TREATIES

1. TREATIES Lecture 7 January 28

2. ASSIGNMENT - Friday, January 30 – Read both cases for Friday! • Finish Eastern Greenland Case (short case) B. Customary International Law - • Start the Paquete Habana Case p.92 SHORT QUIZ – Feb. 2 – 10 minutes - 5 multiple choice questions –REMEMBER DEADLINE FOR TOPIC FOR RESEARCH PAPERS IS Friday, Feb. 6, sign-up sheet on my desk Wednesday, March 4 – Guest Speaker – Adjunct Professor David Akerson - Add it to your syllabus TODAY • Gabcikovo Case • Start Eastern Greenland Case (short case)

3. – How do you enter into a treaty FORMATION • 1. Exchange of full powers • 2. Negotiate and adopt the text • 3. Sign • 4. Ratify (US law: after Senate Advice + Consent) Include reservations (if not prohibited) • 5. Entry into force – unlike a contract it ensures that an agreed-upon minimum ratify the treaty.

4. Why are reservations important? • A. They exclude or modify obligations in a treaty in their application to the reserving State • B. The reserving State will only still be a Party if the reservation is incompatible with the object or purpose of the treaty • C. The objecting State can consider the reserving Party as not being a Party to the treaty • D. Both A and C.

5. Clickers 5 extra points on top of grade • 12/12 – 5pts. • 10/12 – 4pts. • 8/12 - 3pts. • 6/12 - 2pts. • 4/12 - 1pt.

6. Case: Gabcikovo-Nagymaros • 1. Court: ICJ - 1997 • 2. Sources:Vienna Convention, even though the 1977 agreement was made before Vienna Conv. entered into force and it does not have retroactive force Art. 4 and Art.28 • WHY?? - CIL • MAIN ARTS. 60-62 TERMINATION OR SUSPENSION

7. Draft Articles on State Responsibility • http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf • Responsibility for wrongful act – breach of international law - liable for compensation • State of necessity – Circumstance precluding wrongfulness

8. Gabcikovo-Nagymaros -1 • 3. Facts: – Events or transactions that led one party to initiate legal proceedings against the other party. Sometimes facts are disputed. • Hungary (H) and Czechoslovakia (C)entered into treaty in 1977 to divert water from the Danube river. Hungary suspended works in 1989 due to protests focusing on environmental concerns. C began “provisional solution” Variant C. May, 1992 H denounced the treaty. C diverted waters into bypass canals in Oct.1992. 1993 C breaks-up into Cz. Republikk and Slovakia. Slovakia and H agree to bring their dispute to the ICJ.

9. Gabcikovo-Nagymaros -2 • 4. Issue:You ask who wants what and then go on to ask why did that party succeed or fail in getting it.[ That ‘why’ gets turned into a question]. One sentence. A few times 2-3 issues of equal importance to the resolution of the case. We are looking at the intl law issues. • Question presented: [What should the principle be- how the relevant rule will be applied to the case. Written in terms of the particular facts or in general terms. • Whether Hungary’s notification brought the 1977 Treaty to an end or whether it did not meet the requirements of intl law, with the consequence that it did not terminate the Treaty.

10. Gabcikovo-Nagymaros -3 • 5. Holding: (each issue has only one holding – the legal answer to each issue) rule of law necessary for the decision (judgment) of the court. What the court actually did in the case (what it decided), rather than what it said. The rule modified by the facts of a particular case. • No - Notification of termination by a state does not have the legal effect of terminating the treatyif the ground for termination do not conform to the requirements enumerated in the Vienna Convention and the treaty has no provisions regarding its termination.

11. Gabcikovo-Nagymaros -4 • When can a valid treaty legally be terminated under the law of treaties? • 1) May H terminate the treaty on the grounds of state of necessity? – State responsibility issue (not VCLOT) • 2)May H terminate the treaty on the grounds of impossibility of performance • 3)May H terminate the treaty on the grounds of changed circumstances • 4)May H terminate the treaty on the grounds of material breach • 5) Jus cogens – Art.64 • 6) Mutual termination – consent of both parties FOCUS ON 2)- 6) – (No. (1) will be dealt with later in course).

12. Holding + Reasoning -1 • 1) Could H invoke state of necessity? No, state of necessity is not a grounds for termination of a treaty, it may preclude wrongfulness, but environmental concerns did not amount to “actual” and “imminent peril” to preclude wrongfulness. • Reasoning: Reasoning /DISCUSSION/ rationale: the legal arguments the court used to justify applying the rule • It is not mentioned in Vienna Conv. as one of the grounds for termination – as it only comes into play with regard to state responsibility – the treaty would just be ineffective while the condition of necessity exists, unless the parties agreed to terminate it. Environmental concerns did not amount to necessity (not “grave and imminent peril” under the Draft Articles on state responsibility).

13. Holding + Reasoning -2 • 2) Could H. invoke impossibility of performance – No, H could not invoke impossibility as a grounds for termination – that the economic joint investment plan had permanently disappeared. • A)Permanent disappearance or destruction of the object indispensable for the execution of the treaty. Art.61,1. • B) Art. 61,2 can’t invoke the grounds of impossibility if you were the cause of it. • Reasoning:- H suspended works - instead they could have adjusted through negotiations for economic and envtl imperatives in accordance with the 1977 Treaty, Art.15, 19, and 20. If one considered the joint exploitation of the investment was no longer possible H could not invoke this because it was H that had breached it’s obligation – had not carried out most of the works.

14. Holding + Reasoning -3 • 3) fundamental change of circumstances? (rebus sic stantibus) No. H could not invoke fundamental change of circumstances based on political or economic changes. • Reasoning: Art. 62 Fundamental or vital – imperil the existence or vital development for one of the parties. Radical transformation of the extent of the obligations still to be performed. Change must have increased the burden of the obligations. To be executed to the extent of rendering the performance something essentially different from that originally undertaken. The goal was to produce energy and flood control. The political situation was not so closely linked to the object and purpose of the treaty. New envtl knowledge – adjust through Articles 15, 19, and 20 of the 1977 Treaty.

15. Holding + Reasoning -4 • 4) material breach? – No, H could not invoke material breach, H termination was premature. • Reasoning:Art. 60(1)(3)only material breach of the treaty itself entitles the party to rely on it as grounds for termination. (not violation of other conventions and rules of general intl law.) Construction and putting into operation Variant C, Czechoslovakia violated the treaty only when it diverted the waters of the Danube in Oct.1992. H’s notification of termination in May 1992 was premature. No breach had yet taken place.