LAWS2250 Lecture 4: Treaty
The Law of Treaty
Thursday, 17 August 2017
17:02
Article 2(1)(a) 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.
An agreement between two or more subjects of law aimed at producing legal
effects and governed by international law.
Definition loosely drawn from Paul Reuter Introduction to the Law of Treaties, 2nd ed.,
(trans. J. Mico & P. Haggenmacher), Graduate Institute of International Studies/Pinter,
Geneva/London, 1989, p.23.
The Vienna Convention on the Law of Treaties 1969
Applies to treaties in written forms between states
Reflection of CIL
If not a part to VCLT 1969, but can still apply the rules in the VCLT as a
customary IL
Vienna Convention on the Law of Treaties (1969)
Preamble
Affirming that the rules of customary international law will continue to govern
questions not regulated by the provisions of the present Convention…
99. The Court has referred earlier to the question of the applicability to the present case of the
Vienna Convention of 1969 on the law of Treaties. The Vienna Convention is not directly
applicable to the 1977 Treaty inasmuch as both States ratified that Convention only after the
Treaty’s conclusion. Consequently only those rules which are declaratory of customary law
are applicable to the 1977 Treaty. As the Court has already stated above (see paragraph 46),
this is the case, in many respects with articles 60 to 62 of the Vienna Convention, relating to
termination or suspension of the operation of a treaty. On this, the Parties, too, were broadly
in agreement.
The Gabcikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p. 58, para. 99.
Most provisions are today reflection of CIL
Any provisions that depend on the existence of an international institution
cannot be CIL in nature because institutions are created by treaties
oArt.51 of UN Charter
Can state of federations create a treaty?
ILC adopted guidelines on reservations to human rights treaties
Article 34 VCLT
General Rule Regarding Third States
A treaty does not create either obligations or rights for a third State without its consent.
Article 73 VCLT
Cases of State succession, State responsibility and outbreak of hostilities
find more resources at oneclass.com
find more resources at oneclass.com
The provisions of the present Convention shall not prejudge any question that may arise in
regard to a treaty from a succession of States or from the international responsibility of a
State or from the outbreak of hostilities between States.
Dealt with state responsibilities
Does not deal with hostilities:
State succession is dealt in 1979 Vienna ConventioN
Principle: treaties only bind parties
A treaty does not create either obligations or rights for a third State without its
consent: art.27 VCLT 1969
The VLCT only govern treaties between states and in written instrument
The VCLT only applies to treaties by parties to the VCLT
Art.4: provisions are non-retroactive (without prejudice to customs), VCLT
only applies to treaties concluded by VCLT parties after the entry into force of the VCLT
Without prejudice to the application of any rules set forth in the present Convention to which
treaties would be subject under international law independently of the Convention, the
Convention applies only to treaties which are concluded by States after the entry into force of
the present Convention with regard to such States.
When did the VCLT came into force: art.84
Article 84 VCLT
Entry into Force
1. The following Convention shall enter into force on the thirtieth day following the date of
deposit of the thirty fifth instrument of ratification or accession.
2. For each State ratifying or acceding to the Convention after the deposit of the 35th
instrument of ratification or accession, the Convention shall enter into force on the thirtieth
day after deposit by such State of its instrument of ratification or accession.
Entered into force 27th January 1980
And only if the treaty is concluded by the parties to the VCLT
Otherwise, apply customary international law
DRC Case 2006 , para125
Article 3
International Agreements not Within the Scope of the Present Convention
The fact that the present Convention does not apply to international agreements concluded
between States and other subjects of international law or between such other subjects of
international law, or to international agreements not in written form, shall not affect:
1. the legal force of such agreements;
2. the application to them of any of the rules set forth in the present Convention to which they
would be subject under international law independently of the Convention;
3. the application of the Convention to the relations of States as between themselves under
international agreements to which other subjects of international law are also parties.
The VCLT only for treaties between states without prejudice to CIL
find more resources at oneclass.com
find more resources at oneclass.com
Agreements in writing?
Eastern Greenland:
The outcome of this is therefore an agreement…by means of purely verbal declarations…
Moreover, there does not seem to be any rule of international law requiring that agreements
of this kind must necessarily be in writing, in order to be valid.
Legal Status of Eastern Greenland, PCIJ Series A/B, N°53, 1933, Anzilotti dissent, p. 91.
There is no rule of international law which might preclude a joint communiqué
from constituting an international agreement to submit a dispute to arbitration or judicial
settlement.
Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978 p. 39, para. 96.
2006 Investment Law Case; Salini between Italy v Jordan :
o there can be oral agreements
oIt is the intention of the parties that matter
o… whether the Brussels Communiqué … does or does not constitute
such an agreement essentially depends on the nature of the act or transaction to which the
Communiqué gives expression; and it does not settle the question simply to refer to the form
– a communiqué – in which that act or transaction is embodied. On the contrary, in
determining what was indeed the nature of the act or transaction embodied in the Brussels
Communiqué, the Court must have regard above all to its actual terms and the particular
circumstances in which it was drawn up.
Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978 p. 39, para. 96.
1994 Qatar v Bahrain case: signed minutes amounted to a treaty
oThus the 1990 Minutes include a reaffirmation of obligations
previously entered into; they entrust King Fahd with the task of attempting to find a solution
to the dispute during a period of six months; and, lastly, they address the circumstances under
which the Court could be siesed after May 1991.
Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record
of a meeting similar to those drawn up within the framework of the Tripartite Committee;
they do not merely give an account of discussions and summarize points of agreement and
disagreement. They enumerate commitments to which the Parties have consented. They thus
create rights and obligations in international law for the Parties. They constitute an
international agreement.
Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Jurisdiction and Admissibility, Judgment, ICJ Reports 1994, p. 121, para. 25.
Relies on interpretation, it is objective interpretation
International law is not formalistic, forms do not matter, can be written in any
paper
Intention matters, objectively ascertained
oWho made it etc.
oExtent of the commitment, how determined they are
Ambatielos 1952: Whether decla annexed to a treaty was treaty itself?
oThe declaration was a treaty
Nomenclature is not important
Terminology is not a determinant factor as to the character of an international
agreement or undertaking.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
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. An agreement between two or more subjects of law aimed at producing legal effects and governed by international law. Definition loosely drawn from paul reuter introduction to the law of treaties, 2nd ed. , (trans. J. mico & p. haggenmacher), graduate institute of international studies/pinter, The vienna convention on the law of treaties 1969. Applies to treaties in written forms between states. If not a part to vclt 1969, but can still apply the rules in the vclt as a customary il. Vienna convention on the law of treaties (1969) Vienna convention of 1969 on the law of treaties. The vienna convention is not directly applicable to the 1977 treaty inasmuch as both states ratified that convention only after the.
