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Public International Law

Bernas 2009

CHAPTER 3: THE LAW OF TREATIES

Chapter 3 The Law of Treaties - 1

Public International Law

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The law on treaties is found in the 1969 Vienna Convention on the Law of Treaties.

It entered into force in January 1980.

While the document is not retroactive in effect, it does contain customary law
precepts antedating 1969.
Treaties can assume various names: Conventions, covenants, charters, protocols,
concordat, modus vivendi, etc.
In the absence of an international legislative body, international agreements are a
convenient tool through which states are able to project common expectations.
A convention on the Law of Treaties Between States and International Organizations was
adopted on March 26, 1986.

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Definition of treaties

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The Vienna Convention defines a treaty as 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.
The Vienna Convention applies to international agreements that satisfy the Covenants
definition, specifically that they be in writing and reflective of the intention of the parties to
be bound, and governed by international law.

Generally in written form


Some writers agree that even an oral agreement can be binding
o
See Quatar v. Bahrain ICJ 1994 (Bernas 2009, Page 23 to 26)

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Not in written form


Norway v. Denmark

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Norway v. Denmark
The case involved a dispute between Denmark and Norway over sovereignty in Eastern
Greenland. In the course of negotiations, Denmark had offered certain concessions
important for Norway for the purpose of persuading Norway not to obstruct Danish plans
in regard to Greenland. In reply, the Norwegian Government accepted the offer: I told
the Danish Minister today that the Norwegian Government would not make any difficulty
in the settlement of this question. The Court found this declaration sufficient to bind the
Norwegian government.

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Not in written form


Nuclear Test Case

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Australia v. France, New Zealand v. France


France was a signatory to the Nuclear Test Ban Treaty and thus continued to conduct
tests in the South Pacific until 1973. The tests conducted in 1972 and 1973 led to the
filing of protests by Australia and New Zealand. The case, however, was taken off the
Courts list without a decision when France announced b a series of unilateral
announcements that it would conduct no further tests after 1973. The court nevertheless
stated:
It is well-recognized that declarations made by way of unilateral acts concerning legal or
factual situations, may have effect of creating legal obligations. Declarations of this kind
may be, and often are, very specific. When it is the intention of the State making the
declaration that it should become bound according to its termsthe State being
thenceforth legally required to follow a course of conduct consistent with the declaration.
Two characteristics:
1. The commitment was very specific; and
2. There was a clear intent to be bound.

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Function of treaties
And Classification as to relevance as a source

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Treaties have many functions:


1. They are sources of international law;
2. They serve as the charter of international organizations;
3. They are used to transfer territory, regulate commercial relations, settle
disputes, protect human rights, guarantee investments, etc.
Classification as to relevance as a source of international law:
1. Multilateral treaties open to all states of the world; and
2. Treaties that create norms which are the basis for a general rule of law which
are either:
a. Codification treaties;
b. Law making treaties; and
c. Those that have the character of both of the above.

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Function of treaties
Treaties that create collaborative mechanisms and bilateral treaties

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Treaties that create a collaborative mechanism


1.
2.

These can be universal scope (e.g. regulation of allocation of


radiofrequencies); or
Regional (e.g. fishing agreements).

They operate through the organs of different states.


Bilateral treaties
Many of these are in the nature of contractual agreements which create shared
expectations such as trade agreements of various forms. (Contract Treaties)

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Function of treaties
Effect of creating a universal law

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While treaties are generally binding only on the parties, the number of the contracting
parties and the generality of the acceptance of specific rules created by the treaty can
have the effect of creating a universal law in much the same way that general practice
suffices to create customary law.

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The making of treaties


Negotiation and the power to negotiate

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Negotiation

Bilateral treaties, and multilateral treaties among a small number generally


originate from the foreign ministries. Negotiation is done through the foreign
ministries.
Larger multilateral treaties are negotiated in diplomatic conferences which are
run like a legislative body.

Power to negotiate

The negotiators must possess powers to negotiate. An act relating to the


conclusion of a treaty by one who has no proper authorization has no legal
effect unless confirmed by his state.

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Article 7. Full powers

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1. A person is considered as representing a State for the purpose of adopting or


authenticating the text of a treaty or for the purpose of expressing the consent of the
State to be bound by a treaty if:
a. He produces appropriate full powers; or
b. It appears from the practice of the States concerned or from other circumstances
that their intention was to consider that person as representing the State for such
purposes and to dispense with full power.
2. In virtue of their functions and without having to produce full powers, the following are
considered as representing their State:
a. Heads of State, Heads of Government and Ministers for Foreign Affairs, for the
purpose of performing all acts relating to the conclusion of a treaty;
b. Heads of diplomatic missions, for the purpose of adopting the text of a treaty
between the accrediting State and the State to which are accredited;
c. Representatives accredited by States to an international conference or to an
international organization or one of its organs, for the purpose of adopting the text of
a treaty in that conference, organization.

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Authentication of text
Article 9

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Negotiations conclude with the signing of the document. The signatures serve as
authentication of the document.
Article 9. Adoption of the text:
1. The adoption of the text of a treaty takes place by the consent of all the States
participating in its drawing up except as provided in paragraph 2.
2. The adoption of the text of a treaty at an international conference takes place
by the vote of two-thirds of the States present and voting, unless by the same
majority they shall decide to apply a different rule.

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Authentication of text
Article 10

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Article 10. Authentication of the text:


The text of a treaty is established as authentic and definitive:
a.
b.

By such procedure as may be provided for in the text or agreed upon by the
States participating in its drawing up; or
Failing such procedure, by the signature, signature ad referendum or initialling
by the representatives of those States of the text of the treaty or of the Final
Act of a conference incorporating the text.

The authentication of a treaty makes the text authoritative and definitive. It is necessary
so that the states will know definitively the contents of the text and avoid any
misunderstanding as to the terms.

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Authentication of text
Consent to be bound

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Consent to be bound
Once the document has been signed, there are stages which follow and culminate in
making the document binding. The most important step is the consent to be bound. There
are various ways by which consent to be bound is expressed:
Article 11. Means of expressing consent to be bound by a treaty:
The consent of a State to be bound by a treaty may be expressed by signature,
exchange of instruments constituting a treaty, ratification, acceptance, approval
accession, or by any other means if so agreed.

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