TREATIES

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TREATIES

• Lecture 8
• January 30

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ASSIGNMENT -

• Monday, Feb.2
• SHORT QUIZ 10 minutes multiple choice
• Customary International Law
• Paquette Habana
• Asylum Case
• Jus cogens read the hand-out (download from
  class website)
• REMEMBER DEADLINE FOR TOPIC FOR RESEARCH PAPERS
  IS
• Feb.6 sign-up sheet on my desk
• Today
• Eastern Greenland Case (short case)
• B. Customary International Law
• Paquette Habana

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Gabcikovo-Nagymaros -3

• 5. Holding (each issue has only one holding
  the legal answer to each issue) rule of law
  necessary for the decision (judgment) of the
  court. What the court actually did in the case
  (what it decided), rather than what it said. The
  rule modified by the facts of a particular case.
• No - Notification of termination by a state does
  not have the legal effect of terminating the
  treaty if the ground for termination do not
  conform to the requirements enumerated in the
  Vienna Convention and the treaty has no
  provisions regarding its termination.

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Gabcikovo-Nagymaros -4

• When can a valid treaty legally be terminated
  under the law of treaties?
• 1) May H terminate the treaty on the grounds of
  state of necessity? State responsibility issue
  (not VCLOT)
• 2)May H terminate the treaty on the grounds of
  impossibility of performance
• 3)May H terminate the treaty on the grounds of
  changed circumstances
• 4)May H terminate the treaty on the grounds of
  material breach
• 5) Jus cogens Art.64
• 6) Mutual termination consent of both parties
• FOCUS ON 2)- 6) (No. (1) will be dealt with
  later in course).

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Holding Reasoning -1

• 1) Could H invoke state of necessity? No, state
  of necessity is not a grounds for termination of
  a treaty, it may preclude wrongfulness, but
  environmental concerns did not amount to actual
  and imminent peril to preclude wrongfulness.
• Reasoning Reasoning /DISCUSSION/ rationale the
  legal arguments the court used to justify
  applying the rule
• It is not mentioned in Vienna Conv. as one of
  the grounds for termination as it only comes
  into play with regard to state responsibility
  the treaty would just be ineffective while the
  condition of necessity exists, unless the parties
  agreed to terminate it. Environmental concerns
  did not amount to necessity (not grave and
  imminent peril under the Draft Articles on state
  responsibility).

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Holding Reasoning -2

• 2) Could H. invoke impossibility of performance
  No, H could not invoke impossibility as a grounds
  for termination that the economic joint
  investment plan had permanently disappeared.
• A)Permanent disappearance or destruction of the
  object indispensable for the execution of the
  treaty. Art.61,1.
• B) Art. 61,2 cant invoke the grounds of
  impossibility if you were the cause of it.
• Reasoning- H suspended works - instead they
  could have adjusted through negotiations for
  economic and envtl imperatives in accordance with
  the 1977 Treaty, Art.15, 19, and 20. If one
  considered the joint exploitation of the
  investment was no longer possible H could not
  invoke this because it was H that had breached
  its obligation had not carried out most of the
  works.

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Holding Reasoning -3

• 3) fundamental change of circumstances? (rebus
  sic stantibus) No. H could not invoke fundamental
  change of circumstances based on political or
  economic changes.
• Reasoning Art. 62 Fundamental or vital imperil
  the existence or vital development for one of the
  parties. Radical transformation of the extent of
  the obligations still to be performed. Change
  must have increased the burden of the
  obligations. To be executed to the extent of
  rendering the performance something essentially
  different from that originally undertaken. The
  goal was to produce energy and flood control.
  The political situation was not so closely linked
  to the object and purpose of the treaty. New
  envtl knowledge adjust through Articles 15, 19,
  and 20 of the 1977 Treaty.

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Holding Reasoning -4

• 4) material breach? No, H could not invoke
  material breach, H termination was premature.
• ReasoningArt. 60(1)(3)only material breach of
  the treaty itself entitles the party to rely on
  it as grounds for termination. (not violation of
  other conventions and rules of general intl law.)
  Construction and putting into operation Variant
  C, Czechoslovakia violated the treaty only when
  it diverted the waters of the Danube in Oct.1992.
  Hs notification of termination in May 1992 was
  premature. No breach had yet taken place.

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Holding Reasoning -5 6

• 5) New requirements of intl law for the
  protection of the environment precluded
  performance.
• Both agree there are no new jus cogens norms
  Art. 64
• Newly developed envtl norms could be taken into
  account through the application of the 1977
  Treaties Arts.15,19, and 20 - evolving
  provisions
• The treaty could adapt to new envtl norms through
  consultation and negotiation.
• 6) Both parties repudiated the treaty by their
  conduct
• reciprocal wrongful conduct does not bring the
  treaty to an end.
• Would be against pacta sunt servanda
  contracts are binding and must be carried out in
  good faith (Art.26) good faith standards of
  reasonableness, fairness, and decency.
• Unless they both consent to terminate the treaty
  - mutual consent (Art.54).

