Topic 2 and 3 — Sources of International Law / Law of Treaties General Principles
1. Principal Judicial Organ: ICJ forms an ‘integral part of the UN Charter (Article 92) 2. Foundation for the sources of IL: Art 38 ICJ Statute
a. No hierarchy to the sources, but: (a)-(c) formal sources of law and (d) are subsidiary sources
Treaty / VCLT
Both States have agreed to be parties to a treaty (Art 38(1) ICJ Statute) under the XXX Treaty.
• Both parties to VCLT: As both States are parties to the 1969 Vienna Convention on the Law of Treaties [‘VCLT’] and the treaty is in written form (Art 2(1)(a) VLCT), the provisions of the VCLT will apply.
• OR States not mentioned as parties of VCLT: The 1969 Vienna Convention on the Law of Treaties [‘VCLT’], which is largely considered to be a codification customary international law, will apply to the application of the treaty as neither State have persistently objected to the VCLT on the facts (Anglo Norwegian Fisheries), and the treaty is in written form (Art 2(1)(a) VLCT).
a. If form is questionable: Treaties can be comprised of multiple instruments and there are no requirements as to form. The exchange of meeting minutes that had set out hardline commitments to which the parties had consented to was found to be a treaty in Maritime Delimitation (Qatar v Bahrain) and the Joint Communique at the end of a summit meeting signed by the Heads of States also constituted an international agreement in Land and Maritime Boundary (Cameroon v Nigeria).
In this case… XXX form can/cannot be concluded to satisfy the form…
b. No requirement for a ‘consideration’ (i.e. a promise, price, detriment or forbearance given as value for a promise) and treaties can be ‘one-sided’
c. Corporations cannot be parties to a treaty: although may be parties to contract with states under which IL is the applicable law: Texaco v Libya (1977)
i. When companies enter into contracts with states, the contract may be ‘internationalised’: this does not confer upon the company competencies comparable to those of a State, but only certain capabilities which enable it to act internationally in order to invoke the rights which result under the internationalised contract
1. Formation & Reservations
IF require VCLT treaty topic: (Note if treaty involves States and IO, definition of the 1969 VCLT does not apply to IOs & State Relationships (VCLT Article 3) but is governed by 1986 VCLT:
1. Every state can form/conclude a treaty: Every state can form and conclude a treaty (VCLT Article 6) 2. Unilateral Statement: However, for a unilateral declaration to be binding, it must not be indeterminate in
nature, where the lack of precise time-scale in Armed Activities meant that the proposed withdrawals of reservations could not constitute as binding.
1a) Whom Issue
3. Issue of Who (people) can form treaties?: Art 7 VCLT states that Heads of States, Heads of Government, Ministers of Foreign Affairs and Heads of Diplomatic Missions may enter treaties without producing
‘full powers’.
a. Unauthorised representatives: Treaties made by unauthorised representatives of a State will not be binding until it is confirmed by the State (VCLT Art 8). On the facts… XXX
1b) Formation Signature, Ratification or Direct Accession Issue
4. Signature & Ratification OR Direct Accession to Form Treaty: Treaties can be agreed through signature, where it signifies and adoption of the legal principles by a State, and will later become legally binding consent conditionally upon subsequent ratification or accession (Art 14, 15 VCLT).
a. (If Accession: Consent to be legally bound by States that were not original signatories through accession will have immediate force unless otherwise specified (VCLT Article 11, 15, 16)
1c) Reservation Issue 5. Reservation:
Parties are capable of making reservations in a treaty which involves the party proposing to exclude or to modify the legal effect of certain provisions of the treaty in its application to that State (Art 2(1)(d) VCLT) and does not modify the provisions of the treaty for other parties to the treaty (Art 21(2) VCLT).
