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International law: Semester 2 2012

Treaties A treaty is an international agreement (generally written) between two or more states to be bound by certain rules. They are governed by international law.may be in a single instrument or two or more related instruments: Vienna Convention on the Law of Treaties (VCLT) Art 2(1)(a).

The VCLT which regulates written treaties is recognised and applied as articulating custom in most respects.

Requirements for a valid treaty The parties must have an intention to create rights and duties enforceable under IL. Intention is judged objectively from the nature and content of the agreement and surrounding circumstances. Qatar v Bahrain: the ICJ found that an exchange of letters containing clear written rules contained an objective intention to create enforceable rights and obligations to create a treaty. Examples of treatiesWritten instrumentBinding oral agreementExchange of letters: Qatar v Bahrain

Unilateral statements as treaties?
The ICJ has held that unilateral and oral statements made by government officials can create obligations for states (see, eg, Nuclear Test cases/Legal Status of Eastern Greenland). However, it is most likely that a unilateral statement is not a treaty, but that it creates treaty-like obligations.Legal Status of Eastern Greenland case: a declaration by the Norwegian foreign minister not to interfere in a Danish claim to Eastern Greenland was held to be binding, although Denmark offered to raise no objection to a Norwegian claim to other territory in return.Nuclear Test Cases: the ICJ held that the French president's statement that the current series of atmospheric nuclear tests would be the last was a binding obligation not to conduct any more tests. It was binding because it was made publicly and with intention to be bound, despite not having been made within negotiations. So intention to be bound is the critical factor in deciding whether an oral, unilateral statement will be binding.A statement not addressed to any particular recipient is unlikely to create binding obligations (Frontier Dispute case).A unilateral statement in terms that are not sufficiently specific is less likely to create binding obligations (Armed Activities on the Territory of the Congo)

Formation and application of treaties Drafting: The text of a treaty must be adopted by a two-thirds majority of all states participating (VCLT Art 9). Once adopted, the text is authenticated as the Final Act incorporating the text (VCLT Art 10).

1 Concluding a treaty: signature and ratification Concluding a treaty involves a two step-process of signature and ratification. Signature Every state has the capacity to conclude treaties (VCLT Art 6). Representative must have power to conclude Representatives signing must have 'full powers' to conclude a treaty on behalf of the state or must be considered as having full powers by virtue of their representation of the state (VCLT Art 7).If concluded by an unauthorised person, the state may nonetheless confirm the treaty (VCLT Art 8)

Effect of signature Upon signature, the signing state is usually not fully bound (however, some treaties may be binding upon signature or by other method: see VCLT Arts 11-16). Instead, signing signals an intention to be bound at some future point. Signatories have only one obligation at this point, which is an obligation not to undermine the object and purpose of the treaty (VCLT Art 18). Ratification On ratification, the parties are legally bound by all provisions. Ratification in Australia is done by the Executive, and the treaty provisions do not enter domestic law until the parliament passes legislation.

Reservations to treaties A reservation is a unilateral statement of a state, made when signing, ratifying, acceding to or otherwise accepting a treaty, which purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state (VCLT Art 2).Reservations must be in writing and communicated to the contracting states (VCLT Art 23).Reservations may be withdrawn at any time with notice to the other parties unless the treaty otherwise provides (VCLT Art 22).

Validity and impermissibility of reservationsA state can make a reservation (even if objected to) as long as the reservation is not incompatible with the object and purpose of the treaty or is not prohibited under the terms of the treaty itself (VCLT Art 19). o

If a reservation made is incompatible, states will be unable to rely on it (Rawle Kennedy Case).


A reservation relating to jurisdiction relating to enforcement of the treaty rather than substantive obligations is less likely to be incompatible: Armed Activities on the Territory of the Congo case

Effect of a reservation Where one party makes a reservation which is accepted by another party (which is presumed in the absence of an objection: VCLT 20(5)), the obligation owed by each party under the provision will be as modified by the reservation (VLCT Art 21).

2 Per the Anglo-French Continental Shelf case: Where one state makes a reservation to an article in a treaty, and another state rejects the reservation, the effect of the rejection may be said to


render the reservations non-opposable to the rejecting state


render the article non-opposable to the reserving state except on the basis of the conditions stated in the reservations

This renders the article inapplicable as between the two states to the extent, but only to the extent, of the reservation (VCLT 21/Anglo-French Continental Shelf case)

Rules for treaty interpretation and application

1. A treaty does not create obligations or rights for third parties without consent: VCLT Art 34. a. This rule does not apply where the treaty codifies or crystallises into customary IL: North Sea Continental Shelf cases

2. Treaties are to be interpreted in good faith according to the ordinary meaning of the terms in their context and in light of the treaty's purpose: VCLT Art 31(1).

a. Separate instruments and agreements (including conduct establishing agreement) and any international law rules relating to the treaty may be taken into account: Art 31(2) and 31(3).

3. Supplementary means of interpretation (such as reference to preparatory work of the treaty (travaux preparatoires) or circumstances of its conclusion) may be used to confirm interpretation under Art 31, where the meaning of the treaty under Art 31 is ambiguous or where interpretation according to Art 31 leads to a result which is absurd or unreasonable: VCLT Art 32.

