Modification of International Treaty Law PDF

Modification International Treaty Law Content General Aspects Informal Modification through Subsequent Practice Formal Modification through Subsequent Revision Special Rules in Institutional Treaties  General aspects Modification - the act or process of changing something in order t...

Modification International Treaty Law Content General Aspects Informal Modification through Subsequent Practice Formal Modification through Subsequent Revision Special Rules in Institutional Treaties  General aspects Modification - the act or process of changing something in order to improve it or make it more acceptable. Modification refers to the process of altering or amending the terms of an existing treaty without completely ending the treaty relationship. States modify a treaty when they agree that certain provisions need to be updated, revised, or changed due to evolving circumstances, new developments, or mutual consent. The VCLT does not provide detailed rules on modification, it does address issues related to amendments, reservations, and other matters relevant to the modification process.  General aspects No human compact is meant to last for eternity. Things evolve and change; thus laws and treaties have to be adapted. The greatest problem with the amendment of treaties is that as consensual acts they bind all the parties; and so as consensual acts they can be modified with erga omnes partes (by any State party to all the. other State parties) effect only by all the parties. This gives each party a sort of right of veto with regard to amendment, at least for the effects of amendment on that party.  General aspects Its rights under the older treaty remain acquired and cannot be altered against its will so long as the treaty remains in force. If the parties agreeing on a new legal régime conclude the amending agreement notwithstanding that some other States parties disagree, the result will be notwithstanding a split of rights and obligations. Certain States will remain bound by the old treaty; some other States will become bound by the new treaty. If the revision process is carried out more than once, the complexity and number of treaty relations can become considerable.  Methods of modification Modification can occur through bilateral or multilateral agreements, often involving negotiations and the formal adoption of a protocol or amendment to the original treaty. States may agree to modify a treaty through bilateral negotiations and mutual consent. This is a common method when only two parties are involved. For treaties involving multiple parties, modification may require the agreement of all or a specified majority of the parties. This often involves convening a conference where representatives negotiate and adopt modifications.  Methods of modification The Vienna Convention on the Law of Treaties (VCLT) outlines the methods for modifying international treaties: Express Agreement - parties to the treaty explicitly agreeing to modify its provisions. It is the most common and formal method. Implied Agreement - arises from the subsequent practice of the parties that establishes a common understanding that the treaty has been modified. It is a less formal method, but it requires clear evidence of the parties' intent to modify the treaty. Agreement by All Parties - requires the consent of all parties to the treaty to make any modifications, regardless of the method employed.  Examples of modification The Antarctic Treaty. The original treaty, adopted in 1959, was modified through a series of protocols, including the Protocol on Environmental Protection to the Antarctic Treaty, which entered into force in 1998. The Biological Weapons Convention. The treaty, adopted in 1972, has undergone several modifications through declarations and resolutions adopted by the states parties. The World Trade Organization Agreements:. The WTO agreements are subject to a complex modification procedure that involves the negotiation and adoption of protocols by the WTO Ministerial Conference.  Ways of modification There are legally two channels through which an agreement can be modified or amended. First, there is informal modification by common subsequent practice. Second, there is formal modification through adoption of revised versions of the treaty. After modification, the treaty continues to exist, and the parties remain bound by the revised terms. The modified treaty represents the ongoing commitment of the parties to their international obligations.  Informal modification Informal modification, also known as “subsequent practice” refers to the modification of a treaty based on the consistent behavior of the parties over time, indicating their mutual understanding to alter the treaty's provisions. Although the modification is not explicitly agreed upon through formal negotiations or written amendments, it is inferred from the parties' repeated actions, indicating a shared understanding to alter the treaty's provisions. It primarily affects the interpretation of treaty provisions, not the treaty's text itself.  Informal modification Example: Consider a bilateral treaty between two countries regulating fishing rights in a shared waterway. The treaty specifies annual catch limits for each party. Over the years, both parties consistently exceed these limits without any formal amendments. This ongoing practice may be interpreted as an informal modification indicating a mutual understanding between the parties to adjust the fishing rights under the treaty. The concept of "self-defense" in international law has undergone significant evolution through subsequent practice. The United Nations Charter (UN Charter) outlines the right to self-defense, but over time, international courts and states have recognized a broader scope of self-defense, including pre- emptive strikes in response to imminent threats.  Formal modification Formal modification involves altering a treaty through the adoption of revised versions, typically achieved through negotiations, formal agreements, or the establishment of protocols or amendments. This method ensures clarity and certainty in treaty obligations. All parties to the treaty must agree to the modification, either through an amendment or a subsequent treaty. The modification is formally adopted through a prescribed process, often involving negotiations, signature, and ratification by states.  Formal modification Example: The 1982 United Nations Convention on the Law of the Sea has been amended several times, including an amendment that expands the rights of coastal States in their exclusive economic zones. The North American Free Trade Agreement (NAFTA) was modified through the adoption of the Canada-United States-Mexico Agreement (CUSMA) in 2020. The Paris Agreement, an international agreement on climate change, was modified through the adoption of the Kigali Amendment in 2019.  Special Rules in Institutional Treaties Institutional treaties contain special clauses covering revision. Their aim is to ensure that a revision, if adopted by a certain number of States, will bind the whole Membership. An organization cannot work on the basis of different rules for different parties. We may take the example of article 108 of the UN Charter. Article 108 provides as follows: Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.  Special Rules in Institutional Treaties Each State member can propose an amendment. Proposed amendments are included in the program for the next session of the Assembly by a vote by a simple majority. Other principal organs of the United Nations than the General Assembly can also propose amendments, for example the Security Council or the Secretary-General. The process is identical in both situations. The proposed amendment is put to a vote in the Assembly. The vote carries if two-thirds of the Assembly is in favour. The permanent members of the Security Council need not vote in its favour; they may also abstain. However, the vote for an amendment is not conducted according to the normal voting procedure of all members ‘present and voting’. It takes into account the total number of States represented in the Assembly