Reservations must be made in writing (Art 23 VCLT) and will be permitted by the treaty itself unless the reservation is prohibited by the treaty (Art 19(a) VCLT), the treaty only provides for specific reservations (Art 19(b) VCLT), or it is incompatible with the object and purpose of the treaty (Art 19(c) VCLT). In this instance, the reservation clearly XXX …
However, if the reservation is permitted by the treaty itself, it must also be determined if other parties accept the reservation in order for it to have effect. There is currently uncertainty surrounding the appropriate approach, but there exists a traditional, opposability test, and the contemporary, permissibility test.
In the opposability approach…
a. No acceptance from other parties required if expressly authorised by treaty (VCLT Article 20(1)) b. Acceptance required if object and purpose of treaty reliant on consent of all parties (VCLT Article
20(2))
c. Acceptance by other contracting state to the reserving state means they will be a party in relation to each other (VCLT Article 20(4)(a))
d. Objection by another state does not prevent entry into force of treaty as between objecting and reserving state unless objecting state says so (VCLT Article 20(4)(b))
e. An act expressing State’s consent to be bound by treaty and containing a reservation is effective, as soon as, one other contracting state accepts reservation (VCLT Article 20(4)(c))
f. Unless treaty otherwise provides, reservation considered to be accepted by a state if no objection raised within 12 months (VCLT Article 20(5))
In the permissibility approach, the question is whether the reservation is inconsistent with the object and purpose of the treaty. Developing
However, in this instance XXX is likely to be inconsistent with the treaty which seeks to XXX, and hence may be impermissible. There are a further two views regarding the effects of an impermissible reservation. The traditional view is that impermissible reservations vitiates consent of the state to the treaty as a whole and is not a party (Advisory Opinion Concerning Reservations to Genocide Convention (1951)), but there is also an emerging view that the offending reservation is null and void and may be severed with the state bound by the treaty without the protection of the reservation.
However, this is problematic as it undermines the capacity of states to enter into agreements on terms they want and hence the traditional test may be preferred. Therefore XXX is likely not a party to the treaty based on the impermissibility of their reservation surrounding XXX.
Effect of Reservations on Relationships:
a. Absolute Integrity [Traditional Approach] (promoting uniformity of treaty obligations): If a state makes a reservation all other parties must expressly accept it, otherwise reserving state is not a party b. Compatibility [Current Approach] (promoting universality of treaty participation): ‘A State which
has made… a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention’: (Reservations to Genocide Convention (1951)) 1d) Good Faith Issue — not yet entered into force
6. In between ratification and entry:
a. Good Faith: Art 18 VCLT obliges States to not defeat the object and purpose of the treaty between signature and ratification or entity into force until it has made a clear intention not to become a party to a treaty. In this case, XXX has…
2. Entry into force Date Issue
7. Entry in to Force:
Note: Even if the treaty is not in force, the expression of consent by many States may be evidence of such a generality of State practice so that it becomes CIL
A treaty will enter into force when it says it does (Art 24(1) VCLT) or, if it is silent then it will enter into force when all negotiating states have consented to be bound (Art 24(2) VCLT). Here, XXX has XXX …
• If joining existing treaty: If a State has consented after the established date of entry in the existing treaty, the treaty will enter into force on that date unless otherwise specified. Here XXX has consented to...
3. Registration Issue
8. Registration:
States must register treaties with the UN to prevent secret diplomacy and promote availability of treaty text.
If treaties are not registered, they cannot the relied upon before UN organs such as the ICJ, but will still be binding (Art 102 UN Charter; see also Art 80 VCLT). The aim is to promote public scrutiny and awareness of the treaties that have been agreed upon. As the facts have explicitly stated that both XXX and XXX have not registered the treaties and hence the ICJ will not be able to enforce its provisions.
4. Application — Performance Issue
1. Good Faith Performance: Every treaty in force is binding upon the parties to it and must be performed by them in good faith (pacta suit servanada) (Art 26 VCLT), and is one of the most fundamental propositions in treaty law, a principle of customary law and is also possibly a jus cogens obligation.
a. As XXX has Done XXX, they have failed to meet this standard or XXX. This means that State XXX is found to be in breach of the treaty and as a results will be liable to certain consequences under both treaty law and international law.
