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Week 2 - Treaties - Coggle Diagram

- - - - 3a. Object and Purpose (VCLOT 18) - A state bound by a treaty is obliged to refrain from acts which would defeat the object and purpose of a treaty. Applies where prior to party, or prior entry into force.
        
        3b. Pacta sunt servanda (VCLOT 26) - A customary rule, which requires states to comply with obligations in good faith. Thus, applies independent of the VCLOT. This governs the obligations of the parties after the periods contemplated under VCLOT 18.
        
        3c. Third States (VCLOT 34) - Under the principle of res inter alios act nec nocet nec prodest (Transaction between other effects neither disadvantage or benefit), if a party to a treaty is committed to an agreement in a treaty, a State which is not party is not obligated to the treaty.
        
        Exceptions (Sir says not exceptions per se, in effect either new treaty is formed or, customary law binds them)
        
        Establishment of Obligation(VCLOT 35) - if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing. (In effect, they just make a new treaty)
        
        Treaty Provides Rights to 3rd State (VCLOT 36) - if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.
        
        Customary International Law (VCLOT 38) - Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.
        
        Definition (VCLOT 2) - A State not party to a treaty.
        
        Nature of Obligations - Applies universally to all treaty obligations, even to procedural rules.
        
        When Obliged to Refrain - IF:
        
        SIGNATORY(Not yet a party to a treaty) - It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (Mere Signatory)
        
        STATE PARTY (Already a party to treaty) - expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed
        
        State Party v. Signatory - Casis: There is a difference between a signatory and a State Party.
        Signatory: Sign lang, but not yet ratified.
        State Party: Signed and ratified
        
        Obligaiton which requires signatory to not do anything to make it harder to comply with the obligation later on.
      - Reservations - Unilateral statements made by a state when signing/approving a treaty where it purports to exclude or modify the legal effect of certain provisions of the treaty as regards its application to that state.
        
        Interpretation - Used to establish the meaning of the text that the parties intended to have in relation to the circmstances, with reference to which the question of interpretation has arisen.
        
        6. Invalidity of Treaties (VCLOT 45-53)
        
        Termination and Suspension (VCLOT 60-62) - These are customary international law. As held in Gabcikovo
        
        Termination Due to Material Breach (60)
        
        Breach in a Bilateral Treaty - A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
        
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        Breach in a Multilateral Treaty - Entitles the other parties to:
        
        Suspend/Terminate by Unanimous Agreement - by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either between ALL PARTIES or, in relations between themselves and the defaulting state.
        
        SPECIFICALLY AFFECTED - a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State
        
        SUSPENSION WITHOUT SPECIAL IMPACT - any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself IF the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.
        
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        When Material - Can either take the form of:
        
        REPUDIATION - a repudiation of the treaty not sanctioned by the present Convention; or
        
        VIOLATION ESSENTIAL - of a provision essential to the accomplishment of the object or purpose of the treaty.
        
        Breach of Other International Customs (Gabcikovo) -
        
        Violation of a state by other treaties or other rules of general international law does not authorize the termination of a treaty. Instead, at most may only justify countermeasures.
        
        It is only a material breach of the treaty itself, by a State party to that treaty, which entitled other party to rely on it as a ground for termination
        
        Termination due to Impossibility of Performance (61) -
        
        When Invocable -if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.
        
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        When Uninvocable - Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty
        
        Termination due to Change of Circumstances (62) - Generally, a fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties may not be invoked.
        
        Exception - The following requisites must concur:
        
        ESSENTIAL - the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty;
        
        RADICAL CHANGE - the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
        
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        Suspension - The same grounds for termination may be invoked to suspend the operation of the treaty.
        
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        Differs from fundamental impossibility, this is negative wording.
        
        Presumption: A treaty is not subject to denunciation or withdrawal.
        Where a treaty contains no provisions regarding its termination, the existence of a right of denunciation depends on the intention of the parties, which can be inferred from the terms of the treaty and its subject-matter. A treaty may specify the conditions of its termination, and may provide for denunciation by the parties.
        
