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Topic : Chapter 3 The Law of Treaties
Cases:
Basics:
1. Treaties are a source of international obligation for those states that agree to be bound by
them. As the United States has not ratified the VCLT, treaties are legally binding under
customary international law. As for states that have ratified the VCLT, treaties are legally
binding under Article 26 of the VCLT:
“Every treaty in force is binding upon the parties to it and must be performed by them in good
faith.” Thus, if a treaty creates legally binding obligations, then a breach of a treaty by one of its
parties is a breach of international law
– Some treaties (multilateral treaties) have been called “legislative treaties” These are
treaties where states are trying to establish rules that will be followed by as many
states as possible (the goal is to establish rules that every state will sign on to)
– A party is a state that is bound by a treaty; a signatory is a state that has signed but is
not bound by a treaty
– though the US has not ratified the VCLT, the US regards most of its provisions as
customary international law so, because the US is not a party to the VCLT, the US CAN violate
the VCLT, but it cannot violate the provisions of the VCLT that are customary international law
– The VCLT frequently establishes rules that will apply as a default when a treaty doesn’t
say how it will operate (Example – Article 24 (entry into force of a treaty))
– Specific Articles:
“concluded between states” – customary international law shows that entities other than states
can be parties to treaties, including international organization
“in written form” – international agreements do not have to be in writing according to customary
international law
“and whatever its particular designation” – the title of a document does not necessarily
determine whether a document is a treaty
1) State consent
2) the treaty must have entered into force. a state party is legally bound to comply with a
treaty
Article 3: explains that the VCLT does not apply to international agreements between states and
other subjects of international law
Article 11: Means of expressing consent to be bound by a treaty: Treaties usually specify how
states give consent
Article 12: “Signature” – can be a sign of consent in processes with a signature and ratification,
the signature demonstrates commitment and intent to ratify, but not necessarily consent to be
bound
Article 14: “ratification” – used to refer to an act by which a state demonstrates its consent to be
bound by a treaty
may involve an exchange or deposit of instruments of ratification
Article 15: “accession” – an act by which a state expresses its consent to be bound when it has
not previously signed a treaty. sometimes treaties provide in their text that a treaty is open for
signature until a certain date, after which parties may join the treaty by accession (legally, this
makes no difference, but it may make a political difference)
Article 18: a state is obliged to refrain from acts which defeat the purpose of the treaty if it has
signed or ratified the treaty until it makes its intention clear not to become a party to the treaty,
or 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
Additionally, in the period between signature and ratification, a state still has the duty not to take
acts that defeat the purpose of the treaty
Often, treaties (multilateral treaties in particular) will specify what has to happen before the
treaty as a whole will come into force
What happens when there is a long period when a large number of states have signed and
ratified a treaty, but the treaty has not, for whatever reason, come into force? Article 18 states
that a state is obliged to refrain from acts which would defeat the object and purpose of a treaty
when the state “has expressed its consent to be bound by a treaty, pending the entry into force
of that treaty and provided that such entry into force is not unduly delayed.”
“unsigning” of the Rome Statute by the US – the Bush Administration merely notified the UN
that it did not intend to become a party to the Rome Statute
the US’s actions bear significantly on Article 18 of the VCLT because of the “unsigning,” the US
is legally free to take acts to defeat the object and purpose of the Rome Statute
“Every treaty in force is binding upon the parties to it and must be performed by them in good
faith.”