2. Cannot rely on its domestic law to justify breach of a treaty (VCLT Article 27)
3. No retrospective performance (unless there is an intention to apply retrospectively) (VCLT Article 28) 4. Treaties apply through all territories of the state parties (UNLESS contrary to intention) (VCLT Article
29)
5. Application of Successive Treaties: Relating to the same subject matter (VCLT Article 30): Charter prevails over any treaty incompatible with UN Charter Article 30
a. If all parties of earlier treaty are same party to later treaty, then earlier treaty will be compatible except inconsistent sections
b. If later treaty does not include all parties of earlier one, inconsistency rule still applies
6. Only binding to parties to it: Treaties do not impose obligations or create rights for third states in the absence of their consent (pacta tertiis nex nocent nec prosunt).
a. BUT, but note that a treaty or a treaty provision, may become part of CIL and the customary norm will apply to non-parties (VCLT Article 38, and NSCS)
7. Succession of States: General rule is the “clean slate approach” whereby a new State is not automatically bound by the treaty obligations of its predecessor state (e.g. Article 16 VCSSRT), BUT the new state must issue a formal notification of succession (e.g. Article 17-19, 22-23 VCSSRT)
a. Exception for human rights from clean slate?: Weeramantry J suggested that human rights treaties should be exempt from the clean slate principle. But be cautious as some human rights treaties may involve economic burdens (Application of the Genocide Convention (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro) [1993])
5. Interpretation of Treaties
1. Ordinary Meaning: Under the VCLT, a treaty shall be interpreted in good faith with ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose (Art 31(1) VCLT).
a. ICJ has previously considered title, preamble and substantive provisions in order to determine object and purpose (Territorial Dispute Case (Libya v Chad) (1994) ICJ)
b. ICJ will be bound to apply treaty provision if clear as to intention of the parties: (Territorial Dispute Case (Libya v Chad) (1994) ICJ) — Any other construction would be contrary to the effectiveness, a fundamental principle of interpretation of treaties
2. Context: Context can be used in interpreting meaning to text, relating to any treaty between parties (Art 31(2) VCLT). For any ‘supplementary means’ to serve as relevant context in a given situation, it must to only fall within the scope of the formal boundaries identified in Article 31(2), but it must also have some pertinence to the language of the specific issue being interpreted that renders it capable of helping the interpreter to determine its meaning (China Measures Affecting Imports of Automobile Parts). In this situation, the surrounding circumstances regarding XXX shows that XXX…
3. Subsequent agreement/practice and applicable international law: Subsequent agreement (Art 31(3)(a) VCLT) and practice (Art 31(3)(b)) can also be taken into account in interpreting the treaty. Generally, the treaty will be interpreted to adhere to an original meaning of the provision, but parties may intend that the content of the provisions evolve in order to apply the contemporary meaning (see Navigational and Related Rights (Costa Rica v Nicaragua) regarding contemporary meaning of ‘commerce’). The XXX action shows that there is XXX … meaning that States …
a. Any relevant rules of general international law principles applicable (VCLT Article 31(3)(c)) i. General Principles: Oil Platforms (Islamic Republic of Iran v United States of America) —
Court relied on Article 31(3)(c) of the Vienna Convention to enable it to refer to general principles on the use of force.
