Treaties

➢ Treaties are formal instruments through which States can agree that certain obligations will be binding between them; most widespread and dominant source of intl law

1. Bilateral treaties - agreements btwn 2 States; form the majority of all intl traties (75%)
2. Law-making treaties - multilateral treaties that codify or create new intl law for a larger community of states; create legal rules of general application, not merely limited to the conduct of the parties inter se (VLCT, VCDR, UNCLOS)
3. Constitutive treaties - treaties establishing intl institutions (UN Charter, ICC Rome Statute)

➢ Under Art 38 ICJ Statute, conventions (general or particular) are mentioned first, but no hierarchy; treaties are more specific

➢ Sovereignty of states

1. Denial existence of higher authority
2. Capacity to conclude treaties (Art 6 VCLT) = attribute of sovereignty (PCIJ, Wimbledon)
3. Nowhere more obvious than with treaties: consent
4. Lack of (higher) authority shows consent to be bound, reservations, (possibly) withdrawal from treaties

➢ Vienna Convention on the Law of Treaties

· adoption in 1969, entered into force in 1980

· made by the Intl Law Commission: a subsidiary organ of the UNGA

· Art 13 Charter: progressive development / codification of intl law

· important in relations to the functioning of treaties

· mostly status of CIL

· ‘residual nature’: States can depart from them by mutual agreement

· Art 4 VCLT = non-retroactivity: VCLT does not apply to Treaties concluded before the entry into force of VCLT. It is only at the point of joining the treaty that a treaty is binding upon said State. However, CIL applies in the period before, so when VCLT does not apply, CIL does

Definition of a treaty

➢ Art 2(1)(a) VCLT :

a treaty is an 'international agreement concluded between States in written form and governed by intl law, whether embodied in a single instrument or in 2 or more related instruments and whatever its particular designation'

1. VCLT only applies to written treaties
   • oral agreements: no but may have legal force (be binding) anyway; Art 3 VCLT; Ihlen declaration (Norway, minister of foreign affairs)
   • typed, e-format, maps, coded texts, joint press statements?
2. Form is not decisive/irrelevant
   • single instrument; one text (Charter, VCLT)
   • 2 or more related instruments: exchange of letters by govs or ministries
   • minutes (records of meetings): Qatar Bahrain, Cameroon vs Nigeria
   • treaty as long as parties demonstrated a sufficiently clear intention to be bound by the agreement; treaties' purpose is to create binding intl legal obligations; what matters is the objective aim and requirements being met
3. Designation is irrelevant
   • 'agreement', 'treaty', 'covenant', 'pact' → doesn't matter as long as States express their consent to be bound in it
4. VCLT only applies to agreements between States
   • This criterion needs to be met in order for an agreement to be considered a treaty
   • Art 3 VCLT: treaties with/btwn other subjects of international law are not covered by VCLT (Art 3 VCLT)
     • no multinational corporations
     • no individuals
   • Art 5 VCLT: VCLT applies to any treaty which is the constituent (founding) instrument of an IO and to any treaty adopted within an IO - IOs may also enter into treaties, whether between them or with a State
5. Governed by international law
   • VCLT does not apply to agreements and contracts governed by domestic law, must be a treaty as described under VCLT
   • Agreements that are not treaties: Helsinki Accords 1975; mentioned not to be eligible for registration article 102 Charter
6. Qatar Bahrain, paras 21-30

Two basic principles

❏ Consent to be bound (legal basis) - Arts 11-17 VCLT

• a party is only bound by the provisions of a treaty to which it has consented
• in order to be bound by a treaty, States must explicitly express their consent, they have to explicitly agree because they join up to their own free will
• Lotus principle: cannot assume the consent
• a treaty only creates law as between the States which are parties to it; can't impose obligations on third states without their consent (pacta tertiis nec nocent nec prosunt)
• when a state is not a party to a treaty → check CIL

❏ *Pacta sunt servanda = ***agreements shall be respected - Art 26 VCLT

• once it is bound, a party shall respect its obligations in good faith
• every treaty in force is binding upon the parties to it and must be performed by them in good faith
• Wimbledon case, Nicaragua case bound by treaty if recognised validity

Treaty law-making

1. Treaty negotiations

   • May take many years (esp multilateral law-making treaties)

   • Or very quickly (peace agreements at conferences)

   • Duty to negotiate in good faith

   • Who can perform ?

   • Full powers = document setting out that a certain person is authorised to act on behalf of the state for certain purposes (e.g. negotiate and conclude a treaty) - Art 7 VCLT

   • People representing the State without having to produce full powers: Art 7 VCLT

     for all acts relating to the conclusion of treaties:

     1. head of state
     2. head of government
     3. minister of foreign affairs

     for adopting text only:

     1. heads of diplomatic missions
     2. representatives conferences or IOs

   • Art 8 VCLT: confirmed by the State

   • Art 46 VCLT: if under national law, a rule show that you were not actually authorised, your act is set aside - sometimes national law is breached bc defect in your consent (Qatar Bahrain, the rule on full powers of the Troika trumps over Art 46 VCLT, it always prevails irrespective of national law)

2. Adoption of treaties (Art 9 VCLT)

   • By expressing their consent of parties negotiating the treaty, the treaty is adopted

   • Adoption = conclusion of negotiations, no binding force (does not suffice)

   • 2⁄3 of the present States have to agree if the adoption happens at a conference, unless other method agreed upon

   • Doesn’t bind states = merely shows that the states find the text of the treaty agreeable and acceptable

   • Additional step : initialling = confirms that both parties agree that the wording contained in the document initialled is the wording they agreed

3. Expression of the consent to be bound (Art 11 VCLT)

   • Art 11 - Signature = not bound, but duty not to defeat object and purpose of a treaty (art. 18)

   • Exchange of instruments constitution a treaty

   • Art 14 - Ratification = according to own domestic procedure

   • most common: parliamentary approval required before the ratification by states

   • Acceptance

   • Art 15 - Accession (only with existing treaty)

   • option for non-signatories

   • methods are often specified in treaty

   • Or by any other means if so agreed

4. Entry into force (Art 24 VCLT)

   • As provided by the treaty

   • Consent by all negotiating parties

   • Specific date or other conditions (ex : multilateral treaties usually require a sufficient amount of states to become party to the treaty e.g. 20 ratifications)

5. Interpretation of the treaty (Art 31-33 VCLT)

Reservation to treaties

➢ Art 2(1)(d) VCLT:

Application of treaties

➢ Principle of good faith (pacta sunt servanda)