Traditional Sources of Law: Treaties

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Traditional Sources of Law Treaties
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Treaties

• Four (4) Traditional sources of international
  law
• International custom (binding)
• General principles (binding)
• Judicial decisions/teachings (non-binding)
• International treaties (binding)

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Treaties

• Principle method for creating binding rules of
  international law
• Derive legitimacy from express consent of states

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Vienna Convention on Law of Treaties I

• Governs major aspects of treaties such as treaty
  initiation, negotiation, adoption, and
  ratification
• Codification of customary international law
  therefore, binding on parties and non-parties
• U.S. has not ratified the Vienna Convention

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Vienna Convention on Law of Treaties II

• Only governs written agreements
• Only governs agreements between States
• Treaty Definition
• An international agreement concluded between
  states in written form and governed by
  international law, whether embodied in a single
  instrument or in two or more related instruments
  and whatever its particular designation. Vienna
  Convention, Article 2.1(a).

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The Treaty-Making Process

• Four Basic Steps
• Identification of needs and goals
• Negotiation
• Adoption signature
• Ratification ( implementation, modification, and
  amendment)

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Step1. Identification of Needs and Goals -

• Dependent on science, data
• E.g., Vienna Convention for the Protection of the
  Ozone Layer
• Two Michigan scientists in 1973 discovered that
  chlorine released into the stratosphere catalyzes
  a reaction that destroys ozone molecules. In
  1974, Molina and Rowland discovered that CFCs
  migrate into the stratosphere, are broken down by
  solar radiation, and release chlorine into the
  stratosphere. This led to considerable research,
  including the WMO/UNEP report (1984).
• WMO/UNEP report led to negotiation of framework
  treaty, the Vienna Convention for the Protection
  of the Ozone Layer

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Step 2. Negotiation

• Bilateral State often simply asks another State
• Multilateral
• Individual states may negotiate or
• State will recommend that Intl Org (e.g., UN
  General Assembly or Economic and Social Council)
  establish committee or hold international
  conference.
• Establish preparatory committees, working groups,
  symposia, preliminary conferences
• Accept comments form NGOs, scientific unions,
  etc.
• Plenipotentaries convened
• Final version of treaty (authentic text)

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Step 3. Adoption (1)

• Text must be adopted at end of negotiation phase
  in order to open the treaty for signature and
  ratification
• Adoption governed by Article 9 of the Vienna
  Convention
• At international conference, 2/3 vote of those
  present and voting needed to adopt, unless other
  method agreed upon by same majority
• Adoption does not bind, but merely means
  participants find the text acceptable

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Step 3. Adoption (II)

• Final Act incorporates history of treaty. The
  treaty text is incorporated into or annexed to
  the Act.
• If negotiations occurred within Intl Org like the
  UN, a resolution must be passed to approve the
  text.
• Treaty must then be authenticated. Authentication
  governed by Article 10 of the Vienna Convention
• Authentication generally occurs by signature,
  although this does not bind State
• Under Article 18 of the Vienna Convention,
  however, a state may not do anything that would
  defeat object and intent of treaty

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Step 4. Ratification or Accession

• State can only be bound if it expresses will to
  be bound. Various methods under Article 11 of
  Vienna Convention
• Ratification
• Only states that negotiated and signed treaty may
  ratify it
• Most common method for multilateral agreements
• Ratification any authoritative act whereby a
  state declares to the international community
  itself bound by a treaty (textbook)
• Instrument of Ratification deposited with an
  organization such as the U.N.
• Domestic political requirements often must be met
  before ratification
• U.S. Senate has still not ratified the
  International Criminal Court U.S. cannot ratify
  the ICC until the U.S. Senate ratifies it
• Accession
• Non-signatories may join by accession
• Accession State declares intent to be bound by
  treaty (methods often specified in treaty)

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Limited Consent and Reservations

• State can limit its consent to only a portion of
  the treaty if the treaty so provides or if other
  States agree
• If limited consent unavailable, State can still
  enter objections and reservations at time it
  gives consent to be bound (as long as not
  prohibited by treaty or contrary to the object or
  intent of treaty) (Vienna Convention, Art. 19)
• Legal effect of reservation depends on whether
  other States accept the reservation.
• Can affect bargained-for rights, threaten
  ratification, and complicate application of
  treaty
• Many modern treaties therefore prohibit
  reservations

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Entry into Force

• Parties become bound by treaty when it enters
  into force.
• A treaty enters into force after it has been
  ratified under national law and the State
  deposits its instrument of ratification, and, if
  treaty has no other specifications, all
  negotiating States have ratified often a minimum
  number of States must ratify the treaty for it to
  enter into force

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Keeping Treaties Up-To-Date

• Parties to an original treaty do not have to be
  parties to any amendments (Vienna Convention,
  Art. 40)
• States that adopt an amendment are bound by terms
  of original treaty when dealing with States that
  have not adopted the amendment (Vienna
  Convention, Art. 30, para. 4(b))
• Parties to a treaty may modify the agreement as
  between themselves if it does not affect other
  States or impair the object and intent of the
  treaty (Vienna Convention, Art. 41)

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Unilateral Treaties

• Unilateral acts, including declarations, may be
  binding
• Nuclear Tests Cases (Australia v. France), 1974
  ICJ Rep. 253
• Australia and New Zealand filed claims in ICJ
  because France was performing atmospheric testing
• ICJ declared issue moot because French officials
  had consistently and publicly stated that France
  would discontinue testing
• France had demonstrated the intent to be bound
  and therefore its declarations were binding

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Interpreting a Treaty (Vienna Convention,
Articles 31 32)

• Text
• interpret in good faith in accordance with the
  ordinary meaning to be given to the terms of the
  treaty in their context and in light of its
  object and purpose. (Art. 31(1)) (Look for
  object and purpose in preamble overall
  structure)
• Context of treaty
• Preamble, annexes, text itself, agreements, other
  international law provisions, etc.
• Parties own interpretations reflected in
  subsequent agreements
• History of the negotiation of the treaty (as
  supplementary means of interpretation)
• Present-day state of scientific knowledge