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Law Notes Public International Law (Detailed Version) Notes

Law Of Treaties Notes

Updated Law Of Treaties Notes

Public International Law (Detailed Version) Notes

Public International Law (Detailed Version)

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6. Law of Treaties General Unless otherwise provided, the law in this chapter refers to VCLT. Vienna Convention on the Law of Treaties (VCLT)- guide for treaty law Entered into force on 27 January 1980. It is a compound of codification and of progressive development of customary international law. Does not deal with * treaties between states and organisations, or between two or more organisations * state succession to treaties * the effect of armed conflicts on treaties Definition of treaties Article 2(1)(a) VCLT It is a written agreement between States, governed by international law, and embodied in a single instrument or a series of related instruments, in whatever designation it may be given. 1. An agreement between UK and Iranian oil company. 2. Whether the international court had the jurisdiction? 3. If the agreement is regarded as a treaty, then international court would have jurisdiction. 4. Therefore, the issue was whether the agreement could be regarded as a treaty? Held, the investment was not a treaty, individuals could not make treaties. Accordingly, ICJ did not have jurisdiction. Elements of treaties * Concluded between States * Currently, the VCLT do not extend to treaties to which public international organisations are parties. * Article 3, however, recognises that at customary internal law, entities other than states may have the international personality to allow them to make treaties. * Individuals have never been recognised as having the capacity to make treaties: Anglo-Iranian Oil Company case * Do not have the right parties, have government of Iran on the one hand and oil company on the other * In written form * Is there such a thing as an oral treaty? * YES, however such treaties would not come within the contemplation of the VCLT and therefore would not be governed by the VCLT. There is really no required form, but the treaty, to come under the definition of the VCLT, must at least be in writing, agreed to by the States, and governed by international law. * Governed by international law * Intention to create legal relations. * Not governed by the local law of one of the parties or by a private law system. * Embodied in a single instrument or a series of related instruments Treaty v. Contract * Nature of the parties * Nature of the agreement itself - what law should govern * Treaty do not require consideration. For example, territory can be ceded by treaty without consideration. Requisite to a valid treaty Treaty-making capacity A treaty to be valid must be entered into by parties with treaty making capacity. All states have full treaty-making capacity unless limited by reason of their status and previous self-imposed inhibitions. The United Nations and its organs (i.e. the Security Council, the Economic and Social Council) and international bodies like the World Health Organisation may enter into treaties. Authorised representative 1 6. Law of Treaties It is for municipal law to determine which organ of the state shall be empowered to enter into treaties in its behalf. (i.e. The Constitution authorises the President to make treaties subject to a concurrence of two-thirds of all the members of the Senate). General Rule: A State is not bound by a treaty made in its behalf by an organ or authority not competent under the law to conclude the treaty unless that State afterwards confirms the treaty: Article 8. * Exception: A state may be responsible for an injury resulting to another state for reasonable reliance by the latter upon the misrepresentation of the former.1 Freedom to consent Fraud or mistake will invalidate a treaty as it would an ordinary contract. Lawful Subject Matter When the subject matter of a treaty is illegal, it is rendered null and void. * Example: The Treaty of Tordesillas of 1949 is invalid for illegality of the subject matter insofar as it sought to divide between Spain and Portugal parts of the Atlantic, Pacific, and Indian Oceans which are open seas. Compliance with the Constitutional Processes * Ratification processes are governed by municipal law. Non-compliance with this requisite will prevent the enforcement of the treaty even if already signed by the negotiators. Making of Treaties Steps in the making of treaties: * Negotiation --> Authentication of Text --> Consent to be bound --> Reservations (if any) --> Entry into Force Step One: Negotiation Negotiations are usually done through foreign ministries. Negotiators have the power to negotiate, naturally, a treaty entered into by one who is not authorised to do so is invalid and without effect. Two elements must be present for someone to be considered with full powers to represent a state: Article 7(1) (a) He produces appropriate full powers (b) The practice of States so provide for evidence that there is an intention to consider that person a representative of the State. Who are empowered to enter into treaties as representatives of their States? Article 7(2) (a) Heads of States, Heads of Government and Ministers of Foreign Affairs (b) Heads of diplomatic missions (c) Accredited representatives of States to international conferences or to an international organisation. Step Two: Authentication This is evidenced by the signing of the document. The manner by which such authentication is primarily guided by the procedures set forth in the treaty itself. If not followed, then the signature ad referendum or initialing of representatives will serve as sufficient authentication: Article 10. Step Three: Consent to be bound There are several means of expressing consent: signing, ratification, acceptance, approval or accession, exchange of instruments, or other means if so agreed: Article 11. Signature * The act of signing will have the effect of binding a state to the treaty when the treaty so provides, or when it is the intention of the parties that the signature would have that effect, or when the parties agree that the signature would have that effect: Article 12 1 Harvard Research on International Law cited by Isagani Cruz 2 6. Law of Treaties Exchange of Instruments * The exchange of instruments will have the effect of binding a state to the treaty when the instruments themselves provide for such effect, or when it is otherwise established that the States agreed that the exchange would produce that effect: Article 13. Ratification, approval or acceptance * The ratification, approval or acceptance will have the effect of binding a state to a treaty when the treaty so provides, the States agreed to give it that effect, the representative of the State signed it subject to ratification, or the States so intended: (ratification in Article 14). * Ratification involves two distinct procedural acts: * an internal act of approval * the international procedure which brings a treaty into force by a formal exchange or deposit of instruments of ratification. An important act involving consent to be bound. Depends on the intention of the parties. The act of deposit by itself establishes the legal nexus between the depositing State and other contracting States. * Where a treaty is expressed to be open to signature 'subject to acceptance', this is equivalent to 'subject to ratification'. Accession: Article 15 * This applies to States that did not participate in the initial negotiations. * Accession may occur before or after the treaty has entered into force. * Accession binds a state when the treaty so provides, when the negotiating parties have agreed that such consent may be expressed by accession, or when all the subsequent parties have agreed that consent is expressed by accession. Obligation not to defeat the object and purpose of a treaty prior to its entry into force: Article 18 * A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has expressed its consent to be bound but the treaty has not yet come into force, i.e., has signed, exchanged the documents, and the treaty is subject to ratification, acceptance or approval, etc. Step Four: Reservation Article 19 Generally, States may make reservations. EXCEPT WHEN: (1) Reservation is prohibited by the treaty. (2) The treaty provides for only specified reservations. (3) When the reservation would be contrary to the object and purpose of the treaty. Article 20 (1) A reservation expressly authorised by a treaty does not need subsequent acceptance by the other State-parties. (2) A reservation requires the acceptance of all the parties when it appears that the application of the treaty is an essential condition of the consent of each State-party to be bound by the treaty. (3) When a treaty is a constituent instrument of an international organisation and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organisation. (4) In cases not falling within the preceding paragraphs and unless the treaty otherwise provides: (a) acceptance by another contracting State of the reserving State's reservation makes the reserving State a party to that treaty in relation to the accepting State. (b) An objection by another contracting State does not preclude entry into force of that treaty as between the reserving State and the objecting State, unless a contrary intention is definitely expressed by the objecting State. (c) an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation. (5) A reservation is deemed accepted by a State if it did not raise any objection to the reservation by the end of the period of 12 months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later. A reservation is 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 the State: Article 2(d) 3

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