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Case Gabcikovo-Nagymaros

• Separate Opinion of Vice-President of ICJ
  Weeramantry
• Sustainable Development
• - How was the concept applied in this case?
  Balance environmental and economic concerns

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EASTERN GREENLAND CASE1933

• 1. Court
• PCIJ PRECURSOR TO ICJ
• 2. Sources
• Vienna Conv. on the Law of Treaties (as
  codification of customary international law,
  since it hadnt been adopted yet.)
• Customary intl law by analogy follow the same
  rules as you would for agreement between states
  unilateral declaration can also form basis of
  obligations.
• If you put Ihlen Declaration as a source IF WE
  ASSUME IT WAS BINDING THEN THAT FORMS THE BASIS
  OF NORWAYS OBLIGATION.

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3. Facts

• The Danish minister stated that Denmark would not
  object to Norwegian claims of Sovereignty on the
  issue of Spitzbergen and asked if he could count
  on Norway doing the same in the case of Denmarks
  claim of sovereignty of the whole of Greenland.
  Norways minister of foreign affairs said Norway
  would not make any difficulties for Denmark on
  the issue of Greenland.(Ihlen Declaration 1919).
  Then Norway occupied certain territories in East
  Greenland in 1931.
• Denmark brought the case to the PCIJ wanting
  Norways declaration of occupation and steps
  taken in that regard
• found illegal and invalid.

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4. Issue

• 1) Are affirmations made by one government to
  another binding?
• 2) May the Norwegian occupation of East Greenland
  be considered to violate the Ihlen Declaration
  (affirmation made by the Norwegian Foreign
  Minister) and accordingly unlawful and invalid.

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Issue

• 3) Was the declaration valid if it was made in
  violation of Norwegian municipal law Art. 46
  -invalidity (Art.27 - observance). of the
  Norwegian Constitution requiring consent by the
  Norwegian Parliament to enter into a treaty?
  Should Denmark have known that assent by the
  Norwegian Parliament was needed to make a treaty?

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5. Holding and Reasoning

• 1)Yes. Affirmations (declaration) made by one
  government to another are binding. Unilateral
  statements, the Court implied, can be as binding
  as a bilateral agreement.
• Reasoning A unilateral declaration made in the
  context of a negotiating situation - as a
  response to a request of another state can create
  binding international obligations. The promise
  was unconditional and definitive.

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6. Holding and Reasoning

• 2) Yes the Norwegian proclamation of occupation
  of certain territories of Eastern Greenland may
  be considered to violate the Ihlen Declaration,
  therefore unlawful and invalid.
• Reasoning Ihlen Declaration Norway was under
  an obligation not to make difficulties for
  Denmark on the Greenland issue and a fortiori
  (with even greater sense of logic) to refrain
  from occupying a part of Greenland

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7. Holding and Reasoning

• 3) Yes, Art.46 of Vienna Conv. A state cannot
  invoke internal law.
• For the purpose of all acts w/o having to produce
  full powers the head of state and head of govt
  (prime minister) or foreign minister can
  represent the state Vienna Conv. Art. 7.

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Customary international law

• PUT IN PERSPECTIVE
• Sources of Intl Law
• 1. Treaties
• 2. Customary Intl Law
• 3. General Principles recognized by civilized
  nations
• 4. Judicial Decisions and teachings
• 5. Soft law
• CUSTOMARY INTL LAW
• - non-treaty sources are more universal in their
  reach than treaties
• - provide the essential context of law in which
  to interpret treaties
• - But more difficult in terms of defining the
  rules and ascertaining party consent (if any)

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Customary international law

• Customary intl law DEFINITION - state practice
  opinio juris
• I. State practice Objective element
• 1) Duration -
• 2) Uniformity, consistency of the practice -
• 3) Generality of practice universality is not
  required
• II. Opinio juris Subjective element
• accepted by states Art.38(1)(b) doing the
  practice out of a sense of legal obligation as
  opposed to motives of courtesy, morality or
  fairness
• The problem is one of proof.
• (sometimes the court infers opinion juris)
• Persistent objector- a state may contract out of
  a custom in the process of formation. Objection
  must be clear. Anglo-Norwegian Fisheries case
  Norway was allowed to enforce her system of wider
  than ordinary exclusive fishing zone.
• Different types of custom
• regional or general custom
• may adjust through treaties
• UNLESS JUS COGENS