2 The Law of TreatiesDefine: “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. Vienna Convention on the Law of Treaties (VCLT), Art. 2(1)(a).
3 The Law of TreatiesA treaty may also be known as: international agreement, protocol, charter, declaration, concordat, covenant, convention, exchange of letters. A treaty may be binding whether it is written or an oral agreement. A treaty between a state and an international organization is governed by the Convention on Treaties between States and International Organizations or between International Organizations.
4 The Law of TreatiesCapacity to Conclude a Treaty Vienna Convention on the Law of Treaties: Full powers 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
5 The Law of Treaties Ratification Every state has its own process of ratification of a treaty.In the United States, the President may form and negotiate a treaty, the treaty must be advised and consented to by a two-thirds vote in the Senate. After the Senate approves the treaty the President can ratify the document. Once a treaty is ratified, it becomes binding on all the states under the Supremacy Clause.The President submits a treaty to the Senate Foreign Relations Committee with an accompanying resolution of ratification or accession. If the treaty and resolution receive favorable committee consideration the treaty is sent to the floor of the full U.S. Senate for a final vote.
6 The Law of TreatiesThe ratification of international treaties is accomplished by filing instruments of ratification as provided for in the treaty. If a state is a member of the United Nations, the U N Charter requires the state to register the treaty with the UN Secretariat.
7 The Law of Treaties UN Charter, art. 102 Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.UN Charter, art. 102
8 The Law of TreatiesReservation: is defined as 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. (VCLT), Art. 2(1)(d).States may ratify a treaty but unilaterally opt out to part of a treaty.
9 The Law of Treaties 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.(VCLT), Art. 31(1).
10 The Law of TreatiesSupplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. VCLT, Art. 31(1).
11 The Law of TreatiesObservation of Treaties “Pacta sunt servanda” Every treaty in force is binding upon the parties to it and must be performed by them in good faith. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. VCLT, Art. 26, 27.
12 Invalidity Error Fraud & Corruption Coercion The Law of TreatiesInvalidity Error Fraud & Corruption Coercion
13 The Law of Treaties Invalidity Treaties conflicting with a peremptory norm of general international law (“jus cogens”) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
14 The Law of TreatiesTermination & Suspension The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States. VCLT, Art. 54.
15 The Law of TreatiesDenunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1. VCLT, Art. 56.
16 The Law of TreatiesSuspension of the operation of a treaty under its provisions or by consent of the parties The operation of a treaty in regard to all the parties or to a particular party may be suspended: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States. VCLT Art. 58
17 Supervening impossibility of performance The Law of TreatiesSupervening impossibility of performanceA party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it (temporary, permanent).
18 The Law of Treaties VCLT, Art. 62 Fundamental change of circumstances A fundamental change of circumstances which has occurred … which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:circumstances constituted an essential basis of the consent of the parties, andthe effect of the change is radically to transform the extent of obligations …VCLT, Art. 62
19 The Law of TreatiesProcedure for Termination A party gives notification with respect to the treaty and the reasons Expiry of a period … shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in article 67. VCLT Art. 65
20 The Law of TreatiesObjection to Termination If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations. VCLT, Art. 65
21 Clean Slate Rule v. Continuity The Law of TreatiesState SuccessionClean Slate Rule v. ContinuityThat a new entity starts on a clean slate, can adopt only those treaties it wishes to be bound by and rejects all others.That a new entity is bound by the obligations attached to the territory under the old territory.
22 Views on Effect of War and Human Rights Treaties The Law of TreatiesViews on Effect of War and Human Rights TreatiesThat a conflict is entirely governed by the laws of armed conflict, including the four Geneva Conventions (humanitarian law).That human rights treaties continue throughout war unless they conflict with specific provisions of a law regulating war.Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 136 (Advisory Opinion)