Topic 5: Law of Treaties

Topic 5: Law of Treaties

The UN Charter

Art. 2(7) prevents the United Nations and its organs from intervening in the domestic jurisdiction of states. It does not say anything about states intervening.

It would be incorrect to say that only states could be parties to treaties in general. The 1969 Vienna Convention only applies to treaties between states (Art. 2(1)(a)), but non-state entities are perfectly free to enter into treaty arrangements—they simply will not be covered under the Vienna Convention (Art. 3).

Where an international organization owes its existence to a treaty, its powers are determined by that treaty. Hence if the Treaty allows it to penalize delinquents for breaches, any penalty it decides on in a matter will be valid. Since companies are not accountable to international law, if the delinquent happens to be a company, the organization may fine the company delinquent company in a country where it has assets, and that country’s courts can enforce the judgement.

Apart from the treaty, however, the international organization has no existence and unless it has been around for a very long time, it is unlikely to have any customary law powers.

If a state is a party to the treaty, it is thereby bound by it at the international level. If the treaty has a provision allowing other states to bring claims for breaches, then the state will be liable for any unlawful behaviour attributable to itself.

However the effect of the treaty in domestic law will be hindered if the Treaty has not been incorporated into the domestic law of thebstate.

Each state has rules regarding the incorporation of treaties. In the UK for instance these rules are as follows:

- unincorporated treaties are not part of the domestic law of the UK (Ex Parte Brind),

- they can be referred to for interpretive purposes by a domestic court in order to interpret domestic law if that law is unclear (since the UK is presumed not to violate its international obligations—Salomon v. Comm. of Customs & Excise),

- they should not be referred to if the domestic law is clear and the domestic law must be enforced even in the event of conflict (Salomon v. Comm. of Customs & Excise, Ex Parte Brind),

- unincorporated treaties cannot restrict a discretionary power (Ex Parte Brind)

Thus unless there is some legal provision in the state that would allow international organizations to impose penalties on its citizens and organs, the organization will not be able to do so.

Challenges to the enforceability of a treaty:

1. Supervening Impossibility

There is a requirement for the "permanent disappearance or destruction of an object indispensable for the performance of the treaty". If the impossibility is temporary the treaty may only be suspended.

2. Fundamental Change of Circumstances (rebus sic stantibus).

The general rule is that a fundamental change of circumstances is not a ground for terminating or withdrawing from a treaty. [Thus Article 62(2) sets out specific cases where it cannot be invoked: (a) where the treaty establishes a boundary, or (b) if the fundamental change has been produced by the party seeking it use it, by breaching an obligation under the treaty. Neither of these is relevant here.]

Article 62(1) sets out the two conditions that need to be fulfilled before a fundamental change of circumstances may be invoked as a ground for terminating or withdrawing from a treaty:

- where "the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and"

- where "the effect of the change is radically to transform the extent of obligations still to be performed under the treaty."

It is the second part that is usually the most difficult to satisfy. For example, this part of the test would not be satisfied where the obligations to be performed have not changed, merely a state’s ability to satisfy them. In the Fisheries Jurisdiction Case (Jurisdiction Phase,) for example, the change in fishing techniques had little to do with an obligation to appear before the court.

Where the treaty expressly contemplates the change in question, it may not amount to a fundamental change of circumstances.

If a fundamental change is found, Article 62(3) allows parties to merely suspend the operation of a treaty rather than to terminate or withdraw from it. The consequence of termination, however, would be to preserve pre-existing obligations and merely release the parties from future compliance: Art. 70. This is unlike invalidity, which tends to attempt to remove the actions performed under the treaty.

Where a treaty includes a provision expressly contemplating an act, then it might be hard to say that act would constitute a material breach (i.e., under Art. 60 of the VC).

If the provision specifies that such behaviour is a "breach" or "illegal", and then sets out the consequences, then it will likely be a breach of the treaty.

The only way a state can get out of its treaty commitments is by showing that there was some irregularity in its consent.

Violation of Jus Cogens Rule

Art. 53 of the VC makes any treaty that violates a pre-existing rule of jus cogens void. If the treaty is found to violate a pre-existing jus cogens rule (i.e., Art. 53), then it will be void and under Art. 71 the parties will be required to eliminate the consequences of any act performed in conflict with jus cogens, and to bring their mutual relations into conformity with the jus cogens rule.

Art. 64 of the VC makes any treaties that offend a newly-emerged rule of jus cogens void and terminates them. In the Aloeboetoe Case (1994), for example, the Inter-American Court of Human Rights held that the rule against slavery today has a jus cogens quality.

The termination of the treaty has the following effects:

- it releases the parties from any further obligations to perform the treaty, and

- It does not affect any right, obligation or legal situation created through the prior execution of the treaty. This only applies to those rights, obligations or legal situations that do not perpetuate the violation of the rule of jus cogens.

