Article 59 The decision of the court has no binding force except between the parties and in respect on that particular case
D. Kelsen – completely rejects the division; The essential function of a treaty is to make law, to create a legal norm, whether general or an individual norm
E. Guggenheim: The difference bet. norm-creating and contractual treaties affects only the content, and interpretation but not the legal nature of intl conventions.
F. F.I. Kozhevnik: All treaties in principle have a norm-formative character…since they establish rules of conduct which their parties are bound to observe. Difference lies in treaties which establish rules for:
1. whole sphere of relations among states 2. definite concrete questions
G. Korovin: Division is unfounded. Any treaty, as an act originating with state-subjects of IL, has a particular law-making significance.
H. Lachs: In reality…an intl treaty, either bilateral or multilateral, is a source of rights and duties, even when it regulates very commonplace questions of everyday life. Lachs divides treaties into:
1. Treaties affirming or formulating certain already existing binding principles and norms of law for the purpose of greater clarity;
2. Treaties creating new principles and norms;
3. Treaties applying existing principles or norms of law ad casum.
G Tunkin: Problem [of distinction] is exaggerated & has no practical significance. Any valid intl treaty has legally binding force for its parties & in this sense is law-making.
Conclusion of a Treaty (def) is a process of bringing the wills of States into concordance, the
embraces several stages:
1. negotiations 2. initialing
3. adoption by IC or organ of IO 4. signature
5. confirmation 6. ratification
7. exchange/deposit of instruments 8. entry into force
à It is, however, not obligatory that conclusion of a specific treaty pass through all these stages.
When does process begin & end?
Fitzmaurice: Text ≠ Agreement. The drafting of the text is a technical process irrelevant to the agreement.
Tunkin: Fitzmaurice’s construction is artificial. One can’t distinguish between the negotiating process among representatives of states and the preparation of the draft treaty by experts who are not plenipotentiary representatives of states.
The process of concluding a treaty commences with negotiations among official state representatives irrespective of the form/level wherein these negotiations take place.
Process of Treaty Formation
1 Content of agreement is formed in the course of working out a treaty text (during negotiations in ICs etc.). Agreement is fixed in the text.
2 By initialing, signature or enactments of ICs or IOs, the treaty text is established.
- Gen Rule: Once text is established, no participant can insist on its being changed.
- Exception: When reservations are made.
R es e rv a ti o n Ob j ec
n. a diplomatic agent having full power or authority. The US, for example, has either an ambassador or a minister plenipotentiary in most important countries.
t io n E ff e ct
Norm of IL – result of completion of the process of concluding an IT
Note: But it is necessary to distinguish bet. entry into force and process of concluding a treaty
Rules:
1 treaty concluded before entry into force à norm emerges but still not a prevailing norm 2 treaty entered into force before concluded
à norm exists & commences to operate but operation is provisional (subject to ratification) Until a treaty norm of IL has entered into force, no legal obligations arise for the parties to the negotiations on the basis of it. But this does not affect obligations concerning negotiations.
- the consent of states to enter into negotiations doesn’t in itself impose an obligation to conclude a treaty
Once process of concluding a treaty is complete, the process of forming norm of IL is complete.
Modification/Liquidation of a Treaty Norm 1 Modification – may occur by treaty or by custom
* By treaty à occurs by concluding a supplemental or new treaty
BUT any modification of a treaty requires the consent of all parties unless the treaty itself provides otherwise.
2 Liquidation – also by treaty or custom
* By treaty à expiration of the term of treaty, agreement of parties, denunciation, abrogation etc.
