Treaties - International Law

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.

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 treaties

• Written instrument

• Binding oral agreement

• Exchange of letters: Qatar v Bahrain

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)

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).

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.

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 reservations

• A 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).

  • 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).

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)

1. A treaty does not create obligations or rights for third parties without consent: VCLT Art 34.

   1. 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).

   1. 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).

   1. The responsibility for performance lies with the federal, not state, government in federations.

   2. Relied on to reject the idea that reciprocally wrongful acts allowed termination of a treaty: Danube Dam Case.

   3. 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)

   1. This can include occupied territory (Israeli Wall case) and maritime zones.

8. Where a later treaty contains provisions incompatible with an earlier treaty:

   1. 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))

   2. 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))

   3. 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).

    1. Where the text of a treaty is clear this principle cannot be employed to make up a deficiency: ...