definition
- expression of concurring wills- concurring wills attributable to two or more subjects of law
- two or more subjects of public international law
- an intention to produce legal effects
- legal effects under public international law
types
- a bond may be express or tacit. An express bond is embodied either in a written instrument (a treaty) or concluded orally (an agreement). One may add agreements by acts and deeds. Tacit agreements are based on principle of actes concluants or acquiescence.
- eg turkish pm erim prohibited the production of poppy as against the promise of president nixon of US to deliver weapons to turkey (oral agreement); ihlen declaration - implied that denmark could extend sovereignty into greenland, while the danish side understood that they would renounce any claims on spitzbergen. (tacit agreement); temple of preah vihear case (1962) (operation of acquiescence and estoppel)
- examples of informal treaties - aegean sea continental shelf case 1978 ; maritime delimitation and territorial questions 1994; pulp mills case 2010; international military operations 1994; newfoundland/nova scotia arbitration 2001; eritea/ethiopia claims commission award 2005; swiss practice in informal joint declarations; agreed minutes; oral agreements.
- eg of oral agreement question of the bridge over the great belt between finland and denmark - concluded by a phone call between foreign ministers
- contractual treaties (traites-contrats), law-making treaties- only states ratifying the treaty are bound by it and states are free to ratify or not
- based on a transaction and do not purport to set up rules applicable for an indefinite time. A treaty on the cession of some object -territory or other - falls into that category
- set up rules to be applied in the future to an undetermined number of facts and situations which may or will arise e.g. VCLT of 1969
- those concluded in the past (mainly 19th century), in particular protectorate agreements, were considered by colonial powers not as treaties under international law, but municipal law of colonizing power.
- codification
- exceptions: agreement with maori peoples in NZ
- a committee of experts was set up in 1924 and became permanent in 1929
- in 1935 Harvard university published a private draft on law of treaties
- UN set up a permanent and general codification machinery: the general assembly chooses the topics to be codified; draft articles are prepared by the the International Law Commission, a subsidiary body of 34 independent individuals elected for a 5 year term by the assembly; commission annual work reviewed by general assembly'a sixth committee; comission consults governments and international organisations; draft articles then submitted to the general assembly which usually decides to convene a conference to draw up a treaty.
- france - brussels treaty of 1890 relating to african slave trade
- from 1815 to WWI
- rely on monarchial tradition with head of state acting as representative of state in foreign relations and all other participants in foreign affairs, especially ministers and ambassadors, merely serving as delegates
- historians and jurists - bittner, basdevant and mcnair; theorists - triepel and anzilotti
- six great powers usually played a crucial role, rights of smaller states occasionally sacrificed e.g. balkans, korea, de facto functioning as league of nations or UN
- source of international law
- private collection of treaties - Recueil manuel et pratique de traités, conventions, et autres actes diplomatiques (charles de martens); descamps; renault
- between the two WW
- great role played by Pan-american union
- treaty making procedures simplified, no longer requiring personal representation by head of state who was often replaced by Minister for foreign affairs or head of government
- birth of league of nation treaty series
- occasionally signature of state rep no longer required, which rendered the term ratification somewhat inappropriate to describe final consent
- emergence of international legal personality of organizations
- after WWII
- soaring number of agreements between organisations, or between organisations and states
- Un has major influence
- partly by international customary law, recently supplemented by 1969 vienna convention, varying from one constitution to another,
- treaties to which at least one international organisation is a party bring into play both general international law and the law of the organisation concerned.
