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Week 11 - Law of Treaties

Vienna Convention on the Law of Treaties (1969)
• 90 parties, 47 signatures, CIF 1988
• largely reflects customary law – majority of provisions therefore binding on most parties

Essential Elements: 2(1)(a)
• agreement between states &/or other subjects with treaty making capacity
• intention to create legally binding obligations
• for purposes of Convention agreement must be written – oral is OK if customary
• agreement governed by IL – not ML

• states can unilaterally bind themselves in absence of treaty

Principal Stages in Treaty Making

• adoption of text by the parties: 9
• authentication of original text (signature): 10
• consent of states to binding effect (ratification, accession): 11-16
• coming into force, usually at predetermined date or number of ratifications: 24
• twilight period, in which parties cannot then defeat object or purpose of treaty: 18
• registration with UN Secretariat: 80 (plus Charter 102)

Reservations
Reservations legally exclude or modify legal effect of certain provisions in treaty in their application to reserving state: 2(1)(d).

State acceding to treaty may formulate a reservation unless:
• reservation not permitted by treaty: 19(a)-(b)
• reservation incompatible with object & purpose of treaty: 19(c)

Some reservations require no acceptance, or acceptance by all other parties, depending on nature & terms of the treaty: 20(1)-(3).

Otherwise, acceptance of a reservation constitutes the reserving state party to the treaty – effect of reservation becomes reciprocal: 20(4)(a), 21(1).

Conversely, an objection to a reservation may prevent treaty in its entirety, or simply provisions to which reservation relates from coming into force between objecting & reserving states, depending on expressed intention of objecting state & intent of treaty: 20(4)(b), 21(3).

Effect of reservations, acceptance or objections to reservations must be determined bilaterally.

Reservations to the Convention on Genocide Case (ICJ, 1951) – compatibility test:
• balance universality with consent
• reserving state is party to a Convention even if some parties reject the reservation, as long as the reservation is still compatible with the object & purpose of the Convention
• if B considers reservation to be incompatible to object & purpose, then B may consider reserving state not to be a party
• if C accepts compatibility of reservation, reserving state is considered a party
• if a signatory who has not yet ratified the Convention objects to the reservation, it can give its notice of opinion & after ratification will have same legal effect as above – provisional objection will crystallise
• an objection to a reservation made by a state that is entitled to accede or sign but has not yet done so is without legal effect

VCLT attempts to preserve relationship between reserving & objecting state: 19-21.

Legal Effects of Treaties

Pacta Sunt Servanda:
• jus cogens
• binding treaties must be performed in good faith: 26
• states cannot be excused of non-performance because of domestic legal impediments: 27
• if implementation is not achieved, state will have to make reparations: 46

Non-Retroactivity:
• unless clearly established otherwise, rights & obligations are not retroactive: 28

Territorial Application:
• unless clearly established otherwise, treaties apply equally to entire territory of state party: 29

Implied Abrogation:
• in cases of incompatibility between old & new treaty rights & obligations, new treaty prevails between state parties to new treaty: 30

Effect on 3rd Parties:
• treaties create neither rights nor obligations for non-party states without their consent: 34
• if party wants to accept rights & obligations, it must be written: 35
• if treaty confers right on 3rd party & 3rd party acts upon it, consent can be established

Treaty Interpretation

• treaty provisions to be interpreted according to their "ordinary meaning": 31(1) (custom)
• this does not necessarily mean literal meaning

Qualifications:
• "in good faith": 31(1)
• "in their context": 31(2)-(3)
Context includes:
• preamble and annexes
• agreements between all parties in connection with conclusion of treaty
• instruments made by parties in connection with, and accepted by parties, in conclusion of treaty
• "in light of object & purpose" (preamble, prior agreements, subsequent practice): 31(1)
• unless "special meaning … intended": 31(4)
• "supplementary means of interpretation" in case of ambiguity – i.e. preparatory work (after using above): 32

General Principles Applied to Treaty Interpretation:
• contemporaneity – give terms legal/factual meaning they would have had at time of conclusion of treaty…
• … unless subsequent events force change in meaning of treaty terms
• use liberal purposive interpretation for treaties establishing IGOs
• ICJ – strict construction of treaties derogating from state sovereignty (unclear practice)
• interpret multilingual treaties so as to reconcile different language versions – if impossible, use original language text: 33(4)

Invalidation of Treaties

• grounds available to invalidate treaties are highly circumscribed
• treaties presumed to be valid until shown (by party seeking to invalidate) to be invalid.

Violation of Internal Law:
• manifest violation of internal law with regards to competence to conclude treaties—violation must be apparent & of fundamental importance: 46
• contrast with 27
• voidable at option of aggrieved party

Excess of Authority:
• excess of representative's authority in expressing state consent to be bound: 47
• restrictions on authority must be brought to other party's attention
• other party is entitled to rely on authority
• voidable at option of aggrieved party

Error of Fact:
• treaty may be voidable if error of fact which essential basis for consent: 48
• not voidable if change of fact is the responsibility of party seeking to void treaty
• party must reasonably ascertain the truth
• what is "essential" is unsettled (perhaps object & purpose)
• voidable at option of aggrieved party

Fraud:
• fraud by another negotiating state inducing consent: 49
• voidable at option of aggrieved party

Bribery:
• bribery/corruption of state representative to give consent: 50
• voidable at option of aggrieved party

Treaty Implementation (Four Modes) :
1. incorporate / adopt the text of the treaty into domestic statute as a whole
2. take the substance, not the wording of a treaty and put into domestic statute
3. implementing statute which is subject to the treaty
4. implementing by administrative action (i.e. peace treaties, defence pacts)

Treaty Making Power

Treating making power rests on:
• principles international law
• constitutions of federal states
• Canadian Constitution
• provinces cannot enter into treaties