Traditional Sources of Law: Treaties

1. Traditional Sources of Law: Treaties

2. Treaties • Four (4) Traditional sources of international law: • International custom (binding) • General principles (binding) • Judicial decisions/teachings (non-binding) • International treaties (binding)

3. Treaties • Principle method for creating binding rules of international law • Derive legitimacy from express consent of states

4. Vienna Convention on Law of Treaties I • Governs major aspects of treaties such as treaty initiation, negotiation, adoption, and ratification • Codification of customary international law; therefore, binding on parties and non-parties • U.S. has not ratified the Vienna Convention

5. Vienna Convention on Law of Treaties II • Only governs written agreements • Only governs agreements between States • “Treaty” Definition: • 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. Vienna Convention, Article 2.1(a).

6. The Treaty-Making Process • Four Basic Steps: • Identification of needs and goals • Negotiation • Adoption & signature • Ratification (+ implementation, modification, and amendment)

7. Step1. Identification of Needs and Goals - • Dependent on science, data • E.g., Vienna Convention for the Protection of the Ozone Layer • Two Michigan scientists in 1973 discovered that chlorine released into the stratosphere catalyzes a reaction that destroys ozone molecules. In 1974, Molina and Rowland discovered that CFCs migrate into the stratosphere, are broken down by solar radiation, and release chlorine into the stratosphere. This led to considerable research, including the WMO/UNEP report (1984). • WMO/UNEP report led to negotiation of framework treaty, the Vienna Convention for the Protection of the Ozone Layer

8. Step 2. Negotiation • Bilateral: State often simply asks another State • Multilateral: • Individual states may negotiate; or • State will recommend that Intl Org (e.g., UN General Assembly or Economic and Social Council) establish committee or hold international conference. • Establish preparatory committees, working groups, symposia, preliminary conferences • Accept comments form NGOs, scientific unions, etc. • Plenipotentaries convened • Final version of treaty (“authentic text”)

9. Step 3. Adoption (1) • Text must be adopted at end of negotiation phase in order to “open” the treaty for signature and ratification • Adoption governed by Article 9 of the Vienna Convention • At international conference, 2/3 vote of those present and voting needed to adopt, unless other method agreed upon by same majority • Adoption does not bind, but merely means participants find the text acceptable

10. Step 3. Adoption (II) • Final Act incorporates history of treaty. The treaty text is incorporated into or annexed to the Act. • If negotiations occurred within Intl Org like the UN, a resolution must be passed to approve the text. • Treaty must then be authenticated. Authentication governed by Article 10 of the Vienna Convention • Authentication generally occurs by signature, although this does not bind State • Under Article 18 of the Vienna Convention, however, a state may not do anything that would defeat “object and intent” of treaty

11. Step 4. Ratification or Accession • State can only be bound if it expresses will to be bound. Various methods under Article 11 of Vienna Convention • Ratification • Only states that negotiated and signed treaty may ratify it • Most common method for multilateral agreements • Ratification: “any authoritative act whereby a state declares to the international community itself bound by a treaty” (textbook) • “Instrument of Ratification” deposited with an organization such as the U.N. • Domestic political requirements often must be met before ratification • U.S. Senate has still not ratified the International Criminal Court; U.S. cannot ratify the ICC until the U.S. Senate ratifies it • Accession • Non-signatories may join by “accession” • Accession: State declares intent to be bound by treaty (methods often specified in treaty)

12. Limited Consent and Reservations • State can limit its consent to only a portion of the treaty if the treaty so provides or if other States agree • If limited consent unavailable, State can still enter objections and reservations at time it gives consent to be bound (as long as not prohibited by treaty or contrary to the object or intent of treaty) (Vienna Convention, Art. 19) • Legal effect of reservation depends on whether other States accept the reservation. • Can affect bargained-for rights, threaten ratification, and complicate application of treaty • Many modern treaties therefore prohibit reservations

13. Entry into Force • Parties become bound by treaty when it enters into force. • A treaty enters into force after it has been ratified under national law and the State deposits its instrument of ratification, and, if treaty has no other specifications, all negotiating States have ratified; often a minimum number of States must ratify the treaty for it to enter into force

14. Keeping Treaties Up-To-Date • Parties to an original treaty do not have to be parties to any amendments (Vienna Convention, Art. 40) • States that adopt an amendment are bound by terms of original treaty when dealing with States that have not adopted the amendment (Vienna Convention, Art. 30, para. 4(b)) • Parties to a treaty may modify the agreement as between themselves if it does not affect other States or impair the object and intent of the treaty (Vienna Convention, Art. 41)

15. Unilateral Treaties • Unilateral acts, including declarations, may be binding • Nuclear Tests Cases (Australia v. France), 1974 ICJ Rep. 253 • Australia and New Zealand filed claims in ICJ because France was performing atmospheric testing • ICJ declared issue moot because French officials had consistently and publicly stated that France would discontinue testing • France had demonstrated the intent to be bound and therefore its declarations were binding

16. Interpreting a Treaty (Vienna Convention, Articles 31 & 32) • Text: • interpret “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” (Art. 31(1)) (Look for object and purpose in preamble & overall structure) • Context of treaty • Preamble, annexes, text itself, agreements, other international law provisions, etc. • Parties’ own interpretations reflected in subsequent agreements • History of the negotiation of the treaty (as supplementary means of interpretation) • “Present-day state of scientific knowledge”