1. University of Macerata 2016-2017 Prof. Avv. Roberto Baratta, PhD
International Organisations Law

2. The 1969 Vienna Convention on the Law of Treaties
While largely reflecting customary law, the 1969 Vienna Convention (VCLT) constitutes the basic legal framework concerning formation and binding force of treaties
Normally, they have supplementary/subsidiary nature, except rules on invalidity and termination
Fundamental principle: treaties are binding upon the parties to them and must be performed in good faith: pacta sunt servanda. It is one of the oldest principle of IL having customary nature
Article 26 
Pacta sunt servanda
Every treaty in force is binding upon the parties to it and must be performed by them in good faith
So States may not invoke the provisions of their internal law as justification for its failure to perform a treat (article 27 VCLT)
- VCLT as a whole may not be considered as reflecting CL: for instance it does not govern the effects of wars on treaties, nor it concerns oral agreements
- Article 26 VCLT enhances the pacta sunt servanda principle: a state cannot rely on the inconsistencies with domestic law for not complying with a treaty

3. The term ‘treaty’
A variety of expressions to design a treaty (protocol, agreement, pact, convention, covenant, charter, memorandum of understanding, declaration etc.)
Article 2 VCLT: ‘(a) 'treaty' means 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’
Element of this provisions: between States; in written forms; governed by international law; whatever its particular designation
A treaty may also be constituted by several documents

4. Requirements for the existence of a treaty
Legal agreements: the intendment of the parties is pivotal. It is essential for the parties to create legal relations as between themselves by means of their agreement
Political agreements: statements of commonly objective that are not intended to establish binding obligations. E.g.: a declaration by a number of States in support of certain aims having no legal significance, as they do not regard it as a binding instrument upon them since it does not set up a juridical relation  Enforcement cannot be invoked in case of violation
All the surrounding circumstances have to be examined carefully (test focuses on  the will of the parties as seen in the wording, the context of the document concerned, the circumstances of its conclusion, the explanations given by the parties, the registration of the agreement with the UN under Article 102 and so forth)

5. Informal non-binding agreements
Although an agreement may not be binding on the parties, its political effect may still be of paramount importance
One of the traditional example of a non-binding international agreement having a considerable importance, is the Final Act of the Conference on Security an Cooperation in Europe, 1975
Declaration on Principles Guiding Relations between Participating States" (also known as "The Decalogue") enumerated several points: sovereign equality, respect for the rights inherent in sovereignty; refraining from the threat or use of force; inviolability of frontiers; territorial integrity of States; peaceful settlement of disputes; non-intervention in internal affairs; respect for human rights; equal rights and self-determination of peoples

6. ICJ Greece v Turkey, Aegean Sea Continental Shelf
ICJ 1978 Reports, p : the terms and the context matter ‘having regard to the terms of the Joint Communiqué of 31 May 1975 and to the context in which it was agreed and issued, the Court can only conclude that it was not intended to, and did not, constitute an immediate commitment by the Greek and Turkish Prime Ministers, on behalf of their respective Governments, to accept unconditionally the unilateral submission of the present dispute to the Court. It follows that, in the opinion of the Court, the Brussels Communiqué does not furnish a valid basis for establishing the Court's jurisdiction to entertain the Application filed by Greece on 10 August 1976’

7. Qatar v. Bahrain case
the case concerned Maritime Delimitation and Territorial Questions between Qatar and Bahrain, with regard to Minutes signed by the parties and Saudi Arabia
the Court observed that the Minutes were not a simple record of a meeting; they did not merely give an account of discussions and summarize points of agreement and disagreement. They enumerated the commitments to which the Parties have consented, so as to create rights and obligations in international law for the Parties.

