4L_Sources of IL, Treaties

Hierarchy in International Law

Is there a hierarchy of sources?

• No, but keep in mind treaties are written, customary international law is not written as such

• general principles of law may perhaps not create obligations as such

• ICJ, Nicaragua v. Honduras case (1988) (not in EIL): good faith does not create obligations where they otherwise do not exist → However, ILC has taken a different approach
  

Conflict of rules / obligations

Later law over earlier law - lex posterior derogat legi priori

Special law over general law - lex specialis derogat legi generali

Superior law over inferior law - lex superior derogat legi inferiori

Jus cogens - article 53 VCLT:

• A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”

• prohibitions of aggression, genocide, slavery, racial discrimination, torture, right of self-determination

Article 4: non-retroactivity of the present Convention (VCLT)

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.

Treaty definition REWATCH

Article 2(1)(a) VCLT

Treaty means

• International agreement

• Concluded between States

  • Also constituent treaties international organisations (art. 5 VCLT)

  • Other subjects of IL (art. 3 VCLT) not covered by 1969 VCLT: IOs and States or between IOs or companies or individuals

• In a written form and

  • Recorded in some durable written medium

  • Is it possible to have an oral agreement/treaty? not under Vienna, but under IL yes

  • The Ihlen Declaration relating to the Eastern Greenland case

    • Although the Vienna Convention limits treaties to agreements in written form, international law recognises that binding obligations may also arise from oral agreements or unilateral declarations, as illustrated by the Ihlen Declaration in the Eastern Greenland case, where an oral statement by a foreign minister was held to create legal obligations.

• Governed by IL

It is of no significance

• Whether it is embodied in a single instrument or is two or more related instruments and

• Whatever its particular designation

Form is irrelevant

• Single instrument: one text (e.g. Charter)

• Two or more related instruments: exchange of letters by governments

• It can be even Minutes (Quatar v. Bahrain, Cameroon/Nigeria, ‘Hoshimaru’ case - see contra Bangladesh/Myanmar, or Process-Verbal (Romania/Ukraine) or Memorandum of Understanding (Somalia/Kenya)

• Name is irrelevant. convention, convenant, protocol, etc.

Decisive Criterion: Intention of Parties

Negotiations & Full Powers

Negotiations

• Time: may take several years, fail completely or be done very quickly

• Negotiation in good faith

• Once signed (but not ratified) obligation to not defeat object and purpose of treaty

Full Powers (Art. 7 VCLT)

• Documents showing authorisation to represent State

• Heads of state, heads of government, ministers of foreign affairs: all acts relating to conclusion treaties

• heads of diplomatic missions; representatives conferences or international organisations - adopting text only

• Quatar v. Bahrain paras. 21-30; Somalia/Kenya (representatives lacked full powers) paras. 36-40; see also Cameroon v. Nigeria; Bangladesh/Myanmar cases

> States normally need to issue “full powers” to authorize someone to represent them in treaty matters, unless other parties clearly accept that person as a representative.

> Conversely, if a representative exceeds their instructions, the state can only invalidate consent under Article 47 VCLT if it had previously informed other negotiating states of those limits.

Domestic Law and Consent to be Bound

Article 27 Internal Law & Observance of Treaties

• A party may not invoke the provisions of its internal law as justifications for its failure to perform a treaty

• This rule is without prejudice to article 46

Article 46 Provisions of Internal Law Regarding Competence to Conclude Treaties

• State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

• A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

> A state cannot use its domestic law as an excuse not to comply with a treaty

> Article 46 is a very narrow exception to article 27

• Invalidate treaty consent if the violation of internal law was manifest, and concerned a rule of fundamental importance (cumulative criteria!)

