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The Law of Treaties

Lund University / Faculty of Law / PhD Candidate Eleni Karageorgiou 2017/09/06

International Law JAMR23

Useful sources


United Nations Treaty Collection

https://treaties.un.org/

UN Office of the High Commissioner for Human Rights, OHCHR

http://www.ohchr.org/EN/Pages/WelcomePage.aspx

ICJ

http://www.icj-cij.org/homepage/

ILC, Draft Articles on the Law of Treaties with Commentaries,

1966

https://treaties.un.org/

http://www.ohchr.org/EN/Pages/WelcomePage.aspx

http://www.icj-cij.org/homepage/

Basic principles


Art. 38 1 ICJ Statute → Means for creating binding rules of IL

Derive legitimacy from states’ consent to be bound

SS Lotus Case, PSIJ, 1927

Derive binding nature from the principle “pacta sunt servanda”

“Every treaty in force is binding upon the parties to it and must be

performed by them in good faith.” Art. 26 VCLT

Gabcikovo-Nagymaros Project, ICJ Reports 1997

SS Wimbledon case, PSIJ, 1923

Vienna Convention on the Law of Treaties


Codifies customary international law

VCLT is not retroactive (Art. 4)

Residual rules

Priority over domestic law (Art. 27)

Treaty definition


VCLT, Article 2.1(a)

“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”

**ICJ, Aegean Sea Continental Shelf Case, 1978

ICJ, Nuclear Tests Case, 1974

Treaty conclusion


Authority to conclude a treaty: VCLT, Articles 6-8

A group of persons by virtue of their functions

Person who produces “full powers”

Practice of states shows intention to consider a person as having

authorization to conclude a treaty

**ICJ, Armed Activities Case, 2006

Expression of consent


Signature (Art. 12)

If the treaty is subject to ratification the signature becomes an

intermediate step

Ratification (Art. 14)

“any authoritative act whereby a state declares to the

international community itself bound by a treaty”

Accession (Art. 15)

Entry into force (Art. 24)


Reservations

What is a reservation


“ ‘reservation’ means a unilateral statement, however phrased or

named, made by a State when signing, ratifying, accepting,

approving or acceding to a treaty, whereby it purports to exclude or

to modify the legal effect of certain provisions of the treaty in their

application to that State ” [Art. 2 par. 1(d) VCLT]

When reservations can be made?


Article 19 VCLT

A reservation is permitted when

(b) Treaty explicitly allows it; or

(a) Treaty does not explicitly prohibit it; and

(c) Reservation is not incompatible with the object and purpose of

the treaty

ICJ compatibility test versus VCLT regime


ICJ, AO in the Reservations to the Genocide Convention, 1951

“A state which has made and maintained a reservation which has

been objected to by one or more of the parties to the Convention but

not by others, can be regarded as being a party to the Convention

if the reservation is compatible with the object and purpose of

the Convention; otherwise, that State cannot be regarded as being a

party to the Convention” p. 33

VCLT (Articles 20, 21) much reliant on states’ discretion

Responses to reservations


Acceptance

Joint (20 § 2), (20 § 3), Individual (20 § 4), Presumed (20 § 5)

Objection Art. 21 par. 3:

”When a State objecting to a reservation has not opposed the entry

into force of the treaty between itself and the reserving State, the

provisions to which the reservation relates do not apply as between

the two States to the extent of the reservation.”

Legal effects of reservations


VCLT, art. 21 § 1:

“A reservation established with regard to another party in accordance

with articles 19, 20 and 23:

(a) modifies for the reserving State in its relations with that other party the

provisions of the treaty to which the reservation relates to the extent of

the reservation; and

(b) modifies those provisions to the same extent for that other party in its

relations with the reserving State.”

Individualization of the treaty


Example:

There are 4 states: A, b, C and D.

State A makes a reservation to a treaty (to exclude a provision)

State B raises no objection.

States C objects.

State D objects and at the same time states expressly that treaty is

not entering into force between it and State A.

A-B: The respective provision is not applicable.

A-C: The respective provision is not applicable.

State A may be a party to the treaty in relation to State B and C, but

not in relation to State D.


HRs Treaties and Reservations

Human Rights Treaties and VCLT


The principle of reciprocity

does not seem to fit this

relationship

Who decides?

What are the legal effects?

A lacuna in the law? How

should this lacuna be filled?

Reserving State

Non-objective StateObjective State

US reservation to ICCPR, Art. 6 § 5


– “[T]he United States reserves the right, subject to its Constitutional

constraints, to impose capital punishment on any person (other

than a pregnant woman) duly convicted under existing or future laws

permitting the imposition of capital punishment, including such

punishment for crimes committed by persons below eighteen years

of age.”

Objection


"At the time of ratification of the International Covenant on Civil and

Political Rights ... the United States of America expressed a

reservation relating to article 6, paragraph 5, of the Covenant, which

prohibits the imposition of the death penalty for crimes committed by

persons below 18 years of age. France considers that this United

States reservation is not valid, inasmuch as it is incompatible with

the object and purpose of the Convention. Such objection does not

constitute an obstacle to the entry into force of the Covenant

between France and the United States."

Effect of impermissible reservations?


HRC, General Comment 24

VCLT → inappropriate to address reservations to HRs treaties

Reservation is ignored (the treaty remains in force)

ECtHR, Loizidou Case

ILC 2011 Report on the practice on Reservations to Treaties

An impermissible reservation can be severed.

Rebuttable presumption that the state remains party to the

Convention.

Interpretation of Treaties


“A treaty shall be interpreted 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) VCLT)

Combination between the objective (textual) and the

teleological approach (object and purpose)

Broader context: preambles, annexes, subsequent agreements,

other international law provisions (Article 31 (2), (3) VCLT)

Supplementary means of interpretation (Art. 32 VCLT)

preparatory works

circumstances surrounding treaty’s conclusion


Thank you for your

attention.

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