TOPIC. Law of Treaties. Contents. Objectives

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1 TOPIC 3 Law of Treaties Contents Objectives Introduction and definition of a treaty The Vienna Convention on the Law of Treaties Formation and application of treaties Reservations to treaties Interpretation of treaties Invalidity of treaties Termination of treaties How Australia ratifies international treaties Topic summary Further reading Revision Question and feedback Answer guidelines Objectives At the completion of this topic you should be able to: Describe the nature and role of treaties as set down in the Vienna Convention on the Law of Treaties Recognise the forms in which states may incur international obligations, including oral undertakings Identify the formalities for the conclusion of treaties Recognise the concept of reservations to multilateral treaties and analyse issues surrounding it Discuss relevant case law as illustrations of approaches to the interpretation of treaties

2 LAW00521 INTERNATIONAL LAW Appraise two selected grounds in particular for arguing that a treaty is invalid, namely error and conflict with jus cogens Differentiate and explain some of the grounds for unilateral termination or denunciation of a treaty, including material breach by a party, and fundamental change of circumstances. Describe and explain the process by which Australia ratifies international treaties. 1. Introduction and definition of a treaty Reading CB, pp Note that the definition of a treaty in VCT (article 2(1)(a)) says nothing about intention to create legal relations. In treaty practice, if the document is not intended to have treaty status ie not intended to create legally binding rights and obligations, the words agree and agreement will be avoided. Note also that the VCT definition of treaty is restricted to written agreements. Activity What was the main jurisdictional issue in the case between Qatar and Bahrain? What did the ICJ hold? 2. Can a state be legally bound by an oral commitment given by a relevant government minister? 3. Do you think that the principles imparted by the ICJ with respect to unilateral statements in the Nuclear Tests cases are compatible with the manner in which the Chamber of the ICJ dealt with the Frontier Dispute case (Burkina Faso v Mali) (1986)? 4. Are human rights treaties different to other types of treaties? Feedback 1. The ICJ could only have jurisdiction where it could be shown that there had been a treaty between Qatar and Bahrain. The main jurisdictional issue was whether the exchange of letters between the Heads of State amounted to a treaty. The Court held that it did. 2. The short answer is yes, but it very much depends on whether it can be shown that under the circumstances of the oral commitment there was an intention to be bound. See [43] of the Nuclear Tests cases (CB, p 59)

3 TOPIC 3 LAW OF TREATIES 3. The finding of the ICJ in the Nuclear Tests cases as to the binding character of an international obligation assumed by unilateral public declaration to the world in general has been criticised as an unwarranted and perhaps undesirable extension of the law. One commentator (H Thirlway - see Further Reading ) suggests that the Court s use of good faith as the peg on which to hang this development is unfortunate and could mislead. What is involved, on analysis, is a more fundamental principle: that giving consent to be bound, in whatever form that consent is given, creates an obligation. The crucial element is the intention of consent to be bound. The ICJ s statements in Nuclear Tests were clarified by the Chamber of the Court in the Frontier Dispute case (Burkina Faso and Mali) (1986). Burkina Faso relied on an oral statement by the President of Mali, in a press interview, that Mali proclaimed itself already bound by a report yet to be made by a Mediation Commission concerning the position of the frontier. The President s words were to the effect that even if the Commission decided that the frontier line passed through the Mali capital, his government would comply with the decision. The Chamber of the ICJ stressed that in Nuclear Tests the Court had been clear that it was the intention to become bound which conferred on the unilateral declaration its legally binding character. The Chamber then explained why, in the very special circumstances of Nuclear Tests, the French statements could be regarded as a normal way of creating a legal obligation: Australia and New Zealand were not the only states concerned at the possible continuance of atmospheric testing by France. Hence, the French declarations had conveyed its intention to terminate the tests to the world at large. Moreover, in the circumstances France could not express an intention to be bound otherwise than by unilateral declaration. The Chamber said: It is difficult to see how it [France] could have accepted the terms of a negotiated solution with each of the applicants [Australia and New Zealand] without thereby jeopardizing the contention that its conduct was lawful. (ICJ Rep. 1986, p 574) But in the Frontier Dispute case there was nothing to hinder the Parties from declaring an intention to be bound by the Mediation Commission s conclusions by the normal method: a formal agreement on the basis of reciprocity. As no such agreement was concluded, the Chamber found no basis to interpret the Mali President s statement as a legally binding unilateral act. 4. Perhaps one obvious difference is that states might enter into a human rights treaty without expecting anything concrete back in return (thus there is no consideration nor reciprocity )

4 LAW00521 INTERNATIONAL LAW However, the reward for the state may be a better chance of having a law abiding international legal order, where states respect the rights of individuals under their jurisdiction. According to Craven (CB, note 3, p 62) perhaps the real difference is that human rights treaties provide legitimacy for governments. The writer is not convinced of this argument. 2. The Vienna Convention on the Law of Treaties 1969 The main source of the law of treaties is the Vienna Convention on the Law of Treaties 1969 ( VCT ). Although the provisions of the VCT broadly reflect customary international law, the treaty itself only applies to written agreements concluded between states after 27 January 1980 and all other treaties are governed by the rules of customary international law. Australia acceded to the VCT on 13 June Reading CB, pp Activity 3.2 Is the VCT retroactive, and if it is not, what is the legal position with respect to those treaties that were concluded prior to the VCT coming into force? Feedback The VCT is not retroactive, that is, it applies only to treaties concluded after the VCT entered into force. The VCT applies to all treaties concluded since 27 January 1980 between countries that are parties to the VCT at the time the treaty was entered into. Where the VCT is not directly applicable, it is necessary to refer to customary international law. Even then the VCT may well be relevant since in large measure it codifies customary international law and thus is evidence of the law on the subject (see the extract by Aust at p 64). 3. Formation and application of treaties Reading CB, pp Under article 6 VCT, all States recognised as such under international law have treaty-making capacity, and this capacity is in fact evidence of

