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Advancing Treaty Law: Coordination Strategies & Conflict Resolution

Explore the development, interpretation, and coordination of diverse treaty regimes, from bilateral to global levels, addressing conflicts and enhancing effectiveness. Delve into legal doctrines, enforcement mechanisms, and institutional frameworks.

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Advancing Treaty Law: Coordination Strategies & Conflict Resolution

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  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

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