Week 6 - Law of Treaties (I) PDF

Law of Treaties (II) Treaty Interpretation; Conflicts of Treaties Dr. Asier Garrido-Muñoz Academic year 24-25 Part 1 The Art of Treaty Interpretation 1. Sources The VCLT and beyond - Arts. 31-33 VCLT 1969 - Rules and maxims not codified in the VCLT but applied in any legal...

Law of Treaties (II) Treaty Interpretation; Conflicts of Treaties Dr. Asier Garrido-Muñoz Academic year 24-25 Part 1 The Art of Treaty Interpretation 1. Sources The VCLT and beyond - Arts. 31-33 VCLT 1969 - Rules and maxims not codified in the VCLT but applied in any legal system For this part, I am relying on R. Kolb, The Law of Treaties: An Introduction (Edward Elgar, 2016) 3 2. Subjects of interpretation Who interprets treaties and what difference does it make? Self-interpretation Third-party interpretation Authentic interpretation 4 3. Two approaches Objective school vs Subjective school 4. General rule of interpretation Favoring the objective approach Good faith - Ordinary meaning (textual) Ensures that provisions are - Context interpreted reasonably and - Object and purpose not manipulated (‘clinging to (teleological) the words’) 6 5. Context (art. 31.2 VCLT) Elements linked to the text and existing at the moment of its adoption Text (incl. preamble and annexes) Agreement between all the parties Instrument by one or more parties and accepted by the others 6. Beyond the context (art. 31.3 VCLT) Elements linked to the treaty and occurring after its conclusion Subsequent agreement between the parties Subsequent practice establishing agreement Any relevant rules of international law 7. Overall structure General rule of interpretation (art. 31.1 VCLT) Broader context (elements existing at the moment of adoption (art. 31.2 VCLT) Beyond the context (art. 31.3 VCLT) 9 8. Supplementary Means of Interpretation Art. 32 VCLT Preparatory works (travaux ▪ As confirmation of meaning under préparatoires) art. 31 VCLT Circumstances of ▪ To determine meaning when other methods: conclusion of the treaty (1) Ambiguous or obscure (2) Manifestly absurd or unreasonable result 10 9. Linguistic versions (art. 33 VCLT) General rule: equal value / reference to the treaty If divergence: meaning that best reconciles the texts , having regard to object and purpose 10. Interpretation ‘outside’ the VCLT Maxims and general canons A contrario and by analogy Argumentum ab absurdum Effet utile In favorem libertatis Lex specialis (within the same treaty) 12 10. Interpretation ‘outside’ the VCLT Evolutionary interpretation Must the terms of a treaty be ‘Corporal punishment’ interpreted in the light of the ‘Family’ law as it stood at the time of ‘Commerce’ their adoption or in the light ‘Harassment’ of the contemporary legal order? 13 Part 2 Conflicts of treaties 1. General issues Art. 30 VCLT Specific problem of PIL VCLT subjective theory Primacy of the UN Charter (art. 103) (UN Charter Constitutional?) VCLT does not address customary law Presumption of non-conflict 15 In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law ECtHR, Al Jedda v. United Kingdom, para. 102 2. General Approaches Lex specialis derogat generalis Lex posterior derogat priori 17 Step 1 Primacy of the UN Charter 1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. 18 In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. Art. 103 UN Charter Step 2 Treaty specification 2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 20  Nothing in this shall prejudice the rights, jurisdiction and duties of States under the Convention. This Agreement shall be and applied in the context of and in a manner consistent with the Convention. Art. 4 Agreement for the Implementation of the Provision of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks This Protocol shall supplement the Antarctic Treaty and shall neither modify nor amend that Treaty. Art. 4.1 Protocol on Environmental Protection to the Antarctic Treaty Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party. Art. 53 ECHR Step 3 Successive treaties with identical parties (overlap) 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty 24 Step 4 Successive treaties with partially identical parties (overlap) 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States Parties to both treaties the same rule applies as in paragraph 3; (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. 25 Step 5 International Responsibility 5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty. 26 The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender. Art. 98.2 of the Rome Statute Cooperation with respect to waiver of immunity and consent to surrender