Someone recently bought our

students are currently browsing our notes.

X

Treaties Notes

Law Notes > Public International Law Notes

This is an extract of our Treaties document, which we sell as part of our Public International Law Notes collection written by the top tier of Oxford students.

The following is a more accessble 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 communique 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 communique did constitute an agreement. It argued that the joint communique 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 without legal effect unless afterwards confirmed by that State. Persons must produce 'full powers' according to art 7 of the Convention before being accepted as capable of representing their countries. Article 2. Use of terms
...
(c) "Full powers" means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;
...
Certain persons do not need to produce such full powers, by virtue of their position and functions (Art 7(2)). In Maritime Boundary (Cameroon v Nigeria) the ICJ confirmed that the full powers afforded to a head of state derive from his or her position. This position was expanded beyond the law of treaties in Genocide (Bosnia v Yugoslavia). The ICJ held that 'every head of State is presumed to be able to act on behalf of the State in its international relations'. Others included in this exception are foreign ministers and heads of diplomatic missions. Once a treaty has been drafted, the text has to be adopted. Article 9. Adoption of the text

1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2.

2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. The consent of the states parties to the treaty is vital since states may (in the absence of a rule being also one of customary law) be bound only by their consent. Article 11. Means of expressing consent to be bound by a treaty The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.Ie ways to express consent:

1. Signature

2. Ratification

3. Accession

CONSENT BY SIGNATURE Following adoption, there has to be authentication of an agreed text. Signature has as one of its functions, authentication, but a text may be authenticated in other ways: Article 10. Authentication of the text The text of a treaty is established as authentic and definitive: (a) By such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or (b) Failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text. A state may regard itself as having given its consent to the text of the treaty by signature in defined circumstances: Article 12. Consent to be bound by a treaty expressed by signature

1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when: (a) The treaty provides that signature shall have that effect; (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.

2. For the purposes of paragraph 1 : (a) The initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed;

(b) The signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty. Signature establishes consent unless the treaty requires ratification, acceptance or approval, in which case signature merely qualifies the signatory to proceed to ratification, acceptance or approval. It also creates an interim obligation of good faith to refrain from acts calculated to frustrate the objects of the treaty: Article 18. Obligation not to defeat the object and purpose of a treaty prior to its entry into force A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. CONSENT BY EXCHANGE OF INSTRUMENTS Article 13. Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty The consent of States to be bound by a treaty constituted by instruments ex changed between them is expressed by that exchange when: (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. RATIFICATION Ratification involves firstly, an internal act of approval (e.g. by the parliament or the Crown in the UK); second the international procedure which brings a treaty into force by a formal exchange or deposit of instruments of ratification. Article 14. Consent to be bound by a treaty expressed by ratification, acceptance or approval

1. The consent of a State to be bound by a treaty is expressed by ratification when: (a) The treaty provides for such consent to be expressed by means of ratification; (b) It is otherwise established that the negotiating States were agreed that ratification should be required; (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.

2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification.

In the UK the power of ratification comes within the prerogative of the Crown, although it has become accepted that treaties involving any change in municipal law, or adding to the financial burdens of the government, or having an impact upon the private rights of British subject will be first submitted to Parliament and subsequently ratified. ACCESSION, ACCEPTANCE AND APPROVAL 'Accession' occurs when a state which did not sign a treaty formally accepts its provisions: this may be before or after the treaty has entered into force. Article 15. Consent to be bound by a treaty expressed by accession The consent of a State to be bound by a treaty is expressed by accession when: (a) The treaty provides that such consent may be expressed by that State by means of accession; (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. ENTRY INTO FORCE The provisions of the treaty determine how and when the treaty enters into force. Where the treaty does not specify a date there is a presumption that the treaty comes into force as soon as all the negotiating states have consented to be bound: Article 24. Entry into force

1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.

2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States.

3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides.

4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text. Art 102 UN Charter is intended to discourage secret diplomacy and to promote the availability of treaty texts.

1. Every treaty and every international agreement entered into by any Member

of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.

2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.Problem is if don't register treaty, can't invoke it before the ICJ
? Criticism -> but if that is not a concern, not much of a sanction if you don't register your treaty

TREATY PERFORMANCE Article 26. "Pacta sunt servanda" Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Article 27. Internal law and observance of treaties A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.Art 26 -> Treaties must be performed in good faith Art 27 -> Domestic law is irrelevant to justify its failure to comply with the treaty

In Gabcikovo-Nagymaros, the ICJ described the 'good faith' requirement as an obligation to apply the treaty in question in a "reasonable" manner so that its purposes may be realised. Such good faith may be evidenced by willingness to negotiate without the imposition of preconditions, or the ready acceptance of third party assistance. The ICJ emphasised in Reservations to the Genocide Convention 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 Convention. APPLICATION OF TREATIES Once the treaty enter into force, in the absence of contrary intention, the treaty will not operate retroactively: Article 28. Non-retroactivity of treaties Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. Article 29. Territorial scope of treaties Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.

Buy the full version of these notes or essay plans and more in our Public International Law Notes.