5 TOPIC 3 LAW OF TREATIES statehood. Note that the Australian States and Territories have no treaty-making power but can and do enter into international understandings of non-treaty status, eg. Memorandum of Understanding between the Government of Indonesia and the Government of the Northern Territory on Economic Development Cooperation, The provisions of the VCT found in this part of the Chapter are of importance for the day-to-day work of Departments of Foreign Affairs. They reflect the experience and practice of states over many decades, and concentrate on consent to be bound and the way in which this consent is expressed. You are not required to be familiar with the detail of these articles. The following summary of the provisions (from Sinclair I, The Vienna Convention on the Law of Treaties (2nd ed) 1984 at p 29), may be helpful as you read the provisions: The series of articles in the Vienna Convention relating to the conclusion of treaties follows a certain logical pattern, a pattern dictated by the order in time at which the various acts involved in the treaty-making process are executed. First, certain rules are established as to the authority of diplomatic or other agents of the State to negotiate and subsequently to adopt or authenticate the text of a treaty. The second stage is... the stage of negotiation itself, and here the Convention contains provisions relating to the adoption and authentication of the text of a treaty. Next in order of time comes the means whereby States express their consent to be bound by a treaty, namely, signature, exchange of instruments, ratification, acceptance, approval or accession. Finally, there is the period, if any, between signature of a treaty and its entry into force; here the Convention lays down a rule... relating to the obligation of a State which has signed a treaty, or otherwise expressed its consent to be bound by it, not to defeat the object and purpose of that treaty prior to its entry into force. This last rule, embodied in VCT Article18 (CB, p 66) is based on the principle of good faith. The rule is explained in a Memorandum on Treaties from the Department of Foreign Affairs and Trade ( DFAT ) in the following manner: Where a treaty provides for an action subsequent to signature to bring it into force, signature itself creates an obligation to refrain from actions which would defeat the object and purpose of the treaty but does not make the specific provisions binding. The general obligation comes to an end if and when the signing country signifies that it will not become a party to the treaty

6 LAW00521 INTERNATIONAL LAW Note that the fundamental good faith principle, pacta sunt servanda, is affirmed in Article 26 VCT. Notice also Article 27 (CB, p 108), which reflects another basic principle of customary international law - that a state may not generally invoke its domestic law or constitution as a defence or excuse for failure to perform its international obligations. The Preamble to the VCT declares that: the principles of free consent and of good faith and pacta sunt servanda are universally recognized. Activity Explain the difference between the following terms: signature, ratification, acceptance, approval and accession. 2. When exactly does a treaty enter into force? 3. Explain the effect of the letter to the UN Secretary General sent by the USA on 6 May 2002 (CB, pp 66-67) 4. Can a treaty impose obligations or create rights for third parties to it? 5. What might be the exceptions to the clean slate principle for successor states? 4. Reservations to treaties Reading CB, pp Reservations to multilateral treaties is a topic on which there is a large scholarly literature and considerable state practice, both before and since the conclusion of the VCT. In studying this aspect of the law of treaties, you should aim to concentrate on selected key issues: (i) (ii) (iii) (iv) (v) the definition of a reservation (Article 2(1)(d)) and the distinction between a reservation and a mere interpretative declaration (see Belilos case, European Court of Human Rights, CB 75). the instances in which a state may not make a reservation (Article 19) when a reservation requires acceptance by all the parties to the treaty (Article 20(2)) the effect of acceptance of a reservation by another contracting state (Article 20(4)(a), Article 20(5) and Article 21(1)) the effect of objection to a reservation by another contracting state (Article 20(4)(b) and Article 21(3))

7 TOPIC 3 LAW OF TREATIES A. General principles - the definition of reservation What are the differences between a reservation, by which the reserving state intends to produce the result of excluding or modifying the legal effect of certain provisions of the treaty as regards their application to that state, and an interpretative declaration? Activity 3.4 Firstly, a reservation is subject to the regime of the VCT. A mere interpretative statement or declaration is not so subject. Secondly, a reservation which is not prohibited by the particular treaty produces the result intended by the reserving state, so far as concerns its treaty relations with other treaty-parties which did not object to its reservation. An interpretative declaration will not exclude or modify the effect of a treaty provision if that provision is interpreted authoritatively in a different sense from the meaning submitted by the state in its declaration. Feedback A comment by Susan Marks on the Belilos case makes clear the implication of the above second point: On its face the Swiss declaration did not purport to exclude or modify the legal effect of the Convention; it merely stated the Swiss Government s view, or interpretation, of the proper scope and purpose of Article 6, paragraph 1. Was this interpretation to have the effect of a reservation in the sense that, if the Court ultimately adopted a different interpretation of Article 6, paragraph 1, the Swiss interpretation would nevertheless prevail so far as Switzerland was concerned? In this event, the obligations that Switzerland would otherwise have borne under Article 6, paragraph 1 would effectively have been modified. Or was the Swiss interpretation more in the nature of a statement of policy, intended to give way to a later divergent construction of Article 6, paragraph 1 by the Court? 1 The European Court of Human Rights in Belilos emphasised substance, and the intention of Switzerland when making the declaration. It treated the declaration as a reservation. The Court then held that the reservation was invalid because it did not comply with the requirements of Article 64 of the European Convention on Human Rights ( ECHR ). 1 Susan Marks, Reservations Unhinged: the Belilos Case (1990) 39 International and Comparative Law Quarterly 300 at

