FLB 307: PIL

LESSON 9: LAW OF TREATIES

What are treaties?
• International agreements between States.
• A Source of International Law (Main
Source)
• Law of Treaties grew from custom.
• Later codified by the Vienna Convention
on the Law of Treaties.
Treaties
• treaties codify, define, interpret or abolish
existing customary international law or
create new rules for future conduct
• through the negotiating process treaties
push states towards custom and opinio
juris
• treaties only bind states that are
signatories but states can bind themselves
by declaring themselves so bound
Vienna Convention On the Law of Treaties
• adopted in 1969
• codification of CIL on interpretation and
application of treaties
• U.S. not a party but the state dept. has said
that it is a codification of custom
• Articles 2 & 3: I) parties must be subjects of
international law ii)they must intend to
create binding relations under int’l law iii)
their agreement must be governed by int’l law
Anglo-Iranian Oil Company Case
• contracts between private entities and
states do not create binding arrangements
between the private entity’s national gov’t
and the state
• the presumption that two parties who
sign written agreements have a treaty can
be rebutted by evidence of intention to the
contrary
Entry into Force of treaties
• Bilateral Treaties-most provide that once
signed and documents exchanged, this is enough
to bring the treaty into effect
• Multilateral-provide that the treaty will be
adopted by a vote OR rules of procedure may say
that they must be adopted by way of consensus-
depends on the rules of negotiation decided by
• usually provide that treaty will only come into
force when eg: X # of states have ratified or
acceded to the convention
Status of signature
• symbolic—state intends at some time down
the road to implement the treaty, it is in
favour of the treaty and some time later will
bind itself
• US signed the Rome Statute but did not
ratify.
• some have argued that once the treaty is
signed, a state cannot do anything to thwart
the process
Conclusion of a Treaty
• representative of the state must have full
powers to give consent of its state
• the mode of adoption of the treaty must be
agreed upon (ie: consensus or majority)
• the means to authenticate the treaty in
different languages must be agreed upon
• Steps to assent to the treaty must be set
out
Steps to assent to the treaty
• generally, heads of state take whatever steps
are required in order to ratify
• at the end of negotiation there is usually a
signing ceremony but this is a signature to
adopt the text and not to be bound
• the official signing takes place at a later date
• if a state has not acceded to the adoption of
the text they may still accede to the treaty
before it is officially signed
Ratification
• Kenya – Ratification of Treaties Bill 2011
• Cabinet Secretary to prepare a Bill about
the Treaty for approval by Parliament
before ratification;
• Bill yet to be enacted;
• No need for domestication legislation
under new Constitution Art 2(5) and (6)
Entry into Force
Treaties can come into force on:
• Ratification or upon a given period after
ratification
• immediately or after signature
• exchange of notes—the date of the second
note
• ratification by a given number of states set
out in the treaty (usually for multilateral
treaties)
Reservations to Treaty Obligations

They modify treaty obligations by:

