Categories of treaties

1. Categories of treaties • Treaties, conventions, covenants, memoranda of understanding, exchange of letters – irrelevance of label • Bilateral, regional and global • Contractual and law-making • Substantive and institutional • Self-executing and non-self-executing • Treaties with vertical and horizontal effects • Framework treaties and protocols

2. Treaty law, the UN Charter • “World Constitution”(?) • Includes some of the most fundamental rights and duties of States (Art. 2) • Defines the composition, function, powers and procedures of the principal organs of the UN • General assembly, Security Council, ECOSOC, International Court of Justice, Secretariat • Establishes its superiority: Art. 103

3. Other treaty regimes • Specialised agencies of the UN • Free standing treaty regimes • Organisations, WTO and OECD • Quasi organisations, UNFCCC and CBD • Lack of institutional structure, UNCLOS, Vienna Convention on the Law of Treaties • Regional treaty regimes • UN economic commissions • Other regional treaty regimes – human rights, trade, environment • Areas dominated by bilateral treaties • International investment and taxation, shared resources, border treaties, extradition

4. Interpretation of treaties • Customary int’l law, codified by the Vienna Convention on the Law of Treaties (1969), Art. 31-33 • Wording / intention of the parties / aim and purpose • Contextual interpretation – how far does the “context” reach? • Agreement between the parties – formal (explicit), informal (implicit) and extraneous • “Supplementary means”: preparatory works, circumstances of the conclusion of the treaty – what comes in addition? Legal doctrine, reasonableness, state and institutional practice, case-law, … • To what extent are the rules “codification”? • To what extent are the rules “secondary”? • The issue of “self-contained regimes”

5. Development of treaty law I • How do treaty regimes develop? • Why is there a need for dynamism? • Amendments – treaty replacements • Framework conventions and protocols – step-by-step approach • Treaties based on obligations of result vs. obligations of conduct • The use of annexes • The use of reservations and country specific obligations • A ”jurisprudence” based approach vs. a ”soft law” based approach • Importance for interpretive arguments

6. Development of treaty law II • The increase in issues subject to treaty law • Inherently international issues vs. inherently domestic issues – ”globalisation” • Establishment and role of international institutions • A systematic overview of topics – treaty collection • The nature of treaty obligations • From obligations to cooperate and institutional rules to obligations of conduct • The use of soft law instruments • Ability to comply vs. willingness to comply – increasing focus on the latter? • The nature of enforcement mechanisms • From general multilateral discussions to international tribunals • From reciprocal measures to multilateral sanctions?

7. The need to coordinate treaties • Avoid legal conflicts • When is there a legal conflict between treaties? • Prevent overlap • Kinds of overlap • Overlapping subject areas • Global vs. regional treaties • Avoid situations where treaties undermine the effectiveness of other treaties • ”Forum shopping” • Making treaties ”mutually supportive” • The search for win-win opportunities

8. Strategies to coordinate treaties • Institutional coordination • Why do we not create institutions that contribute to improved coordination? • The domestic vs. the international level • Procedural measures • Transparency • Impact assessments • During the negotiation phase • Starting point – domestic coordination • Depends on existence of multilateral institutions • After establishment • Transfer to the international level • Institutional autonomy – secretariats, implementation and compliance mechanisms, tribunals

9. How to solve conflicts • The use of ”savings clauses” • Preambular vs. provision in treaty • General vs. prospective / subject specific • Lex superior – primary rule • Vertical elements in treaty law • UN Charter – how far does it extend? • Codification of jus cogens – VCLT Art. 53, Draft Articles on State Responsibility Art. 40-1 • Law making vs. contractual treaties – the concept of erga omnes – Draft Articles Art. 48 • Lex posterior – subsidiary rule • Art. 30 of VCLT • Protocols, annexes and amendments • Lex specialis – subsidiary rule • ”Primary” and ”secondary” rules, Draft Articles Art. 55 • Area of application vs. legal consequences