8. Qatar v. Bahrain case
the Court ‘must have regard above all to its actual terms and to the particular circumstances in which it was drawn up’ (p. 121). The Minutes ‘include a reaffirmation of obligations previously entered into; they entrust King Fahd with the task of attempting to find a solution to the dispute during a period of six months; and, lastly, they address the circumstances under which the Court could be seized after May Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record of a meeting, similar to those drawn up within the framework of the Tripartite Committee; they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement.’ (para. 25)

9. The making of treaties
Freedom of form: there is no prescribed form of procedure under international law. Yet, the treaty-making power is usually restricted by domestic constitutions
Principles of IL to ensure that persons representing states have the power to conclude a treaty: in principle, they must produce full powers (article 7 VCLT), i.e. documents certifying the capacity of representing a State from the competent authorities of the State in question
Exception for heads of State and Prime ministers, foreign ministers, heads of diplomatic missions for the purpose of adopting treaties with the country to which they are accredited; and the same holds true for representatives accredited to international conferences

10. Formation of a treaty: basic rules
1. Negotiation
- adoption in international conferences (two-thirds of the states present and voting, unless the same majority has decided to apply a different rule, art. 9 VCLT; recent practice: consensus)
- adoption in other cases: consent of all states involved in drawing up the text of the agreement
2. Signature when the negotiation is completed
Its main aim is to crystallize the text on which the competent authority of each parties manifests its consent
Pending ratification a state must refrain from acts which would defeat the object and purpose of the treaty until it has made clear its intention not to ratify it: Article 18 VCLT
Two basic forms of conclusion: solemn form (4 stages): negotiation, signature, ratification, exchange of instrument of ratification
and simplified form (2 stages): negotiation and signature

11. Formation of a treaty: 3) conclusion
Consent by signature (in defined circumstances noted by article 12 VCLT): the treaty is concluded in ‘simplified form’ since the signature expresses the consent of the parties concerned (the text must provide that effect or it is otherwise established that signature should have that effect)
Consent by exchange of instruments of ratification (a delay between signature and ratification may occur)
ratification by the national competent authority expresses a state’s consent to be bound by a treaty (article 14 VCLT)
Consent by accession – it is the normal method by which a state becomes a party to a multilateral treaty which is already into force among other parties
Registration of a treaty to the UN Secretariat (article 102 UN Charter): tackling secret treaties

12. Reservations
Article 2 VCLT: ‘'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’
It’s a legal device for excluding certain provisions to be binding for the reserving State
It has beneficial results in the cases of multilateral treaties
In bilateral treaties reservations are not conceivable since a reservation by one party to a proposed term of the agreement would require a renegotiation of the text: there is no agreement if one party refuses to accept some of its content
Difference with political statements and interpretative declarations
✓when they amount to being a conditional consent to a specific interpretation of the treaty or a specific provisions of it, they are equal to reservations

13. Admissibility of reservations
The classical IL integrity rule: reservations could be made only with the consent of all the parties – main drawback: it limits the acceptance of multilateral treaties The new trend proposed by the ICJ in Reservations to the genocide convention case (1954): a reserving state ‘can be regarded as being party to the Convention if the reservations is compatible with the object and purpose of the Convention’  the ultimate judge of this criterion becomes each other contracting State: if it considers that the reservation is compatible with the object and purpose of the treaty, it considers also that that the reserving state is party of the treaty in their mutual relations

14. Article 19 Formulation of reservations
Article 19 VCLT
VCLT endorsed the ICJ ‘object and purpose test’, while accepting that the parties may prohibit a reservation or that only a specific reservation is permissible
Article 19 
Formulation of reservations
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:
the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made;
or (c) …., the reservation is incompatible with the object and purpose of the treaty.
Special provision apply to constituent treaties of international organisation (article 20(3) VCLT)  integrity approach tends to prevail

15. Effects of reservations
Bilateral effects of a reservation: it modifies the relation of the reserving State with that of the party which accept the reservation  modification concerns both: effect of reciprocity
the provisions of the treaty to which the reservation relates to the extent of the reservation, and
the same provisions to the same extent for that other party in its relations with the reserving State (article 21(1) VCLT)
Inter se relationship: A reservation made by one of the contracting States does not affect the legal provisions of the treaty between the States not making reservations: ‘The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se’ (article 21(2) VCLT)

16. Effects of objections A State objecting to a reservation may:
accept the entry into force of the treaty between itself an the reserving State. In this case, ‘the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation’ (article 21(3) VCLT)
object that the treaty entries into force between itself and the reserving State the treaty is inapplicable in toto between them

