TREATIES

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• TREATIES

Prof David K. Linnan USC LAW 783 Unit 16
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DEFINITION

• TREATY DEFINITION RE VIENNA CONVENTION ART 1(a)
• Treaty means an international agreement
  concluded between States in written form and
  governed by international law, whether embodied
  in a single instrument or in two or more related
  instruments and whatever its particular
  designation.
• NOTE IMPLICITLY AT LEAST IN CUSTOMARY LAW STILL
  MAY BE TREATIES INVOLVING AN INTERNATIONAL
  ORGANIZATION, OR ORAL UNDERTAKINGS

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US VS FOREIGN LAW

• TREATIES IN INTERNATIONAL LAW
• 1. Leading source under modern doctrine (ICJ
  Statute art 38)
• a. Good for instant law
• b. Complications with other intl law sources
• c. Remember difference between political agmt
  treaty Off the record
• 2. Distinguish US art II constitutional treaty
  from international law treaty (encompassing, ie,
  all forms of US international agreements both
  treaty executive agreement)
• Off the record Off the record
  Off the record
• 3. Formal interpretation rules separate in
  dualistic system, and interpretation rules in
  intl sources (i.e., Vienna Convention on Law of
  Treaties (1969), especially art 31 32)
• CANNOT INTERPRETE TREATY LIKE DOMESTIC
  LEGISLATION DUE TO TECHNICAL RULE DIFFERENCES

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FUNCTIONS

• TREATIES IN INTERNATIONAL LAW (CONTD)
• 4. Multilateral versus bilateral (or small
  number of states)
• 5. Issues re older adminstration coordination
  (e.g., Postal Union) against newer framework vs
  package deal approaches as with environmental
  treaties
• 6. Issues re constitutional function for intl
  organizations
• CONSULT BASIC ASIL ONLINE TREATY SOURCES FOR
  RESEARCH PURPOSES

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VIENNA CONVENTION

• VIENNA CONVENTION CUSTOMARY LAW
• 1. Treaties as agreements intended to have legal
  effect versus non-binding or political
  undertakings
• Off the record Do you agree?
• 2. Vienna Convention (1969) viewed generally as
  codification of customary law rules, some
  progressive development (US position as
  non-signatory)
• Off the record
• 3. Vienna Convention, however, covers only
  treaties between states in written form, thus
  leaving out unwritten treaties (recognized in
  customary law), treaties involving international
  organizations as parties (UN, etc.), state
  succession (on which there is a parallel 1986
  Vienna Convention covering treaties involving
  international organizations concerning which
  there is more controversy)

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DOCTRINE

• WHAT IS A TREATY?
• 1. Distinction with political undertaking
• Off the record Off the record
• 2. Distinction with commercial contracts between
  states, or states and private parties (ie, for
  wheat delivery)
• 3. Issue whether purely determined by party
  intent, versus objective criteria like subject
  matter
• 4. Unilateral undertakings can be treaties
  (Legal Status of Eastern Greenland (Norway v,
  Denmark) PCIJ 1933)

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CAPACITY

• CAPACITY AND AUTHORITY TO CONCLUDE AGREEMENTS
• 1. Remember one of four elements of being a
  state (constitutive vs declarative views)
• 2. Capacity being judged at state level (ie,
  non-self governing territory like a colony, also
  problems of federal states)
• 3. Authorization being judged at level of
  individual representative, although less an
  issue in practical terms in todays world of
  instant communications
• 4. Full powers (Vienna Convention art
  2(1)(c))versus authority by virtue of position
  (Vienna Convention art 7 head of state, head
  of government, foreign minister conclusively
  presumed to be authorized)

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PROCESS I

• TREATY PROCESS
• 1. Adoption and authentication of text
• 2. Signature
• 3. Ratification
• 4. Acceptance/approval
• 5. Accession

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PROCESS II

• TREATY PROCESS (CONTD)
• 6. Reservations (for multilateral treaties)
• a. Permissibility (is it inconsistent with
  basic object and purpose of the treaty)
  re Vienna Convention art 19
• Off the record
• b. Acceptance (assuming permissibility,
  states can refuse reservation with effect of
  differentiated obligations as to different
  states under multilateral treaties re Vienna
  Convention art 20))
• c. May be excluded specifically (i.e.,
  package deal under LOS)
• Off the record Off the record
  Off the record

