpus of general law.

· Those provisions of treaty which do not belong to ‘corpus of general law’ retain status as merely treaty provisions, unless they turn into customary norms.

· Convention as a whole does not yet constitute general international law.

· But, Treaty probably does represent what will become ‘new’ law once ‘old’ law withers away – some of it is potential customary law

 

Political or ideological concepts underlying Convention

· Introduces restrictions on the previously unfettered freedom of states, each country must respect a central core of international values from which no country can deviate (Art. 53 and 64 on jus cogens).

· Democratization of international legal relations: Using coercion on a state to induce it to enter into an agreement is no longer allowed (Art. 52). All states can now participate in treaties without being hampered by fact that a few contracting parties exercise a right of veto (art. 19-23 on reservations)

· Convention enhances international values as opposed to national claims. Interpretation of treaties must now emphasize their potential rather than give pride to state sovereignty (art. 31 on interpretation)

 

New law does not completely take over ‘old law’.

· Art. 4 – Treaty applies only to treaties which are concluded after the entry into force of Treaty

· Not all members of the world community have become parties to Convention, thus treaties between those countries which are not parties are only governed by those bits of the treaty which are declaratory of (or has turned into) customary law.

 

a) Making of treaties

 

· States enjoy full freedom in terms of modalities and form of agreement, no rules prescribing any definite procedure of formality.

 

Two classes of treaties in State practice – those in solemn form and those in simplified form

 

Solemn form:

· Diplomats negotiate treaties

· Agree and adopt a written text, signed by diplomats, then submitted to national authorities for ratification (usually require both Head of State and legislature to be involved in this)

· Ratification signals the state’s express intent to be legally bound by the treaty.

· State is not bound by treaty until it has been ratified, signed, exchanged, and deposited with one of them or an int’l agency. Until such point, state must not act in a way that would derail object and purpose of treaty

· States that have signed a treaty are not obliged to ratify it

 

Simplified form (aka ‘executive agreements’)

· Negotiated by diplomats, senior civil servants, etc.

· Became legally binding as soon as either the negotiator or Foreign Ministers sign them

· Don’t need ratification by head of state or legislature to make them binding

· This arrangement works well for issues that require a quick agreement or those issues which are seen as purely functional.

 

All this depends on state will. There have been cases about whether a state intended to enter into an internationally binding agreement, or instead only intended to undertake a political commitment.

· Aegean Sea Continental Shelf, ICJ, 1978 – press communiqué jointly issues by PMs of Greece and Turkey. ICJ held that government did not intend document to represent a commitment. ICJ considered nature of act or transaction, context in which it was drawn up, didn’t regard form of document (a mere press release) as determinative of int’l obligation or not

· Maritime Delimitation and Territorial Questions between Qatar and Bahrain Boundary, ICJ 1994 – minutes of a meeting between Foreign Ministers of Bahrain and Qatar did constitute an international agreement, because they enumerated the commitments the parties consented to, created rights and obligations in int’l law for the parties

 

b) Reservations

 

Old law

· When a state participating in negotiations for a multilateral treaty found some bits unpleasant, it could

a) exclude application of one or more provisions

b) stipulate its own interpretation of the provision

· Such reservations had to be accepted by all other contracting parties for the reserving state to become bound by treaty

· In practice this created a veto right to all other parties against the state holding the reservation

· Bilateral treaty – different, because a reservation from one party is essentially a proposal for a modification of text, therefore other must either accept or negotiate and create treaty or refuse and treaty dies

 

New law

· This old doctrine of ‘unity of treaties’ became much harder to apply as global community expanded and became more diverse

· 1969 Vienna Convention regime on reservations (first introduced by ICJ in Reservations on Convention on Genocide)

· States can append reservations at the time of ratification or accession, unless reservations

a) are expressly prohibited by the treaty

b) prove incompatible with the object or purpose of treaty

· The treaty comes into force between reserving state and other parties

· One of the latter states may object to the reservation within 12 months after its notification.

· Objections end up meaning that the provisions covered by reservation do not apply as between two states – they drop out of treaty

· Therefore, no difference between objecting to a reservation or accepting it – in either case, the ‘reserved’ bit drops out of treaty agreement between those 2 parties

· If state places a certain interpretation on a treaty provision, and a state objects, treaty applies without the provision that are covered by interpretative reservation. For all the states that don’t object, the treaty applies with the interpretative reservation.

· Legal regime allows as many states as possible to take part in treaties with components that they don’t agree with. But this may impair ‘multi-lateralness’ of agreements, if it all ends up being a hodge-podge of bilateral agreements, with different reservations.

Ø Human rights – if a state enters a reservation to a human rights that is inadmissible either because it is not allowed by the treaty itself or is contrary to object and purpose, it does not mean that the provision reserved does not operate with regard to the reserving state (contra regular rule). Reservation must be regarded as null and void. This means that human rights standards prevail over sovereignty of states. Opinion of European Court of Human Rights (Belilos, Weber, Loizidou) and UN HRs Committee (General comment, 1994 and Rawle Kennedy).