4. Treaties are not retroactive unless a different intention appears from the treaty or is otherwise established (VCLT Art 28)

5. Treaties must be performed in good faith (VCLT Art 26). a. The responsibility for performance lies with the federal, not state, government in federations. b. Relied on to reject the idea that reciprocally wrongful acts allowed termination of a treaty: Danube Dam Case.

c. Accepted as customary law (Rainbow Warrior Arbitration)

6. States cannot invoke their domestic law as an excuse to violate IL (VCLT Art 27)

7. Treaties are binding on state parties in respect of their entire territories (VCLT Art 29) a. This can include occupied territory (Israeli Wall case) and maritime zones.

8. Where a later treaty contains provisions incompatible with an earlier treaty: a. If the later treaty is expressed as being subject to or not to be considered incompatible with the earlier treaty, the earlier treaty provision applies (VCLT Art 30(2))

3 b. between the parties to both treaties the later treaty the later provisions apply, and the earlier treaty remains in force only where compatible with the later treaty (VCLT Art 30(3) and 30(4)(a))

c. Between a party to one only treaty and a party to both treaties, the treaty to which both states are parties will apply (VCLT Art 30(4)(b))

9. The doctrine of intertemporal law: a treaty should be interpreted according to the law applicable when it was concluded (Namibia Advisory Opinion).

10. If there is more than one interpretation open but one of them disables the treaty from having the appropriate effect, the interpretation that allows the appropriate effect should be adopted (this 'effectiveness principle' may be encompassed by the 'good faith' requirement of VCLT Art 31).

a. Where the text of a treaty is clear this principle cannot be employed to make up a deficiency: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania Advisory Opinion.

11. Where a treaty is authenticated in two or more languages, terms are presumed to have the same meaning and, if there is a difference, an attempt should be made to reconcile them (VCLT Art 33).

Reasons for invalidity of treaties A treaty will be invalid ONLY on certain grounds set out in the VCLT.A party will not be able to withdraw on these permissible grounds if, since becoming aware of the facts, it has agreed (expressly or by conduct) that the treaty will remain in force (VCLT Art 45).

Consent was not validStates cannot claim a representative entered a treaty without authority due to his/her failure to observe a restriction placed on him/her, unless other states were notified of the restriction prior to consent being given (VCLT Art 47)States cannot claim invalidity simply because consent to a treaty was in violation of its internal law, unless the violation was a manifest violation of a law of fundamental importance: VCLT Art 46

There is an error in the treatyA State may invoke an error in a treaty as invalidating its consent if the error relates to a fact or situation assumed by that State to exist at the time the treaty was concluded and formed an essential basis of its consent (VCLT Art 48) o

States may not be able to rely on errors that they contributed to, or where they should have been on notice of the error, to invalidate the treaty: Temple of Preah Vihear

The treaty came about through fraud, corruption or coercionConsent to a treaty may be invalidated where a state was induced to enter the treaty by the fraud of another state (VCLT Art 49)If the state's consent was procured through the corruption of its own representative directly or indirectly by another state, it can invoke the corruption as invalidating its consent (VCLT Art 50)A treaty will be void ab initio if the state's consent was procured by coercion by: o

acts or threats against its representative (VCLT Art 51)


the threat or use of force in violation of Un Charter Art 2(4) (VCLT Art 52)

4 It conflicts with a norm of jus cogensA treaty is void if at the time of its conclusion it conflicts with a peremptory norm (VCLT Art 53)A pre-existing treaty in conflict with a newly emerged peremptory norm becomes void and terminates (VCLT Art 64)

Consequences of invalidity through conflict with a peremptory normWhere a treaty which is void and terminates for conflict with a peremptory norm per Art 53, the parties must eliminate as far as possible the consequences of any act performed in reliance on the conflicting provision and bring their mutual relations into conformity with the norm (VCLT Art 71(1)).Where a treaty which is void and terminates for conflict with a peremptory norm per Art 64, the termination releases the parties from further obligation and does not affect any right, obligation or legal situation of the parties created by execution of the treaty prior to its termination, provided that they may be maintained thereafter only to the extent they are not in conflict with the new peremptory norm (VCLT Art 71(2)).

Consequences of invalidity If a treaty is found to be invalid it will have no legal force (VCLT Art 69(1)). However, if acts have been performed under it (unless there was fraud, corruption or coercion: VCLT Art 69(3)):the parties may require the other parties to place them in the position as far as possible as if the acts had not been performed (VCLT Art 69(2)(a))acts performed in good faith before invalidity was invoked are not rendered unlawful (VCLT Art 69(2)(b))

Right to withdraw from treatiesThe withdrawing party must notify the other parties, including the reason for withdrawing, and may then withdraw after three months if there is no objection (VCLT Art 65).Any right to denounce, withdraw from or suspend the operation of a treaty may be exercised only with respect to the whole treaty and not with parts of it, unless the treaty itself or the parties agree otherwise (VCLT Art 44). o

However, per subsections (2) and (3)(b) clauses are severable where they were not essential to the consent of the other parties and it would not be unjust to continue performance of the treaty without them (VCLT Art 44).

