FHS PUBLIC INTERNATIONAL LAW

1. FHS PUBLIC INTERNATIONAL LAW THE LAW OF TREATIES Catherine Redgwell Reader in Public International Law St. Peter’s College catherine.redgwell@spc.ox.ac.uk

2. BASIC READING • 1969 Vienna Convention on the Law of Treaties (VCLT) • Harris, Cases and Materials on International Law (5th ed., 1998), Ch. 10 or Dixon and McCorquodale, Cases and Materials on International Law, (4th ed., 2003), Ch. 3 • Brownlie, Principles of Public International Law (6th ed., 2003), Ch. XXV or Shaw, International Law (5th ed., 2003), Ch. 16 or Dixon, Textbook on International Law (4th ed., 2000), Ch. 3

3. FURTHER REFERENCE • *Aust, Modern Treaty Law and Practice (2000) • Jennings and Watts, Oppenheim's International Law (1992), Vol 1, Parts 2-4, Ch.14 • *Sinclair, The Vienna Convention on the Law of Treaties (2nd ed., 1984) • * Reuter, Introduction to the Law of Treaties (2nd ed., 1995) • Rosenne, Developments in the Law of Treaties 1945-1986 (1989) • Klabbers, The Concept of Treaty in International Law (1996) • Klabbers and Lefeber, eds., Essays on the Law of Treaties (1998) • Multilateral Treaties Deposited with the Secretary General • 2002 at http://untreaty.un.org • For a list of the current international agreements for which the UK is depositary, see http://www.fco.gov.uk/directory/treaty.asp

4. LECTURE OUTLINE • 1. Introduction • 2. Sources of the Law of Treaties • 3. What is a Treaty? • 4. Making Treaties: Conclusion and Entry into Force • 5. Reservations • 6. Interpretation • 7. Amendment and Modification • 8. Grounds for Challenge • 9. Termination

5. I. INTRODUCTION • Treaties in modern international relations • date modern treaty law from the Congress of Vienna in 1815 where there appeared for the first time “the idea that a treaty which is binding upon different States by the same terms constitutes a single legal instrument” (Reuter)

6. multilateral treaty-making 1864-1914 • rise of international organisations and their role • League of Nations; United Nations role as depositary and initiator of treaty-negotiations (e.g. 1982 UN Convention on the Law of the Sea)

7. Treaties now an essential and ubiquitous instrument in international relations (Cf VCLT preamble) • particular importance in fields such as human rights (ICCPR), environmental protection (FCCC; CBD), international trade law (WTO/GATT)

8. Enhanced support for rule of law: • "[s]upport for the rule of law would be enhanced if countries signed and ratified international treaties and conventions” (Millennium Report (A/54/2000), UN Secretary-General) • Treaty signature/ratification “events”

9. Treaties as a source of international law • Article 38(1)(a) of the Statute of the ICJ provides that in deciding in accordance with international law such disputes as are submitted to it, the Court shall apply "international Conventions, whether general or particular, establishing rules expressly recognised by the contesting States.”

10. "The order in which the sources of international law are enumerated in the Statute of the International Court of Justice is, essentially, in accordance both with correct legal principle and with the character of international law as a body of rules based on consent to a degree higher than is law within the State. The rights and duties of States are determined, in the first instance, by their agreement as expressed in treaties - just as, in the case of individuals their rights are specifically determined by any contract which is binding upon them. When a controversy arises between two or more States with regard to a matter regulated by a treaty, it is natural that the parties should invoke and that the adjudicating agency should apply, in the first instance, the provisions of the treaty in question." (Lauterpacht, 1970)

11. TREATIES ON TREATIES • 1969 Vienna Convention on the Law of Treaties (in force on 27 January 1980 and presently has 94 Parties) • 1978 Vienna Convention on Succession of States in Respect of Treaties (in force 1996) • 1986 Convention on the Law of Treaties between States and International Organisations or between International Organisations (not in force)

12. 2. SOURCES OF THE LAW OF TREATIES • Scope of VCLT: covers traditional topics but not exhaustive • VCLT: General Law or Progressive Development?