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GOOD FAITH

• GOOD FAITH ISSUES
• 1. Obligation not to defeat object of treaty
  between reservation and accession
• Off the record
• 2. Changed circumstances problem and when basic
  assumptions underlying treaty have changed
  sufficiently to justify releasing obligations
• 3. Pacta sunt servanda as including good faith

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INTERPRETATION

• PROBLEMS OF TREATY INTERPRETATION
• 1. Unilateral party interpretations versus
  authentic interpretations of all concerned
  (reservation vs interpretation)
• 2. Domestic interpretation problems (ie,
  legislative versus executive as under
  antiballistic missile treaty)
• 3. Primary reliance on textual interpretation
  (art 31 Vienna Convention, versus
  interpretation of parties intent based on
  preparatory materials (art 32 Vienna Convention)
  (opposition to US legislative interpretation
  approaches)
• a. Objective or ordinary meaning of text
  approach
• b. Subjective or intention of the parties
  approach
• c. Teleological or treaty aims objectives
• REMEMBER, TREATIES NOW WITH REAL DOMESTIC LAW
  EFFECT LIKE NAFTA AGREEMENT FOLLOWS THESE RULES
  NOT LEGISLATIVE INTERPRETATION RULES

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AMENDMENT MOD

• PROBLEMS OF TREATY AMENDMENT VERSUS MODIFICATION
• Difference between amendment (Vienna art 40) and
  modification (Vienna art 41) lies in modification
  being a side agreement between parties concerning
  the treaty with no effect on 3-P treaty members,
  while amendment is circulated among all parties
  to treaty for comment. After the amendment is
  circulated and approved, it will normally be
  binding only upon those who are parties to the
  amendment (often called in practice a protocol,
  like the Montreal Protocol on Ozone Protection in
  a framework approach context)

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TREATY VALIDITY

• BASES FOR CHALLENGING TREATY VALIDITY
• 1. Municipal law non-compliance
  (manifest)(Vienna Convention art 46)
• 2. Error (art 48)
• 3. Fraud corruption (art 49 50)
• 4. Coercion (art 51 52)
• 5. Jus cogens (art 53)

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MUNI LAW

• BASES FOR CHALLENGING TREATY VALIDITY (CONTD)
• Municipal law non-compliance (Vienna art 46)
• Normal rule is that foreign states need not
  worry about municipal law, so requirement must be
  manifest and objectively evident to any state
  conducting itself in the matter in accordance
  with normal practice and in good faith.

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ERROR

• BASES FOR CHALLENGING TREATY VALIDITY (CONTD)
• Error (Vienna art 48)
• Error relates to a fact or situation which
  was assumed by that State to exist at the time
  when the treaty was concluded and formed an
  essential basis of its consent to be bound by the
  treaty.
• In practice, error recognized mostly in
  territorial boundary context.

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FRAUD

• BASES FOR CHALLENGING TREATY VALIDITY (CONTD)
• Fraud and corruption (Vienna art 49 50)
• Basically, fraudulent inducement to conclude a
  treaty at State level plus bribery of other
  States negotiating representative

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COERCION

• BASES FOR CHALLENGING TREATY VALIDITY (CONTD)
• Coercion (Vienna art 51 52)
• Either at the level of individual representative
  negotiating, or at the State level if violation
  of UN Charter art 2(4), but political and
  economic coercion not enough at State level

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JUS COGENS

• BASES FOR CHALLENGING TREATY VALIDITY (CONTD)
• Jus cogens (Vienna art 53)
• No derogation of preemptory norms, mostly
  genocide, slavery, use of unlawful force
• Off the record

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TERMINATION I

• TERMINATION OF A TREATY
• 1. Provision or consent (Vienna Convention
• art 54)
• 2. Material breach (art 60)
• 3. Supervening impossibility (art 61)
• 4. Fundamental change of circumstances
• (art 62)
• Off the record Off the record Off
  the record

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TERMINATION II

• TERMINATION OF A TREATY (CONTD)
• 1. Termination normally of agreement as a whole
  (but can be selective as to parties (Vienna
  Convention art 57 58)
• 2. Prospective effect only, not disturbing (art
  70)
• Off the record
• 3. Suspension of a treaty is effective
  temporary termination with possibility springs
  back to life (art 57 58)

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SUCCESSION

• TREATY OBLIGATIONS AND STATE SUCCESSION
• 1. Vienna Convention specifically takes no
  position on succession (Vienna Convention art
  73)
• 2. 1978 ILC Vienna Succession Treaty follows
  clean slate view, contentious, with US view
  that customary law broader
• Off the record Off the record
• 3. Consensus that border treaties enjoy
  succession