• a unilateral statement made by a state when
approving a treaty and assenting to it in
substance whereby it modifies the effect of the
treaty on its state
• often has the effect of causing confusion because
other states may not accept the reservations—in
League of Nations vote, reservations had to be
approved by the other acceding states
• only feasible in multilateral treaty obligations
Do reservations have to be approved by
all states party?
• not necessarily but, if the reservations
have the effect of nullifying the purpose of
the treaty, they will not be allowable
• certain treaties provide for no reservations
whatsoever
• 1982 UNCLOS allowed for reservations
but pin-pointed the specific provisions on
which reservations were allowable
Article 19: VCLT: Reservations
State may formulate a reservation unless:
a) reservation is prohibited by the treaty;
b) treaty provides that reservations may be
made only to particular sections;
c) reservation is incompatible with the
object and purpose of the treaty
Art 21: Legal Effects of Reservations
1. a) Reservation modifies the relationship to
the extent of the reservation
b) Modifies the provisions to the same
extent for another party in relations with
the reserving party
2. Reservation does not modify the
relationship of other parties to the treaty
3. A state objecting to a reservation does not
have to respect the provision to which the
reservation applies with regard to the
reserving state.
Reservations to the Convention on
Genocide Case
ISSUES: 1. Can a state be regarded as being party to a
treaty to which it has attached a reservation and to
which reservation other party states have objected?
2. If yes, what is the nature of the relationship between
the state seeking to make the reservation and the states
that have either a) accepted the reservation or b) have
objected to the reservation
3. What is the legal effect of an affirmative answer to
question 1. if an objection is made by a) signatory state
that has yet to ratify b) state entitled to sign or accede
but has yet to do so
Reservations to the Convention on
Genocide Case
• HELD: 1. A state can be regarded as a party to a treaty
even if there is an objection raised to a reservation by that
state provided the reservation is compatible with the
object and purpose of the treaty
• 2. if the objecting states wish to, they may regard the
reserving state as a non-party. If a party accepts the
reservation, they may treat the reserving state as a party.
• 3. If an objection is made by a signatory state prior to
ratification, there is no legal effect until ratification and
then it has the effect stated in question 1. If there is an
objection by a state entitled to accede it has no legal effect.
Pacta Sunt Servanda
• general principle deduced from the law of
states—parties that undertake to ratify
may not impede the treaty’s progress
• Treaties are meant to be binding on the
parties.
Article 46: Provisions of Internal law
• a party may not invoke provisions of internal
law as an excuse for a failure to perform
• Polish Nationals in Danzig-“a state cannot
adduce as against another state its own
Constitution with a view to eroding
obligations incumbent upon it under
international law or treaties now in force.”
• Constitution of Kenya 2010 in the face of The
Rome Statute?
Third States
• 3rd states—consequence of a treaty only binding
states that have ratified or acceded is that a
treaty state cannot impose treaty obligations on
states that are not bound (Article 34)
• if states party to a treaty desire to confer a
benefit on a 3rd state, this will be binding if
consented to by the 3rd state
• Article 35—3rd state not bound unless they
declare themselves to be in writing.
Free Zones Case France v. Switzerland
(1932) PCIJ
FACTS
• By the Treaty of Versailles (Art. 435),
France was obligated to negotiate with
Switzerland (who was not a party) the
status of the peoples along their common
border. Switzerland rejected the proposed
agreement and France abolished the
former status of the territory.
Free Zones Case France v. Switzerland
(1932) PCIJ
• ISSUE: Did Article 435 abrogate the status
of these territories or did it create an
obligation for Switzerland to abrogate these
territories?
• HELD: Article 435 does not abrogate the
status of these territories and Switzerland is
not bound by the treaty.
• this case is more important for its treatment
of conferred benefits on 3rd parties
Note
• NB: If states confer a benefit on a 3rd party
by virtue of a treaty, and the 3rd party relies
on it, there is no necessity of having a treaty
binding the third party for the 3rd party to
have an enforceable right against the treaty
states.
• -most common form of third party benefit
is usually found in the GATT in “most
favoured nation” status
Treaty interpretation
Three main approaches:
• Objective approach; in accordance with the
ordinary meaning;
• Subjective approach; in accordance with the
intention of the parties;
• Teleological approach; in accordance with
the treaty’s aims and objectives.
• VCLT Article 31 provides for all but puts
emphasis on objective approach.
Amendment and Modification
• a treaty can be amended by the mutual
agreement of both parties and this can be
done by formally abrogating an old treaty
or by inserting a clause in the new treaty
abrogating the old treaty
• an amending agreement can only bind
parties to the original agreement that
accept the amended agreement
Some key provisions of VCLT
• Article 42-Validity and Continuance of
Force of Treaties: 1. validity of the treaty can
only be impeached, terminated, denounced or
withdrawn from, by resort to this convention
• Article 43-Obligations Imposed by
International Law: Invalidation,
denunciation, suspension of provisions does
not impair an obligation under other rules of
international law
Some key provisions of VCLT
• Article 46—Provisions of Internal Law
Regarding Competence to Conclude
Treaties: a state cannot breach a treaty by reason
of technical requirements of internal law
• Article 52-Coercion of a state by threat or
use of force: A treaty procured by force or
threats is null.
• Article 53-Jus Cogens: A treaty is void if at the
time of its conclusion it conflicts with a
peremptory norm of international law
Jus cogens
• jus cogens-“an open set of peremptory
norms of international law that cannot be
set aside by treaty or acquiescence”—if
there is a norm or rule labelled jus cogens
and the treaty conflicts with this, the
treaty is null to the extent of the conflict
• these are general obligations owed to the
international community as a whole
Examples of jus cogens
• freedom of the high seas: cannot divide
control of the oceans in violation of this
maxim, Article 2 of UN Charter: Prohibitions
on the Use of Force, pacta sunt servanda,
many human rights laws
• torture is also a violation of international law
jus cogens
• right to self-determination—may be a jus
cogens but there is a difficulty in determining
Art 64-Emergence of a new jus cogen
• If a new jus cogens emerges, existing
treaties in conflict are void.
• Article 69-Provisions of a treaty voided are
of no force, if acts have been performed in
reliance on it, a) a party may require
another party to establish the position it
would have been in otherwise
• b) acts performed in good faith prior to
invocation of invalidity are not unlawful
Termination of Treaties
• As provided by its provisions; if silent parties
can mutually agree or enter into another
agreement terminating the treaty; 1958
Convention on LoS and the 1982 UNCLOS
• By material breach of one of the parties;
• Supervening impossibility;
• Substantial change in circumstances.
(Clausula Rebus Sic Stantibus)
(discussed below)
State Secession and Treaties
• what happens to treaties entered into pre-
secession? RULE: when an entity enters the
international scene as an independent state, it
enters the international community with a clean
state except treaties that run with the land such
as boundary treaties
• BUT some states might deem themselves bound
by all treaties entered into on their own behalf,
others start from scratch and some may pick and
choose
Clausula Rebus Sic Stantibus
• Where there is a fundamental change of
circumstances, international tribunals
have upheld the possibility that a treaty
will no longer be binding
• Article 62 of Vienna Convention—states
that, the change must be fundamental the
parties must not have foreseen the change
of circumstances
• in addition it must be a change that would
radically transform the obligations to be
performed in the particular agreement
• existence of set of circumstances must
have been an essential basis on which the
treaty was entered into
Fisheries Jurisdiction Case U.K. v. Iceland
[1973]
• FACTS: Pursuant to a 1961 treaty between
the two states, they agreed to refer their
disputes to the ICJ. Iceland argues that
the ICJ does not have jurisdiction because
the depletion of the fish reserves
constituted a fundamental change of
circumstances that abrogated the treaty
and justified the expansion of their
protected fishing zone.
Fisheries Jurisdiction Case U.K. v.
Iceland [1973]
• ICJ denies that there has been a
fundamental change
• in order for this rule to operate to nullify
jurisdiction there must have been some
change of circumstances with the
operability of the adjudication mechanism
and not a change to the circumstances of
the treaty itself
adios
Lesson 10: HUMAN RIGHTS