13. "A glance at the headings to the various Parts of the Convention quickly reveals that it covers all the topics traditionally regarded as falling within the framework of the law of treaties - that is to say, the conclusion and entry into force of treaties (including reservations), the observance, application and interpretation of treaties, the amendment and modification of treaties, and the invalidity, termination and suspension of operation of treaties. The Convention in addition lays down procedural rules concerning depositaries, notifications, corrections and registration." (Sinclair, 1984)

14. Definition of treaty Art. 2(1)(a) • only written agreements between States • cil governs matters outwith VCLT (preamble, 8th indent) • What isn’t regulated? Chiefly effects of war on treaties; succession (1986 treaty); state responsibility (cf. Pt. 9, Gabicikovo-Nagymaros Dam Dispute)

15. Article 3 VCLT (exclusions) • Article 5 VCLT: constituent instruments are covered (e.g. UN Charter) • A law of treaties or lawS of treaties? One set of rules applicable to all? Cf case study of reservations to human rights treaties (Pt 5 below)

16. Codification or Progressive Development? • “the more precise formulation and systemisation of rules of international law in fields where there already has been extensive State practice, precedent and doctrine”(ILC Statute) • “the preparation of draft Conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet sufficiently developed in the practice of States” (ILC Statute)

17. VCLT contains elements of both codification (of existing CIL) and of progressive development (preamble, 7th indent) • Article 9(2); Articles 19-23; Articles 40-41; Articles 42-72 all contain elements of progressive development and hence only bind States Parties UNLESS crystallise in CIL

18. Some Terminology….. • Article 2(1)(g): State is bound by the treaty only when it has both given its consent to be bound AND the treaty has entered into force - only then may it be called a “Contracting Party” • “Contracting State” signifies consent but term applicable whether or not treaty is in force

19. Examples of pre-existing CIL codified in the VCLT • Fundamental change of circumstances (Article 62) (Fisheries Jurisdiction Case 1973) • termination and breach (Namibia Advisory Opinion 1971) • Articles 31-33 on treaty interpretation (Beagle Channel Arbitration)

20. Interaction between treaty and custom • “In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has generated a rule which, while only conventional or contractual in origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognised methods by which new rules of customary international law may be formed. At the same time, this result is not lightly to be regarded as having been attained.” (1969 NSCS Cases)

21. Can’t bind 3d parties w/o their consent BUT 3d parties may be bound by the treaty rule if also reflected as a rule of CIL; this possibility expressly preserved in Article 38 VCLT • e.g. Article 2(4) UN Charter also CIL: 1986 Nicaragua Case • influence of treaty negotiation on CIL norm crystallisation e.g. development of EEZ concept during LOSC negotitations

22. 3. WHAT IS ATREATY? • Article 2(1)(a) VCLT definition • 1. BETWEEN STATES • 2. IN WRITTEN FORM • 3. GOVERNED BY INTERNATIONAL LAW • 4. SINGLE INSTRUMENT OR TWO OR MORE RELATED INSTRUMENTS • 5. WHATEVER ITS PARTICULAR DESIGNATION

23. “Whatever its particular designation” • Convention (1982 LOSC) • Treaty (e.g. of peace, extradition,etc.) • Agreement (e.g. cultural cooperation) • Exchange of Notes (Cameroon v Nigeria, ICJ, 10 October 2002) • Protocols (to ICCPR; Kyoto Protocol to 1992 FCCC) • Charter (e.g. UN Charter; but not CERDS)

24. What is in a name? EFFECT is what counts…. • Aegean Sea Continenal Shelf Case (1978) “no rule of international law which might preclude a joint communique constituting an international agreement to submit a dispute to arbitration or judicial settlement” • Qatar/Bahrain (1994) (status of 1990 Minutes as binding agreement notwithstanding alleged contrary intent)

25. Article 3 VCLT: even if not in writing, does not necessarily deprive “agreement” of legal effect • Nuclear Tests Cases (1974) (unilateral declarations - oral not written undertakings yet nonetheless unilateral acts binding upon France) Role of intent here? • Frontier Dispute Case (1986) (intent key factor in depriving Presidential “quip” of legal effect)

26. “One should probably distinguish the question whether oral statements, or unilateral declarations, create a legal obligation, from the question whether they constitute treaties or agreements” (Jennings and Watts) • such statements governed by IL though not directly by the VCLT owing to the requirement of writing • exs of Nuclear Tests Cases (1974) and Eastern Greenland Case (1933)