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20190415202015chpt_9_treaties_new.pptxTreaties
Chpt 9 Cassese
General
Most frequent means of creating international law
Treaties, conventions, protocols, covenants, ‘acts’, pacts, exchange of letters
What are treaties:
Merger of wills of two or more international subjects for the purpose of regulating their interests/behavior by international rules
9.2 The ‘Old’ and the ‘New’ Law
What is the principle document for codification of all things related to Treaties?
1969 Vienna Convention on the Law of Treaties
When did it enter into force?
1980
9.3 The Making of Treaties
What are the two main ways that treaties are made?
Treaties concluded in a ‘solemn form’
Treaties concluded in ‘simplified form’
9.3 The Making of Treaties
What are treaties concluded in a ‘solemn form’?
1) Plenipotentiaries (diplomats endowed with ‘full powers’ to engage in negotiations) meet to discuss, negotiate, write treaties
2) Treaties are signed by diplomats
3) Treaties are submitted to States for ratification…usually means legislatures ratify and executive subsequently signs
4) Does not go into effect until the ratified treaties are exchanged/deposited and the minimum number of ratifications for entry into force is reached
9.3 The Making of Treaties
What are treaties concluded in ‘simplified form’
Diplomats, senior civil servants, or govt experts negotiate treaty and
the treaty enters into force once these negotiators sign the treaty
Executive Agreements
What are some advantages to ‘simplified’ treaties
Can be made rather quickly
Respond quickly to international need
Avoid lengthy ratification process with legislature
9.7 Reservations
What if you are a State and disagree with part of the treaty, but like the majority of treaty and wish to sign the treaty?
States can append reservations
What is a reservation?
Unilateral statements added to the end of a treaty that either
1) exclude the application of one or more of the treaty’s provisions
2) place interpretations on one or more provisions of the treaty
3) treaty applies in full b/w reserving State and other States, except for the provisions covered by the reservation, which have the scope suggested by the reservation
9.7 Reservations
Are reservations needed in bilateral treaties?
NO
B/c this treaty is b/w two States, they would just write a new treaty
Reservations are made in multi-lateral treaties as a way to get several nations to agree to some code of behavior
9.7 Reservations
According to the Vienna Convention are there any restrictions on making reservations to treaties?
Yes
1) Can append at the time of ratification, unless otherwise prohibited by treaty
2) Reservations must be compatible with the object and purpose of the treaty
9.7 Reservations
What if another State objects to the reservations made by another State?
1) They have 12 months to object to the reservation
2) Objection has the effect of making the provisions covered by the reservation null/not applicable between the two States
9.5 Grounds for Invalidation
According to the Vienna Convention what are the circumstances which can invalidate a treaty?
Absolute grounds for invalidation
1) coercion against a State representative, or State as a whole
2) incompatibility with jus cogens
* these grounds make the entirety of the treaty null and void
Relative grounds for invalidation
1) Error, fraud, corruption, manifest violation of IL, not with/in powers of State rep. to make treaty
*must be invoked by the injured/victimized State
*can invalidate only the problem provisions, not entire treaty
9.5 Grounds for Invalidation
When a treaty is invalidated, when does the treaty become null an void?
Ex tunc
From the beginning, ratification of the treaty
“from the outset”
As opposed to ex nunc, “from now on”
9.6 Interpretation
How shall a treaty be interpreted according to the Vienna Convention?
“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 the light of its object and purpose”
Records of negotiating history may be relied upon in order to confirm meaning
9.7 Termination
When/how can a State terminate a treaty?
Most treaties spell out how the treaty can be terminated by notice—and a period of time
Vienna Convention—when there is a ‘material breach’
Violation of a provision essential to the purpose of the treaty
Rebus sic stantibus—when there is a change in the basic conditions underlying the making of a treaty
A new jus cogens is in conflict with an existing treaty
9.7 Termination of Treaties
The possibility of withdrawal depends on the terms of the treaty
Cannot withdraw from Human Rights Treaties: the International Covenant on Civil and Political Rights
North Korea declared its intention to do this the Secretary-General of the United Nations, acting as registrar, said that that original signatories of the ICCPR had not overlooked the possibility of explicitly providing for withdrawal, but rather had deliberately intended not to provide for it. Consequently withdrawal was not possible.
Suspension of Treaty
In cases in which a treaty is breeched, depending on the treaty, States may temporarily suspend their obligations to that party under the treaty
Modern Termination of Arms Treaties
2003 North Korea withdrew NPT Treaty
Special clause in the NPT that allows a party, in exercising its national sovereignty, to withdraw from the treaty if it decides that ‘extraordinary events’ have jeopardized its supreme interests
2002 US withdrew 1972 Treaty on the Limitation of Anti-Ballistic Missile Systems (ABM Treaty)
Bilateral agreement between it and the Soviet Union/Russia, by invoking a similar clause on unilateral withdrawal