Treaty Interpretation

E. de Vattel: where the text is clear, no interpretation is needed

McDougal pointed out at the UN Conference on the Law of Treaties, is that this can be an obscurantist tautology

• Circular reasoning, false simplicity

1) Customary law

2) Arts. 31-33 VCLT

3) Anything the Parties agree on

Three schools of Interpretation

Textual/Grammatical Interpretation

• The objective or textual approach, focusing on the ordinary meaning of the words

Teological Interpretation

• Teleological or purposive approach, which interprets provisions in light of the treat’s overall object and purpose

Founding father approach / Drafter’s Intention Approach

• The subjective approach, looking at the parties intentions

Element: Time - temporal considerations

Hierarchy within Article 31?

Aguas del Tunari v. Bolivia (2005) (91)

• “The sequence of Article 31 should be followed, that none of the elements mentioned has primacy and that the meaning of the word is not ‘solely a matter of dictionaries”

ILC (1996) > all the various elements, as they were

• present in any given case, would be thrown into the

• crucible, and their interaction would give the

• legally relevant interpretation

> Follow the structure of Article 31 as a guide, but there is no hierarchy among the elements.

> All components of Article 31 interact together, not as separate steps with one ruling over the rest

> Dictionaries give possible meanings, not legal meanings.

> Progressive encirclement: you gradually “circle” around the issue, testing and refining interpretations using all Article 31 elements.

> ILC: You combine all interpretative tools and see how they influence each other.

Hierarchy within Article 31 & 32?

“does not at all mean that there are two interpretative processes. The interpretative process is a single one and, the interpreter is free at any moment to tum his attention to the supplementary means of interpretation concerned without waiting for completion of the application of the general rule of Article 31.”

• Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras; Nicaragua intervening), [1992] ICJ Rep 351, Separate Opinion of Judge Torres Bernárdez [191])

> They are part of a single, unified process of treaty interpretation.

> The interpreter can turn to supplementary materials whenever appropriate, even early in the process.

Evolutive Interpretation vs. Principle of Contermporaneity

[t]he terms of a treaty must be interpreted according to the meaning which they possessed, or which would have been attributed to them, and in the light of current linguistic usage, at the time when the treaty was originally concluded. (Fitzmaurice, 1957, Principle of Contermporanety)

> Treaty terms should be understood as they were meant and commonly used at the time the treaty was made.

Provided that, where it can be established that it was the intention of the parties that the meaning or scope of a term or expression used in the treaty should follow the development of the law, the treaty must be interpreted so as to give effect to that intention. (Thirlway, 2006, Evolutive Inerpretation)

> However, if the parties intended a treaty term to evolve as the law develops, the interpretation should reflect that intention.

Evolutive Interpretation

Intention of parties

Object and Purpose of Treaty

Text / Generic terms

Duration (as a supporting argument)

Examples

• Interpretation of the word ‘con objetos de commercio’ - Dispute regarding Certain Navigational Rights (Costa Rica v. Nicaragua) ICJ

  • Must be interpreted in the modern sense, including present-day commercial activities, such as transposing passengers, not just 19th century goods

• The interpretation of the world ‘exhaustible natural resources’ - Shrimp/Turtle case, WTO

  • Originally as non-living resources

  • WTO held: evolved with time, endangered living species, like sea turtles, are also exhaustible natural resources under modern understanding

Grounds of Suspension/Termination of Treaties

Emergence of new rule of jus cogens (art. 64 VCLT)

Impossibility of performance (art. 61 VCLT)

Material breach (art. 60 VCLT)

• Unauthorised repudiation (communicartion) or violation of a provision essential to the treaty’s object and purpose

• Injured party’s ability to act is limited, esp. in multilateral treaties

• Exception exists for humanitarian treaties, which cannot be suspended

• Indicative case-law where material breach has been invoked: Air Services Arbitration (USA v. France), 84 ILR, [72 – 99]; Rainbow Warrior , 82 ILR 499; Namibia Advisory Opinion, pp. 16 et seq.; GabcikovoNagymaros Project; FYROM v. Greece ; Croatia v. Slovenia

• Croatia v. Slovenia

  • Importance: the gravity of the breach or the essential nature of the provision being breached? - breached provision is essential to the treaty’s object and purpose