        Loss of Ground to Invalidate/Terminate/Withdraw/Suspend (VCLOT 45) - If, after becoming aware of the facts it either:
        
        EXPRESS AGREEMENT - it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or
        
        AGREEMENT BY CONDUCT - it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be.
        
        Grounds for Invalidation
        
        Relative Grounds for Invalidity - may be invoked by a State to invalidate its consent to be bound by the treaty.
        
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        Absolute Grounds for Invalidity - render a State’s expression of its consent without any legal effect and the treaty void.
        
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        Internal Law and Validity (VCLOT 46) -
        
        GR - A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent.
        
        XCPN;Manifest Violation - unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
        
        When Manifest - A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.
        
        General Rules of Interpretation (VCLOT 31) - Binding as customary law.
        
        Good Faith/Ordinary Meaning (VCLT 31.1) - A treaty shall be interpreted in GOOD FAITH in accordance with the ORDINARY MEANING to be given to the terms of the treaty in their context and in the light of its OBJECT AND PURPOSE
        
        Additional Context - Construed in addition with the text, preamble and annexes of the treaty.
        
        Universal Agreement - any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty
        
        Instrument - any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty
        
        Agreement vs. Instrument - Agreement refers to a meeting of the minds, whereas the instrument is the tool used to implement the agreement.
        
        Principle of Effectiveness - When a treaty is open to 2 interpretations, good faith and the object and purposes of the treaty demand that the interpretation which enables the treaty to have appropriate effects be adopted. 2 meanings:
        
        All provisions must be supposed to have been intended to have significance
        
        Instrument as a whole and each provisions must be taken to have been intended to achieve some end
        
        Subsequent Agreements (VCLT 31.2) - Construe + Context + Treaty
        
        Subsequent Agreement - Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
        
        Subsequent Practice - in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
        
        Relevant Intl. Law - any relevant rules of international law applicable in the relations between the parties
        
        Application - (Botswana v. Namibia)
        
        Subsequent agreement - an agreement as to the interpretation of a provision reached after the conclusion of the treaty represents an authentic interpretation by the parties which must be read into the treaty for purposes of its interpretation (Yearbook of the International Law Commission, 1966)
        
        Subsequent practice - the importance of such subsequent practice in the application of the treaty, as an element of interpretation, is obvious; for it constitutes objective evidence of the understanding of the parties as to the meaning of the treat
        
        Whaling in the Antarctic - Subsequent agreements/practice cannot be binding if without the concurrence of states party to the convention or, the subject state.
        
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        Ut magis valeat quam pereat - Applies here, interpretation with reference to the declared and apparent object and purpose of the treaties as to give them full effect.
        
        The text of the treaty must be presumed to be the authentic expression of the intentions of the parties.
        
        Contemporaneity (Evans, citing Fitzmaurice) - treaty must be interpreted in the light of linguistic usage current at the time when the treaty was concluded
        
        Supplementary Rules of Interpretation (VCLOT 32) - May refer to supplementary means of interpretation such as circumstances of the conclusion of the treaty, its preparatory work, etc. when the interpretation under general rules are:
        
        Ambiguous - Leaves the meaning ambiguous/obscure
        
        Absurdity - Leaves to a manifestly absurd or unreasonable result.
        
        When Treaties are Authenticated in Multiple Languages (VCLOT 33)
        
        General Rule - Treaty is equally authoritative in each language, UNLESS the treaty or the parties provide that in case of divergence one shall prevail.
        
        Different Language - If treaty in a language other than the authenticated ones, authentic only if the treaty or the parties so agree.
        
        Presumption - Terms of the treaty are presumed to have the same meaning in each authentic text.
        
        Reconciliation - if general and supplementary rules of interpretation provide a different meaning or ambiguity, the meaning which best reconciles the text, with regard to object and purpose shall be adopted.
        
        Codificatory (Kasikili/Sedudu Island) - These also reflect customary international law.
        