- international customary law
- state a/non-state subject of international law vested with treaty-making power
- non-state subject of international law vested with treaty-making power e.g. ICRC / non-state subject of international law vested with treaty-making power e.g. insurgents
- non-written agreement of state a/state b
- law of treaties
- doctrinal
- vienna convention on law of treaties of 23 May 1969 (entered into force on 27 Janaury 1980)
- VCLT of 1986 between states and international organisations
- dualistic tenet (international and municipal law completely separate) vs monistic tenet
- bibliographies
- vienna conferences documents; annuaire francais de droit international; UN juridical yearbook; new publications in Dag Hammarskjold Library, or periodical public international law (heidelberg); Ch. Rousseau, principes generaux du droit international public (1944); droit international public (1970); L. Oppenheim, International Law (1955); Lord McNair, Law of treaties (1961); United Nations, Laws and Practics Concerning the Conclusion of Treaties; G. Haraszti, Some Fundamental Problems of the Law of Treaties (1973); A. Maresa, Il diritto dei trattati (1971); GE do Nascimento e silva, conferencia de viena sobreo direito dos tratados (1971); S Bastid, Les traites dans la vie internationale (1985)
- treaty series
- P. Guggenheim, Traite de droit international public (1967); UN secretariat, ways and means of making the evidence of customary international law more readily available (1949); DP Myers, Manual for collection of treaties and collections relating to treaties (1922); UN, list of treaty collections; C. Parry, where to look for your treaties (1980); A Sprudzs, status of multilateral treaties: researcher's mystery, mess or muddle (1972); C. Parry, consolidated treaty series (1648-1919) (Dobbs Ferry 1969-); league of nations, treaty series, publications of treaties and international engagements registered with the secretariat of the league (1920-43); UN, same name; M J Bowman and DJ Harris, Multilateral treaties. Index and current status (1984); R. Pinto and H. Rollet, Receueil general des traites de la france publies et non publies
- introduction to the law of treaties by Paul Reuter
terms
- agreement (generic term)
- treaty (written agreements)
- convention (multilateral agreement)
- covenant / charter (a treaty of some importance)
- exchange of notes/letters (bilateral treaty concluded somewhat informally)
- protocol (treaty linked with another, previous one)
- proces-verbal or agreed minutes (informal treaty concluded during a negotiation)
- modus vivendi (ditto, often of temporary nature)
- memorandum
- concordat (agreements with the holy see on questions of status of catholics)
- statues (treaties setting up judicial institutions)
- opinio juris
- In customary international law, opinio juris is the second element (along with state practice) necessary to establish a legally binding custom. Opinio juris denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question. See ICJ Statute, Article 38(1)(b) (the custom to be applied must be "accepted as law"). Whether the practice of a state is due to a belief that it is legally obliged to do a particular act is difficult to prove objectively. Therefore, opinio juris is an unsettled and debated notion in international law.
parties in treaties
- only entities possessing treaty-making power can conclude treaties or agreements under international law - "subjects of international law"
- sole entity possessing a general and unlimited treaty-making capacity is the state (re icj 1949 opinion in reparation for injuries). In the past, this statement did not include protected states, whose foreign relations were largely under the control of protection state. Today, states are equal in their sovereignty, as stated by article 2 s1 of UN charter.
- international organisation can conclude treaties only in context of powers and functions which have been granted to them. UN is the most extensive treaty-making capacity
- an individual, which under the law includes a corporation or other moral persons, may conclude contracts with a state, e.g concession contracts, but not treaties. There will be a choice of governing legal order.
- Cases: cook islands, taiwan, palestine
- municipal administration
- according to art 56 s1 of Switzerland federal constitution of 1999, cantons can conclude treaties with foreign states in the domain of their own competencies.
- eg bermuda can obtain authorization from UK to conclude treaties for local concersn with other commonwealth states, the UN and some other state.
- case of israel
- water regimes, immigration, boundaries
- entitlement to negotiate and sign on behalf of a state
- 3 categories of persons who are each subject to a distinct legal regime
- troika - according to art 7, s2(a) of vclt 1969, head of state, head of government (PM and Minster of foreign affairs) possess an inherent right to negotiate for the state and engage it in international agreements.
- case
- https://www.state.gov/joint-statement-on-extended-troika-on-peaceful-settlement-in-afghanistan/ On March 18, 2021, Moscow hosted a regular meeting of the extended “Troika” comprising representatives of Russia, China, the United States, and Pakistan, which focused on making progress in the intra-Afghan process to reach a negotiated settlement and permanent and comprehensive ceasefire. The event was attended by representatives of the Government of the Islamic Republic of Afghanistan, Afghanistan’s High Council for National Reconciliation, prominent Afghan political figures, and representatives of the Taliban movement, as well as Qatar and Turkey as guests of honor.