4. Preparatory works: If the treaty leaves an obscure meaning or leads to a result which is manifestly absurd or unreasonable, travaux preparatoires can be referred to in assisting interpretations (Art 32 VCLT;
Territorial and Maritime Dispute (Nicaragua v Colombia)). However, subsequent practice has indicated that some international courts and tribunals resort to preparatory works even if the term is unambiguous (Territorial Dispute Case (Libya v Chad)). Preparatory works in the nature of XXX Apply have been detailed here, which can infer that XXX …
5. Limitations: The more parties to a treaty, the more difficult it can be to apply the principles set out in Articles 31 and 32 of the Vienna Convention
a. Inconsistency: Consistent ‘subsequent practice’ may be hard to find;
b. Unclarity: The initial object and purpose may be unclear;
c. Irrelevant anymore: The original intentions of the parties may now be irrelevant; and
d. Does not really reveal intentions: The travaux preparatoires may shed no real light on the intentions of the parties which were not involved in the initial negotiations.
6. Invalidity of Treaties
1. Absolute Invalidity: A treaty can be made void if a State’s consent to be bound is procured by corruption (Art 50 VCLT), a State is coerced (Art 51 and 52 VCLT), or conflicts a peremptory norm of international law whether existing or emerging (Art 53 and 54 VCLT). Here, XXX …
a. (Refer above if: Corruption, Coercion, Conflict with jus cogens)
2. Relative Invalidity: A treaty will be voidable if a State’s consent involves a manifest violation of internal law of fundamental importance (Art 46 VCLT) although internal laws cannot excuse non-performance (Art 27 VCLT), there is an error of fact which formed the essential basis of consent (Art 48 VCLT, Temple of Preah Vihear (Cambodia v Thailand)), or if a State is induced to conclude a treaty by fraudulent conduct of another State (Art 49 VCLT). Here, XXX State agreed to a treaty XXX …
a. (Refer above if: Manifest Violation Fundamental Importance, Error, Fraud)
b. Manifest Violation Nicaragua v Colombia: However, a law will not be made void even if it conflicts with an important internal law such as a Constitution, if it has been acquiesced over a lengthy period of time (see Territorial and Maritime Dispute (Nicaragua v Colombia) where it was acquiesced for 50 years). Here, XXX …
c. Error Preah Vihear: Thai person who saw the map in which reliance was made upon made clear that Thailand had no doubts as to the accuracy of the map at the time the treaty was concluded and accepted it without any independent investigation.
As a result, it will be (will not be) void and hence will have no (will continue to have) legal force and acts performed in good faith before the invalidation are not held (can be held) to be illegal (Art 69 VCLT).
a. For bilateral treaties: Given that this is a bilateral treaty, there will be no valid consent, which lapses the treaty and will be made void, and other States will be under an obligation not to recognise any acts of XXX State (South West Africa Advisory Opinion (1970)).
b. For multilateral treaties: As the consent of XXX State is held to be invalid, the treaty still continues to apply between the other parties (Art 69(4) VCLT). Under these obligations XXX State will XXX…
7. Termination and Suspension of Treaties
1. Internal Grounds: (treaty itself allows termination or parties consent to) a. Expiry: A state may terminate: (VCLT Article 54)
i. Following the terms of the treaty itself (e.g. by expiry), or if ii. All parties consent
b. Internal Suspension: It is possible to entirely suspend the operation of a treaty for a period of time, as an alternative to complete the termination, either: (VCLT Article 57)
i. In conformity with the treaty provision, or ii. At any point with the consent of the parties
2. External Grounds: (VCLT allows the treaty to be terminated)
a. Denunciation of or withdrawal from treaty containing no provision about it: VCLT Article 56: If there is no provision regarding termination, a State may only withdraw from a treaty if:
i. Established that the parties intended to admit the possibility of denunciation or withdrawal; OR ii. A right of denunciation or withdrawal may be implied by the nature of the treaty
iii. AND a party should give not less than 12 months notice
b. Implied conclusion by new treaty: As the new XXX treaty was newly created by both of these States after the XXX Treaty and it was intended to supersede the earlier treaty or is incompatible, then previous treaty (XXX Treaty) was intended to be terminated (Art 59 VCLT).
c. Material Breach: XXX State may be able to terminate the from the treaty due to the material breach demonstrated by XXX State (Art 60 VCLT). Under Art 60(3) VCLT, material breach can only be demonstrated if there is a repudiation from the treaty by the other State that is not sanctioned by the present treaty, or if it is a violation of a provision essential to the accomplishment of the object or purpose of the treaty. In this case, XXX State has done XXX…
i. Gabcikovo-Nagymaros Project (Hungary v Slovakia): Regarding Article 60: Breach NOT ESTABLISHED
1) Hungary’s main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C (unilateral alternative plan)
2) In constructing the works which would lead to the putting into operation of Variant C.