        EFFECTS (VCLOT 21) -
        
        Reservation with regard to another party -
        1a. RESERVING STATE - for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation
        1b. OTHER STATE - Modifies the same provisions to the same extent for the other party.
        
        INTER SE (Between and among themselves) - The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se
        
        OBJECTING STATE - a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation
        
        Interpretative Declarations - Appended to treaties at the time of signature, etc. setting out how a state understands its treaty obligations. Does not exclude or modify certain portions of the treaties. May serve to exclude state from strict application of the treaty while avoiding being tagged as a reservation.
        
        The legal effect of interpretative declarations depend upon whether they aim to offer an interpretation of the treaty that may subsequently be proved incorrect (interpretative)
        Vs they offer an interpretation that is to be accepted by others (qualified interpretative)
        
        When Prohibited (VCLOT 19) - Generally, States may make reservations. Unless:
        
        EXPRESS - The reservation is prohibited by the treaty;
        
        SPECIFIC RESERVATIONS - The treaty provides that only specified reservations, which do not include the reservation in question may be made
        
        INCOMPATIBLE - In cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.
        
        Procedure for Reservation (VCLOT 23) -
        
        WRITING - Reservation, express acceptance of a reservation, objection to a reservation must be formulated in writing and communicated to the contracting States/other states entitled to become parties to the treaty.
        
        UPON SIGNING - If reservation formulated when signing the treaty subject to ratification, these must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. Here, reservation is on the date of confirmation.
        
        PRIOR TO CONFIRMATION - express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation
        
        WITHDRAWAL - must be in writing.
        
        Jus Cogens - Reservations with respect to treaty provisions that reflect jus cogen norms are impermissible. In effect, the reserving state would still be bound in the same way as if they reserved to treaties codifying norms of customary international law.
        
        Effect of Reservation (Reservation to Genocide Convention) - SA state which has made and maintained a reservation which has been objected to by one or more parties of a convention can still be a party to the convention IF the reservation is compatible with the object and purpose of the convention. Otherwise, non-party.
        
        In lecture
        
        Acceptance (VCLOT 20) -
        
        NO ACCEPTANCE - If reservation expressly authorized, does not require subsquent acceptance UNLESS the treaty provides otherwise.
        
        UNIVERSAL ACCEPTANCE - If it appears that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by it, a reservation requires acceptance by all parties.
        
        ACCEPTANCE BY ORGANIZATION - a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
        
        Other Cases of Acceptance (VCLOT 20) -
        
        ACCEPTANCE - by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States
        
        OBJECTION - by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State;
        
        CONSENT - 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
        
        Withdrawal (VCLOT 22) -
        
        WITHDRAWAL OF RESERVATION - In the absence of contrary stipulations, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal.
        
        WITHDRAWAL OF OBJECTION - In the absence of contrary stipulations, an objection to a reservation may be withdrawn at any time.
        
        Specific Rules to Withdrawal (VCLOT 22) - Unless the treaty otherwise provides, or it is otherwise agreed
        
        Operative Reservation - The withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been received by that State.
        
        Operative Objection - Withdrawal of an objection becomes operative only when notice of it has been received by the State which formulated the reservation
        
        In lecture
        
        Lapse into Acceptance - a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve 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. UNLESS, the treaty provides otherwise or, it concerns the constituent instruments of an international organization.
        
        Application - Applies to multilateral treaties, not bilateral ones. In bilateral treaties, modifications constitute counter-offers to the treaty. If accepted, then its just a new treaty.
        
        Distinguished from Interpretative Declarations -
        
        Reservation - excludes certain provisions or modifies the legal effect of certain provisions
        
        Interpretative declaration - only specifies and clarifies the meaning or scope of a treaty of certain of its provisions
        
        Importance of Reservations - Broadens scope. Environmental treaties, more important that more treaties abide.
        
        When Made -
        
        GR: A State may formulate a reservation when signing, ratifying, accepting, approving or acceding to a treaty. [VCLT, Art. 19]
        
        So States make reservations when they are expressing their consent to the treaty (so before they enter into it)
      - Conflict between Domestic Law and Treaties (VCLOT 27) - A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.
        