The ICJ

Jurisdiction of the Court

Art. 36(2) of the Statute of the International Court of Justice provides for states to accept the jurisdiction of the court by either depositing their declarations of acceptance or submitting to the court’s jurisdiction by means of an article in the Agreement itself (i.e., specific acceptance through a treaty).

A state may try to avoid jurisdiction so as not to have any claim brought against it, or try to ensure that the court has jurisdiction so that it can bring a claim against another state.

Avoid Jurisdiction

If an agreement is not registered, the court will not have the ability to rule on the treaty or related issues. However, in the Nicaragua Case the court showed its cleverness by ruling on the law without the aid of treaties…

This approach of avoiding jurisdiction may be useful if a state has sufficient military and economic clout to enable it to escape any punitive actions by another state. If that other state is a large and powerful state, however, the state may wish to use the law to defend itself.

Ensure Jurisdiction

Even when the court has jurisdiction it may have little to work with in deciding a case because the Agreement has not been registered with the UN Secretariat. This is a requirement under Art. 80 of the VC and Art. 102 of the UN Charter. Art. 102 provides that if you do not register a treaty with the Secretariat it cannot be invoked before an organ of the UN (including the International Court of Justice, General Assembly and Security Council). See, e.g., Maritime Delimitation Case.

Notice, however, that the International Court of Justice in the Nicaragua Case spent a long time discussing Nicaragua’s attempted (but never completed) ratification of the Statute of the PCIJ... Another interesting point is that Art. 66(a) of the VC itself allows parties that need an interpretation of VC provisions dealing with rules of jus cogens to bring them before the International Court of Justice. The question might arise, then, as to whether this provision would obviate the need for registration...

The safest route for a state is to register the Agreement with the Secretariat of the United Nations.

Other Options

Other (non-judicial) pacific methods of dispute settlement are set out in Art. 33 of the UN Charter: negotiation, enquiry, mediation (including good offices), conciliation, arbitration, […] resort to regional agencies or arrangements, or other peaceful means of their own choice.

There was no international court prior to the Permanent Court of International Justice (following WWI), so a decision made during this period could not be a PCIJ/ICJ decision. Regardless, there is no rule of stare decisis at the international level: Art. 59 Statute of the ICJ. The court could therefore only look at such a decision as a subsidiary means of determination of the law under Art. 38(1)(d).

Full Powers

Art. 2(1)(c): Where an individual is authorised to attend, but only as an observer, the implication is that the individual is not meant to have the capacity to sign. Nonetheless, the individual might be said to have ‘full powers’ because the term as defined under the VC allows such designation for persons not authorised to consent to a treaty.

Art. 7(2)(a): A high ranking official of a state eg. the Minister of Foreign Affairs may also be deemed to have full powers.

Consent

Art. 11 allows consent by means of signature, exchange of instruments, ratification, acceptance, approval, accession, or other means if so agreed.

Art. 12 allows consent to be expressed by signature alone if the treaty so provides.

Where a treaty states that it is to be binding upon "acceptance" the meaning of the term can be ascertained from the treaty itself (which could define it as meaning almost anything). Under normal usage it has a specific meaning.

Unilateral Declarations

Invalidation of Consent?

There is a presumption in favour of validity of treaties in the VC: Art. 42.

Subject to Art. 46, Art. 27 of the VC provides that internal law may not be invoked as a justification for failure to perform a treaty.

Art. 46 provides that if there is some rule in a state’s constitutional system that would negate their competence to conclude such a treaty, and the violation of this rule is "manifest and concerned a rule of internal law of fundamental importance" then that state’s consent may be invalidated. This violation must be "objectively evident to any State … in accordance with normal practice and in good faith."

Art. 47 provides that a restriction on the representative may be invoked as a ground for invalidating consent if the other states were notified about this restriction prior to the expression of consent.

Art. 65 of the VC: even if a state is able to raise issues regarding the invalidity of its consent to the treaty, it cannot immediately and automatically escape its provisions. Rather, it must notify the other parties and either gain their approval or settle the issue under various procedures…

Art. 69: if the consent is shown to be invalid, the treaty will be void as between that state and all other parties.

Becoming Binding

There are two ways that a treaty might become binding or a binding obligation might arise (related to the treaty, if not under it).

Signature + Art. 18 Object and Purpose Rule

VC Art. 18 rules that states have an obligation not to defeat the object and purpose of a treaty prior to its entry into force, or prior to that state making it clear that it does not intend to be a party to the treaty. (Note that this is also a rule of customary international law)

Later Adoption of Actions

Art. 8 of the VC allows a state to adopt a representatives actions even if s/he had no full powers or did but was unable to consent on behalf of her state.

Formation of Customary Rule

There are two elements that need to be satisfied for a rule of customary international law to emerge: practice and opinio juris.