II. TREATIES BET. STATES CONCLUDED W/IN THE FRAMEWORK OF IOs
IOs concentrate in their hands the organizing of the conclusion of multilateral treaties among states concerning questions w/c relate towards the domain of their activities. Trend:
Example: In the Intl Labor Organization…
Convention adopted by General Conference à signed by Conference Chairman & ILO Director-General à certified copies sent to member-states à state ratifies & notifies Dir-Gen of ratification
∴ no sigs of state representatives required or deposit of instruments of ratification IOs vs Normal Norm-Creating Process
There are two aspects of forming norms, whether customary or conventional. Norm-formation consists of bringing into concordance the wills of the states with respect to:
1 content of rules of conduct 2 recognition of rule as norm of IL
In IOs, these aspects never coincide. Concordance of states as to:
1 content à accomplished w/in the framework of IO as in adoption of treaty text as final by the organ of the IO or conference of plenipotentiaries of States created by a decision of IO 2 recognition as norm of IL à formed from individual actions of states (signature, ratification etc.) w/o w/c treaties adopted by IOs don’t become legally binding upon states
III. REGULATIONS ADOPTED BY SPECIALIZED IOs
* Examples of Specialized IOs : World Meteorological Organization, Universal Postal Union etc.
Why created
Specialized IOs create normative regulations bec. of increase in quantity of primarily technical questions w/ w/c the orgs had to occupy themselves. Simplified procedure required.
Technology moves rapidly ∴ norms must change frequently.
How formulated
Regulations are adopted by plenary or lesser organs. The charter come into force:
1 expressly – subject to ratification or approval of states
2 tacitly – regulation regarded as accepted if state does not object or does not refuse to accept a particular regulation w/in a prescribed period
Legal Nature
Other writers (Guggenheim, Friedmann, Vellas, Suba etc.) : These regulations are international legislation. They are more acts of the organization than an agreement bet.
member- states & resemble unilateral legislative acts enacted by congress (in municipal law).
Tunkin: Regulations are not legislation but International Treaties. Content of norms may have already been finally determined [by IO] but to become binding upon states, an expression of its will is necessary to recognize such norms as IL norms ∴ Binding force of forms of regulations is based upon agreement & not upon legislative power of IOs.
IV. TREATIES OF IOs Why created
- result of development of IOs that are subjects of IL Two Categories
1 Treaties concluded by IOs with each other
ex. Standard Agreement on Mutual Assistance to Jordan 2 Treaties concluded by IOs with states
- relate to location of organizations & their organs, granting of assistance, privileges &
immunities etc.
Legal nature There are two views as to the legal nature of treaties of IOs:
1 considered as treaties bet. States
This view arose out of a denial of the legal personality of IOs. Treaties of IOs are considered simply as variant forms of treaties bet. states. For example, agreements concluded by the UN give rise to rights & obligations not for the UN as such, but for member states of the UN.
2 considered as treaties bet. IO and states
This view arose out of a confirmation that IOs have legal personality. IOs are created by states but they are organizations distinct from states. IOs acquire rights & assume specific obligations, separate from states.
The ILC initially proposed to include treaties of IOs within the scope of draft articles on the law of treaties, such that a treaty will be defined as “an agreement in writing bet. two or more states or IOs…”. Even writers who consider treaties bet. subjects of IL as not necessarily being ITs or who do not have a definite position on this question also come to the conclusion that the overwhelming majority of treaties of IOs have an intl character.
But the ILC eventually decided to work out a draft having in view only treaties bet. states in order to study later what modifications are required to be introduced to make them applicable to treaties of IOs.
Tunkin says this decision is correct. Because…Recognizing agreements of IOs as ITs in no way signifies that such treaties can be equated to treaties bet. states. Specific feature of IOs as subjects of IL affects treaties which they conclude.
Norms of treaties concluded bet. IO-IO and IO-States always are of a secondary nature. The validity of these treaties is always the charter of the IO, which contains norms of primary order.
Notes:
2 kinds of treaties-
1. contractual: contains provisions which do not go beyond the possible limit already granted to states under prevailing IL; rarely a source of IL.
2. law-making treaties: create abstract norms recognized by states as norms of conduct for the future.
Treaty-making process-
1. negotiations 2. initiating
3. adoption by the intl. Organ 4. signature
5. confirmation 6. ratification
7. exchange & deposit of instruments 8. entry into force
*** some of these stages my be skipped
*** the drafting of the text is a technical process which has no relevance to agreeing to the treaty. Thus a state may agree to the language of the draft, but may later on refuse to accede to the treaty itself.
