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Webcast 'Law of Treaties'
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Webcast ‘Law of Treaties’Points to discuss:
- VCLT
- Conclusion of treaties
- Changes of treaties
- Interpretation of treaties
- Application of treaties
- Reservations
- Declarations
- Relationship primary rules and secondary rules
- Treaty termination
PART 1
Pay attention: law of treaties, NOT law in treaties
1. When we are talking about the law of treaties, it is important to realize that these are secondary
rules, rules concerning rules. In general, rules of PIL can be divided into two categories:
o On one side we have the primary rules (rules which contain the substantive provisions,
e.g. rules on the prohibition of torture)
o On the other side we have secondary rules (rules which contain the provisions serving
the drafting and adoption, application, interpretation and enforcement of primary
rules; procedural provisions)
§ Examples: law of treaties and the law of state responsibility
Two regimes governing the law of treaties:
1. Vienna Convention of the Law of Treaties (1969), entered into force in 1980
2. Customary international law
They overlap in great part. As the VCLT is thought to reflect customary IL.
VCLT
Drafted by the ILC; Contractual outlook: VCLT looks at
treaties as interstate obligations
2. Policy choices:
Focus on form instead of substance
116 State parties to this treaty
Does not give rules about
consequences, see therefore: state
responsibility
What is a treaty?
Art. 2 (1) VCLT: “Treaty” 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.
9 The VCLT limits its scope to treaties that are concluded between states; does not mean that a
treaty between an international organization and a state is not valid. For instance, under the
VCLT agreements with of between international organizations will not be governed by the VCLT
9 Written form: does not mean that an oral agreement is not valid. Art. 3 VCLT specifies that an
oral agreement does not necessarily mean that this agreement is invalid. It simply means that
this agreement is not governed by the VCLT
o Good to remember to always make a distinction between agreements governed by
the VCLT and agreements that are not. Furthermore, the law of treaties only applies to
agreements governed by international law. It does not apply, for example, to an
agreement between the UK and Germany for purposes of housing the UK embassy in
Germany. Even though this is an agreement concluded between two states, it is not
governed by IL and therefore we do not consider it an international treaty.
1
, Webcast ‘Law of Treaties’
9 Whatever its particular designation: treaties may come in many forms and under many names.
Law of treaties is based on two fundamental principles:
1. Treaty must be based on free consent of States (based on the concept of state sovereignty),
Lotus principle
BUT
2. Freedom is not unlimited
o The freedom is limited by the application of the principle of pacta sunt servanda
§ Treaties in force are legally binding and that obligations must be performed in
good faith
§ But if states are free to conclude treaties, does this mean that states can agree
in a written treaty, for example, that they agree to commit genocide for as
long as they can? → art. 53 VCLT states that there are exceptions to treaties in
which norms laid down with conflict with the norm of jus cogens or peremptory
norms of IL. In such cases the treaty will be void.
• Jus cogens: norms accepted and recognized by the international
community as a norm for which no derogation is permitted. It is
generally accepted that jus cogens norms ban genocide, piracy,
enslavement, torture and wars of aggression.
§ Importance of pacta sunt servanda confirmed by ICJ in Gabvikovo-
Nagymaros-case.
Para 114: “The Court would set a precedent with disturbing implications for
treaty relations and the integrity of the rule pacta sunt servanda if it were to
conclude that a treaty in force between States, which the parties have
implemented in considerable measure and at great cost over a period of
years, might be unilaterally set aside on grounds of reciprocal noncompliance.
It would be otherwise, of course, if the parties decided to terminate the Treaty
by mutual consent.”
Conclusion of treaties
In order for a treaty to be concluded, several steps need to be taken.
But who can conclude treaties? Generally, there are two types of actors which can conclude treaties:
3. Actors who do not need to produce full powers (listed in art. 7 VCLT)
o Heads of state
o Heads of government
o Ministers for foreign affaire
4. Actors who do need to produce full powers; means that they have to show a document from
the state in which it is stated that that person can negotiate on behalf of the state
o For instance when a treaty is drafted which contains provisions on the right of
education of a child, then the minister of education could be sent do act or negotiate
on the states behalf.
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