FHS PUBLIC INTERNATIONAL LAW

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FHS PUBLIC INTERNATIONAL LAW

• THE LAW OF TREATIES
• Catherine Redgwell
• Reader in Public International Law
• St. Peters College
• catherine.redgwell_at_spc.ox.ac.uk

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BASIC READING

• 1969 Vienna Convention on the Law of Treaties
  (VCLT)
• Harris, Cases and Materials on International Law
  (5th ed., 1998), Ch. 10 or Dixon and
  McCorquodale, Cases and Materials on
  International Law, (4th ed., 2003), Ch. 3
• Brownlie, Principles of Public International Law
  (6th ed., 2003), Ch. XXV or Shaw, International
  Law (5th ed., 2003), Ch. 16 or Dixon, Textbook on
  International Law (4th ed., 2000), Ch. 3

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FURTHER REFERENCE

• Aust, Modern Treaty Law and Practice (2000)
• Jennings and Watts, Oppenheim's International Law
  (1992), Vol 1, Parts 2-4, Ch.14
• Sinclair, The Vienna Convention on the Law of
  Treaties (2nd ed., 1984)
• Reuter, Introduction to the Law of Treaties
  (2nd ed., 1995)
• Rosenne, Developments in the Law of Treaties
  1945-1986 (1989)
• Klabbers, The Concept of Treaty in International
  Law (1996)
• Klabbers and Lefeber, eds., Essays on the Law of
  Treaties (1998)
• Multilateral Treaties Deposited with the
  Secretary General
• 2002 at http//untreaty.un.org
• For a list of the current international
  agreements for which the UK is depositary, see
  http//www.fco.gov.uk/directory/treaty.asp

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LECTURE OUTLINE

• 1. Introduction
• 2. Sources of the Law of Treaties
• 3. What is a Treaty?
• 4. Making Treaties Conclusion and Entry into
  Force
• 5. Reservations
• 6. Interpretation
• 7. Amendment and Modification
• 8. Grounds for Challenge
• 9. Termination

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I. INTRODUCTION

• Treaties in modern international relations
• date modern treaty law from the Congress of
  Vienna in 1815 where there appeared for the first
  time the idea that a treaty which is binding
  upon different States by the same terms
  constitutes a single legal instrument (Reuter)

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• multilateral treaty-making 1864-1914
• rise of international organisations and their
  role
• League of Nations United Nations role as
  depositary and initiator of treaty-negotiations
  (e.g. 1982 UN Convention on the Law of the Sea)

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• Treaties now an essential and ubiquitous
  instrument in international relations (Cf VCLT
  preamble)
• particular importance in fields such as human
  rights (ICCPR), environmental protection (FCCC
  CBD), international trade law (WTO/GATT)

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• Enhanced support for rule of law
• "support for the rule of law would be enhanced
  if countries signed and ratified international
  treaties and conventions (Millennium Report
  (A/54/2000), UN Secretary-General)
• Treaty signature/ratification events

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• Treaties as a source of international law
• Article 38(1)(a) of the Statute of the ICJ
  provides that in deciding in accordance with
  international law such disputes as are submitted
  to it, the Court shall apply "international
  Conventions, whether general or particular,
  establishing rules expressly recognised by the
  contesting States.

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• "The order in which the sources of international
  law are enumerated in the Statute of the
  International Court of Justice is, essentially,
  in accordance both with correct legal principle
  and with the character of international law as a
  body of rules based on consent to a degree higher
  than is law within the State. The rights and
  duties of States are determined, in the first
  instance, by their agreement as expressed in
  treaties - just as, in the case of individuals
  their rights are specifically determined by any
  contract which is binding upon them. When a
  controversy arises between two or more States
  with regard to a matter regulated by a treaty, it
  is natural that the parties should invoke and
  that the adjudicating agency should apply, in the
  first instance, the provisions of the treaty in
  question." (Lauterpacht, 1970)

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TREATIES ON TREATIES

• 1969 Vienna Convention on the Law of Treaties (in
  force on 27 January 1980 and presently has 94
  Parties)
• 1978 Vienna Convention on Succession of States in
  Respect of Treaties (in force 1996)
• 1986 Convention on the Law of Treaties between
  States and International Organisations or between
  International Organisations (not in force)

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2. SOURCES OF THE LAW OF TREATIES

• Scope of VCLT covers traditional topics but not
  exhaustive
• VCLT General Law or Progressive Development?

