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Treaties Formation Art 4 VCLT -> VCLT applies only prospectively What's important is intent to create legal relations, no overriding requirement of form:Test - ICJ will consider (i) all the actual terms of the agreement and (ii) the circumstances in which it had been drawn up - Aegean Sea (Greece v Turkey)Eg Aegean Sea (Greece v Turkey) (Question over whether joint communique issued without signatures amounted to an agreement to submit dispute to ICJ) -> Applying the test, held no intention to create legal relations to submit to ICJ jurisdiction, joint communique NOT a modern ritual which has acquired full status in international practiceEg Maritime Delimitation (Qatar v. Bahrain) (Question whether double exchange of letters between Qatar and Saudi Arabia, and Bahrain and Saudi Arabia and minutes of a meeting between the states signed by their foreign ministers) -> ICJ held instruments were to be construed as a binding agreement submitting the dispute to the ICJ, since they enumerated the commitments to which the parties had consented
Adoption of the text - Art 9 VCLT
- Need full powers within Art 7 VCLTMeans which consent can be given - Art 11 VCLT
? The consent of a State to be bound by a treaty is expressed by the signature of its representative when: - Art 12.1 VCLT (a) The treaty provides that signature shall have that effect OR (b) It is otherwise established that the negotiating States were agreed that signature should have that effect OR (c) The intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation
? Exchange of instruments constituting a treaty, ratification, acceptance, approval or accession
? The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: - Art 13.1 VCLT (a) The instruments provide that their exchange shall have that effect OR
(b) It is otherwise established that those States were agreed that the exchange of instruments shall have that effect
? The consent of a State to be bound by a treaty is expressed by ratification when: - Art 14.1 VCLT (a) The treaty provides for such consent to be expressed by means of ratification OR (b) It is otherwise established that the negotiating States were agreed that ratification should be required OR (c) The representative of the State has signed the treaty subject to ratification OR (d) The intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation
? The consent of a State to be bound by a treaty is expressed by accession when: - Art 15.1 VCLT (a) The treaty provides that such consent may be expressed by that State by means of accession OR (b) It is otherwise established that the negotiating States were agreed that such con sent may be expressed by that State by means of accession OR (c) All the parties have subsequently agreed that such consent may be expressed by that State by means of accession
? Any other means if so agreedState under obligation not to defeat object and purpose of a treaty prior to its entry in force - Art 18 VCLT
Treaty performanceArt 26 VCLT -> Treaties must be performed in good faith
? Reservations to the Genocide Convention -> ICJ emphasised that good faith is a generally recognized principle that none of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose of the ConventionArt 27 VCLT -> Domestic law is irrelevant to justify its failure to comply with the treaty
GENERAL RULE Art 34 VCLT -> A treaty does not create either obligations or rights for a third State without its consentArticle 2(1)(h) + 2(1)(g) VCLT -> Third State is not a State to party + a State to the party is a State that has expressed its consent to be boundExceptions:
? Art 35 VCLT (Obligations for 3rd party) -> Contracting states must (i) Intended the 3rd party to be bound and (ii) 3rd party accepts its obligation in writing
? Art 36 VCLT (Rights for 3rd party) -> Contracting states must (i) Intended the 3rd party to be bound and (ii) 3rd party assent in some form (no need to be in writing, possible that silence is enough)
? Art 38 VCLT -> NOTHING PREVENTS PROVISIONS IN TREATIES FROM BECOMING CUSTOMARY INTERNATIONAL LAW, WOULD THEN BIND ALL STATESTo revoke obligation under Art 35 VCLT, need consent of parties to treaties and of the 3rd state, unless otherwise agreed - Art 37.1 VCLTTo revoke rights under Art 36 VCLT, can remove without consent of 3 rd state unless established right was intended not to be revocable or subject to modification without the consent of the third State - Art 37.2 VCLTNOTE - "Objective treaties" can create obligations "erga omnes"
? Eg Art X Antarctica Treaty provides that '[e]ach of the contracting parties undertakes to exert appropriate efforts, consistent with the Charter of the United Nations, to the end that no one engages in any activity in Antarctica contrary to the principles or purposes of the present Treaty' -> creates obligations for 3rd party state outside the usual rules of privity
1. Is it a reservation or not
?????Belilos v Switzerland - Held not to be a reservation but merely an interpretative declaration as: a. Original intention of those drafting the declaration as initially contemplated making a formal reservation but subsequently opted for the term "declaration"
? Even if States made both reservations and interpretative declarations at the time, the interpretative declarations would not be equated to reservations except in exceptional circumstances
? This was so even though the wording of the declaration was of a restrictive character b. The silence of the depository and the contracting states does not deprive the Convention institutions the power to make their own assessmentEg European Stability Mechanism 2012 where agreed on an interpretative declaration
