Ole Kr. Fauchald Categories of treaties n Treaties, conventions, covenants, memoranda of understanding, exchange of letters – irrelevance of label n Bilateral, regional and global n Contractual and law-making n Substantive and institutional n Self-executing and non-self-executing n Treaties with vertical and horizontal effects n Framework treaties and protocols

Ole Kr. Fauchald Treaty law, the UN Charter n “World Constitution”(?) n Includes some of the most fundamental rights and duties of States (Art. 2) n Defines the composition, function, powers and procedures of the principal organs of the UN ä General assembly, Security Council, ECOSOC, International Court of Justice, Secretariat n Establishes its superiority: Art. 103

Ole Kr. Fauchald Other treaty regimes n Specialised agencies of the UN n Free standing treaty regimes ä Organisations, WTO and OECD ä Quasi organisations, UNFCCC and CBD ä Lack of institutional structure, UNCLOS, Vienna Convention on the Law of Treaties n Regional treaty regimes ä UN economic commissions ä Other regional treaty regimes – human rights, trade, environment n Areas dominated by bilateral treaties ä International investment and taxation, shared resources, border treaties, extradition

Ole Kr. Fauchald Interpretation of treaties n Customary int’l law, codified by the Vienna Convention on the Law of Treaties (1969), Art ä Wording / intention of the parties / aim and purpose ä Contextual interpretation – how far does the “context” reach? ä Agreement between the parties – formal (explicit), informal (implicit) and extraneous ä “Supplementary means”: preparatory works, circumstances of the conclusion of the treaty – what comes in addition? Legal doctrine, reasonableness, state and institutional practice, case-law, … n To what extent are the rules “codification”? n To what extent are the rules “secondary”? ä The issue of “self-contained regimes”

Ole Kr. Fauchald Development of treaty law I n How do treaty regimes develop? ä Why is there a need for dynamism? ä Amendments – treaty replacements ä Framework conventions and protocols – step-by- step approach ä Treaties based on obligations of result vs. obligations of conduct ä The use of annexes ä The use of reservations and country specific obligations ä A ”jurisprudence” based approach vs. a ”soft law” based approach ä Importance for interpretive arguments

Ole Kr. Fauchald Development of treaty law II n The increase in issues subject to treaty law ä Inherently international issues vs. inherently domestic issues – ”globalisation” ä Establishment and role of international institutions ä A systematic overview of topics – treaty collection n The nature of treaty obligations ä From obligations to cooperate and institutional rules to obligations of conduct ä The use of soft law instruments ä Ability to comply vs. willingness to comply – increasing focus on the latter? n The nature of enforcement mechanisms ä From general multilateral discussions to international tribunals ä From reciprocal measures to multilateral sanctions?

Ole Kr. Fauchald The need to coordinate treaties n Avoid legal conflicts ä When is there a legal conflict between treaties? n Prevent overlap ä Kinds of overlap –Overlapping subject areas –Global vs. regional treaties ä Avoid situations where treaties undermine the effectiveness of other treaties ä ”Forum shopping” n Making treaties ”mutually supportive” ä The search for win-win opportunities

Ole Kr. Fauchald Strategies to coordinate treaties n Institutional coordination ä Why do we not create institutions that contribute to improved coordination? ä The domestic vs. the international level n Procedural measures ä Transparency ä Impact assessments n During the negotiation phase ä Starting point – domestic coordination ä Depends on existence of multilateral institutions n After establishment ä Transfer to the international level ä Institutional autonomy – secretariats, implementation and compliance mechanisms, tribunals

Ole Kr. Fauchald How to solve conflicts n The use of ”savings clauses” ä Preambular vs. provision in treaty ä General vs. prospective / subject specific n Lex superior – primary rule ä Vertical elements in treaty law ä UN Charter – how far does it extend? ä Codification of jus cogens – VCLT Art. 53, Draft Articles on State Responsibility Art ä Law making vs. contractual treaties – the concept of erga omnes – Draft Articles Art. 48 n Lex posterior – subsidiary rule ä Art. 30 of VCLT ä Protocols, annexes and amendments n Lex specialis – subsidiary rule ä ”Primary” and ”secondary” rules, Draft Articles Art. 55 ä Area of application vs. legal consequences