- all other persons need a specific appointment under letters of "full powers" in order to be entitled to negotiate and sign treaty commitments. Full powers are defined as followed by art2 s1(c) of vclt 1969
- icj added that other state ministers can negotiate and conclude treaties in their sphere of competence
- authenticate text and declared text adopted is authentic and definitive, done by initialing each page, and sometimes also the signing of the document
- bilateral treaties are simply initialled and/or signed
- signature
- signature does not mean consent to be bound by the treaty
- establish a provisional legal status for the signatory
- can sign and ratify at once but depends on municipal law
- ad referendum
- effects of signature : (1) entry into force of transitory provisions (2) obligation to abstain from acts which would furstrate the object and purpose of treaty once entered into force art 18 vclt 1969
- regulated in art 11ff vclt 1969
- imperfect - one side claiming not to be bound
- art 46 of 1969 convention
- acte contrarie principle
- for international organisations, 1986 convention followed the general outline of 1969 convention
- letter written by the executive branch to the depository where it is set out that the state consents to be bound by the treaty
- ratification by conduct
- Eg textron case (1981)
- Case: 1957 taiwan government of china ratification of statute of iaea - rejection by a no of iaea state parties
- according to practice of the UN, a treaty depositary, a ratification instrument may be withdrawn before entry into force of treaty (either under art 24 s1, or under art 24 s2 vlct 1969)
- denounce treaty - article 56 vclt 1969
- accession
- regulated in art 15 vclt 1969
- http://www.un-ilibrary.org/international-law-and-justice/united-nations-treaty-series_d04314eb-en-fr
- art 102 UN charter, art 80 vclt
- UN treaty service even registered unilateral acts, such as optional declaration of compulsory icj juridiction under art 36 s2 of the statue
entry into force
- regulated in art 24 vclt 1969
- there are some treaties which have never entered into force, such as the arrangements of 1930 league of nations conference relating to the territorial sea
- some have not yet entered into force, such as vclt of 1986 on treaties involving international organisations
application
- art 27 of 1969 convention
- a rule contained in a treaty may become applicable to a state which is not a party, for instance when a state expressly agrees to be bound by the treaty of or by parts of it.
- provisional application - art 25 vclt 1969
- it may occur that provisional application lasts for a long time. e.g GATT of 1947
- Cases: swiss bilteral treaty on avoidance of double taxation in 1997, amended version in 2000 was put into operation provisionally. In jan 2012, the other state party notified to switzerland its intent not to become a party to 1997 ttreaty as amended in 2000; it also indicated that the provisional application had to terminate with immediate effect. In feb2012, switzerland notified to the other party that it did not share its legal views on the effects of immediate termination.
- art 28 vclt 1969
- art 4 vclt 1969 non-retroactivity
- allow states to become parties to the treaty
- exclude/modify provisions with which those states have difficulties
- in panamerican union system, a flexibility practice
- in league of nations, an offer to modify the treaty and had to be accepeted by all other state signatories and parties in order to be allowable. Practice started to shift towards the flexable system after 1945. 1st step was performed by icj in genocide convention opinion of 1951.
