1. LAW 221: INTERNATIONAL LAW
Dr. Başak Çalı

2. Outline Sources of international law
International treaties – Part IV- Final
Third parties rights and obligations
Invalidity of treaties
Termination of treaties
Exiting treaties
Outline

3. A General principle of law
Principle of pacta tertii : rights and duties contained in contracts only concern those that have consented.
A General principle of law

4. Can treaties create ‘objective law’ or an objective regimes for non-parties to the treaty?
Can a treaty create benefits, or assign rights and duties for non-parties to a treaty?

5. Pre Vienna Convention of 1969
Example 1: Reparations for Injuries Case: ICJ-1949 Example 2: International Status of South West Africa Advisory Opinion – ICJ- 1950
Pre Vienna Convention of 1969

6. Judge McNair in Southwest Africa Case: ‘Sometimes multilateral treaties acquire an acceptance and durability which soon acquires a degree of acceptance and durability extending beyond the limit of the contracting parties and giving it an objective existence.’ ( emphasis mine)

7. Rules in a treaty becoming binding on third States through international custom
Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.
Article 38

8. Obligations imposed by international law independently of a treaty The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.
Article 43

9. Are there any objective regimes?
Potential candidates: United Nations Charter: non-members are under an obligation to recgonise its personality UN Security Council imposes sanctions on non-members UN Charter Article 2(6) has the mandate to ensure that non-members act in accordance with UN principles in the field of international peace and security.
Are there any objective regimes?

10. Treaties with fewer members creating obligations for third parties?
Protocol Concerning the Permanent Neutrality and Operation of the Panama Canal (1979)
Antarctic Treaty (1959)
Treaties with fewer members creating obligations for third parties?

11. Invalidity of treaties
Serious competence problem (46-47)
Error (48)
Fraud (49)
Corruption of state representative (50)
Coercion of a state representative (51)
Threat or use of force under the UN Charter (52)
Ius cogens (53)
Invalidity of treaties

12. Land and maritime boundary between Cameroon and Nigeria - ICJ
‘Limitations on head of state’s treaty making capacity could not be relied upon unless at least properly publicised and there is no general legal obligation for States to keep themselves informed of legal and constitutional developments in other States.’
Land and maritime boundary between Cameroon and Nigeria - ICJ

13. Error: if the state contributed to the error, it is not an error.
Suppose that if there were an agreement about fishstocks, but you got the place of the fish wrong: that would be an error.
Legal Status of Eastern Greenland ( 1933): the fact that the Foreign Minister Ihlen did not know when he was not claiming sovereign rights over Greenland is not an error.
Error

14. There are no recorded instances of allegations of fraud in treaty disputes.
Corruption is also an area scarce with examples of case law.
Timor Leste politically argues fraud re: the new Timor Gap treaty.
Fraud, corruption

15. Coercion, threat or use of force
How much influence is coercion?
How do we know if use of force is against the UN Charter?
Victory treaties
Treaties between states with huge power differences pose difficulties
Coercion, threat or use of force

16. States cannot sign treaties against peremptory norms of international law.
Peremptory norms are norms from which no derogation is permitted.
One the one hand, this is intuitive.
One the other, it is hard to show which norms are peremptory norms.
Ius Cogens – 53, see also 63

17. ICJ –mentions of prohibition of genocide and self-determination
ICTY- prohibition of torture
ECHR- prohibition of torture
ECJ –right to fair trial
Judicial practice

18. Termination Termination through mutual consent
Termination by way of concluding a new treaty
Breach by one party
Supevening impossiblity of performance (61)
Rebus sic stantibus (62)
Severance of diplomatic or consular relations
Emergence of a new jus cogens norm of international law (63)
Termination

19. Supervening the impossibility of performance
Permanent disappearance or destruction of an object indispensible for the execution of a treaty
Supervening the impossibility of performance

20. Gabcikova-Nagymoros case- Hungary-Czech Rep. ICJ- 1997
Hungary: after the Velvet revolution, the treaty become impossible to perfom. The joint economic investment regime has permanently disappeared.
The Court disagreed. The legal regime is not an object.
Gabcikova-Nagymoros case- Hungary-Czech Rep. ICJ- 1997

21. If the change in circumstances is unforeseeable, it may be a ground to terminate treaty relations.
VCLT is very tight:
It must be change in those circumstances constituting an essential basis to be bound by the treaty.
The effect of change must radically transform the extent of obligations
Rebus sic stantibus

22. Gabcikova-Nagymoros case- Hungary-Czech Rep. ICJ- 1997
Hungary’s arguments
Socialist integration ceased to exist
Both states are now market economies
The dam is a ‘prescription for environmental disaster’
Gabcikova-Nagymoros case- Hungary-Czech Rep. ICJ- 1997

23. Gabcikova-Nagymoros case- Hungary-Czech Rep. ICJ- 1997
The Court held that:
Change in political regime may be relevant, but not in this case.
The environmental protection is relevant, but it was not unforeseeable in this case.
Gabcikova-Nagymoros case- Hungary-Czech Rep. ICJ- 1997

24. Contrast this to: Racke v. Hauptzollant Mainz – ECJ-1998
Outbreak in hostilities in Yugoslavia can be viewed as a fundamental change in circumstances.
Contrast this to: Racke v. Hauptzollant Mainz – ECJ-1998

25. Termination of the bilateral ABM Treaty between US and the USSR in 2001.
There is a clause in ABM treaty incorporating fundamental changes.
George Bush announcement: US national security threats fundamentally changed.
State practice

26. Exiting treaties Most treaties have an exit clause.
Principle: treaty is in force until the exit is in legal effect.
Exist may be called withdrawal or denunciation
Exit or threat of exit is used to protest a treaty (Venezuela and the Inter-American Convention 2012)
Exit may be used to force a new treaty (GATT- WTO transition)
Forced exit: In order to be a member of EU, you had a withdraw membership from BITs with US.
Exiting treaties