LAW 1508 Lecture 2: Week 2- The Law of treaties
23 May 2018
School
Department
Course
Professor
The Law of TREATIES
Binding agreements outside VCLT
– Art 3 VCLT preserves the legal force of treaties which are not in written form
Oral undertakings
– Legal Status of Eastern Greenland (Norway v Denmark)
• Oral agreement can be binding. Especially when given by a state rep/ minister on a
serious matter
– Writings of Uncertain Intent
– Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v Bahrain)
• Exchange of letters between Heads of State can form a binding treaty obligation
• Minutes of a meeting between foreign Ministers can form a binding agreement
– Aegean Sea Continental Shelf (Greece v Turkey)
• Press release issued after meeting of Prime Ministers not a binding agreement
VCLT TREATY interpretation
STEP 1: Does the VCLT apply?
• Art 4- VCLT Only applies to treaties created after 1980, however, reflects customary international
law and will be applied
• Article 2(1)(a) – 4 criteria need to be satisfied to be a treaty for VCLT
✓ Needs to be an international agreement.
✓ Between states (Treaties between States and NON-state entities are governed by Custom)
✓ In written form.
✓ Must be governed by international law.
✓ Whatever its designation (covenant, convention, agreement, protocol, statute)
•
STEP 2: PARTY STATUS: Are the parties signatory to the treaty in question?
• States must be a party to VCLT Consent to be bound
o Signature – VCLT art 12
o Ratification, acceptance or approval (final stamp) – VCLT art 14
o Accession – for parties who have not signed the treaty (e.g. after it has entered into force)
o As specified in the treaty – VCLT art 24
• If only SIGNED and NOT RATIFIED, Article 18 VCLT – Parties to the treaty in question must refrain
from all acts that undermine the objective and purpose of the treaty. unless they subsequently
make clear an intention not to become a party
• Entered into force?
Who can conclude a treaty?
o Art 6 VCLT- every state possesses capacity to conclude treaties
o Art 8 VCLT- acts which conclude a treaty not completed by a legal person are
without legal effect unless the state confirms
o Legal person with full powers: Art 2(1)(c) VCLT; Art 7(1)
o Certain classes of persons don’t need full powers
• Art 7(2)(a) heads of states; (b) heads of diplomatic missions; (c) reps
accredited to sign at a conference/ organisation [need EVIDENCE]
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• Article 34 VCLT -- The treaty obligation will only bind the parties to the treaty and cannot
create obligation on 3rd party state.
✓ UNLESS by express consent of a third party State – Article 34 VCLT.
✓ Express consent to an obligation- art 35
✓ If State parties to a treaty create a right to be enjoyed by a third party State, it will
create a presumed consent (rebuttable) – Article 36.
Legal effects of consent
• Always mention- If you ratify a treaty, Article 26 VCLT – the treaty is binding upon parties and must
be performed in good faith (Pacta Sunt servanda).
• Treaty will prevail over customary international law except for jus cogens (see below)
• Cannot use domestic law as a reason not to comply with treaty obligations. Article 27 VCLT
• Treaty obligations are: prospective only VCLT art 28
• apply to all of a “tates territory, uless the otrary is speified: VCLT art
• supersede obligations under earlier treaties between the same parties: VCLT art 30
STEP 3: Based on the facts, list down the relevant elements of the Articles from the treaty
STEP 4: Treaty Interpretation
• Article 31(1) VCLT – The treaty needs to be interpreted in GOOD FAITH, must give ORDINARY
MEANING to the terms of the treaty in their CONTEXT and in the light of its OBJECT and PURPOSE.
• Golder Uited Kigdo ECH‘ “er A No , . the proess of iterpretatio is a uity..
o Good faith- approach it with the right intent. Give effect to treaty.
o Ordiar eaig- ditioar
o Cotet- preale, tet of treat
o I light of ojet/ purpose
▪ OBJECT ad PURPOSE a e idetified i treat preale; eed to ostrut a
arguet; ase o our thoughts i good faith ratioal thought proess, a e 1
illio asers
✓ If needed- The context for the purpose of interpretation – Article 31(2) text of treaty
o 31(2)(a) agreement between parties in connection with the conclusion of the treaty
o 31(2)(b) instrument (document) made by one or more parties in connection with the
conclusion of the treaty and accepted by other parties
✓ If needed- Take into account additional relevant matter, together with the context – Article 31(3).
o 31(3)(a) subsequent agreement between parties regarding the treaty/ application of its
provisions;
o 31(3)(b) subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
o 31(3)(c) relevant rules of international law applicable in relations between treaties
✓ Question applicability of 31(4)
o special meaning shall be given to a term if it is established that the parties so intended.
• Article 32 VCLT – may refer to supplementary materials if the interpretation made according to Article
31 is ambiguous, obscure (31(a)) or leads to a result which is manifestly absurd/unreasonable. (31(b))
✓ Preparatory work of the treaty. traau préparatoires
✓ Circumstances leading to conclusion of treaty.
STEP 5: IMPORTANT Reservation as defined under Article 2(1)(d)
I ot goig to e oud y THAT partiular oligatio
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