Chapter 5: Law of Treaties §

(F) Day of the week: Friday Class: IS304 Created Time: December 4, 2020 9:29 AM Database: Class Notes Database Date: December 4, 2020 9:29 AM Days Till Date: Passed Last Edited Time: June 9, 2021 10:42 AM Type: Lecture, Reading Notes

Treaties are the primary source of international law, cooperation of states for mutual interests

• Treaties, conventions, protocols, covenants

Treaties in History

Before 1969, there were only customary International laws

Vienna Convention on the Law of Treaties (VCLT) (1969) codified many laws

1. Define Treaty §

A written international agreement concluded between states to address a certain topic.

To qualify as a treaty

• Written document signed by two or more parties
• Only parties with international personality
• Governed by international law
• Intended to create legal obligations

Types of Actors

• Members party: + signed +ratify (binding)
• Signatory States: + signed - ratify (non-binding)
• Non-state party: - signed - ratify (non-binding)

1.1. Two Types of Treaties §

1.1.1. Bilateral Treaties §

Process:

• Agreement proposed by one foreign ministry to the other country
• Discussion and preparation of one or more drafts
• Negotiation: is easier and faster to make bilaterally, to accept
• Sign: to consent to be bound by the treaty

Entry into Force: When both states signature the treaty, ratification only in important issues

1.1.2. Multilateral Treaties §

Agreement between like-minded countries

• Diplomatic conferences for draft
• Negotiation: is harder due to more members ⇒ more conflicts
• The Final Act is the final draft to be voted into adoption
  • Voting is specified in document (50%+1 or 2/3…)
• Signature: differing state representative of each country to sign
• Ratify: formal process of consenting to treaty (VCLT 35 votes)
  • Domestic procedures to ratify
    • Bring agreement to senate
    • Evaluate cost/benefits
    • King/head of state to sign the document

Entry into Force: When enough signatures by member states (as said in document)

2. Process of a Treaty §

• Negotiation

• Treaty must be registered with UN organ before ratified

  • UN treaty collection: to be published and not be secret
  • to be able to use UN’s ICJ as dispute settlement mechanism

• The Final Act is the text of the treaty to be voted into adoption

• Sign: to accept the final form or draft of the agreement

• Ratify: to formally accept the treaty

  Why Ratification?

  For checks and balance between all bodies of government

• Enter into force

Accession (Acceptance/Approval) §

Method by which states consent to be bound by/join a treaty which has already been negotiated

• Domestic procedures for accession to enter into force too

Reservation §

A statement made by a state to which article it accepts and which it does not accept.

A state may be a member state even if it doesn’t accept some article of the treaty.

• Some important points are required to be agreed to be a member
• Reservation available articles are stated by the treaty itself

3. Declaration §

A milder reservation

A Declaration is a statement that the states will implement and perform the article they the way it sees fit, without interpretation from others.

• Performs all articles but in their own way or extent

Example: (Treaty) Free health care for all.

Reservation: Free health care, but not for everyone…

Declaration: to perform free healthcare but to the capability of the state’s economy.

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After ratification, Reservation and Declaration happens at the same time.

4. Observance of Treaties §

How states perform and implement treaties

As a state party, states have obligations bound by the treaty

• Must be performed in good faith: honesty and fairness

5. Interpretation §

States must interpret treaties in good faith

• Interpreting the original meaning when it was created

• Normally though, states interpret it in their interests

  In interpreting past treaties, states will find exploitable meanings in their favor

6. Grounds of Invalidity §

Reasons which can makes a treaty invalid

6.1. Absolute Reason of Validity §

100% invalid without a doubt

• Any treaty that contradict ’Jus Cogens’ is 100% invalid

6.2. Relative Reason of Validity §

Reasons that has gray areas, interpretable by ICJ

• Error: signed treaties that has unintentional errors on statistics, numbers, facts
• Fraud: treaty that has intentional errors by a cheater state.
• Corruption: when state’s representative are bribed into signing or not signing a treaty
• Coercion: to force a state into an agreement
  1. forcing a state representative to sign using deadly threat.
  2. Putting deterrent in not signing the treaty for interest of state

7. Termination & Suspension §

Termination: stop practicing treaty forever

Suspend: to stop practicing for a period of time

By Consent

• A member could be terminated when all other members agrees or consent to

By Violation (Material Breach)

• If a state violate article of the treaty, other member could request for termination/compensation of violator

8. Withdrawal §

States may withdraw themselves from a treaty when they don’t want treaty obligations by

• In conformation with the treaty
• By consent of all parties

9. State Succession §

9.1. Merger of Two States §

When two states merge into one state (East + West Germany)

• The treaty takes after the country which ideology/practice that the new country takes after

9.2. Newly Independent State §

When state gain independence from a colonizer or parent state (USSR, South Sudan, Yugoslavia)

• The NIS can start everything anew, no need for adopting parent state’s treaty

9.3. Successor States §

When a state collapse and another appear in it’s place (USSR → Russian Federation)

• The new state receives the obligations of the predecessor state