 

c) Grounds of invalidity

 

Old Law

· In the past, duress (economic, political, military coercion to induce one state to enter an agreement) was not considered to invalidate the treaty.

· Corruption of state officials negotiating treaty did not render it null and void.

· Only grounds of invalidity were minor

o Using force or intimidation against the state official making the treaty

o Inducing the other party through misrepresentation to enter into an agreement (i.e. false maps)

· All the grounds of invalidity were on same legal footing

· Only the party to a treaty allegedly damaged by a treaty’s invalidity was legally entitled to claim that the treaty was not valid (privity of treaty)

 

New Law – Vienna Convention on Law of Treaties

· Art. 52 – Coercion (Threat or use of military force) exercised by one state against another makes a treaty null and void. Additional Declaration included economic and political coercion. Foundations laid for gradual emergence of customary rule

· Art. 53 – Treaties may be null and void if contrary to peremptory norms (jus cogens)

· Art. 50 – corruption of a state official of one of the negotiating parties can lead to invalidity

· Art. 48 – error

· Art. 49 – fraud

· Art. 51 – use of coercion against state representative negotiating treaty

· Art. 47 – if state’s consent to a treaty manifestly violates an internal law of fundamental importance, treaty can be invalid

 

Important – distinction between ‘absolute’ and ‘relative’ grounds of invalidity

· Absolute (coercion, incompatibility with jus cogens) – implies that

o Any state party to the treaty (not merely the state which has suffered) can invoke invalidity of treaty

o A treaty cannot be divided into valid and invalid clauses, but stands or falls as a whole (Art. 44.5)

o Possible acquiescence does not render the treaty valid (art. 45)

· Relative (error, fraud, corruption, manifest violation of internal law, etc.)

o These grounds may only be invoked by state which has been victim

o These grounds of invalidity may be cured by acquiescence or subsequent expressed consent of victim state.

o These grounds may make only some provisions of the treaty null and void

 

If a treaty is tainted with absolute nullity, can a state not party to the treaty invoke?

· Art. 65 – only a party to the defective treaty may invoke its inconsistency with jus cogens, same rule seems to apply for other grounds of invalidity (Art. 52 and 54).

· BUT Customary rules – imply that any state concerned, whether or not party to the treaty, may invoke jus cogens or coercion as a grounds of absolute nullity, because these values are paramount at int’l level. Also allows a state to ‘protect’ itself against any assault on jus cogens rights (like planning a genocide on your territory) that was agreed by two state parties. Third state should be able to take this to an international court or tribunal or arbitration.

 

d) Interpretation

 

Old law

· There wasn’t much in terms of specific rules about interpretation. People generally agreed should interpret according to intention of draftsmen. But, how do you figure that out?

· Some (CVL) countries placed great importance placed on “legislative history” – the travaux preparatoires – as indication of intent. Other (CML) countries preferred focus on text and construction of treaty.

· Absence of any rules proved to be to the advantage of the powerful states

· Criteria which did emerge – interpret in such a way that it places fewest curtailments on states; no treaty should be read to mean an infringement on sovereignty of state

 

New Law – Vienna Convention, Art. 31-3

· Emphasis on literal, systematic, and teleological interpretation (art. 31.1) – good faith, ordinary meaning, object and purpose

· Weight given to object and purpose of contracting parties

· Effectiveness principle – interpret provision based on what would be effective and useful (contra old principle of reading down to avoid any restraint on sovereignty).

· Preparatory work – can only be used as supplemental means of interpretation, to confirm (art. 32)

· Text equally authoritative in each language (art. 33). If there is a conflict between meanings in two languages, the meaning which best reconciles the texts in light of object and purpose of treaty must be given effect.

 

e) Termination

 

Old law

· Major powers released themselves from treaty obligations whenever they saw fit

· Sometimes resort to war necessary to do this

· Not clear under what circumstances a material breach resulted in other party being released from their obligation

· War – did that terminate all treaties or leave some intact?

 

New law

· Clarified concept of ‘material breach’ – art. 60.3 –

· Material breach consists of

o Repudiation of the treaty not sanctioned

o Violation of a provision essential to accomplishment of object or purpose of treaty

· Clarified what ‘changed circumstances’ had to be to end obligation (art. 62 (a) (b))

o Existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty

o Effect of the change is radically to transform the extent of the obligations still to be performed

· Exceptions to ‘changed circumstances’ release from obligation (art. 62.2)

o If the treaty establishes a boundary

o If the fundamental change is the result of a breach by the party invoking the clause

· Art. 64 – if a new peremptory norm (jus cogens) emerges, any existing treaty which is in conflict with that norm becomes void and terminates (!!)

· Denunciation – treaty not subject to termination or withdrawal unless

o Parties had intention of allowing for denunciation as a means of termination/withdrawal

o A right of denunciation or withdrawal may be implied by nature of the treaty

e.g UN Covenant on Civil and Political Rights is not subject to denunciation or withdrawal (UN HRs Committee)

· Except for art. 64 stipulation, various causes of termination do not make treaties come to an end automatically but can only be invoked by one of the parties as a grounds for discontinuing treaty.

 


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