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What is a treaty?
an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation
Article 2(1), Vienna Convention on the Law of Treaties (VCLT)
Synonymous Terms
There are many other terms used for a treaty or international agreement, some of which are:
act, protocol, agreement, compromis d' arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi.
Elements
1. International agreement an agreement has to have an international character 2. Concluded between states a treaty is between states, governments or their agencies or instrumentalities acting on behalf of states
Concluded by head of states or governments, their ministers or other state agencies
Elements
3. In written form 4. Governed by international law intent to create obligations under international law 5. Whether embodied in a single instrument or in two or more related instruments
2 Kinds of Treaties
traites-lois
law making treaties
traits-contrats
contract treaties
Party to a Treaty
a State which has consented to be bound by the treaty and for which the treaty is in force (Article 2 (1)(g), VCLT) Rule: Only States may enter into treaties or international agreements. Agreements between State and individuals or entities other than States DO NOT come within the category of treaties. Exceptions: States may enter into treaties or international agreements with International Organizations & Belligerent States
4 Essential Validity
Capacity of parties Competence of particular organs concluding the treaty Reality of Consent Legality of Object
Capacity of Parties
Rule: Every state possesses the capacity to conclude treaties Article 6, VCLT President Chief Executive and head of state
has the power to conduct foreign relations chief architect of foreign policy he has the power to enter and make treaties sole spokesperson of the Government in foreign relations
Capacity of Parties
Exceptions:
When it limits itself; or When it is limited by some other international arrangements respecting some matters.
Reality of Consent
Rule: The plenipotentiaries of States or the State itself must possess the capacity to consent which consent is given in a manner that is voluntary and free from fear, force, coercion, intimidation, or corruption. Exceptions:
Ratification, Estoppel, Prescription
Legality of Object
Rule: Immorality, illegality or impossibility of purpose or obligations makes a treaty null and void. e.g. a treaty by which a State agrees with another to appropriate a portion of the high seas.
Legality of Object
Exceptions: a)If the immorality, illegality or impossibility does not run counter to a universally recognized peremptory norm of international law but only against a remote and minor norm. b)If it does not contravene or depart from an absolute or imperative rule or prohibition of international law. e.g. jus dispositivum.
Question
Question 1: May a third State who is non-signatory to a treaty be bound by that treaty? Question 2: If answer is in the affirmative, in what specific instances?
Answer
1. When a treaty is a mere formal expression of customary international law 2. Under Article 2 of its charter, the UN shall ensure that non-member States act in accordance with the principles of the Charter so far as may be necessary for the maintenance of international peace and security
Answercontinuation
3. The treaty itself may expressly extend its benefits to non-signatory states. 4. Parties to apparently unrelated treaties may also be linked by the most-favored nation clause.
Intention is to bind each other to conduct agreed upon that failure to do so may give rise to certain obligations It may contain anything as long as it does not contradict jus cogens norms There is a need of publication May require other means for effectivity
Thus, if a treaty creates legally binding obligations, then a breach of a treaty by one of its parties is a breach of international law
Limitations to RSS
It applies only to treaties of indefinite duration; The vital change must have been unforeseen or unforeseeable and should have not been caused by the party invoking the doctrine. It must be invoked within reasonable time; and It cannot operate retroactively upon the provisions of a treaty already executed prior to the change in circumstances.
Interpretation of Treaties
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 light of its object and purpose (Article 31, VCLT) Supplementary means of Interpretation
travaux prparatoires preparatory work (drafting history) circumstances of the treatys conclusion
Those that provide direct allocation f funds Those that criminalize certain conduct only the legislature may pass penal legislation
Executive Agreements
Air services agreement Cultural agreement Defense cooperation agreement Mutual logistics support agreement Tourism cooperation agreement Investment promotion and protection agreement Labor promotion and protection agreement
Article 15: accession an act by which a state expresses its consent to be bound when it has not previously signed a treaty
sometimes treaties provide in their text that a treaty is open for signature until a certain date, after which parties may join the treaty by accession
Issuance of Full Powers or Special Authority Negotiations Signing of the Agreement Ratification by the President
Negotiations
Consultation with appropriate government agencies through inter-office/agency meetings Head of agency convenes members of the negotiating panel prior to negotiation to establish parameters of the negotiating positions No deviation from the agreed parameters without consultations with the members of the negotiating panel. Done through foreign ministers or through diplomatic conferences
Declaration or Reservation
Declaration
Unilateral declaration Clarify the meaning or scope attributed to the treaty or certain of its provisions.
Reservation
Unilateral statement Exclude or to modify the legal effect of certain provisions of the treaty in their application to that State
Invalidity of Treaties
Grounds: error of fact, fraud corruption or duress A state can loose the right to assert the invalidity of a treaty
Remains to be bound expressly or through by conduct
A state may not plead its municipal law as a ground for invalidating a treaty that has been entered
Amendment/Modification of Treaties
Amendment
Formal revision done with the participation by all parties to the treaty
Modification
Involves only some of the parties
Art. 39, VCLT, treaty may be amended by agreement of the parties procedure is the same as treaty making process
Termination of Treaties
May be terminated/suspended:
according to the terms of the treaty consent of the parties Expiration of the period Achievement of the purpose Material breach Impossibility of performance Change in fundamental conditions (RSS)
Mere change of government or severance of diplomatic relations does not terminate or suspend a treaty
Succession to Treaties
1978 Convention on the Succession of States with respect to Treaties
Follows the clean slate rule
a newly independent state is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates It does not apply to treaties affecting boundary regimes
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