2. Is the reservation permissible?
No reservation allowed for - Art 19 VCLT a.
Prohibited by treaty
Treaty provides that only specific reservations can be made
Reservation incompatible with object and purpose of the treaty
? "Object and purpose" for Art 19(c) VCLT defined by ILC Guide to Reservation of Treaties as -> an "essential element" of the treaty to be determined in "good faith"
Controversy over Art 19(c) VCLT I. Opposing school -> can have reservations that go against Art 19(c) (object and purpose of the treaty) so long no one complainsOpposibility states that if reservation is objected to, then the 2 states cannot be a party to the treaty
? Key thing is the objection is the TRIGGER for determining the status of the reserving state -> therefore if acceptance, then acceptance even if the reservation goes against Art 19(c) VCLT
II. Permissibility school (in order to be valid, reservation must be permissible) ->
cannot have reservations that go against Art 19(c) (object and purpose of the treaty) even if States don't complain or accept itWhether 3rd party accepting impermissible reservation makes a difference
? Yes, 3rd party accepting seems to imply impermissible reservation is valid
? Legality of Use of Force (Yugoslavia v USA) (Regarding USA's reservation to Article IX of Genocide Convention, which was contested by Yugoslavia) -> ICJ did not resort to any test of on the validity of USA's reservation, the mere fact that no objection was made implies that it was valid
Therefore, a fortiori, since no objection to impermissible reservation can be seen to be valid, so can acceptance of impermissible reservation
Cf this can be distinguished from later cases in that this was an earlier case, seems to be the current trend is that court will not give any effect to the permissibility of the reservation
? No, 3rd party accepting no effect on the permissibility of the reservation
? Armed Activities on the Territory of Congo (Rwanda v DRC) -> ICJ objectively determined validity of Rwanda's reservation to the Genocide Convention ie "added its own assessment as to the compatibility of [that] reservation with the object and purpose of the Genocide Convention" o
Though ICJ later added that DRC's lack of objection to Rwanda's reservation bolstered its argument, Pellet & Muller argue that it was an ad hominem argument by the court, only cited because conveniently consistent with outcome, if not consistent, would not be cited or given effect
? ILC Guide to Practice 3.3.3 on (permissibility of reservations) ->
"Acceptance of an impermissible reservation by a contracting State or by a contracting organization shall not affect the impermissibility of the reservation"
? Special Rapporteur First Addendum to Fifteenth Report where Professor Pellet asserted objections may assist in IDENTIFYING impermissible reservations, but are not themselves the test of validityEg Reservations to the Genocide Convention (Advisory Opinion) -> though the court endorsed a more flexible regime, departed from the traditional "unanimity approach and emphasised universality of participation ->
EMPHASISED that reservation has to be compatible with the OBJECT AND PURPOSE of the treatySupported by Simma & Hermandez in "Legal Consequences of an Impermissible Reservation to a Human Rights Treaty: Where Do We Stand?"