Practice

The following are considered in assessing evidence of state practice:

- duration of the practice (which need not be long, but if not must be uniform—no ‘time immemorial’ rule),

- its uniformity (consistency, repetition, etc.), and

- its generality (how many states have engaged in it?).

There are cases where lack of uniformity of practice has prevented the finding of a customary rule include:

Eg. 1Asylum Case (must be ‘constant and uniform’);

Eg.2Nuclear Weapons Case (UNGA); Anglo-Norwegian Fisheries Case and the North Sea Continental Shelf Cases (‘both extensive and virtually uniform’).

Notice, however, that the Nicaragua Case said that ‘absolutely rigorous conformity’ in state practice is not necessary.

In considering the generality of a practice, it is important to take account of the number of states, the status of the states (most powerful?) and the relationship of the states to the practice (most concerned?)

The lack of any behaviour tells us little about the formation of a customary rule. This has more to do with the question of opinio juris…

Opinio Juris

The requirement of opinio juris sive necessitatis can be loosely translated as "a belief in (or claim as to) the legally permissible or obligatory nature of the conduct in question, or of its necessity." [Mendelson, 66 BYIL 177, at 195]

Opinio juris is most important to help us determine the meaning of a practice—or lack thereof.

Thus, in the Lotus Case the fact that some states had refrained from prosecuting persons in the position of the French captain was not enough to prove belief that such abstention was required by law (opinio juris).

In the Filartiga v. Pena-Irala Case evidence of states engaging in torture did not make such behaviour legal because there was no opinio juris accompanying such practice. The Nicaragua Case also tells us that if a state behaves in a certain way but says that this does not violate the rule or is an exception to the rule, the behaviour will not be taken to disprove the existence of the rule.

Treaty-Created Rule

In the North Sea Continental Shelf Cases the ICJ sets out the rules by which a treaty provision can become part of customary international law. The test was:

a)Is the article fundamentally norm-creating (i.e., does it seem to establish a general rule of law)?

b)What is the level of participation in the treaty, and does this include those states specially affected?

c) What is the duration and level of uniformity of the practice?

Notice that even treaties that not yet in force have been capable of generating custom: the 1982 Law of the Sea Convention.

Note that it is possible for a state though not bound by a treaty to be liable for defeating its the object and purpose before it has made the world aware that it does not intend to be a party.

International Court of Justice Claim: Law of Treaties

In order for the ICJ to hear a case involving a treaty both ICJ has to have jurisdiction to hear the case (i.e. both parties must have accepted its jurisdiction) and both states must be parties to the 1969 Vienna Convention on the Law of Treaties (VC).

(Automatic) Incorporation/Transformation

Until a treaty has been brought into force in domestic law (through transformation or automatic incorporation), the state will be bound to apply its normal method for bringing treaty laws into domestic law (again, transformation or automatic incorporation). Only after the Covenant has been brought into force in domestic law will all future treaties be automatically incorporated (i.e., similar to the UK and its European Communities Act, 1972 (UK)). The ironic result is that unless the state allows automatic incorporation of treaties already, it will breach the Covenant the moment it ratifies it—because the state will have to transform the Covenant in order to bring it into force in domestic law (thus breaching the clear wording of Art. 6, which requires the Covenant itself to be automatically incorporated).

Treaty Implications

If state are parties to an agreement, this means that they have done everything necessary to be bound at the international level. Formalities regarding full powers, signature, ratification, etc., are now irrelevant—as these states have already finished such actions. The only final action that might be needed is for the treaty to come into force for all parties

If a treaty is binding upon you and in force, then you are bound by it at the international level. Incorporation or transformation only affects the ability of domestic courts to use a treaty. States can bring claims against you at the international level for breach, regardless of transformation.

Material Breach

Art. 60 of the Vienna Convention on the Law of Treaties provides that either (1) an unlawful repudiation or (2) a "violation of a provision essential to the object and purpose of the treaty" will amount to a material breach.

If a state materially breaches a treaty, then upon a determination by the ICJ, the other parties may be authorised to suspend their treaty obligations with respect to that state delinquent states (Art. 72), or even terminate the treaty with respect to them or with respect to all parties (Art. 70). Termination of treaties allows rights and obligations created under the treaties to continue (unlike invalidity, which in most cases will require states to return things to their earlier status).

Treaty ‘Defences’

1. The treaty was not valid. A treaty made be invalid if not properly formed or if a state did not fully consent to it.
2. If the treaty is not yet in force then no state will be able to bring a claim for its breach. A state would therefore be well advised to do something about any constitutional impasses before the treaties come into force.

However, a state may be liable under the Vienna Convention in any event. States may bring claims against it for violation of Art. 18 of the VC, the provision that requires states to refrain from actions against the object and purpose of the treaty before it has come into force or before they have ratified it.