The Law of Treaties
Introduction
* Main source - Vienna Convention on the Law of
Treaties
* Why Vienna C.? ­ codifies custom
* What is a treaty? Art. 2 Sec 1a):
­ "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;
A written instrument between
two or more parties
* Art. 3 of the VC:
* The 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:
­ the legal force of such agreements;
­ he 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;
­ 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.
A Treaty must be between parties
endowed with intl. personality
* Art. 3 of the VC again...
­ The fact that the present Convention does not
apply to intl. agreements concluded between
States and other subjects of international law
or between such other subjects of
international law, ...shall not affect:
* the legal force of such agreements; ...
The agreement must be
governed by intl. law
* Under customary international law ­ an
agreement concluded between states is
not necessarily a treaty
* Such agreement may be subject to a
municipal law
* VC ­ represents an innovation
The Agreement should create a
legal obligation
* The intention to create legal relations is
not mentioned in the VC as the element of
intention is embraced in the phrase
"governed by intl. law"
* Reasons for excluding the intention are
also practical: states may want express
only their political intent
Conclusion of Treaties
* Regulation in Vienna Convention:
­ Art. 6 ­ 18 : Conclusion of Treaties
­ Art. 19 ­ 23 : Reservations
­ Art. 24 and 25 : Entry into Force
* Provisions of the VC have logical order
1. Capacity of states
2. Full powers
3. Adoption of the text
4. Authentication of the text
5. Means of expressing consent to be bound by a treaty
6. Obligation not to defeat the object and purpose of a treaty prior
to its entry into force
Negotiation and Full Powers
* Art. 7: 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 powers.
* Art. 7: 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 they 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 or organ.
Adoption of the Text of a Treaty
= the 1st stage of the conclusion of a T.
* Art. 9 of the VC:
­ 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.
* The adoption of the text does not create any
obligation!
Authentication of the Treaty
* Authenticated treaty cannot be unilaterally changed
* There are several forms of authentication:
1.Signing
2.Initialling
3.Etc.
* An error may appear ­ solution: error can be corrected
by:
­ initialling the corrected treaty text,
­ by executing or exchanging an instrument containing the
correction or
­ by executing the corrected text of the whole treaty by the same
procedure as in the case of the original text
Consent to be bound
* Art. 11 of the VC provides:
­ The consent of a State to be bound by a
treaty may be expressed by signature,
exchange of instruments constituting a treaty,
ratification, acceptance, approval or
accession, or by any other means if so
agreed.
Signature
* Signing ­ legal effects:
1. may represent simply an authentication of its text.
2. Where such a signature is subject to ratification, acceptance or
approval, signature does not establish consent to be bound.
3. where a treaty is not subject to ratification, acceptance or approval,
signature will signify consent to be bound.
* Art. 12 VC: 1.The consent of a State to be bound by a treaty is
expressed by the signature of its representative when:
a) the treaty provides that signature shall have that effect;
b) it is otherwise established that the negotiating States were agreed
that signature should have that effect; or
c) the intention of the State to give that effect to the signature appears
from the full powers of its representative or was expressed during the
negotiation.
Ratification
= the formal act by which one state declares its acceptance of the terms of the
treaty and undertakes to observe them.
* R.
­ Municipal vs International
* Reasons for R.
­ Historical, Practical, Legislative
* Ratification in the VC ­ see Art. 14 (1): 1.The consent of a State to be
bound by a treaty is expressed by ratification when:
a) the treaty provides for such consent to be expressed by means of ratification;
b) it is otherwise established that the negotiating States were agreed that
ratification should be required;
c) the representative of the State has signed the treaty subject to ratification; or
d) the intention of the State to sign the treaty subject to ratification appears from
the full powers of its representative or was expressed during the negotiation.
* Ratification by perfomance
Accession
= the act by which a state accepts the offer
or the opportunity to become a party to a
treaty already negotiated and signed by
other states
* Accession is only possible if:
1. it is provided for in the treaty, or
2. if all the parties to the treaty agree that the
acceding state should be allowed to accede
Reservations and objections
* Not all provisions of a T. may be acceptable for every state
* See Art. 2 Sec 1d): "reservation" means 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;
* Reservation may be objected
* Legal effect: A reservation established with regard to another party
­ modifies for the reserving State in its relations with that other party the provisions
of the treaty to which the reservation relates to the extent of the reservation; and
­ modifies those provisions to the same extent for that other party in its relations
with the reserving State.
* Legal effect: The reservation does not modify the provisions of the treaty
for the other parties to the treaty inter se.
Entry into Force
* This issue is usually expressly determined
by the treaty.
* If not, the treaty comes into force as soon
as all the negotiating states have
consented to be bound by the treaty
Registration
* According to the Art. 102 of the Charter of
the United Nations "every treaty and every
international agreement entered into by
any Member of the United Nations after
the present Charter comes into force shall
as soon as possible be registered with the
Secretariat and published by it".
Validity of Treaties
* validity of a treaty may be impeached only through the
application of the present convention
* Possible reasons for invalidity:
­ Non-compliance with provisions of municipal law
­ Treaty entered into by a representative who lacks authority
­ Corruption of a state representative
­ Error
­ Fraud
­ Coercion of a state representatives
­ Coercion of a state
­ Unequal treaties
­ Conflict with peremptory norm of general international law ­ ius
cogens
Non-compliance with provisions
of municipal law
* Controversial, there is no absolute solution
* Several different solutions possible:
­ The T. is void if there is a failure to comply with the requirements to state's
constitutional law
­ The T. is void if there is a failure to comply with well known constitutional
limitations
­ the T. is valid
­ the T. valid except where one party to the T. knew that the other party was acting
in breach of a constitutional requirement.
­ The T. is void only if the violation was manifest and concerned a
rule of municipal law of fundamental importance.
* A violation is manifest if it would be objectively evident to any State
conducting itself in the matter in accordance with normal practice
and in good faith.
T. entered into by a representative
who lacks authority
* Who is a representative?
­ The one who have full powers
­ The one who appears to be a representative
based on the states practice
* Heads of State, Heads of Government and
Ministers for Foreign Affairs do not need
the FP
* SOLUTION: the T. is void unless the state
afterwards confirms it
Corruption of a state representative
* Art. 50 of the VC: corruption may cause that the T. is void
Error
* 1.A State may invoke an error in a treaty as invalidating its consent
to be bound by the treaty if the error relates to a fact or situation
which was assumed by that State to exist at the time when the
treaty was concluded and formed an essential basis of its consent
to be bound by the treaty.
Coercion of a state's representatives
* Art. 51 of the VC: The expression of a State's consent to be bound
by a T. which has been procured by the coercion of its R. through
acts or threats directed against him shall be without any legal effect.
Coercion of a state
Art. 52 of the VC: A treaty is void if its conclusion has been procured
by the threat or use of force in violation of the principles of international
law embodied in the Charter of the United Nations.
Unequal treaties
* Unequal T. are not legally binding
* This idea is not generally accepted
Ius cogens
Art. 53 of the VC: A T is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general intl. law. For the purposes of the
present Convention, a peremptory norm of general intl. law is a norm
accepted and recognized by the intl. community of States as a whole
as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general intl. law having the
same character.
.
Bye bye!