International Treaty Law: A Comprehensive Guide

Posted on Aug 4, 2024 in Law & Jurisprudence

1. Definition of Sources of ITL

1.1 Vienna Conventions

Question 1: Which of the Vienna Conventions regulating treaties is not in force?

VC 1986, it needs more ratification.

Question 2: Which of the Vienna Conventions regulating treaties is codifying international customary law rules on treaties?

VC from 1969 is codifying customary laws as the first 22 articles are mutatis mutandis with 1968 VC.

Question 3: Which treaties are not regulated by the 1969 Vienna Convention?

Treaties between international organizations and states are not regulated by 1969 VC.

Question 4: Which issues are being analyzed by the International Law Commission on treaties?

Application of treaties during war
Provisional application of treaties
Identification of customary law

2. International Treaty and Related Issues

Question 5: Can an international corporation conclude an international agreement within the meaning of the 1969 Vienna Convention on the Law of Treaties?

No, it only regulates acts between states.

Question 6: Why is the Helsinki Final Act not an international treaty?

They don’t have the intention to be an international treaty. Intention of the parties.

2.1 Treaty Regulation and International Organizations

Situation 1: States agreed to make a treaty about the establishment of an international organization. Which Vienna Convention will regulate this treaty?

Article 2.1

Situation 2: In its decision, the ICJ recognized the right for international organizations to make treaties beyond powers delegated to them. Which decision was it?

International organizations have international personality. IO could only make treaties if it was written in its constitution. Look at REPARATION CASE 1949. Only states have full international personality. IO only have it for their functions.

2.2 Mixed Agreements and EU Treaty-Making

Question 7: Is an agreement between the EU and a third country a mixed agreement?

It depends on the competences, the objects of the treaty. If the EU has all the competences, it will not be a mixed agreement. If there are shared competences, it will be a mixed agreement.

Question 8: In which areas of competence can EU Member States conclude international treaties?

All competences except the exclusive competences (only the EU can).

Question 9: Who is responsible for concluding international treaties in the European Union?

It’s the Council (with the approval of the European Parliament, also participates).

Situation 3: If the EU signs a treaty with Ukraine, what type of treaty will it be?

It depends on the subject. Ukraine is a third country. (It is an open question).

2.3 Treaty Conclusion and Types

Question 10: Which diplomats can conclude an international treaty ex officio?

The heads of mission of each country that sign the treaty. (Persons that do not need authorization).

Situation 4: An agreement between Ministries of Defense of two countries who form an ally regulating the transfer of military equipment will be an international treaty or an interagency agreement?

It is an international treaty because it does not create obligations only for states, it also creates obligations for the states. If the treaty needs the approval of the state, it could be binding for it? We should explain what an interagency agreement is.

Question 11: What makes a treaty a universal treaty?

What is important is the object of the treaty, if it concerns the whole international community or not. (How do we know it is an important object for the community?) (It is about quality, not quantity).

2.4 Treaty Purpose, Termination, and Reservations

Question 12: How is treaty purpose related to treaty termination?

(Issues of termination of treaties, ground of termination related to the purpose; for example, material breach. What kind of rules are related with the purpose in the treaty termination). Article 60 VC.

Question 13: How is treaty purpose related to reservations?

Reservation cannot be in conflict with the purpose of the treaty. It is one of the three prohibitions of the VC.

Question 14: How is treaty purpose related to interpretation?

Purpose is one of the means to interpret a treaty. It cannot be against it.

2.5 Mixed Agreements and Treaty Definition

Question 15: What is the main problem related to mixed agreements?

How to distinguish the liability, responsibility for performance of the treaty between the EU and the member states.

Question 16: Which two elements of the international treaty definition distinguish it from other international instruments?

1. The legally binding effect and also 2. it is made by the entities (subjects) of international law.

Question 17: Why could a declaration be considered an international treaty?

(We have to look at the nature of the obligations/provisions).

3. Conclusion of an International Treaty

Question 18: Why is it necessary to authenticate the text of the treaty?

Authentication is the first stage to fill the text. It means that it would not change. First step.

3.1 Treaty Binding and Provisional Application

Question 20: The moment that an international treaty becomes binding to a full extent?