        Conflict between Internal Consent and Treaties(VCLOT 46) -
        
        A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
        
        A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.
    - - State Party v. Signatory - Casis: There is a difference between a signatory and a State Party. :
        
        Signatory - Sign lang, but not yet ratified.
        
        State Party - Signed and ratified
    - - Purpose of Signature - Only as a means by which definitive consent of a State to be bound by a treaty is expressed. Does not deal with signatures subject to felicitation, acceptance, etc.
      - When Considered as a Signature (VLOCT 12) -
        
        INITIALLING - Initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed;
        
        REFERENDUM - The signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty.
    - - Authority to Ratify - Authority to Conclude Treaties
        
        GR: A person is considered as representing a State for the purpose of expressing the consent of the State to be bound by it if: he or she produces appropriate full powers, or It appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
        
        XP: Persons who, by virtue of their functions and without having to produce full powers, are considered to have such authority:
        2a. Heads of State,
        2b. heads of government, and
        2c. Ministers of Foreign Affairs;
        2d. Heads of diplomatic missions, for the purpose of adoption of the text of a treaty between the accrediting State and the State to which they are accredited;
        2e. Representatives accredited by States to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization, or organ
        
        Effect of Lack of Authority -
        
        GR - If an unauthorized person purports to conclude a treaty, this is without legal effect.
        
        XP: When subsequently confirmed by the State. However, when an authorized representative of the State expresses consent to be bound although instructed by their State not to, their consent is still valid.
        XP2: When the limitation on their authority was notified to other negotiating States beforehand.
  - - - Required Form - A treaty is a generic term that can cover international agreements outside the definition of the VCLOT. Thus, can apply to songs, etc.
        
        Governed by International Law - Distinguishes agreements governed by PIL and those regulated by the national law of one of the parties.
        
        Joint Communique (Aegean Sea Continental Shelf) - No rule of international law that precludes joint communique from constituting an international agreement to submit a dispute to arbitration or judicial settlement. A joint communique is a letter/message, diplomatic in nature.
        
        Objective Test (Qatar v. Bahrain) - When determining the status of a treaty, an objective test is used, taking into account its actual terms and the particular circumstances in which it was made. What is controlling is the intent to create legal relations.
        
        Soft Law - International agreements without intent to create legal obligations. May subsequently harden into a treaty or become a norm of international customary law.
        
        Unilateral Statements (Nuclear Test Cases) - Unilateral statements of states can have binding effect if the intention that they be legally binding is clear.
      - Definition of a State - Only those that the international community recognizes the sovereignty thereof.
      - Requirement of Full Power (VCLOT 2) - 'Document emanating from the competent authority of a State designating a person or persons to represent a Stale for negotiating, adopting or authenticating the text of a treaty, for expressing consent of the State by a treaty, or for accomplishing any other acts with respect to a treaty
        
        Under VCLOT 7, it is generally required that a person has full powers or, it appears form the practice of the state that they intend to be bound by the representative in order for a treaty to be validly executed.
        
        Exception (Cameroon v. Nigeria) - Persons who, by virtue of their functions are considered to have authority without being required to produce full powers. e.g. heads of diplomatic missions, government, etc.
  - - - Scope of the VCLOT - Covers the following forms of treaties:
        
        Treaties between States (VCLOT 1)
        
        Prospective Treaties (VCLOT 4)
        
        Constitutent Instruments (VCLOT 3) - any treaty which is the constituent instrument of an international organization and to any treaty adopte d within an international organization without prejudice to any relevant rules of the organization
        
        Applicability of the VCLOT - A residual rule. Generally applicable, unless the treaty, the parties provide otherwise or, a different intent is established. However, the VCLOT Rules that reflect customary international law apply regardless if the states are party to treaties.
        
        Subject Matter of VCLOT Treaties - Only on matters governed by international law i.e., intent to create legal relations between states.