Transcript Traditional Sources of Law: Treaties

Traditional Sources of Law: Treaties
Treaties
• Four (4) Traditional sources of international
law:
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International custom (binding)
General principles (binding)
Judicial decisions/teachings (non-binding)
International treaties (binding)
Treaties
• Principle method for creating binding rules of
international law
• Derive legitimacy from express consent of
states
Vienna Convention on Law of Treaties
I
• Governs major aspects of treaties such as
treaty initiation, negotiation, adoption, and
ratification
• Codification of customary international law;
therefore, binding on parties and non-parties
• U.S. has not ratified the Vienna Convention
Vienna Convention on Law of Treaties
II
• Only governs written agreements
• Only governs agreements between States
• “Treaty” Definition:
– 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. Vienna
Convention, Article 2.1(a).
The Treaty-Making Process
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Four Basic Steps:
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Identification of needs and goals
Negotiation
Adoption & signature
Ratification (+ implementation, modification,
and amendment)
Step1. Identification of Needs and
Goals •
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Dependent on science, data
E.g., Vienna Convention for the Protection of the Ozone
Layer
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Two Michigan scientists in 1973 discovered that chlorine released
into the stratosphere catalyzes a reaction that destroys ozone
molecules. In 1974, Molina and Rowland discovered that CFCs
migrate into the stratosphere, are broken down by solar radiation,
and release chlorine into the stratosphere. This led to considerable
research, including the WMO/UNEP report (1984).
WMO/UNEP report led to negotiation of framework treaty, the
Vienna Convention for the Protection of the Ozone Layer
Step 2. Negotiation
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Bilateral: State often simply asks another State
Multilateral:
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Individual states may negotiate; or
State will recommend that Intl Org (e.g., UN General Assembly
or Economic and Social Council) establish committee or hold
international conference.
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Establish preparatory committees, working groups, symposia,
preliminary conferences
Accept comments form NGOs, scientific unions, etc.
Plenipotentaries convened
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Final version of treaty (“authentic text”)
Step 3. Adoption (1)
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Text must be adopted at end of negotiation phase in
order to “open” the treaty for signature and
ratification
Adoption governed by Article 9 of the Vienna
Convention
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At international conference, 2/3 vote of those present and voting
needed to adopt, unless other method agreed upon by same majority
Adoption does not bind, but merely means
participants find the text acceptable
Step 3. Adoption (II)
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Final Act incorporates history of treaty. The treaty text is
incorporated into or annexed to the Act.
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If negotiations occurred within Intl Org like the UN, a
resolution must be passed to approve the text.
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Treaty must then be authenticated. Authentication governed
by Article 10 of the Vienna Convention
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Authentication generally occurs by signature, although this does not bind
State
Under Article 18 of the Vienna Convention, however, a state may not do
anything that would defeat “object and intent” of treaty
Step 4. Ratification or Accession
• State can only be bound if it expresses will to be bound.
Various methods under Article 11 of Vienna Convention
– Ratification
• Only states that negotiated and signed treaty may ratify it
• Most common method for multilateral agreements
• Ratification: “any authoritative act whereby a state declares to the
international community itself bound by a treaty” (textbook)
• “Instrument of Ratification” deposited with an organization such as the
U.N.
• Domestic political requirements often must be met before ratification
– U.S. Senate has still not ratified the International Criminal Court; U.S. cannot
ratify the ICC until the U.S. Senate ratifies it
– Accession
• Non-signatories may join by “accession”
• Accession: State declares intent to be bound by treaty (methods often
specified in treaty)
Limited Consent and Reservations
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State can limit its consent to only a portion of the
treaty if the treaty so provides or if other States
agree
If limited consent unavailable, State can still enter
objections and reservations at time it gives consent
to be bound (as long as not prohibited by treaty or
contrary to the object or intent of treaty) (Vienna
Convention, Art. 19)
Legal effect of reservation depends on whether
other States accept the reservation.
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Can affect bargained-for rights, threaten ratification, and complicate
application of treaty
Many modern treaties therefore prohibit reservations
Entry into Force
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Parties become bound by treaty when it enters into
force.
A treaty enters into force after it has been ratified
under national law and the State deposits its
instrument of ratification, and, if treaty has no other
specifications, all negotiating States have ratified;
often a minimum number of States must ratify the
treaty for it to enter into force
Keeping Treaties Up-To-Date
• Parties to an original treaty do not have to be parties
to any amendments (Vienna Convention, Art. 40)
• States that adopt an amendment are bound by terms
of original treaty when dealing with States that have
not adopted the amendment (Vienna Convention, Art.
30, para. 4(b))
• Parties to a treaty may modify the agreement as
between themselves if it does not affect other States
or impair the object and intent of the treaty (Vienna
Convention, Art. 41)
Unilateral Treaties
• Unilateral acts, including declarations, may be
binding
• Nuclear Tests Cases (Australia v. France), 1974 ICJ
Rep. 253
– Australia and New Zealand filed claims in ICJ because
France was performing atmospheric testing
– ICJ declared issue moot because French officials had
consistently and publicly stated that France would
discontinue testing
– France had demonstrated the intent to be bound and
therefore its declarations were binding
Interpreting a Treaty (Vienna
Convention, Articles 31 & 32)
• Text:
– interpret “in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in light of its object
and purpose.” (Art. 31(1)) (Look for object and purpose in preamble &
overall structure)
• Context of treaty
– Preamble, annexes, text itself, agreements, other international law
provisions, etc.
• Parties’ own interpretations reflected in subsequent agreements
• History of the negotiation of the treaty (as supplementary
means of interpretation)
• “Present-day state of scientific knowledge”