8 LAW00521 INTERNATIONAL LAW Activity 3.5 List the different possibilities in terms of the consequences of the invalidity of Switzerland s reservation. Which one did the European Court of Human Rights decide upon? Feedback There were several possibilities: 1) The invalidity of the reservation would mean that Switzerland was not a party to the ECHR. In other words, its entire ratification was invalid 2) Switzerland was a party to ECHR but, following Article 21(3) VCT, Article 6 ECHR was not applicable, to the extent of its reservation, to Switzerland 3) Switzerland was a party to ECHR and Article 6 took full effect in relation to Switzerland. The Court opted for (3). See [60] of the judgment, CB p 76. Note that Switzerland s expression of consent to be bound by ECHR contained a contradiction: it ratified the Convention but had declared an intention to subject its adherence to ECHR to an impermissible reservation. The Court apparently took the intention to be bound by the treaty as the predominant one. Note further on Belilos that: a) The Court did not address the issue of the compatibility of the Swiss reservation with the objects and purposes of ECHR. Its decision that the reservation was invalid was based solely on Article 64 of ECHR. b) The Court did not explain its reasons for preferring possibility (3) above to possibility (2). Note that Article 21(3) VCT applies to a valid (permissible) reservation. The VCT is silent on the effect of an impermissible reservation. The Court held that such a reservation can be severed from the state s ratification and disregarded as a nullity. In this way it also avoided indirectly giving effect to an invalid reservation a result which would have followed had the Court decided to apply the Convention to Switzerland to the extent of the Swiss reservation. Belilos is the only reported international decision to date in which a reservation has been held invalid. International courts may be reluctant to pass judgment on the validity or permissibility of reservations, as to do so might lead them into sensitive political areas. One should be cautious of treating Belilos as a precedent that possibility (3) is the correct solution. The Court was relying on Article 64 ECHR within

9 TOPIC 3 LAW OF TREATIES the context of a common European public order, and not simply applying general principles of treaty law. The DFAT Memorandum on Treaties noted that the test of whether a reservation is not incompatible with the object and purpose of the treaty is one on which there may be considerable scope for disagreement. B. The legal effect of reservations Explain the effect of article 20(2) VCT (CB, p 77) Activity 3.6 This provision is all that now remains of the former unanimity rule with respect to reservations. The type of treaty envisaged in Article 20(2) is called a restricted multilateral treaty. Examples would be the treaty establishing the European Economic Community, and treaties creating similar regional economic arrangements. States acceding to such treaties must expect to have to accept all their provisions as they stand when the state (new member) accedes or to negotiate special exceptions or derogations with all existing members. The political and economic imperatives of such arrangements demand a level playing field for all parties. Feedback Note that the same rule applies, for similar reasons, to a treaty that is the constitution of an international organisation: Article 20(3) VCT. With respect to Australia s overall policy, the DFAT Memorandum on Treaties records that: Australia has only infrequently made reservations to treaties, and as a matter of overall treaty policy, prefers that unanimity be achieved between parties on the basis of the agreed text of the treaty so that the rights enjoyed and obligations to be borne are applied equally to all parties. What are some of the key rules with respect to the acceptance of a reservation by another contracting state? Activity 3.6 First, there is a presumption of acceptance of a reservation unless a state objects to it within 12 months of being notified (or, of becoming a party to the treaty where the state accedes after the reservation has been made). Secondly, and most importantly, where a state accepts another Feedback

10 LAW00521 INTERNATIONAL LAW state s reservation, the treaty relations between them are modified only to the extent of the reservation. Note the reciprocity provision in Article 21(1)(b). For an example of the application of Article 21(3) see the English Channel Arbitration (CB, pp 79-80). In contrast to the acceptance by the UK of the reservations made by Libya and other states regarding the diplomatic bag (Vienna Convention on Diplomatic Relations, Article 27) Australia lodged objection to these reservations. Australia also objected to reservations by some states, including China, to Article 37 paras. 2, 3 and 4 of the Diplomatic Relations Convention. The reservations sought to limit diplomatic immunities to heads of mission and diplomatic staff, to the exclusion of administrative and technical staff. Australia did not express an intention to preclude the entry into force of this Convention between itself and the states making these reservations (see Article 20(4)(b) VCT). The following conclusions by Sinclair to his chapter on Reservations in his book on the VCT are worth noting: The Convention system establishes a balance (albeit a precarious balance) between the right of a contracting State to formulate a reservation to a treaty (provided that the treaty neither prohibits reservations in toto nor prohibits the particular reservation directly or indirectly) and the right of other contracting States to object to that reservation. The system is flexible - some might say too flexible - in the sense that it is left to individual contracting States to apply the compatibility criterion in those cases where the treaty is silent on reservations. It also leaves unanswered a whole series of questions... particularly questions concerning the distinction between reservations and interpretative declarations and permissible and impermissible reservations... the Convention system does provide some general guidelines for assessing the combined legal effect of reservation and objection. In practice, a great deal of discretion is left to individual contracting States to determine their attitude towards particular reservations; and this is an area where State practice will undoubtedly foster further development of the law. 2 Think C. Reservations to human rights treaties Do you agree with the authors of the prescribed text that human rights treaties are not of the same nature as other treaties (p 83, note 4)? If so, what are the consequences of this in terms of the issue of reservations? 2 Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed. 1984, p

11 TOPIC 3 LAW OF TREATIES 5. Interpretation of treaties CB, pp Reading The ILC sensibly rejected any attempt at formulating a code of interpretation, or even listing the various alleged rules, principles or maxims invoked by international arbitrators, by states in pleadings and argument, or by writers. The ILC isolated the comparatively few general principles which appear to constitute general rules for the interpretation of treaties. The ILC suggested a general rule in the terms of what became, without change, Article 31(1). This rule was accompanied by a definition of what is meant by the context of the treaty, and what other elements must be taken into account with the context. These are, namely - any subsequent practice in the application of the treaty establishing the understanding of the Parties as to its interpretation, and any relevant rules of international law. You will note that Article 32 VCT is entitled Supplementary means of interpretation. These means include the preparatory work (negotiating records, called travaux preparatoires) and the circumstances of the conclusion of the treaty. Notice the purposes for which resort may be had to these supplementary means. Note further Article 33(4) VCT that governs the situation where different language texts produce a difference of meaning. The object and purpose of the treaty is the criterion for adopting a particular meaning. The textual approach adopted in Article 31(1) is supported by many judgments of international tribunals, such as Golder v United Kingdom CB at 85, and see also the extract by M Koskenniemi. The approach noted by the ECHR in Golder is what Brownlie calls the principle of integration - a corollary of the principle of ordinary meaning: the meaning must emerge in the context of the whole treaty and in light of its objects and purposes. Another corollary of ordinary meaning is that the language of the treaty must be interpreted in the light of the rules of general international law in force at the time of its conclusion, and according to the then meaning of the terms used. If, to the contrary, a party seeks to rely on the special meaning of a term, then the burden of proof that parties intended to use the term in a special sense is on the party submitting that this was the case

