Statehood: 1933 Montevideo Convention on Rights and Duties of ...
Mischellaneous Info: Statehood: 1933 Montevideo Convention on Rights and Duties of States 1. 2. 3. 4.
A permanent population A defined territory Government (stable political organisation; cf ‘failed states’) Capacity to enter into relations with others
Principles: 1945 UN Charter Art. 2 1. 2. 3. 4. 5.
Sovereign Equality Good Faith Peaceful settlement of disputes Non-use of force Non-intervention
Art 38 ICJ Statute 1. The Court … shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Treaty Law: What is a treaty? VCLT Art 2.1 (a) “[T]reaty" means 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; ‘governed by international law’: intention to create obligations under international law (Anthony Aust , Modern Treaty Law and Practice (2nd ed 2007) o Test is State’s intention to be bound (Qatar v Bahrain) o ‘whatever its particular designation’: eg treaty, convention, protocol, statute, agreement, accord, compact, covenant Two Types of Treaties: a. Law making treaties (multiple states) b. Treaty Contracts (two or few states) Instruments of less than treaty status: (eg Memorandums of Understanding) States may wish to record their mutual understandings rather than bind themselves under international law with a treaty •
Various names (eg ‘gentlemen’s agreement’!) but mostly referred to as ‘MOU’
•
Terms determine difference between MOUs and treaties o Terms: MOUs use ‘will’ instead of ‘shall’; avoid ‘agree’; use ‘come into force’ instead of ‘enter into force’ (Aust 33).
Unilateral Declarations: o Unilateral declarations made by a state can create legal obligations. (Nuclear Tests) o This is based on pacta sunt servanda/principle of good faith (UN Charter Art. 2)
Treaty Checklist: o Does the treaty enter into force after 1980 (after VCLT entered into force) o Are all states parties to the treaty? o Are all states parties to VCLT? (Gabcikovo-Nagymaros) If treaty entered into force before 1980 OR not all states are party to VCLT: then provision MUST reflect CIL to apply. (Gabcikovo-Nagymaros) Most of VCLT reflects CIL but you should state case or other authority which shows this for each provision. VCLT: Formation of Treaties – Adoption Article 9: 1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. 2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. VCLT: Formation of Treaties – Consent to be Bound o May be by signature: (Art. 12) this is uncommon o Usually requires: o Art. 14: Ratification by original signatories (multilateral treaties open for signature until specified date) o Art. 15: Accession/acceptance/approval by parties who are not original signatories
VCLT: Formation of Treaties – Obligations prior to entry into force Art. 18 A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty …, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty * State not required to comply with treaty in general sense before eif (Aust) * A state must not do anything which would affect its ability to fully comply with the treaty once it has eif. (Aust) VCLT: Formation of Treaties – Entry into force Art. 24 1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. Bilateral treaties: acceptance by both parties. Multilateral treaties: formula set out in treaty itself.
VCLT: Who is bound by a treaty? Art. 26: Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (CIL: eg Rights of Nationals of the USA in Morocco case). Good faith: obligation must not be avoided by a merely literal application of the treaty provisions •
e.g. treaty provisions prohibiting discrimination against minorities must be so applied as to ensure the absence of discrimination in fact as well as in law. (Minorities)
•
Takes into account capacity. (1972 Convention for the Protection of the World Cultural and Natural Heritage)
Art. 27: Internal Law and Observance of Treaties: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Australia cannot become party to a treaty where Australian laws at variance with provisions of the treaty (‘Treaty-Making Process’ 2005 Australian Year Book of International Law) Reflects CIL (Alabama Claims Arbitration) Art. 34: General rule regarding third States A treaty does not create either obligations or rights for a third State without its consent. • CIL: (Free Zones) Where treaty provision is CIL, it is binding on all States (NSCS). The ‘objective regime’ exception (rare) - creates obligations for all States: ‘established for the benefit of all nations of the world’ (Wimbledon) - need to show intention of parties to create such a regime generally, refer to specific area/region: neutralisation / demilitarisation of area; freedom of navigation in international waterways (Aust 258) - possibly Antarctic Treaty (C&M 166-7.
Treaty Interpretation: VCLT Art. 31.1: 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 the light of its object and purpose. Applied by ICJ as CIL (Libya v Chad) *Purpose is not fulcrum of interpretation in international law as it is in domestic law, as states have different intentions. Start with text itself, then move to context, object, and purpose, then holistically determine meaning.