Thus, if a treaty creates legally binding obligations, then a breach of a treaty by one of its parties
is a breach of international law
Article 31: Interpretation of treaties: 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 and in light of its
object and purpose (for more specifics, see supp. p. 58)
Articles 34-38: rules regarding third-party states, which can become the bearer of rights or
obligations under the treaty if they consent to it
We worry about this when a treaty creates obligations, rather than when it creates 3d party
rights (Rome Statute issues in the United States: the Rome Statute creates the International
Criminal Court (ICC), which has jurisdiction to try individuals for war crimes, genocide, and
crimes against humanity (and maybe one day the crime of aggression); the ICC can try
individuals who are nationals of states parties, or individuals who commit the aforementioned
crimes in the territory of a state party)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of international
law. If there is a norm that has the status of jus cogens, states may not opt out from it under a
treaty. There are cases where this provision has been invoked: Inter American Commission on
human rights (Surinam and the Netherlands)
BILATERAL treaties: A material breach of a bilateral treaty by one of the parties entitles the
other to invoke the breach as a ground for terminating the treaty or suspending its operation in
whole or in part.
The other parties by unanimous agreement to suspend the operation of the treaty in whole or in
part or to terminate it either
A party specifically affected by the breach to invoke it as a ground for suspending the operation
of the treaty in whole or in part in the relations between itself and the defaulting state
Any other party than the defaulting state to invoke the breach as ground for suspending the
operation of the treaty in whole or in part with respect to itself if the treaty is of such a character
that the material breach of its provisions by one party radically changes the position of every
party with respect to the further performance of its obligations under the treaty
The provisions relating to breach do not apply to treaties or their provisions relating to the
protection of the human person contained in treaties of a humanitarian character (the violation
of the Genocide Convention by Rwanda is an example of this – you can’t respond to a breach of
the Genocide Convention by committing genocide yourself)
NOTE: A breach does not automatically induce an effect – it creates a situation which allows
another state to decide what to do
States may not want to suspend or revoke the treaty for various reasons (it wasn’t a breach of
an important part of the treaty; states are picking their battles; etc.)
Reservations to treaties
– VCLT Article 19: reservations are allowed unless (a) the reservation is prohibited by the
treaty; or (b) the treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or (c) the reservation is incompatible with the object and
purpose of the treaty.
– VCLT Article 20 (2) – when the nature and purpose of a treaty require that all provisions
of the treaty apply to all parties, in order to or state for make a reservation, that reservation
must be accepted by all other states parties
For the reserving state and other states that accept the reservation, the treaty is
modified in its relations between the reserving and accepting states
For states that made no reservations, the treaty remains unmodified
For states that reject the reservation but do not oppose the entry into force of the treaty
between themselves and the reserving state, the provisions to which the reservation
relates do not apply between the two states to the extent of the reservation
o Example: if State A make a reservation concerning a part of a treaty, and State B does not
accept the reservation but wants State A to be a party, the treaty will be enforced between
states A and B as though that part of the treaty was not in that treaty
Fragmentation of a treaty: the process by which reservations create different obligations
among the various states parties
Pros
o Because the treaty is so important that it is desired that as many states as possible sign on,
regardless of their minor problems
o Treaties are meant to apply a uniform rule and solidify that rule, and so the more states that
have signed on, the stronger the treaty will be
o Fragmentation of treaties allows countries to adapt treaties to internal constitutional
requirements
Cons
o It may weaken the treaty, and we want the treaty to be as strong as possible
o It may defeat the purpose of a treaty
o It may allow parties to a treaty to reap the benefits of the treaty while not paying the price of
being a party to the treaty
– Note: if a party to a treaty violates another party’s reservation which it had previously
accepted, then it is violating the treaty with regard only to the reserving party
Declarations
– States will sometimes make declarations that are not legally binding, such as the
Universal Declaration of Human Rights, FCN Agreement between the US and Japan, and the
Economic Cooperation Agreement between the US and the Soviet Union
– “Soft Law”: instruments that are not legally binding by themselves but are a significant
step towards law (a lot of states are made nervous by soft law)
States are NOT prepared to undertake a legal obligation, or they aren’t sure if other
states are ready for it
Maybe it creates more political, rather than legal, pressure
There is the hope that such documents will gain such sufficient adherence from states
that the documents will be a part of the process towards legal obligation (maybe followed
by a treaty)