12 LAW00521 INTERNATIONAL LAW Activity 3.7 When would the ICJ be able to refer to the preparatory work or travaux preparatoires when interpreting a particular treaty? Feedback In general both the PCIJ and the ICJ have refused to resort to preparatory work if the text is sufficiently clear. Sometimes the Court has used preparatory work to confirm a conclusion reached by other means: see Qatar v Bahrain (CB, pp 57-58). Brownlie cautions that preparatory work is an aid to be employed with discretion, since its use may detract from the textual approach, and, particularly in the case of multilateral agreements, the records of conference proceedings, treaty drafts and so on may be confused or inconclusive. Brennan J in the Tasmanian Dam case (Commonwealth v Tasmania, High Court (1983) 158 CLR 1) gave a wise caution regarding the use of language in treaties, particularly those to which many states are parties and which are drawn up in several languages, all equally authoritative. He said: International agreements are commonly not expressed with the precision of formal domestic documents as in English law. The reasons for this include the different importance attributed to the strict text of agreements under different systems of law, the fact that such agreements are ordinarily the result of compromise reached at the conference table and the need to accommodate structural differences in official languages: see Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976), p That absence of precision does not, however, mean any absence of international obligation. In that regard, it would be contrary to both the theory and practice of international law to adopt the approach which was advocated by Tasmania and deny the existence of international obligations unless they be defined with the degree of precision necessary to establish a legally enforceable agreement under the common law. Oppenheim s International Law, 9th ed. states that preparatory work includes the record of the negotiations preceding the conclusion of a treaty, the minutes of the plenary meetings and of committees of the Conference which adopted a treaty, the successive drafts of a treaty. The same textbook correctly states that preparatory work should not be admitted as evidence of the meaning of treaty provisions when a state or states involved in the dispute or litigation adhered to the treaty after its original conclusion and so were not involved in the preparatory negotiations. Unilateral preparatory material, such as a report by a state s representatives at a conference to their own government as to their understanding of a provision, is not admissible to aid interpretation unless such reports were communicated at the time to the other party or parties

13 TOPIC 3 LAW OF TREATIES 6. Invalidity of treaties CB, pp Reading We come now to some of the more controversial provisions of the VCT. We shall focus on two of the several grounds for invalidity of a treaty, namely: error and jus cogens. First, however, start with reading the relevant provisions of the VCT. A. General principles While you are reading the relevant VCT provisions, notice in particular Article 42(1). This was included in the draft VCT by the ILC: as a safeguard for the stability of treaties, to underline in a general provision at the beginning of this part that the validity and continuance in force of a treaty is the normal state of things which may be set aside only on the grounds and under the conditions provided for in the present articles. (ILC Yearbook 1966) B. Error (article 48 VCT) Ian Sinclair, a former Legal Adviser to the UK Foreign Office with considerable experience in treaty negotiation and drafting, made the following observations on Article 48 in his book on the VCT: Having regard to the paucity of material on error as a ground which may be invoked as invalidating consent, it is perhaps as well that the text proposed by the Commission [ILC], and in substance accepted by the Conference as Article 48, is drafted in suitably restrictive terms... Although the text of Article 48 uses the expression error in a treaty, it should be noted that this is intended to mean any error of fact relating to a treaty. Thus an error in the calculation of the capacity of turbines underlying a treaty for the sharing of hydro-electric power would presumably constitute an error capable of being invoked under this article... Finally, it was made clear at the Conference that cases of innocent misrepresentation would not affect the validity of consent unless the innocent misrepresentation led to an error which could be invoked as invalidating consent. 3 3 Sinclair, note 2, pp

14 LAW00521 INTERNATIONAL LAW Activity 3.8 Why did the ICJ in the Temple of Preah Vihear Case not accept Thailand s argument that the error in the map prepared by the Mixed Franco-Siamese Commission meant that the agreement between Thailand and Cambodia over the map should have been vitiated? Feedback Because Thailand had contributed by in own conduct to the error. C. Jus cogens Just over 10 years ago Sinclair noted that there had been few, if any, instances in state practice since the conclusion of the VCT where the validity of a treaty had been seriously challenged on the ground that it conflicted with a rule of jus cogens. 4 The only example given by the authors of the 1992 edition of Oppenenheim s International Law is the hypothetical one of a treaty conflicting with the rule prohibiting the threat or use of force contrary to the UN Charter (at p 1293). There has not been an example in published material of an actual challenge to a treaty on this ground. Brownlie s comment is apt: more authority exists for the category of jus cogens than exists for its particular content. 5 Activity Why did the ILC decide not to include examples of jus cogens rules within article 53? 2. Make a list of possible international legal rules that today might be considered to be jus cogens. There are three further points to note: (i) (ii) The rule in Article 53 VCT cannot operate retroactively to call into question the validity of treaties concluded before a particular norm had acquired its peremptory character. This is the effect of the phrase at the time of its conclusion. Under Article 64 VCT if a new jus cogens norm emerges, an existing treaty in conflict with that norm becomes void from that moment onwards, but is not rendered void ab initio, from the date of conclusion of the treaty. The test for identifying a norm of jus cogens, spelled out in Article 53 VCT, is stringent, especially the need to show that the 4 Sinclair, note 2, p Brownlie I, Principles of Public International Law, 4th ed, Oxford University Press, 1990, p