A permanent population A defined territory Government (stable political organisation; cf ‘failed states’) Capacity to enter into relations with others
Principles: 1945 UN Charter Art. 2 1. 2. 3. 4. 5.
Sovereign Equality Good Faith Peaceful settlement of disputes Non-use of force Non-intervention
Art 38 ICJ Statute 1. The Court … shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Treaty Law: What is a treaty? VCLT Art 2.1 (a) “[T]reaty" means 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; ‘governed by international law’: intention to create obligations under international law (Anthony Aust , Modern Treaty Law and Practice (2nd ed 2007) o Test is State’s intention to be bound (Qatar v Bahrain) o ‘whatever its particular designation’: eg treaty, convention, protocol, statute, agreement, accord, compact, covenant Two Types of Treaties: a. Law making treaties (multiple states) b. Treaty Contracts (two or few states) Instruments of less than treaty status: (eg Memorandums of Understanding) States may wish to record their mutual understandings rather than bind themselves under international law with a treaty •
Various names (eg ‘gentlemen’s agreement’!) but mostly referred to as ‘MOU’
•
Terms determine difference between MOUs and treaties o Terms: MOUs use ‘will’ instead of ‘shall’; avoid ‘agree’; use ‘come into force’ instead of ‘enter into force’ (Aust 33).
Unilateral Declarations: o Unilateral declarations made by a state can create legal obligations. (Nuclear Tests) o This is based on pacta sunt servanda/principle of good faith (UN Charter Art. 2)
Treaty Checklist: o Does the treaty enter into force after 1980 (after VCLT entered into force) o Are all states parties to the treaty? o Are all states parties to VCLT? (Gabcikovo-Nagymaros) If treaty entered into force before 1980 OR not all states are party to VCLT: then provision MUST reflect CIL to apply. (Gabcikovo-Nagymaros) Most of VCLT reflects CIL but you should state case or other authority which shows this for each provision. VCLT: Formation of Treaties – Adoption Article 9: 1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. 2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. VCLT: Formation of Treaties – Consent to be Bound o May be by signature: (Art. 12) this is uncommon o Usually requires: o Art. 14: Ratification by original signatories (multilateral treaties open for signature until specified date) o Art. 15: Accession/acceptance/approval by parties who are not original signatories
VCLT: Formation of Treaties – Obligations prior to entry into force Art. 18 A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty …, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty * State not required to comply with treaty in general sense before eif (Aust) * A state must not do anything which would affect its ability to fully comply with the treaty once it has eif. (Aust) VCLT: Formation of Treaties – Entry into force Art. 24 1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. Bilateral treaties: acceptance by both parties. Multilateral treaties: formula set out in treaty itself.
VCLT: Who is bound by a treaty? Art. 26: Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (CIL: eg Rights of Nationals of the USA in Morocco case). Good faith: obligation must not be avoided by a merely literal application of the treaty provisions •
e.g. treaty provisions prohibiting discrimination against minorities must be so applied as to ensure the absence of discrimination in fact as well as in law. (Minorities)
•
Takes into account capacity. (1972 Convention for the Protection of the World Cultural and Natural Heritage)
Art. 27: Internal Law and Observance of Treaties: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Australia cannot become party to a treaty where Australian laws at variance with provisions of the treaty (‘Treaty-Making Process’ 2005 Australian Year Book of International Law) Reflects CIL (Alabama Claims Arbitration) Art. 34: General rule regarding third States A treaty does not create either obligations or rights for a third State without its consent. • CIL: (Free Zones) Where treaty provision is CIL, it is binding on all States (NSCS). The ‘objective regime’ exception (rare) - creates obligations for all States: ‘established for the benefit of all nations of the world’ (Wimbledon) - need to show intention of parties to create such a regime generally, refer to specific area/region: neutralisation / demilitarisation of area; freedom of navigation in international waterways (Aust 258) - possibly Antarctic Treaty (C&M 166-7.
Treaty Interpretation: VCLT Art. 31.1: 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 the light of its object and purpose. Applied by ICJ as CIL (Libya v Chad) *Purpose is not fulcrum of interpretation in international law as it is in domestic law, as states have different intentions. Start with text itself, then move to context, object, and purpose, then holistically determine meaning.
