Summary Public International Law - Literature Notes Week 2
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Course
Public International Law (IER4021)
Institution
Maastricht University (UM)
Book
International Law
Summaries of the readings for Public International Law week 2:
- Gleider Hernandez, International Law – Chapter 7, The Law of Treaties;
- Martin Dixon, Robert McCorquodale & Sarah Williams, Cases & Materials on International Law (6th edn., OUP, 2016). – Chapter 3;
- Goodman, R. ‘Human Rights,...
Detailed Lecture Notes, Reading Notes and Tutorial Prep (Incl. an exam + answer key at the end)
Essential guide to Hernandez "International Law"
College aantekeningen Publiek Recht II: Internationaal Recht International Law, ISBN: 9780198748830
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Literature Notes – Week 2
Gleider Hernandez, International Law – Chapter 7, The Law of Treaties
7.1 Introduction
Treaties record an agreement between two or more international actors in which they consent to be
bound by legal obligations; they are a crucial means for the development of international law. Two
basic principles of international law are thus in play: that a party is only bound by the provisions of a
treaty to which it has consented, but once it is bound, a party shall respect its obligations in good
faith. The VCLT is the cornerstone of the law of treaties, as it is regarded as a codification of
customary international law on treaties.
7.2 Basic concepts and principles
Article 2(1)(a) VCLT outlines three tenets of treaties. It is (a) a written agreement; (b) between
international legal subjects; and (c) governed by international law. While states are the most active
actors entering into treaty relations, international organisations or other specific entities (such as
“separate custom territories” like Hong-Kong) may also enter into treaties. An important note is that
international agreements that are not intended to create legal obligations, such as the 2009
Copenhagen Accord on climate change or documents said to constitute “soft law”, do not constitute
treaties. However, a unilateral statement by a state may have binding effect under certain
conditions, provided that the state’s intention to be bound is clear.
7.2.1 The making of treaties
7.2.1.1 Formal conditions to enter into treaty obligations
Article 7(2) VCLT states three office-holders who are considered as representing their state: (a) heads
of state and/or government and ministers for foreign affairs; (b) heads of diplomatic missions for the
purpose of adopting a treaty; and (c) representatives accredited by states to an international
organisation for the purpose of adopting a treaty. It should be noted, however, that under Article
7(1)(a-b) full powers are not needed if the other parties to the agreement acted in such a way that
their intention was to regard that person as representing that state, though Article 8 states that
states can confirm their authority afterwards too.
7.2.1.2 Expressing consent to be bound
7.2.1.2.1 Consent by signature
The purpose of a signature is rarely to express consent to be bound; it is usually the first step to
approval under domestic law. Article 12 VCLT provides, however, that negotiating parties may agree
that signature is the final stage of a treaty-making process and equals consent to be bound, which
could happen for practical reasons.
7.2.1.2.2 Consent by ratification
Article 14 VCLT provides that ratification is necessary when provided by a treaty or otherwise
established by intention of the parties, or when the signature of a state representative has been
made subject to ratification in order to bind the state. Thus, the first element of ratification is
approval under domestic law and the second is the (courtesy of) formal exchange or deposit of the
respective instruments of ratification by the parties involved.
7.2.1.2.3 Consent by accession
States may also consent, through a process called “accession”, to be bound by a treaty that has
already been finalised. This is often used when states join an existing international organisation.
7.2.2 The entry into force of treaties
Unless the treaty provides for the contrary, it enters into force as soon as the consent to be bound of
all negotiating members has been established (Article 24 VCLT).
7.2.3 Amendment and modification of treaties
, The VCLT provides for two mechanisms for states to change the obligations between them:
amendment (Articles 39 and 40) and modification (Article 41). The former requires the consent of all
the parties to an agreement, and all the formalities that would have accompanied the original
conclusion of the treaty. Modification entails two or more parties seeking to modify the treaty, in
which case they may conclude an agreement inter se, provided that they comply with the
requirements under Article 41.
7.3 Reservations to treaties
7.3.1 What is a “reservation”?
Reservations to treaties are unilateral acts through which states choose to exclude or to modify the
legal effect of a given provision when consenting to be bound by a treaty obligation, as stated in
Article 2(d) VCLT. Their existence was a concession to concerns over universality, so that a
negotiating party could reject or exclude certain provisions but still become a party to the treaty,
though Article 19 VCLT has specific requirements for making reservations. Reservations are further
governed by Articles 19 to 23 VCLT.
7.3.2 Reservations and the object and purpose of a treaty
The possibility of filing a reservation aims to preserve flexibility; at the time of the League of Nations,
unanimous acceptance of a reservation by other parties was required. The tension between
universality and integrity came to a head with the opening for signature of the 1948 Genocide
Convention, when several important states refused to accept the power of the ICJ. In Reservations to
the Genocide Convention, the ICJ, most importantly, affirmed the principle that a reservation would
be valid provided that it was not objected to by all other parties, and was compatible with the object
and purpose of a treaty.
7.3.3 Identifying a reservation
As Article 2(d) VCLT specifies, “however phrased or named”, a reservation is identified by its effect of
modifying or excluding the legal effect of certain treaty provisions. Parties can make other
statements with regard to a treaty where no binding consequence is intended, such as
understandings, political statements, or interpretative declarations. Following two judgements on
whether certain unilateral declarations were reservations or not, the ILC in 2011, suggested that the
character of a unilateral statement, whatever its title, is determined primarily by “the legal effect
that its author purports to produce.”
7.3.4 Legal consequence of impermissible reservations
Article 21 VCLT addresses the legal effect of reservations. As a general rule, a reservation modifies,
for the reserving party in its relations with other parties, a specific provision of a treaty. Following
Article 21(3), when another party objects to the reservation but not to the entry into force of the
treaty, “the provisions to which the reservation relates do not apply as between the two states to the
extent of the reservation” – a “soft objection”. In case of an impermissible reservation or “hard
objection”, a state formulates a reservation to which other states object on the basis that the
offending reservation is incompatible with the object and purpose of the treaty, and where the
objecting parties refuse to have treaty relations with the reserving state.
7.4 The scope of treaty obligations
7.4.1 The principle of “pacta sunt servanda”
“Pacta sunt servanda” is a foundational principle of international law, as stipulated in Article 26 VCLT,
“[E]very treaty in force is binding upon the parties to it, and must be performed by them in good
faith”.
7.4.2 Treaties and third parties
A general rule of law is that a treaty cannot create obligations for a third state without its consent,
under Article 34. Article 35 then states that Third States may become bound by a provision of a treaty
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