15 TOPIC 3 LAW OF TREATIES (iii) norm is recognised as having jus cogens status by the international community as a whole. If a dispute arises concerning the application or interpretation of Article 53 or Article 64, that dispute may be submitted unilaterally, by any single state involved, to the ICJ for a decision: see Article 66(a) VCT. In other words, states have the safeguard of resort to compulsory international adjudication of any claim that a treaty they had concluded in good faith is void on ground of conflict with a norm of jus cogens. A state does not have to obtain the consent of the other disputant state(s) to have the matter brought to the International Court. Disputes relating to other provisions of the VCT can be taken to the ICJ only with the consent of the disputant states. Otherwise, the VCT provides for a process of compulsory conciliation leading only to a non-binding report: see Arts. 65, 66(b) and the Annex to the VCT. D. Unequal treaties Should inequality between contracting states be a ground for the invalidity of the resultant treaty (such as the Convention of Peking 1898), and if so, under what circumstances? Think E. Procedure for invoking the invalidity of a treaty 1. How much notice must a state provide to other contracting states if it wants to take action to withdraw from a treaty it asserts was invalid for some reason? 2. What are the consequences of the invalidity of a treaty? Activity Unless there is special urgency, states must provide at least three months notice (article 65(2) VCT) 2. The treaty will generally have no legal force, but see article 69(2) VCT for the situation where acts had already been performed in reliance of the treaty. Slightly different rules apply where the treaty is invalidated on the grounds of conflict with a rule of jus cogens (article 71 VCT). Feedback

16 LAW00521 INTERNATIONAL LAW 7. Termination of treaties Reading CB, pp A. Grounds for termination Many, if not most, treaties nowadays include provisions for their termination and/or the withdrawal or denunciation by a party after giving notice to other parties. Article 56 VCT governs the case where the treaty has no provision for termination, denunciation or withdrawal. Notice the key role played here by the intention of the parties (all the parties); and the rather vague nature of the treaty test in Article 56(1)(b) for an implied right to denounce or withdraw. Note that the fundamental rule is pacta sunt servanda (Article 26 VCT). According to the normal rule that whoever invokes a legal rule to justify their action must show that they satisfy the requirements of the rule relied upon, the state alleging that the nature of the treaty implies a right of denunciation or withdrawal has to establish that this is the case: Article 56. We shall now consider briefly two grounds which a party may invoke to justify unilaterally terminating or suspending the operation of a treaty, namely, material breach by another party, and fundamental change of circumstances. (a) Termination by material breach of treaty (article 60 VCT) Notice in Article 60 the definition of material breach ; and the exception to the application of paras. l to 3 of the article in the case of treaties protecting the human person (para.5). The fundamental principle is that termination is NOT an automatic consequence of a material breach. Other states parties always have the option to respond to a breach of treaty by insisting on its continued existence and on performance by all parties. The party in breach has acted unlawfully, contrary to its international obligation, and its action gives rise to state responsibility. Any other party is entitled to seek appropriate reparation for this international wrong. The VCT does not deal with the state responsibility aspects of breach of treaty. The ILC is still working on lengthy draft articles on the whole subject of state responsibility

17 TOPIC 3 LAW OF TREATIES Burmester & Reicher in Australian International Law 6 record the reaction of the United States to an alleged breach by New Zealand of the ANZUS defence treaty concluded in 1951 by the USA, New Zealand and Australia. New Zealand took steps to prohibit access to its ports by foreign vessels carrying nuclear weapons. The US did not terminate the ANZUS Treaty but suspended it unilaterally so far as the participation of New Zealand was concerned. In a note to the Australian Government of 11 August 1986 the US Secretary of State referred to this suspension of its treaty obligations to New Zealand under the treaty due to the continuing failure of that country to restore normal access to allied ships and aircraft. The Note reaffirmed the US view that the commitments between the United States and Australia under the ANZUS Treaty remain unaltered. In reply the Australian Government confirmed that Australia shared and affirmed the view that the treaty commitments between Australia and the United States remained unaltered. The ANZUS Treaty contains no express provision for unilateral suspension. The US did not expressly invoke Article 60 VCT, but Article 60(2)(b) seems to be applicable, assuming that it declares general international law. Note: if it is not declaratory, the non-retroactivity clause in the VCT might have caused a problem. Procedure: If a party wishes to invoke a breach as ground for suspending or terminating the treaty it must follow the procedure in Arts VCT. Written notification of its claim must be sent to other parties, who have 3 months in which to object to the claim. If objection is raised, parties have to seek peaceful means of resolving the dispute: Article 65(3) and Article 66. Evaluation of Article 60: Shabtai Rosenne, a leading authority on the law of treaties and a former member of the ILC involved in elaborating what became the VCT, reminds us that: breach of treaty is fairly commonplace, almost bread-and-butter work for the legal departments of Ministries of Foreign Affairs. In many cases, these breaches are the consequence of misinterpretation of instructions by lower ranking officials without serious political overtones, and are often easily rectified through the diplomatic channel. (S.Rosenne, Breach of Treaty (1985) 7-8) 6 Reicher H, (ed) Australian International Law: Cases and Materials, Law Book Company 1995, pp

18 LAW00521 INTERNATIONAL LAW Or, he adds, an apparent breach may occur through a decision of a domestic court interpreting a treaty clause in a way not conforming to the parties intention. Against this background, the definition of material breach in Article 60(3) assumes its proper significance. Rosenne also emphasises that Article 60 cannot be dissociated from the procedural provisions. He concludes that Article 60 shows that states were not prepared to go very far in admitting that a breach, however grave, operates in itself to put the treaty to an end. A serious breach, if duly established, is at most a ground for the injured party to terminate the treaty in an orderly way. Article 60 has an important role to play in preserving the legal relations created by the treaty and not allowing them to be arbitrarily disturbed, whatever be the political or legal strains under which they have come. (Rosenne, work cited, 43.) Note: a breach can often be reformulated by the parties as a dispute about the interpretation of the treaty, or its application in a particular fact situation. Such issues may more readily be submitted by agreement to a court or other third party adjudicator, than allegation and denial of breach. (b) Fundamental change of circumstances (article 62 VCT) Commentators, Jennings and Watts, observe that the doctrine of rebus sic stantibus, when kept within proper limits, embodies a general principle of law, akin to doctrines in contract law of frustration or supervening impossibility of performance. Such doctrines are known in the law of many countries. But they add that the operation of the principle is necessarily limited, because it is the function of the law to enforce contracts or treaties even if they become burdensome for the party bound by them. Procedure: VCT Arts and the Conciliation Annex apply equally to a state wishing to invoke fundamental change of circumstances as a ground for unilateral termination or denunciation. The ICJ in the Fisheries Jurisdiction case referred to the procedural complement to the doctrine of changed circumstances as being the 1961 Exchange of Notes which called for recourse to the Court in the event of dispute as to Iceland s extension of fisheries jurisdiction. The Court s reference appears to consider this 1961 agreement as satisfying a procedural requirement embodied in the doctrine of fundamental change of circumstances in customary international law, and reflected in Arts. 65 and 66 VCT to which the UK referred in argument. Note that this case was decided after the VCT text had been adopted but before the VCT entered into force. Evaluation: The doctrine of fundamental change of circumstances has never been applied expressly by an international court. It has been invoked indirectly on the public record only rarely in modern times, eg. by France when that country withdrew from NATO integrated military

