Public International Law - Law of Treaties (Week 3 Lecture) 2024 PDF

Public International Law Law of Treaties Week 3 Lecture : Treaties Anna Schmitt Nagelbach  On Sources - Art. 38 (1) ICJ statute Questions we discussed: Concepts : - How are t...

Public International Law Law of Treaties Week 3 Lecture : Treaties Anna Schmitt Nagelbach  On Sources - Art. 38 (1) ICJ statute Questions we discussed: Concepts : - How are the sources of IL - Custom different from the sources of - State practice (North Sea Continental national Shelf law? cases) - Opinio Juris - How can there be a law when it is - persistent objector not written down and it has never Lecture - General Principles 1 even been verbally discussed? -Anna Schmitt eg nullum Nagelbach crimen sine lege (Lotus - How case) can we determine state - due diligence (Corfu Channel case) practice and opinio juris? - What can a state do to prevent a common practice or Treaty from  Significance of Treaties -Primary formal source = principal source of international rights and obligations - every state is party to hundreds of treaties Lecture 1 - Anna Treaties Schmitt regulate Nagelbach state behavior in times of peace and war  Law of Treaties What is a Treaty? How is it made? Under what conditions is it valid? Under what conditions does it become invalid? Lecture 1 Anna Schmitt Nagelbach  What is a Treaty? Lecture 1 Anna Schmitt Nagelbach  What is not a Treaty? non-binding Agreements - for clear understanding between the parties - expression of political will - eg : 1941 legally non-binding agreement between Churchill and Roosevelt  UN - declaration (UDHR) - non-binding resolution = no legal obligations - expression of principles, moral obligations, aspirations  ICCPR; ECSOC; etc these non-binding agreements - sometimes lead to legally binding treaties - can be effective in achieving some goals in IR, sometimes combined with formal instruments - Cuban missile crisis 1962 Anna Schmitt Nagelbach  What is a Treaty? - contract law A Treaty is an agreement that : Subjects of national law is a mutual consent declaration are : between the subjects of law Individuals, companies that creates duties and rights on the parties and creates legal consequences. Subjects of international law are : Anna Schmitt Nagelbach States; International Organisations Significance of Treaties What can Treaties do? Create IOs - UN Charter established the UN Settle disputes Lecture 1 End wars Anna(today Schmitt armed Nagelbach conflicts are often not between two states)  VCLT Vienna Convention on the Law of Treaties (1969) (EIF 1980) - Most states have signed and ratified, some like the US have only signed - A few states (France, Turkey, India) have never signed - it is customary international law  Binds all states (not IOs) Lecture 1 Anna Schmitt Nagelbach Art. 2 defines ‘Treaty’ as an “international agreement concluded between states in written form and governed by international law…”  VCLT Core principles enshrined in VLTC are also fundamental principles in (international) law - Art. 26 pacta sunt servanda - must be performed in good faith - Art. 62 Rebus sic statibus - fundamental change in circumstances can terminate a treaty Lecture 1 - Art. 53 Invalidity of Treaties Anna Schmitt - voidNagelbach if conflicts with a peremptory norm (jus cogens)  Types of Treaties Bilateral – between 2 states (no reservations possible) Multilateral – more than 2 states Lecture 1 Anna Schmitt Nagelbach Basic steps : Treaty formation Stage 1 : Creating and finalizing the text Stage 2 : Authentication Stage 3 : Enter into Force Lecture 1 Anna Schmitt Nagelbach  Process The text - Conference / committees / experts - Sometimes a deadline is placed to complete the drafting and open for signatures The formalization of the text - Sometimes there is voting among participating states – to approve a version of the Treaty Authentication Lecture - begins with 1 signatures - first Annastep towards Nagelbach Schmitt making the treaty binding  Process Ratification - parliament / constitutionally authorized organ within the state - leader signs the treaty - voting takes place in parliament to approve the ratification of the treaty (Accession : when after the whole process, a new state wants to join. This depends on : - inclusive treaty (genocide convention) / exclusive treaty (NATO) - as stipulated in the treaty Lecture 1 - by an extra treaty) Anna Schmitt Nagelbach Enter into Force : - deadline outlined in the treaty - sometimes a new treaty requires new domestic laws in order to adhere to the treaty - ex : CO2 reduction of 32% by 2032  Process Registration : - treaty must be registered at the UN secretariat when entering into force - any agreement not registered will not be considered by the ICJ in a potential breach / legal dispute regarding the agreement Lecture 1 Anna Schmitt Nagelbach  Validity A treaty is invalid when : - signed by an unauthorized person - error in the treaty - fraud - corruption / coercion of the individual signing or state - threatening to use force – forbidden in international law - treaty violates jus cogens - Force Majeur - the limit of pacta sunt servanda - unforeseeable circumstances that prevent meeting obligations of the treaty Lecture 1 Anna Schmitt Nagelbach  Reservations - when a state wants to sign most of a treaty but not all / cannot fulfill all elements Disadvantage : - can undermine a treaty Advantage : - could encourage a state towards the principles enshrined in the treaty Lecture 1 SigningSchmitt Anna the CEDAW Nagelbach with a reservation on voting rights (only men can vote)  Reservations A state or an international organization may, when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, formulate a reservation unless: a. 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. in cases Lecture not falling1 under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Anna Schmitt Nagelbach What do you think? Signing the CEDAW with a reservation on voting rights (only men can vote) Fundamental Principles Pacta Sunt Servanda “every treaty in force is binding upon the parties and must be performed by them in good faith” – Art. 26 Consent “A treaty does not create obligations or rights for a third state without its consent.” – Art. 34 Supercedes domestic law: Lecture “A party may 1 provisions of international law as not invoke justification for failure to perform.” – Art. 27 Anna Schmitt Nagelbach