  • Can procedural treaties be materially breached or only treaties regulating substantive issues? - procedural treaties can be materially breached if the obligation is essential to the treaty’s effectiveness

rebus sic stantibus (fundamental change of circumstances (art. 62 VCLT)

• Conditions for Application

• Circumstances:

  • Existing at time of the conclusion of the treaty

  • Whose existence was an essential basis for the consent of the parties to be bound by the treaty

• Change:

  • Fundamental

  • Unforseen

  • Of the effects to transform radically the extent of the obligations still to be performed under the treaty

• The ICJ has recognized it only where changes radically transform a party’s obligations, making performance essentially different from what was originally agreed.

Fundamental change of circumstances

Fisheries Jurisdiction

• Iceland claimed a fundamental change (greater dependence on fish + new conservation science) justified unilaterally extending its fishing zone.

• ICJ held: These changes were not fundamental enough to terminate treaty obligations.

• FCC is very narrow and was not satisfied.

Gabcikovo-Nagymaros case

• Hungary argued environmental awareness and political changes justified abandoning a dam treaty.

• ICJ held: The changes were important but not fundamental enough to void the treaty.

• FCC rarely succeeds; environmental evolution did not meet the test.

Racke v. Hauptzollamt Mainz

• The EU suspended a cooperation agreement with Yugoslavia due to the Yugoslav wars and state collapse.

• ECJ held: FCC did apply—the political collapse was a genuine, fundamental change affecting the treaty’s basis.

• One of the few cases where FCC was accepted.

Reservations to treaties

Article 2(1)(d) VCLT

Reservatinos vs. interpretative declarations

• Crucial test: whether it excludes or modifies legal effect

• Beliols v. Switzerland case, see also Loizidou v. Turkey

  • Switzerland called its statement an “interpretative declaration,” but it actually restricted its obligations under the ECHR.

  • Outcome: The Court treated it as a reservation in disguise and found it invalid

  • Turkey added conditions limiting the Court’s competence and its responsibility for acts in Northern Cyprus.

  • Outcome: The Court held these were reservations, not mere declarations, and struck them down as invalid.

> Other unilateral statements, like political statements or interpretative declarations, are not binding, but if an interpretative declaration effectively changes a treaty’s legal impact/effect, it is treated as a reservation.

Impermissible Reservations

Article 19 VCLT

Permissibility of reservations

• Major problem with reservations system

• No mandatory procedure for all systems

• Potentially

  • International court / tribunal (Belilos case)

  • Other parties to the treaty

    • Acceptance (art 20(1-3) VCLT)

    • Objections (art. 20(4) VCLT)

Solution in 2011 ILC Guide to Practice on Reservations to Treaties?

• 17 Reports by Sp. Rapporteur Pellet: promotion of dialogue and diplomatic solutions

Objections to Reservations art. 20(4)(b, c), (5), art. 21

1) When a state makes a reservation and another state objects but still accepts treaty relations (“soft” objection), the treaty enters into force between them, but the provisions covered by the reservation become inapplicable between those two states.

2) If a state objects because the reservation is incompatible with the treaty’s object and purpose and refuses treaty relations (“hard” objection), the situation is far more complex, especially for human rights or other normative treaties.

Amendment and modification of Treaties

VCLT two mechanisms: amendment (article 39 and 40) and modification (article 41)

Amendment: requires the consent of all the parties to an agreement and all the formalities that would have accompanied the original conclusion of the treaty

• 1) all proposals must be circulated to all parties, and all have the right to decide whether to participate in the negotiations or opt out, therefore remain binded by the existing terms

• 2) Parties may also agree to a different amendment procedure

Modification: entails two or more, but not all, parties seeking to modify the treaty

• They may conclude an agreement but only if its possible or not prohibited by the treaty and does not affect the enjoyment by other parties of their rights under the treaty and it is not incompatible with the object and purpose of the treaty

A new state joining an amended treaty is usually bound by the amended version, but if some parties are not bound by the amendments, it remains bound by the old version in relation to them.