19 TOPIC 3 LAW OF TREATIES command and co-operation structures in the mid-1960s. The doctrine holds its place in the law of treaties as a necessary means of allowing a state to withdraw when an essential basis of the parties consent to be bound has radically changed. But the operation of the doctrine in turn is according to most commentators, necessarily limited. B. Other aspects of termination Explain the facts and the decision of the Special Arbitration Tribunal in the Rainbow Warrior Arbitration. Do you find the decision satisfactory? Activity How Australia ratifies international treaties In the past treaties have been ratified by Australia as an executive decision only, with parliament not having any say in the decision. In more recent times, with various members of parliament, commentators and particularly State and Territory governments complaining about the effects of treaties on Australian law (see below and the next Topic), the Federal government has reviewed and subsequently in 1996 changed the procedure for treaties to be ratified by Australia. Your next reading provides a good introduction to and explanation of Treaty making in Australia. Australia and International Treaty Making: Questions and Answers in Department of Foreign Affairs, Australia and International Treaty Making: Information Kit, AGPS, 1996, pp 5-13 Reading What are the benefits of treaties (a) generally and (b) for Australia? 2. When Australia ratifies a treaty, it then must, according to IL, be bound by the terms of the treaty. These terms will often mean that Australia is no longer able to do whatever it wishes within its own Territory. Why then doesn t the ratification of a treaty reduce Australia s sovereignty? 3. What advantages are there in Parliament not having a formal role in treaty making? 4. Why do you think this reading stresses the need for consultation with the Australian States and Territories? Activity

20 LAW00521 INTERNATIONAL LAW Feedback 1. Treaties are needed for international cooperation, particularly in areas such as the environment, trade, taxation agreements, law enforcement and human rights. For Australia, Treaties ensure effective international rules thereby reducing Australia s vulnerability, as well as providing specific benefits such as those mentioned on p 6 of the reading. 2. Basically because the very act of ratifying a Treaty is an act of sovereignty in itself. Australia has voluntarily decided to limit its powers. 3. It enables the government to be able to negotiate the terms of the Treaty efficiently. In the case of particularly urgent and sensitive treaties, this becomes very important. 4. This has been due to much criticism that the use of Treaties and IL in general is undermining the position of the States and Territories and the Australian federal system. The next reading outlines the reforms to the treaty-making process by the Coalition government in 1996, and also provides you with a simple flowchart of the new procedure. Reading 3.2 Statement to parliament by the Hon Alexander Downer MP, Minister for Foreign Affairs, 2 May 1996 and flowchart, found in Department of Foreign Affairs, Australia and International Treaty Making: Information Kit, AGPS, 1996, pp & 38 Activity What do you think the Foreign Minister means when he talks about the democratic deficit? 2. How long does parliament have to scrutinise and comment on any treaty once it has been tabled? 3. What is a National Interest Analysis? 4. In what ways are the States and Territories involved in this new process? Feedback 1. The fact that under the old system the executive may ratify treaties without any parliamentary scrutiny or approval. This has been the main criticism of the treaty process. [However, one may argue that the executive is democratically elected anyway.]

21 TOPIC 3 LAW OF TREATIES sitting days - which, depending on when exactly the treaty is tabled, may amount to anything between 30 to 100 days - the latter amount being where you table a treaty just prior to the parliament having a long break. 3. This is an analysis of the impact of the treaty on Australia from a wide range of perspectives, which should include both positive and negative impacts. 4. They are formally involved in the process in both the Treaties Council and the Commonwealth/State Standing Committee on Treaties, and they have input into the National Interest Analyses. 9. Topic summary Law governing the interpretation of treaties. The main source of the law of treaties is the Vienna Convention on the Law of Treaties Although the provisions of VCT broadly reflect customary international law, the treaty itself only applies to written agreements included between states after 27 January 1980 and all other treaties are governed by the rules of customary international law. Is it a treaty? A treaty may be defined as an expression of concurring wills attributable to two or more subjects of international law and intended to have legal effects under the rules of international law: Art 2 VCT. Treaties may therefore be unwritten and concluded by international law subjects other than states, for example, international organisations. The various stages in treaty-making and observance. These may be summarised as follows: Accreditation of negotiators. Do representatives have the authority to conduct and conclude negotiations? Note the implied powers of heads of state, heads of government and foreign ministers - Article 7 VCT. Negotiation. Through bilateral treaties or at diplomatic conferences (multilateral treaties). Adoption and authentication of final text. Multilateral treaties require a two-thirds majority in favour of adoption. Authentication is usually achieved by signature. Signature/Exchange. Where a treaty is not subject to ratification the treaty will become binding as from the date of signature, or, in the case of treaties concluded by exchange of instruments, on the date of exchange. Ratification. If ratification is required the text of the treaty is referred back to the governments of the parties to the treaty