- definition - art 2 s1(d) vclt 1969
- Unilateral legal act
- Made at the moment of becoming a party to the treaty and not later
- Interpretative declarations (understandings)
- limitations in treaty clauses on right to formulate reservations
- Expression on preferred interpretation of a provision
- Expressio of policy
- Final provisions
- General principles - object and purpose test
- Art 20 s2 or 3 vclt 1969
- effects
- Art 21 s1 vclt 1969
- frequent inhuman rights treaties
Validity
- grounds of invalidity arts 46 to 53 vclt
- irregular ratifications
- Guniea-bissau v senegal arbitration (1989)
- Specific instructions
- Error
- Fraud
- Corruption
- Coercion of a state representative
- coercion on the state
- Peremptory norms of international law (jus cogens)
- Absolute and relative nullity
- Severance of vitiated clauses
- Loss of right to claim a cause of relative nullity
Third states
- arts 34 to 38 vclt 1969
- Recognised exceptions
- Obilgations
- Rights
- Revocability
- art 31 s1, art32 vclt
- text/ordinary meaning (grammatical interpretation)
- Polish postal service at danzig (1925)
- Eastern greenland case (1933)
- Somalian diplomat case (1992)
- context (systematic interpretation)
- Namibia opinion (icj 1971)
- Grand-duche du luxembourg v compagnie luxembourgeoise de telediffusion case (cour de justice, luxemboug, 1987)
- Kasikili/sedudu case (botswana v namibia icj 1999)
- Subject matter and aim of the norm (ratio legis)
- Peace of nicas 421 bce
- Wickes v olympic airways 1984
- maxims and general canons
- A contrario and per analogy arguments
- Ejusdem generis
- Argument ad absurdum
- Effet uile, ut res magis valeat quam pereat
- Interpretation contra proferentem
- Interpretation in favorem libertatis
- Conformity maxims international/municipal law
- Uniformity of interpretation
- Lex specialis derogat legi generali
- evolutionary interpretation
- plurilingual treaties
- Equally authoritative in different authentic languages
- unity or adaptability of interpretative rukes according to type of treaty
legal effects
- express provision in instrument
- indicative vocabulary
- circumstances of conclusion (statements during negotiation)
- subsequent practice
- capacity to be registered or the fact of being registered under article 102 of UN charter
Implementation
- relationship international/municipal law
- Icj judgement germany v italy 2012
- obligatory character of treaty commitments (pacta sunt servanda)
- Art26 vclt
- municipal law cannot be invoked in order not to apply a treaty
- Art27 vclt
- Securing performance by special treaty regimes
- territorial application of treaty clauses
- Art29 vclt
- erga omnes partes treaties
- cases
- cases
- The American-Mexican Claims Commission, officially known as the General Claims Commission (Mexico and United States,) was a commission set up by treaty that adjudicated claims by citizens of the United States and Mexico for losses suffered due to the acts of one government against nationals of the other. The General Commission lasted from 1924 - 1934, when the mixed U.S.-Mexico commission was abandoned.[1] There was a Special Commission that was set up to deal with claims arising from the era of the Mexican Revolution. Neither commission was successful and in 1934 the two governments engaged in direct bilateral negotiations and came to a settlement.Since Mexico's independence in 1821, the US and Mexico on a number of occasions had disputes over territory, taxation, and claims by US private citizens. Claims between 1825 and 1839 were arbitrated by a claims convention, on the suggestion of the Mexican government. The convention was established on April 11, 1839.[3] Subsequent commissions were constituted in 1839, following the Texas Revolt and claims following the Treaty of Guadalupe Hidalgo (1848), the Gadsden Treaty (1854), and the McLane-Ocampo Treaty (1859).[4] A commission was set up following the expulsion of the French in 1867, which was constituted on July 4, 1868.
conflicts
- between treaty norm and customary norm
- the lex specialis rule will normally apply --> treaty norm will have precedence inter partes as the more special law explicitly chosen by them.
- between treaty norms
- objective theory based on principle of legality
- subjective theory hinges upon the will of the parties
- solution
- express conventional norms art 20 league of nations covenant, art 103 UN Charter
- in case of silence of the treaty - residual rules of vclt apply. 2 hypotheses: (1) in case of successive treaties with identical parties the lex posterior principle prevails; (2) in case of successive treaties where the parties are not identical the pacta tertiis rule limits the reach of possible solutions.
- case - denysiana SA v Jassica SA (1984)
modification
- before WWII, there was an understanding that an amendment needed the agreement of all the parties to the treaty. After the war, practice developed to allow some parties to agree on a new treaty, with the split of treaty relations.
- two channels
- internal modification by common subsequent practice
- ILC draft on vclt of 1966 contained an article 38
- cases: US/France Air Transport Services Agreement Arbitration (1963); Temple of Preah Vihear case (1962); Namibia opinion of 1971; legal note of swiss international law directorate at the MFA concerned the swiss-german convention on social assistance of 1997.