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• "A glance at the headings to the various Parts of
  the Convention quickly reveals that it covers all
  the topics traditionally regarded as falling
  within the framework of the law of treaties -
  that is to say, the conclusion and entry into
  force of treaties (including reservations), the
  observance, application and interpretation of
  treaties, the amendment and modification of
  treaties, and the invalidity, termination and
  suspension of operation of treaties. The
  Convention in addition lays down procedural rules
  concerning depositaries, notifications,
  corrections and registration." (Sinclair, 1984)

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• Definition of treaty Art. 2(1)(a)
• only written agreements between States
• cil governs matters outwith VCLT (preamble, 8th
  indent)
• What isnt regulated? Chiefly effects of war on
  treaties succession (1986 treaty) state
  responsibility (cf. Pt. 9, Gabicikovo-Nagymaros
  Dam Dispute)

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• Article 3 VCLT (exclusions)
• Article 5 VCLT constituent instruments are
  covered (e.g. UN Charter)
• A law of treaties or lawS of treaties? One set of
  rules applicable to all? Cf case study of
  reservations to human rights treaties (Pt 5 below)

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Codification or Progressive Development?

• the more precise formulation and systemisation
  of rules of international law in fields where
  there already has been extensive State practice,
  precedent and doctrine(ILC Statute)
• the preparation of draft Conventions on subjects
  which have not yet been regulated by
  international law or in regard to which the law
  has not yet sufficiently developed in the
  practice of States (ILC Statute)

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• VCLT contains elements of both codification (of
  existing CIL) and of progressive development
  (preamble, 7th indent)
• Article 9(2) Articles 19-23 Articles 40-41
  Articles 42-72 all contain elements of
  progressive development and hence only bind
  States Parties UNLESS crystallise in CIL

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Some Terminology..

• Article 2(1)(g) State is bound by the treaty
  only when it has both given its consent to be
  bound AND the treaty has entered into force -
  only then may it be called a Contracting Party
• Contracting State signifies consent but term
  applicable whether or not treaty is in force

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Examples of pre-existing CIL codified in the VCLT

• Fundamental change of circumstances (Article 62)
  (Fisheries Jurisdiction Case 1973)
• termination and breach (Namibia Advisory Opinion
  1971)
• Articles 31-33 on treaty interpretation (Beagle
  Channel Arbitration)

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Interaction between treaty and custom

• In so far as this contention is based on the
  view that Article 6 of the Convention has had the
  influence, and produced the effect, described, it
  clearly involves treating that Article as a
  norm-creating provision which has generated a
  rule which, while only conventional or
  contractual in origin, has since passed into the
  general corpus of international law, and is now
  accepted as such by the opinio juris, so as to
  have become binding even for countries which have
  never, and do not, become parties to the
  Convention. There is no doubt that this process
  is a perfectly possible one and does from time to
  time occur it constitutes indeed one of the
  recognised methods by which new rules of
  customary international law may be formed. At
  the same time, this result is not lightly to be
  regarded as having been attained. (1969 NSCS
  Cases)

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• Cant bind 3d parties w/o their consent BUT 3d
  parties may be bound by the treaty rule if also
  reflected as a rule of CIL this possibility
  expressly preserved in Article 38 VCLT
• e.g. Article 2(4) UN Charter also CIL 1986
  Nicaragua Case
• influence of treaty negotiation on CIL norm
  crystallisation e.g. development of EEZ concept
  during LOSC negotitations

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3. WHAT IS A TREATY?

• Article 2(1)(a) VCLT definition
• 1. BETWEEN STATES
• 2. IN WRITTEN FORM
• 3. GOVERNED BY INTERNATIONAL LAW
• 4. SINGLE INSTRUMENT OR TWO OR MORE RELATED
  INSTRUMENTS
• 5. WHATEVER ITS PARTICULAR DESIGNATION

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Whatever its particular designation

• Convention (1982 LOSC)
• Treaty (e.g. of peace, extradition,etc.)
• Agreement (e.g. cultural cooperation)
• Exchange of Notes (Cameroon v Nigeria, ICJ, 10
  October 2002)
• Protocols (to ICCPR Kyoto Protocol to 1992 FCCC)
• Charter (e.g. UN Charter but not CERDS)

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What is in a name? EFFECT is what counts.

• Aegean Sea Continenal Shelf Case (1978) no rule
  of international law which might preclude a joint
  communique constituting an international
  agreement to submit a dispute to arbitration or
  judicial settlement
• Qatar/Bahrain (1994) (status of 1990 Minutes as
  binding agreement notwithstanding alleged
  contrary intent)

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• Article 3 VCLT even if not in writing, does not
  necessarily deprive agreement of legal effect
• Nuclear Tests Cases (1974) (unilateral
  declarations - oral not written undertakings yet
  nonetheless unilateral acts binding upon France)
  Role of intent here?
• Frontier Dispute Case (1986) (intent key factor
  in depriving Presidential quip of legal effect)

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• One should probably distinguish the question
  whether oral statements, or unilateral
  declarations, create a legal obligation, from the
  question whether they constitute treaties or
  agreements (Jennings and Watts)
• such statements governed by IL though not
  directly by the VCLT owing to the requirement of
  writing
• exs of Nuclear Tests Cases (1974) and Eastern
  Greenland Case (1933)