International Law Class 3 The Law of Treaties

International Law Class 3 The Law of Treaties Case study: the EVFTA 1

Class 3 • Content: – The law of treaties – What’s a treaty – The Vienna Convention regulation • Sources: – Vienna Convention on the Law of Treaties 1969 – The EU Vietnam Free Trade Agreement 2

The Law of Treaties • Body of IL dealing with the procedural and substantive rules governing the use of treaties as a source of int’l law • It includes many rules on: entry into force, termination, interpretation, reservations and relationship of treaty law with custom • One of the least political areas of IL (need for certainty and clarity) • Same set of rules for all types of treaties • But flexibility for parties to modify, restrict, enhance or exclude the standard rules of the law of treaties 3

Two Basic Principles of the Law of Treaties • Treaties need to be based on free consent of States (consent to be bound) • Freedom of States is not unlimited: once consent to be bound has been expressed and the treaty has entered into force, Art. 26 applies – The treaty shall be respected by the parties in good faith (pacta sunt servanda) – Contrary domestic law is not an excluse for lack of performance 4

What Is A Treaty? / 1 • Treaty = legally binding agreement deliberately created by, and between, two or more subjects of IL with treaty-making capacity • It is governed by international law • Can be entered into by States and international organizations (e. g. , UN Headquarters Agreement btw the UN and the USA, 1947) • Form: Oral, written in a single or several instruments 5

What Is A Treaty / 2 • Procedure: – – – Deliberation of an international conference Direct bilateral negotiations Informal governmental discussions Exchange of notes Exchange of letters Any other means the parties choose • The Vienna Convention does not define what is a treaty • Nomenclature: covenant, convention, charter, statute, act, protocol, exchange of notes, memorandum of agreement/understanding • No need for consideration 6

Acts Lacking Intention to Create Legally Binding Relations • Vital precondition to the formation of treaties: the parties must have intended to create rights and obligation – IL does not regulate any set of form for rights and obligations’ creation • Registration/lack of registration under Article 102 of the Charter: which value? • http: //untreaty. un. org • http: //legal. un. org/avl/ls/Rosenboom_LT_video_2 e. html • Memoranda of understanding and other “political agreements”: flexibility, circumvention of Parliamentary 7 controls

Authority to Enter Into Treaties / 1 • Article 6: Every State possesses capacity to conclude treaties • National law decides which government official or entity is competent to enter into international treaties on the State’s behalf – Breach to such national law is not a ground of invalidity of the treaty unless: – (1) The violation was manifest (= “objectively evident to any State conducting itself in accordance with normal practice”), and – (2) It concerned a rule of domestic law of fundamental importance (Art. 46; see also Art. 27) 8

Authority to Enter Into Treaties / 2 • Article 8: A treaty made by a person not authorised under Article 7 is “without legal effect” • … unless afterwards confirmed by the State 9

Consent to Be Bound • Conditions for a treaty to be legally binding: – (1) The State must have given its consent to be bound – (2) The treay must have entered into force (distinction signature-consent / entry into force) • Consent (Article 11): – Expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession – … or any other means if so agreed 10

Signature / Ratification • Ratification: process whereby a State finally confirms that it intends to be bound by a treaty that it has previously signed • Definitive / Simple signature: the latter is subject to ratification, the former is more likely for bilateral treaties or treaties with only a few parties (cf. Art. 12) • Consent is not effective until such ratification – The treaty itself usually indicates whether signature or ratification if the appropriate mode of consent – If the treaty is silent, one should interpret the parties’ intention (but need for ratification is presumed) – unless the State representative declares that signature is subject to ratification • Usually treaties provide for the steps of consent 11

Entry Into Force • Article 24 • (1) A treaty enters into force “in such manner and upon such date as it may provide or as the negotiating States may agree” • (2) If the treaty is silent, it enters into force as soon as consent to be bound has been established for all the negotiating States 12

Treaties and Third States • Articles 34, 35 and 36 of the Vienna Convention • Treaties are binding only on the parties • Sometimes the parties to a treaty may intend to confer rights or obligations on non-parties without them becoming parties (a matter of interpretation in the light of the circumstances) – In such case, the obligation becomes binding on third party only if it accepts it in writing – In case of right, it is presumed that the third State has accepted unless the contrary is indicated – In both cases, consent is at the root of the transfer of the treaty provisions to the third party 13

Treaties and Third States • So-called dispositive treaties (= they create legal regimes valid for the whole world, erga omnes) – Treaties on territorial matters such as delimitation of boundaries, int’l waterways, territorial status – Treaties constituting int’l organizations (they create an entity with legal personality, opposable to members and non-members alike) • Third parties cannot dispute the objective validity of the state of affairs created by the treaty 14

Inconsistent Treaties • Article 59 • Same subject matter, all same parties: the prior treaty must be regarded as terminated • Article 103 of the UN Charter (see also Art. 30. 1 of the Vienna Convention) • Jus cogens rules and their effect on treaties 15

Case study: the EVFTA Negotiations (who negotiated? ) Status (is it signed? ) What are the procedures to enter into force? What are the main problems for its entry into force? • What happens in case of conflict between the parties? (and how to interpret it? ) • Are there any other mechanisms to settle disputes? • What rights individuals have from the agreement? • • 16