- formal modification through adoption of revised versions of the treaty.
- bilateral treaties
- amending agreement can be concluded in any form
- in case of plurilateral treaties, it is common that the revision clause requires the agreement of all parties
- multilateral treaties
- treaty contains specific clauses for amendment
- treaty is silent on amendment so that the residual rules of vclt are applicable (arts 40-41)
- objective amendments
- subjective amendments
Termination
- old 19th century maxim declaration of london of 1871
- circumstances based on the will of parties
- consent to terminate expressed outside the treaty art 54(b)
- resolutary clauses art 54(a)
- subsequent abrogative treaty with identical parties art 59 s1
- complete execution of treaty e.g. egypt/uk agreement of 1971
- denunciation/withdrawal
- express treaty clauses
- residual vclt rules
- circumstances independent from the will of parties
- circumstances independent from the will of parties and excluded from regulation in vclt 1969
- legal effects art 70 vclt 1969
- procedure arts 65-68
- a treaty can be declaratory of CIL
- a treaty can be constitutive of new rules of CIL
- a treaty can crystallise a customary law process
transitional social security agreement
- material breach
- threshold of application art 60
- legal regime
- action by all other treaty parties
- action by the specially affected state
- case of integral treaties
- note exceptions
- eg. Tacna Arica arbitration (1925), namibia opinion (1971), rainbow warrior arbitration (1990), Gabcikovo-Nagyamaros case (1997), interim agreement of 13 sept 1995 case (2011) (greece not to oppose admission of former yugoslavian republic of macedonia to international organisations)
- fundamental change of circumstances
- past constructions and new regime in vclt
- conditions art 62 s1 vclt
- exceptions art 62 s2 vclt
- not limited to perpetual treaties; change of government of a state, a radical departure in the policies followed by a government; eruption of war or international armed conflict
- effect of fundamental change arts 65-66
- eg international loadline convention of 1930 was suspended by us in 1941; 1937 agreement between iran and iraq on boundary and on navigation concerning the shatt-el-arab; league of nations minorities treaties; treaty on cooperation and development with suriname suspended by netherlands in 1982; free zones case of 1932 (france, old special customs regime in favour of switzerland)
- supervening impossibility of performance
- art 61
- jus cogens superveniens
- severance of diplomatic or consular relations art 63
- desuetude/obsolescence art 54
- eg establishment treaty between the netherlands and congo (1884); anglo-french arbitration tribunal (delimitation of the continental shelf between uk and france 1977)
- renunciation art 54(b)
- eg in 1928 switzerland renounced its right under a treaty concerning the neutrality of northern savoy
- circumstances independent from the will of parties and excluded from regulation in vclt 1969
- international armed conflict
- state succession
- legal effects art 70 vclt 1969
- procedure arts 65-68
- eg agreement between switzerland and libya suspended by switzerland in 2009
- a treaty can be declaratory of CIL
- a treaty can be constitutive of new rules of CIL
- a treaty can crystallise a customary law process
transitional social security agreement
- https://www.gov.uk/government/news/uk-switzerland-transitional-social-security-agreement
unconstitutional
- 加拿大與美國簽訂的《安全第三國協議》（STCA）要求，從美國赴加國的難民若要尋求庇護，須先向美國申請。加拿大聯邦法官麥克唐納周三裁定此協議違憲，指出難民在美國有被拘留及監禁的風險，對他們而言美國不再是安全國家。裁決將暫緩六個月才生效，讓國會決定是否對裁決提出上訴。
https://orientaldaily.on.cc/cnt/china_world/20200724/00180_025.html
unconstitutional
- 加拿大與美國簽訂的《安全第三國協議》（STCA）要求，從美國赴加國的難民若要尋求庇護，須先向美國申請。加拿大聯邦法官麥克唐納周三裁定此協議違憲，指出難民在美國有被拘留及監禁的風險，對他們而言美國不再是安全國家。裁決將暫緩六個月才生效，讓國會決定是否對裁決提出上訴。
https://orientaldaily.on.cc/cnt/china_world/20200724/00180_025.html