17. Reservations to human rights treaties
Restrictive trend with regard to impermissible reservations human rights treaties (the big question of the large number of reservations to human rights treaties)
The will to make a reservation is severable from the will to participate to the treaty  the treaty is applicable to the reserving State in toto its acceptance is unrestricted by the terms of the invalid limitations attached to the reservations
ECHR Belilos and Loizidu cases
UN Human Rights Committee (General Comment 24/ )
1997 ILC approach: while recognizing the competence of human rights bodies to have a margin of appreciation, it emphasized it is the reserving State the has the responsibility of taking action (i.e. modify or withdraw the reservation or withdraw from the treaty)

18. Entry into force of treaties
Basic principle: it is up to the parties to decide about it Article 24(1) VCLT: ‘A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree’ Absent of that, a treaty enters into force as soon as a consent to be bound by the treaty has been established for all the negotiating parties (article 24(2) VCLT) Recent practice shows that parties provide for detailed rules concerning e.g. a minimum of ratification being required, the provisional application of the treaty (article 25 VCLT) etc.

19. Application of treaties
General rule: a treaty is not applicable to third parties. It binds only the parties to them  fundamental sovereignty and independence of states
Article 34: ‘A treaty does not create either obligations or rights for a third State without its consent’
Exception: a treaty rules has entered into customary law
Non-retroactivity of treaties
Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party (article 28 VCLT)

Territorial scope of treaties
Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory (article 29 VCLT)

20. Successive treaties on the same subject
Two situations must be distinguished:
1. The later treaty includes all the parties to the earlier one: the successive treaty prevails (article 30(3) VCLT)
2. If the parties to both treaties do not coincide:
For the parties that participate to both treaties, the successive treaty prevails
As to the mutual relation for a state being part to both treaties and a state party to only on of the treaties, all the treaties govern their mutual rights and obligations (article 30(4) VCLT)
✔treaty clashing phenomenon, a problem that is increasing more and more
Article 103 UN Charter
Article 103 UN Charter: a special clause which seeks to make UN obligations to prime over other conventional rules concluded by the UN parties

21. Amendment of multilateral treaties
It is desirable to amend a treaty when conditions change. Many multilateral conventions lay down conditions as regards amendments. For example: article 108 UN Charter – adoption and ratification by two-thirds of the members of the organisation, including all the permanent members of the SC Amendment of multilateral treaties concerning all the parties  general rule: parties of a treaty may decide the provisions they deem appropriate If no rule is provided for, any proposal of amendment must be notified to all the contracting States, ‘each one of which shall have the right to take part in: (a)the decision as to the action to be taken in regard to such proposal; (b) the negotiation and conclusion of any agreement for the amendment of the treaty’ (article 40(2) VCLT)

22. Modification of treaties
Definition = Agreements to modify multilateral treaties between certain of the parties only – Article 41 VCLT: two basic provisions:
1. Legal constraints. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:
the possibility of such a modification is provided for by the treaty; or
the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.
2. Procedural obligation: Unless in a case falling under paragraph 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides

23. Treaty interpretation
General rule of interpretation 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 the light of its object and purpose (article 31(1) VCLT) It reflects customary IL Four fundamental criteria: Good faith The actual text of the agreement  the focus is on the analysis of the words used The context (the text of the treaty, including its preamble and annexes, as well as any other agreement or instrument concluded by the parties and accepted by the other parties as an instrument related to the treaty; subsequent practice)  systematic approach Emphasis on the object and purpose of the treaty  theological approach The fifth one is complementary: the will of the parties: a ‘special meaning shall be given to a term if it is established that the parties so intended’ (article 31(4) VCLT)  the objective theory prevails; travaux préparatoires as a subsidiary means of interpretations

24. Invalidity of treaties
1. The failure to abide by a domestic legal limitation Article 46(1) VCLT ’A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance’ Violation of internal law is regard as manifest if it would be ‘objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith’ (article 46(2) VCLT) Article 26 VCLT and article 46: how to reconcile these provision ICJ Cameron v. Nigeria (ICJ Reports 2002, para. 265) – The Nigerian Head of State signed a Declaration which was held valid: limitation on its capacity is not manifest unless properly publicised  ‘there is no general obligation for states to keep themselves informed of legislative and constitutional developments in other states …’