22 LAW00521 INTERNATIONAL LAW Where ratification is required parties who have signed the treaty are under an obligation to do nothing to defeat the object of the treaty until such time as a firm decision has been made on ratification (Article 18 VCT). Reservations. Entry into force (see Articles 19 to 23 VCT). In the case of multilateral treaties it is usual to make express provision for the entry into force of the treaty. Registration and publication. Application of treaty (see Article 102 UN Charter Pacta Sunt Servanda). Adhesion and Accession. State Succession. Interpretation (see Article 31 VCT and note the three approaches - subjective, objective and teleological). Is the treaty valid? A treaty may be invalid on the following grounds: a) manifest non-compliance with municipal law (article 46) b) error, fraud and corruption (articles 48-50) c) coercion (articles 51-52) d) violation of jus cogens (article 53) Australia and the ratification of Treaties In 1996 Australia changed the procedures for ratifying Treaties, allowing for more input from States, Territories and the public. 10. Further reading Redgwell C, Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties (1993) 64 British Yearbook of International Law 245. Reicher H, (ed) Australian International Law: Cases and Materials Law Book Company 1995, chapter 11. Thirlway H, The Law and Procedure of the ICJ (1989) 60 British Yearbook of International Law. Dixon M, Textbook on International Law, 5th ed, Oxford University Press, 2005, Chapter 3. Alston P & Chiam M (eds), Treaty-Making and Australia: Globalisation versus Sovereignty?, Federation Press, 1995 (note that much of this book is out of date due to the changes implemented in 1996). Twomey A, International Law and the Executive, Chapter 3 in Opeskin B & Rothwell D (eds), International Law and Australian Federalism, Melbourne University Press,

23 TOPIC 3 LAW OF TREATIES Campbell B, The Implementation of Treaties in Australia, Chapter 5 in Opeskin B & Rothwell D (eds), International Law and Australian Federalism, Melbourne University Press, Revision 1. Write a note on your understanding of the term treaty. 2. What general advice would you give to a Head of Government or Foreign Minister about to enter into private but official conversation with his/her counterpart from another state on a matter of dispute between their two countries? 3. Summarise the arguments made and the Court s decisions thereon in the Belilos case. 4. Why do certain kinds of multilateral treaty require the acceptance of any reservation by all the other contracting states? 5. Why is the regime governing acceptance of or objection to reservations contained in Articles 19 to 21 VCT described as flexible? Summarise the chief elements of this regime. 6. State in your own words the general rule for interpretation of treaties, from Article 31 VCT, and the essentials of the provision regarding Supplementary means of interpretation. 7. What do you understand by preparatory work in relation to treaties? 8. Select any two grounds of the following for challenging the validity of a treaty - error; coercion; or jus cogens. Write a note on the meaning and effect of the relevant VCT provisions. 9. How would you state the essential rationale behind the provisions on breach of treaty in Article 60 VCT? 10. Does the VCT protect sufficiently the position of a party to a bilateral treaty confronted by an allegation of breach used as a justification for unilateral termination? 11. List and state in your own words all the limitations on the operation of the doctrine of fundamental change of circumstances that are contained in Article 62 VCT. 12. Write a case note on the Nuclear Tests cases 1974 ICJ DM 58; H What changes to Australia s treaty ratification process were instituted in 1996? What were the reasons for these changes?

24 LAW00521 INTERNATIONAL LAW 12. Question and feedback Imagine that you are legal adviser to the Ministry of Foreign Affairs of Sarantha. The Foreign Minister calls you in and says: we have two boundary disputes with our neighbour, Nara. Our treaty with them of 1955 says that the frontier will follow the line of the highest peaks of the mountains between the two countries, passing between the sources of the streams flowing down to either side. However, according to our most recent survey, the line of the highest peaks does not always coincide with the line of the surface water-parting. It seems that, if you follow the highest peak line, we come off best; but if you follow the watershed line, they do. We also have a dispute with Nara (which is for this purpose an adjacent State) concerning the delimitation of the continental shelf. Our geographical experts advise me that a median line boundary would suit us best, but when the foreign Minister of Nara called on me recently, he said the boundary should be delimited according to equitable principles. He said that, if a median line was used, our possession of the island of Imos would give us an unfair advantage. I would like to get all this cleared up amicably. What do you suggest? Advise the Foreign Minister of Sarantha. 13. Answer guidelines [Note do not panic about this question/answer, as its probably far too detailed compared to what you might expect in the exam.] Re: Border Dispute Arising from 1955 Treaty. Prima facie the dispute is governed by the 1955 Treaty which provides for a border on the basis of the highest peaks running through the streams either side. The problem is that the Treaty does not coincide with the reality. Prima facie the question must be decided according to CIL. Re: Dispute with Nara concerning the delimitation of the continental shelf: prima facie this dispute must be decided according to equitable principles. In answering both the question as to how we are to interpret the treaty given that its terms are inconsistent with actual facts, and the issue of the appropriate delimitation of the continental shelf, we must turn to the law of treaties and the sources of international law for guidance

25 TOPIC 3 LAW OF TREATIES A. The Law Of Treaties. Does the 1969 Vienna Convention on the Law of Treaties Apply? a) Discuss the consequences in the event the treaty was concluded after 1980 and the Convention applied. b) If the Convention does not apply, as appears to be the case here, discuss the operation of pre-existing custom as codified by the treaty. Eg. Does fundamental change in circumstances rebus sic stantibus apply, as embodied in Article 62? Does it apply in the case of boundary disputes? Can the treaty be terminated by consent? Refer to Articles 54 and 57 of the VCT. Has there been an error invalidating the treaty according to Article 48? When is this article not applicable? Refer to the case of the Temple Of Preah Vihear 1962 ICJ Reports concerning the interpretative approach of the ICJ. Treaty interpretation? Prior to the VCT there were three possible approaches: 1. an objective or actual test ie an analysis of the words used; 2. a subjective test which took into account the intention of the parties adopting the agreement; 3. a wider perspective which emphasises the objects and purpose of the treaty in order to measure the meaning: Refer to Articles 31, 32 and 33 of the VCT. B. Customary International Law. According to the concept of CIL the existence of rules may be deduced from the practice and behaviour of contesting states. Refer to Article 38 according to which there are two basic elements in the make-up of custom: 1. The material facts, state practice or the actual behaviour of states; refer to Article 38 on custom as evidence of a general practice accepted as law. In this regard the prime considerations are: a) duration; b) consistency; c) repetition; and d) the generality of a particular practice by states. The Asylum case ICJ Reports 1950 at The Court, in characterising the nature of a customary rule held that it had to constitute the expression of a right appertaining to one state (Colombia) and a duty incumbent upon another (Peru); further the Court set down the basic rule for continuity and repetition: the