Czechoslovakia did not act unlawfully. Therefore, the termination by Hungary was premature since no breach of the Treaty had yet taken place and consequently, Hungary was not entitled to invoke any such termination for breach
ii. Consequences if found to be breach:
1) Bilateral treaty: the other party can suspend/terminate the treaty’s operation in whole or in part (VCLT Article 60(1))
2) Multilateral treaty: all the non-breaching states have to act together (VCLT Article 60(2)) a) All States: The other parties, acting unanimously, may terminate or suspend the
operation of the treaty either
i) Between all parties
ii) Between them and the defaulting state
b) An individual state can suspend the treaty operations between it and the default State ONLY if it is specifically affected by the breach (but still can’t terminate the treaty) c) An individual state can suspend the treaty between its and other States, ONLY where
the breach radically changed the Parties’ positions, e.g. a treaty on disarmament d. Supervening impossibility of performance to terminate (VCLT Article 61)
i. High threshold, i.e. if a drought permanently dries up a lake that states have agreed to share ii. “Permanent disappearance or destruction of an object indispensable for the execution of the
treaty”
iii. Not available: IF “the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty”
1) Gabcikovo-Nagymaros Project (Hungary v Slovakia): Regarding Article 61: Supervening impossibility
a) Facts: Hungary contended that the essential object of the Treaty — an economic joint investment which was consistent with environmental protection and which was operated by the two contracting parties jointly — had permanently disappeared
b) Held: Article 61 WILL NOT APPLY in cases of economic incapacity that may have arisen during the life of the treaty, nor WHERE the State seeking to invoke the rule has been responsible for those economic circumstances (Article 61(2))
e. Fundamental change of circumstances to terminate: (VCLT Article 62) i. Requirements:
1) Essential: Circumstances at the time of consent were ‘an essential basis for that consent’
2) Unforeseen: Change of circumstances was unforeseen by the parties
3) Radically transform: ’The effect of the change is radically to transform the extent of obligations still to be performed under the treaty’
a) Gabcikovo-Nagymaros Project (Hungary v Slovakia): Article 62: Fundamental changes of circumstances NOT ESTABLISHED
i) Argued: Hungary specified profound political changes, the Project’s diminishing economic viability, the progress of environmental knowledge and the development of new norms and prescriptions of international environmental law
ii) Held: These changed circumstances are not of such a nature, either individually or collectively, that their effect would radically transform the extent of the obligations still to be performed.
1. Also, new developments in environmental law not considered to be events that could were completely unforeseen at the time of the conclusion of the treaty.
ii. Not available when:
1) Accounted for: Treaty established a boundary
2) Breach by party trying to terminate caused it: The fundamental change is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to that treaty
iii. Example of no change in circumstances: Fisheries Jurisdiction (United Kingdom v Iceland):
1) Facts: Iceland contended that due to a fundamental change of circumstance, their agreement with the UK regarding exclusive fisheries jurisdiction was no longer binding
2) Held: “The present dispute is exactly of the character anticipated in the compromissory clause. Not only has the jurisdictional obligation not been radically transformed, it has remained precisely what it was.”
3. Consequence of termination or suspension:
a. Termination: Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provision or in accordance with the present Convention (Art 70 VCLT) will release the parties from any further obligation to perform the treaty (Art 70(1)(a) VCLT), but does not affect any right, obligation or legal situation created through the execution of the treaty prior to its termination (Art 70(1)(b) VCLT)