Grounds for terminating a treaty The only grounds for terminating a treaty:

Material breach of terms A right to terminate will arise where there is a material breach of terms (VCLT Art 60). A material breach per Art 60 is:a repudiation of the treaty not sanctioned by the present Convention; orthe violation of a provision essential to the accomplishment of the object or purpose of the treaty. o

Namibia Advisory Opinion: ICJ found there was a right to terminate the mandate 'in case of a deliberate and persistent violation of obligations which destroys the very object and purpose of that relationship'.

5 o

Rainbow Warrior: the arbitrator found that the primary purpose of an agreement between NZ and France was the confinement of French agents for three years to a Pacific Island. France allowed the agents to leave before the term expired and so committed a material breach.


Gabcikovo: even where one party violated an essential provision, the ICJ applied a restrictive view of the right of unilateral termination, finding that Hungary by its own conduct has prejudiced its right to terminate. Additionally, a state who has suffered no injury may not terminate.

Supervening impossibility of performance A party may invoke impossibility resulting from the permanent disappearance or destruction of an object indispensable for the execution of the treaty as a ground for terminating it (VCLT Art 60(1) and custom per Danube Dam Case).If the impossibility is temporary, the treaty may only be suspended (VCLT Art 60(1))The impossibility must not arise due to a breach of an international obligation by the state seeking termination (VCLT Art 60(2)/Danube Dam case)The UN Conference adopting the Vienna Convention decided that serious financial difficulties would be grounds for terminating a treaty for impossibility, but might preclude the wrongfulness of non-performance.

Fundamental change in circumstances A fundamental change in circumstances may be invoked in order to terminate a treaty if (per VCLT Art 62/custom per Danube Dam case):

1. The change was unforeseen by the parties; and

2. the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

3. the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. a. This ground will only apply in exceptional cases (Danube Dam case). Even a fundamental change in circumstances will not warrant unilateral termination if it is not sufficiently related to the obligation at issue (Fisheries Jurisdiction case: a change in fishing techniques resulting in depletion of fish did not affect an obligation to submit to the ICJ's jurisdiction).

Grounds under the treaty itself Any grounds for termination contained within the treaty itself.

NOT grounds for terminating'Necessity' is not grounds for terminating a treaty; in such case the treaty is left dormant until the parties agree to terminate (Danube Dam case).Reciprocal wrongful conduct by parties is not a ground for termination (Danube Dam case).The severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations established between them by the treaty except insofar as the existence of diplomatic or consular relations is indispensable for the application of the treaty (VCLT Art 63)

6 Consequences of termination Unless the treaty provides otherwise, termination releases the parties from further obligations to perform the treaty and does not affect any right, obligation or legal situation of the parties created through execution of the treaty prior to termination (VCLT Art 70).

Consequences of the suspension of the operation of a treaty (VCLT Art 72) Unless otherwise agreed, suspension of operation of a treaty releases the parties from the obligation to perform during the period of suspension (VCLT Art 72).

Customary law Creation of custom For a rule to be seen as a rule of customary IL which binds all states, there are two requirements: consistent and general state practice and opinio juris (North Sea Continental Shelf Cases).There may be regional customs in particular areas (Asylum case)New custom will override old customary law

State practice 'State practice' is practice showing that states are acting in compliance with a particular rule. There must be consistent and general (not erratic) state practice by a significant majority of states.

1. State practice need not be absolutely uniform and universal , as long as it is extensive and 'virtually uniform'(North Sea Continental Shelf Cases);

2. State practice must be, in general, consistent with the rule and instances of inconsistent conduct must have been treated as breaches of the rule rather than recognition of a new rule (Nicaragua Case)

3. State practice need not have been occurring over a period of extensive duration, as long as these requirements are shown (North Sea Continental Shelf)Custom can arise almost instantaneously between two states if there are no other claims (eg rules applicable to the use of outer space between the USA and USSR)

4. The states 'most affected' - those with relevant interests at risk - must have acceded in the purported rule (North Sea Continental Shelf Cases/Legality of Nuclear Weapons Case) Evidence of state practice is 'any act or statement by a state from which views about customary law can be inferred' (Akehurst, quoted in Trigg). Evidence includes: Bilateral, regional and multilaterial treaties [Major humanitarian and human rights treaties in particular (see, eg, Israeli Wall case)]

The decisions of international judicial and arbitral tribunals and mixed claims commissions

Resolutions of international organisations

National legislation

Decisions of municipal courts

Offical government documents and statements

Legal opinions of Attorneys-General and Ministers for Foreign Affairs

Views of juristic writers (eg ILC Draft Articles, consider in Israeli Wall)

GA (see, eg, Israeli Wall case, Nicaragua, Kosovo Advisory Opinion) and SC resolutions (see, eg, Israeli Wall case).

Written statements of other state participants in a case (see, eg,


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