How treaties are modified- 1. by custom
2. by a new treaty
Jennings, Treaties in Bedjaoui
Note: This digest does not include PROVISIONS of the VIENNA CONVENTION (to save on Xerox space) but these are VERY IMPORTANT. Please read them in the original, they’re in smaller fonts in the material. J
Shortcuts:
IC – International Conference IT – International Treaty
IO – International Organization
IL – International Law I. INTRODUCTION
The treaty is the most important instrument known to IL…and is also, in volume, range and ubiquity, the most important source of IL.
The standard form of treaty…is a written agreement between States, which creates obligations & rights in IL…[But] besides treaties bet. States, there are treaties bet. States- IOs and bet. IO-IO.
IL prescribes no particular form or procedure for the making of intl engagements: though Consti Law of a State may and frequently does. Nor is there any required order of the content of a treaty. There are also many possible designations of a treaty. It may be called:
convention, declaration, protocol, act etc.
II. CONCLUSION & ENTRY INTO FORCE Two phases in conclusion & entry into force:
1. adoption of an agreed final draft of the treaty text
2. ways in which a party can thereafter effectively indicate its consent to become bound by the treaty
Phase 1: Vienna Convention Rules on the adoption of an agreed text
1. In bilateral treaties or treaties between a few States, unanimity remains the rule.
Adoption requires the consent of all States participating.
2. At a general diplomatic conference, unanimity will be unrealistic. Adoption takes place by the vote of 2/3 of the States present and voting, unless by the same majority they shall decide to apply a diff. rule.
Phase 2: Modes of expressing consent to become bound
* Signature – serves two diff. functions:
1. one act of signature may both authenticate the text and express finally the consent of the signatory State to be bound by the treaty or;
2. signature authenticates the text but consent to be bound has to be expressed by a second step, such as ratification, approval etc.
* Ratification – the exchange or deposit of a formal instrument, by which a State signifies its willingness to become bound by a treaty
1. bilateral treaty – instrument normally exchanged
2. multilateral treaty – instrument normally deposited with a designated depositary power
* Acceptance & Approval – less formal modes of expressing willingness to become a party to a treaty
* Accession – an act whereby a State becomes a party to a treaty already made and signed by other States; or an act whereby a State may become a party to a treaty made under the auspices of an IO
Time of entry into force
* Bilateral treaty
- moment both parties validly express consent to be bound or;
- subsequent date agreed upon by the parties for entry into force
* Multilateral treaty
- desirable to postpone entry into force until the convention has been accepted by a goodly number of States
- but procedural provisions governing entry into force etc. usually apply from the time of the adoption of the text
III. RESERVATION Legal Effect
1. Where treaty itself provides that a reservation may or may not be made, follow the treaty.
2. Otherwise:
a. Traditional doctrine based on unanimity principle
A reservation not expressly provided for in the treaty, is in effect a new offer; and accordingly a reserving State could not become a party unless the reservation received the express or tacit approval of every other State party.
b. Object & Purpose Test
A State which has made & maintained a reservation…can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention.
If a party objected to a reservation as not being so compatible, that party is entitled to regard the reserving State as not being a party to the Convention; and conversely for a party taking the opposite view.
c. Compatibility Test at the Vienna Conference A State may…formulate a reservation unless:
a. the reservation is prohibited by the treaty
b. the treaty provides that only specified reservations, which do not include the reservation in question, may be made
c. or in cases not falling under (a) or (b), the reservation is not compatible with the object and purpose of the treaty.
Legal Effect of Reservations on existing parties to a treaty
Gen Rule: Acceptance of a reservation by another contracting State constitutes the reserving State a party in relation to that other State.
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; and a reservation is considered to have been accepted by a State if it has not objected to it within
12months of its notification.
à Scheme leans in favor of the reserving state. Objectors have to take position action.
A reservation established with regard to another party, modifies provisions of the treaty to the extent of the reservation, in the relation between the reserving State and the other party.