? Though could be seen to be restricted merely to human rights cases, Simma & Hermandez call for this to be applied to all treatiesSupported by Pellet & Muller that Art 19 VCLT is unambiguous "may...
formulate a reservation unless" -> therefore if cannot formulate a reservation, cannot accept an impermissible one as well
Supported by UN General Comment 24/52 but only for human rights treaties o
Also says no weightage given to competent third party views - if reservation is invalid its invalidCf UK's observations -> disagreed, test of incompatibility should be an objective one, in which views of competent third parties should carry weight
? Are HR treaties special?
? Eg UN General Comment 24/52 -> HR special, Classic rules on reservations were inadequate for HR treaties, cannot be subject to any reservations o
Cf UK observations -> disagreed, instead believed just apply general rules of reservations laid down by VCLT
? Eg Effect of Reservations on the Entry into Force of the American Convention, Advisory Opinion -> HR special, VCLT shouldn't apply
? Eg Loizidou v. Turkey (Preliminary Objections) (Turkey's acceptance of ECtHR to hear individual claims) -> ECtHR held HR special, classic rules on reservations were inadequate for HR treaties, therefore Turkey's argument that restrictions were so essential to its acceptance of the ECtHR's competence that disregarding any of them would make the entire acceptance void.
? Cf Armed Activities on the Territory of the Congo -> HR not special, reaffirmed the orthodox position of a uniform reservations regime in this case for Article IX of the Genocide ConventionSupported by ILC Guide to Practice 3.3.3 on (permissibility of reservations) which seems to apply to both human rights and non-human rights cases
? "Acceptance of an impermissible reservation by a contracting State or by a contracting organization shall not affect the impermissibility of the reservation"Supported by Special Rapporteur First Addendum to Fifteenth Report where Professor Pellet asserted objections may assist in IDENTIFYING impermissible reservations, but are not themselves the test of validity
? The test of validity is the treaty itself and whether it goes against Art 19 VCLT
? Draft Guideline 4.5 -> invalid reservations are "null and void"
Supported by Sep Op of Judge Lauterpacht Norwegian Loans Case (France v Norway) where said French reservation was illegal though no parties raised objections
3. What are the legal effects of the nullityNorwegian Loans Case (France v Norway) Sep Op Judge Lauterpacht ->
severance applies only to provisions and conditions which are not of the essence of the undertaking
? Though in this case held not open to the ICJ to sever the invalid condition from the Acceptance as a whole -> as parties intention that the Acceptance not be interfered with was clear
? ILC Guide to Reservation 4.5.3 Para 1 - depends on the intention expressed by the reserving State or international organization on whether it intends to be bound by the treaty without the benefit of the reservation or whether it considers that it is not bound by the treaty
? But following 4.5.3 Para 2 -> it is only a rebuttable PRESUMPTION of severability, State can express intention otherwise
a. Severance - Reserving party remains a party to the treaty without the benefit of the reservationBelilos v Switzerland -> ECtHR in favour of severance because Switzerland did not contend as to whether court had jurisdiction to adjudicate (Switzerland only said its interpretative declaration amounted to a reservation), seems to extrapolate that Switzerland intended or at least acquiesced to be bound by the ConventionEg Loizidou v. Turkey (Preliminary Objections) (Turkey's acceptance of ECtHR to hear individual claims) -> ECtHR held Turkey bound by ECHR without the benefit of the reservationKennedy v Trinidad and Tobago Main Judgment (Trinidad withdrew from the First Optional Protocol and then re-acceded with a reservation for its death row inmates ) -> reservation was invalid and should be severedSimma & Hermandez in "Legal Consequences of an Impermissible Reservation to a Human Rights Treaty: Where Do We Stand?" -> endorses severability for all treaties and especially for human rights treatiesILC Guide to Practice 4.5.3 -> unless author of invalid reservation expressed contrary intention, considered a contracting State without the benefit of a reservationBradley and Goldsmith (on why shouldn't have severance) -> severance gives a disproportionate significance to the invalid reservation ie that the invalid reservation can negate State's consent for the entire treaty
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