25. Other grounds for invalidating treaties
2. Error (article 48 VCLT) the scope of error as invalidating a state’s consent is rather limited ICJ Temple case (1961): the plea of error cannot be allowed as an element vitiating consent if the concerned party contributed by its own conduct to the error, or could have avoided it, or if the circumstances were such as to put that party on notice of possible error 3. Fraud and corruption: a state consent to be bound by a treaty is the result of the fraudulent conduct of another negotiating state (article 49 VCLT) 4. Coercion – more important is this ground for invalidating consent. It concerns coercion to: a) the representative of a State through acts or threats directed against him (article 51 VCLT) b) a State: threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations (article 52) referring to article 2(4) UN Charter; it does not cover economic and political pressures

26. Inconsistencies of treaties with jus cogens
A peremptory rule of general international law accepted as such by the international community as a whole, as a norm from which no derogation is permitted Two basic situations 1. A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law (article 53 VCLT) parties must in principle eliminate the consequences of any act performed inconsistently with jus cogens (article 71 VCLT) 2. If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates (article 64 VCLT) the parties are released from any further obligation to perform the treaty; rights and obligations created prior to its termination are not affected, provided that they may be maintained thereafter in conformity with the new rule of jus cogens (article 69 VCLT)

27. Termination of treaties
Termination (or withdrawal from a treaty) is possible: - in conformity with the provisions of the treaty (article 54 a VCLT) -by consent: at any time by consent of all the parties after consultation with the other contracting States(article 54 b VCLT) Termination if a treaty provides no provision about that: a state may only denounce or withdraw from a treaty where the parties intended to admit such a possibility or where the right may be implied by the nature of a treaty (article 56) - General comment No , UN Human Rights Committee, denying that the parties had not intended to admit termination or denunciation: Covenant on civil and political rights as an instrument codifying human rights

28. Other grounds for termination
A treaty come to an end if its purposes and objects are fulfilled or its limited in time By conclusion of a later agreement or by a later agreement whose provisions are incompatible with those of the earlier one (article 59 VCLT)

29. Material breach
Material breach = violation of an important provision (repudiation of the treaty or violation of a provision essential to the accomplishment of the object and purpose of the treaty, art. 60(3) VCLT) termination (or suspension) as a countermeasure Rules regarding consequences of a material breach do not apply to provisions of the treaty ‘relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties’ (article 60(5) VCLT)

30. Supervening impossibility of performance
Article 61 VCLT covers only very narrow situations, concerning ‘the permanent disappearance or destruction of an object indispensable for the execution of the treaty’ (e.g. the submergence of an island, or the drying up of a river). Moreover, ‘if the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty’

31. Fundamental change of circumstances
The doctrine of rebus sic stantibus is a principle of customary IL. It is reflected in article 62 VCLT What is it? A) it is a change of circumstances with regard to those existing at the time of the conclusion of a treaty; B) that chance was not foreseen by the parties at that time C) those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty D) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty In these very limited circumstances, a treaty may be terminated or suspended. Its scope is rather limited since this doctrine disrupts the pacta sunt servanda principle

32. ICJ case law confirms that approach
ICJ Fisheries Jurisdiction case 1973, p. 20 ‘in order that a change of circumstances may give rise to a ground for invoking the termination of a treaty it is also necessary that it should have resulted in a radical transformation of the extent of the obligations still to be performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that originally undertaken. In respect of the obligation with which the Court is here concerned, this condition is wholly unsatisfied; the change of circumstances alleged by Iceland cannot be said to have transformed radically the extent of the jurisdictional obligation which is imposed in the 1961 Exchange of Notes. The compromissory clause enabled either of the parties to submit to the Court any dispute between them relating to an extension of Icelandic fisheries jurisdiction in the waters above its continental shelf beyond the 12-mile limit. The present dispute is exactly of the character anticipated in the compromissory clause of the Exchange of Notes. Not only has the jurisdictional obligation not been radically transformed in its extent; it has remained precisely what it was in 1961’