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Law Notes Public International Law Notes

Treaties Notes

Updated Treaties Notes

Public International Law Notes

Public International Law

Approximately 460 pages

Public International Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the major LLB aspects and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London). See if you like them by referring to the samples below. We've also included our previous years' authors free of charge, to give you some extra materials to refer to for the tricky topi...

The following is a more accessible plain text extract of the PDF sample above, taken from our Public International Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

THE NOTION OF A ‘TREATY’

Article 1. Scope of the present convention

The present Convention applies to treaties between States.

Article 2. Use of terms

1. For the purposes of the present Convention:

(a) "Treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

Article 3. International agreements not within the scope of the present convention

The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect:

(a) The legal force of such agreements;

(b) The application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention;

(c) The application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.

Article 4. Non-retroactivity of the present convention

Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.

  • s2(1)(a) definition of a treaty only applies to VCLT, other treaties can have different definitions

VCLT only applies PROSPECTIVELY -> therefore doesn’t apply to Genocide Convention

The ICJ in Namibia Advisory Opinion held that the VCLT may be considered a codification of customary law.

CONCLUSION OF TREATIES

How treaties are negotiated and brought into force depends on the intention of parties – there are no overriding requirements of form.

  • An agreement recorded in an exchange of letters or the minutes of a conference may have the same legal effect as a formally drafted treaty contained in a single instrument (Maritime Delimitation)

  • Minutes of a discussion by 3 foreign ministers, that Saudi Arabia did not succeed to bring a political settlement between Bahrain and Qatar, both parties can go to ICJ

  • Court adopted expansive notion of the term treaty

If parties wish to record mutual understandings but do not intend to create legally binding obligations they often conclude non-binding instruments such as memoranda of understanding. The name of the instrument is not conclusive as to its legal status – what matters is the intention of the parties.

Intent to create legal relations

When determining whether there is an intent to create legal relations, the court 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))

In Aegean Sea, the question was whether the Joint Brussels communiqué issued by Greece and Turkey amounted to an agreement in international law to submit the dispute to the ICJ. It did not bear any signatures. According to the Turkish government it did not constitute an agreement under international law and accordingly had not been ratified. The Greek government maintained that the joint communiqué did constitute an agreement. It argued that the joint communiqué was a modern ritual which has acquired full status in international practice.

  • Applying the test, the court found that there had been no intention to conclude an international agreement to submit to the jurisdiction of the Court.

In Maritime Delimitation (Qatar v. Bahrain), the ICJ had to decide on the legal effect of two instruments. The first was a double exchange of letters between Qatar and Saudi Arabia, and Bahrain and Saudi Arabia. The second was the minutes of a meeting between the states which were signed by their foreign ministers.

  • The court applied the test in Aegean Sea and inferred the parties’ intentions from the text of the agreement and the surrounding circumstances. It concluded that the 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.

  • Minutes of a discussion by 3 foreign ministers, that Saudi Arabia did not succeed to bring a political settlement between Bahrain and Qatar, both parties can go to ICJ

  • Court adopted expansive notion of the term treaty

FULL POWERS (FPs)

Article 7. Full powers

1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) He produces appropriate full powers; or

(b) 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.

2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:

(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;

(b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;

(c) Representatives accredited by States to an international conference or 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.

Article 8. Subsequent confirmation of an act performed without authorization

An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State for that purpose is...

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