Only a treaty that is concluded can be fully binding. When it enters into force.

Question 21: Which obligations are applicable under the treaty before it enters into force?

Provisional obligations. The states have to respect the object and purpose. They do not have to respect all the provisions, but cannot expressly violate them.

Question 22: When does the provisional application of an international treaty end?

When the treaty enters into force or when parties agree.

3.2 Signature, Consent, and Ratification

Question 23: How does the signature of the treaty text differ from consent to be bound by the treaty?

Signature is just an agreement with the text, but not the acceptance of the obligations.

Question 24: Ratification has two meanings: national and international. What are they?

International: instruments of ratification shall be sent to the depositary in order to exchange documents to know the ratification made by other states. Communication of ratification instruments to the other state parties. National (ratification of the text by the national parliament…).

3.3 Accession, Exchange of Instruments, and Reservations

Question 25: When is accession applied as a means of expressing consent by the treaty?

States join from the other side, they join after the treaty has been made.

Question 26: When is the exchange of instruments constituting a treaty applied as a way of expressing consent to be bound by a treaty?

(Bilateral treaties).

Question 27: Does a reservation change an international treaty?

Reservations do not change the treaty, only relations between the parties.

Question 28: Which reservations are impermissible under the 1969 Vienna Convention?

There are three prohibitions: when the treaty prohibits it; when it is not in the list of permitted reservations; when it is against the object or the purpose of the treaty. Art. 90 VC.

Question 29: If a reservation is in violation of the object and purpose of the treaty, when can a state making such a reservation become a party to the treaty?

(They have to ask for the reservation?).

3.4 Depositaries, Registration, and Publication

Question 30: Who can be a depository of international treaties?

The Secretary of the UN or the government of the state parties.

Question 31: Where are international treaties registered?

Where the treaty says. UN Secretariat. It is registered in the UN Treaty Series.

Question 32: Can international treaties be applied if they are not registered?

The treaty has entered into force, so it is applicable. The problem, according to Art. 102.2 of the UN Charter, is that it could not be invoked before any organ of the UN if it has not been registered.

Question 33: Should international treaties be applied if they are not published at the national level?

It is a problem of the state. The fact of not publishing does not mean that it is not legally binding.

4. Duty to Perform Treaties and Implementation

Question 34: Two situations when retroactive application of treaties is allowed?

Art. 28 VC: it is retroactive in two situations: when the parties to the treaty agree (a provision of the treaty) or it is established after.

4.1 Federal Reservations and Treaty Conflicts

Situation 7: A state made a declaration when ratifying the treaty that it will not apply those treaty provisions which fall out of its’ federal jurisdiction. How is such a declaration called?

It is a federal reservation.

Question 35: Is it correct to say that in international treaty law the later treaty prevails over an earlier treaty?

It depends if the treaty is concluded by the same parties of the first treaty or not. If there are the same parties to the treaty, then, the second treaty will prevail, as the first treaty is only applicable as much as compatible with the provisions of the later treaty.

If there are different parties in a multilateral treaty, the validity will be decided on the basis of Article 30.

Situation 8: States’ parties to the treaty concluded in 1989 made a new treaty on the same subject matter in 2013. The parties to both treaties are not the same. Which treaty will prevail?

(The same as the previous question), if it is the same matter, the last one will prevail.

5. International Treaties and Third States

Question 36: What is a third state in respect of treaties? (Definition of a third state).

A state that has not consented to be bound by a treaty but it is influenced by it.

5.1 Treaty Binding on Third States

Question 37: What are three situations when treaties bind the states or international organizations without their participation in that treaty?

Three situations:

The treaty provides that there is an obligation for the third party and it consents in written form. (Art. 35 VC).
The treaty is providing for rights for the third state. In this case, this state does not have to consent to it in written form. (Art. 36 VC).
Erga omnes obligations, create obligations to all states.

Question 38: Can state parties to the treaty create rights for third states without their consent?

According to Articles 35 and 36 VC, it is not possible. But in the case of obligations erga omnes, the state does not have to give its consent to be bound by the treaty.

Question 39: When can state parties terminate the rights of third states?

According to Article 37 VC, when rights are concerned, there is no need to provide for a right to abolish the rights afforded to a third state.