26 LAW00521 INTERNATIONAL LAW Court declared that a customary rule must be in accordance with a constant and uniform usage practised by states in question. Anglo-Norwegian Fisheries case ICJ Report 1951 at and 138 emphasised uniformity of practice by states. In the North Sea Continental Shelf cases ICJ Reports , the ICJ remarked that state practice had to be both extensive and vertically uniform in the sense of the provision involved. This was held to be indispensable to the formation of a new rule of CIL at The other element of CIL is opinio juris ie the subjective belief that the state believes that it is under a legal obligation (as distinguished from a habitual practice) to behave in a certain way: refer to the Lotus case. In the North Sea Continental Shelf cases ICJ Report the Court declined to accept that the equidistance rule had become CIL stating that the provisions did not reflect existing custom. It held that not only must state practice be extensive and uniform but practice should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved at 43. Persistent Objection/Acquiescence If one state takes action which it declares to be legal the silence of the other can be used as an expression of opinio juris or concurrence in the new rule. This means that actual protest is called for to break the legitimising process. The Anglo Norwegian Fisheries case ICJ Report & 131 appears to suggest that where a state acts contrary to an established customary rule and other states acquiesce then that state is not bound by the original rule. However, the Court noted that: in any event the rule would appear to be inapplicable as against Norway inasmuch as she had always opposed any attempt to apply it to the Norwegian coast. Local Custom? A local rule may have developed which binds only the two states concerned. In the Asylum case the ICJ discussed the Colombian claim of a regional or local custom peculiar to the Latin American states which would validate its position over the granting of Asylum. The Court said that the party which relies on a custom of this kind must prove that his custom is established in such a manner that it has become binding on the other party, at 276 of ICJ Reports In the Rights Of Passage Over Indian Territory case (ICJ Reports ) Portugal claimed that there existed a right of passage over

27 TOPIC 3 LAW OF TREATIES Indian territory as between the Portuguese enclaves and this was upheld by the ICJ over India s objections that no local custom could be established between the two stages. The Court said that it was satisfied that there had in the past existed a constant and uniform practice allowing free passage and that the practice was accepted as law by the parties and had given rise to a right and a correlative obligation (p 39). The establishment of a local custom depends upon a particular activity by one state being accepted by the other state as an expression of legal obligation or right. Thus the consent of both states is an essential ingredient with respect to local custom. General Principle of Law: where no law covering the point exists then the judge may proceed to deduce a rule that is relevant by analogy from existing rules or directly from the general principles (GPs) that guide the legal systems emanating from justice, equity or considerations of public policy. Acquiescence with respect to estoppel is a GP. The Court has considered the principle of estoppel which provides that a party that has acquiesced in a particular situation cannot then proceed to challenge it. In the Temple case 1962 and in the Eastern Greenland case PCIJ series A/B no 53 at 52ff, the Court applied the doctrine. Equity If the median line boundary is not a part of CIL we must resort to the equitable aspect of general principles, after the statement of the Naran foreign minister as to the use of equitable principles. Article 38(2) of the Statute of the ICJ states: this provision shall not prejudice the power of the court to decide a case ex aequo et bono if the parties agree. Diversion of water from the Meuse (The River Meuse case) PCIJ series A/B No. 70 at 73, 77, 1937 which concerned a dispute between Holland and Belgium, Judge Hudson said that Article 38 of the Statute expressly directs the application of general principle of law recognised by civilised nations, and in more than one nations principles of equity have an established place in the legal system. The Court s recognition of equity as a part of international law is in no way restricted by the special powers conferred upon it to decide a case ex aequo et bono if the parties agree thereto. The concept of equity was also referred to in Rann of Kutch Arbitration between India and Pakistan in (1968) 50 ILR at 2. The tribunal agreed that equity formed part of international law and that accordingly the parties could rely on such principles in the presentation of their cases: an international tribunal will have the wider power to adjudicate a case ex aequo et bono and thus go outside the bounds of law only if such

28 LAW00521 INTERNATIONAL LAW power has been conferred on it by mutual agreement between parties. (p 18) The ICJ in the North Sea CS cases directed a final delimitation between the parties, W Germany, Holland and Denmark in accordance with equitable principles ICJ Report 1969 at 3, 53. What the Court does is to use equitable principles in the context of a rule requiring such an approach, but deriving equitable principles and solutions from the applicable law: North Sea Shelf cases at 3 47 ICJ Report 1969 and Fisheries Jurisdiction cases ICJ Report 1974 at 3 & 33. Akehurst points out in an article Equity and General Principles of Law that equity can serve three functions in international law: 1. equity infra legem ie. equity can be used to adapt the law to individual cases; 2. equity praeter legem, ie it can be used to fill the gaps in the law; 3. equity contra legem ie a reason for refusing to apply unjust laws. Frontier Dispute case (Burkina Faso v Mali) (1985) ICJ Report The Chamber could not decide ex aequo et bono because the parties had not agreed. Since the parties had not entrusted the court with the task of carrying out an adjustment of their respective interests, it would not apply equity contra legem. It simply declined to apply equity praeter legem; but it stated that it would resort to equity infra legem ie to that form of equity which constitutes a method of interpretation of the law in force and is one of its attributes. As the court has observed: It is not a matter of finding simply an equitable solution but an equitable solution derived from the applicable law (Fisheries Jurisdiction)