However, the reservation does not modify the provisions of the treaty for the other parties inter se.
IV. OBSERVANCE, APPLICATION and INTERPRETATION
Observance
The primary principle to be observed is pacta sunt servanda: Every treaty in force is binding upon the parties to it and must be performed by them in good faith; A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
Application
In point of time: A treaty is not retroactive.
Territorial application: A treaty will apply to the whole territory of the State.
Conflicts of treaties relating to the same subject matter:
* If all parties to treaty 1 are parties to treaty 2 > Lex posterior principle will apply & treaty 2 will prevail.
* If not all parties to treaty 1 are parties to treaty 2:
- as between States parties to both treaties > later treaty prevails
- as between a State - party to both treaties and another State - party to only one treaty >
treaty to which both are parties prevails Interpretation
Gen. Rule: Where the meaning is clear, the treaty should be applied accdng to its clear meaning.
If interpretation is required, the Gen. Rule of Interpretation is: 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 & in the light of its object & purpose.
à primarily textual, but also incorporates principles of object & purpose and intention of parties
V. TREATIES & 3RD STATES
A treaty does not create obligations or rights for a 3rd State without its consent.
An obligation or right created may not be modified or revoked without the consent of the 3rd State.
If a treaty rule is the same as an existing general rule of customary law, the latter will still
in regard to States generally, and also by treaty in regard to the other parties.
Example of an indirect way by which a treaty may affect the rights and obligations of 3rd States: If a treaty validly creates an IO with legal personality, a 3rd State may not be in a position to deny the objective and legal existence of that organization.
VI. AMENDMENT & MODIFICATION
Amendment & Modification distinguished
Amendment (def) a formal agreement to alter the treaty with respect to all parties
Modification (def) an inter se agreement between only some parties and intended to vary the treaty bet. themselves alone
The Vienna Convetion lays down rules for the amendment of multilateral treaties and agreements to modify multilateral treaty as bet. two parties. (pls. see p.149 of Jennings) VII. INVALIDITY
Possible causes of invalidity:
1. Breach of IL
Q: May the State be bound through a person acting ultra vires, yet having ostensible authority to deal in the eyes of the other party?
Rule: Consent on the intl plane binds.
Exception: Where the violation of the internal law was manifest and the internal law rule violated was of fundamental importance.
2. Error
Error may be invoked as a ground invalidating consent only if the error relates to some fact or situation which was assumed by the State invoking the error to exist at the time when the treaty was concluded, and that fact or situation formed an essential basis of its consent to be bound by the treaty.
Error may not be invoked by the State if it contributed to the error by its own conduct or if the circumstances were such as to put the State on notice of a possible error.
3. Fraud
If a State has been induced to conclude a treaty by the fraudulent act of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.
Manipulation of a State representative through corruption may also be invoked as invalidating the State’s consent.
4. Coercion
a. employed against the representative of the State
- consent shall be without legal effect; except when the State concerned has already ratified the representative’s act
b. employed against the State itself
- A treaty is void [in its entirety] if its conclusion has been procured by the threat or use of force in violation of the principles of IL embodied in the Charter of the UN.
- Q: What uses of force are in violation of the principles of IL?
A: Force in any form, whether military, political or economic.
5. Registration & Publication
Art. 102 UN Charter requires: Every treaty and every intl agreement entered into by any Member of the UN…be registered as soon as possible with the Secretariat and published by it.
The sanction, however, is not invalidity, but that the unregistered treaty or agreement may not be invoked before any organ of the UN, including the ICJ.
6. Jus Cogens
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general IL. (pls see Art. 53, 64, 71 of UN Charter)
VIII. TERMINATION AND SUSPENSION OF OPERATION
Termination deals with a valid treaty which has been in force for the parties. It is not the same as invalidity.
Grounds for termination or suspension:
1. Those logically linked with the notion of agreement as the basis of treaties.
Treaty may terminate where…
- this is in conformity with the provisions of the treaty, or where all parties are consulted and
- this is in conformity with the provisions of the treaty, or where all parties are consulted and