6. Interpretation of International Treaties

Question 40: What role do the preparatory documents have in international treaty interpretation?

They are useful in order to know what the state parties to the treaty discussed during the negotiations of the provisions of the treaty.

6.1 Interpretation Rules and Context

Question 41: What is the main rule of international treaty interpretation?

The main rule could be Article 31 VC. (The main mean would be good faith).

Question 42: Who is responsible for authentic international treaty interpretation?

For authentic interpretation: the state, because it is the one who creates the rule (it would be according to their will). For non-authentic interpretation: the court decided by the party states to the treaty.

Question 43: What is “context” for the purpose of international treaty interpretation?

It is a means of interpretation of treaties. (Definition of context…).

Question 44: Is it possible to interpret a treaty only on the basis of its’ text in the framework of the 1969 Vienna Convention rules?

It would be wrong to assume that a treaty can be interpreted literally in a formal manner, because this is not accepted by decisions of the European Court of Human Rights in some cases: Wemhoff, 1968 and Delcourt, 1970.

6.2 Interpretation of Multiple Language Texts

Question 45: If two language texts differ and they are both authentic, how do you know which text should prevail?

It depends on the treaty:

We should look for provisions in the treaty referring to the language that prevails in case of divergence.
If there are no provisions, we consider each text equally.
In this case, we should apply the usual means of interpretation.
As a last resort, we take into account the purpose and object of the treaty.

7. Amendment, Termination, and Suspension of International Treaties

Question 46: Why do we differentiate between the terms “denunciation” and “withdrawal from a treaty”?

Denunciation is a unilateral act which terminates the operation of the treaty, however, withdrawal does not entail the termination of the treaty.

7.1 Treaty Termination and Material Breach

Question 47: When can a treaty be terminated if the termination possibility is not provided in the treaty?

If a treaty does not say anything, it may be denounced with prior notification of 12 months.

Question 48: What is a material breach of the treaty?

It is a fundamental ground of suspension or termination of a treaty. It is considered essential for the implementation of the purpose and object of the treaty.

7.2 Consequences of Termination and Invalidation

Question 49: What are the consequences of the termination of treaties?

End of obligations to perform the treaty (except if there are obligations of customary law).

Question 50: How do the consequences of the termination of treaties differ from the consequences of invalidating the treaty?

Termination means the end of the effects of the treaty since it and invalidation entails that the effects of the treaty are like they never existed before. (Ex tunc).

8. Duration and Validity of International Treaties

Question 51: What are the two reasons why not every violation of internal law can be a basis for treaty invalidation?

Arts. 46 it cannot be a ground to invalidate the treaty if the violation 1. was manifest and it was a 2. violation concerned with a fundamental norm.

8.1 Jus Cogens and Treaty Invalidation

Situation 10: If a new norm of jus cogens emerges and it is in conflict with the treaty, will it be a situation of treaty invalidity or termination?

If it emerges a new norm of ius cogens, Art. 64 would be applied: the treaty becomes void and it is terminated, so it is termination.

8.2 Gabcikovo-Nagymaros Case and Treaty Termination

Question 52: What were the 5 grounds of termination that Hungary invoked in the Gabcikovo-Nagymaros case in the ICJ?

GABCIKOVO-NAGYMAROS CASE – all of these facts were rejected:

The state of necessity (this is not a ground of termination in VC): rejected because it is not a ground according.
Impossibility of performance (Art. 61 VC): rejected because the object of the treaty did not disappear.
Fundamental change of circumstances: (Art. 62 VC) rejected because it was not enough to change the obligation.
Emergence of a new international environmental norm: rejected because environmental law is not a norm of ius cogens (Art. 64 VC).
Material breach of the treaty.

8.3 Temple of Preah Vihear Case and Treaty Invalidation

Question 53: Why did the ICJ in the Temple of Preah Vihear case not accept the error of Thailand as a basis for the invalidation of the treaty?

Cannot invoke the error because Cambodia participated in the error.

9. Succession of States in Respect to Treaties; International Treaties in National Law

Question 54: Why did the Baltic States not succeed in treaties concluded by the Soviet Union?

Because they do not consider themselves as a successor of the USSR.