International Law Grossman Fall 2016
Introduction to International Law
Critiques by International Law scholars:
States only comply when it is in their interest
Court is too slow
No legislature to make law, no executive branch to enforce
No compulsory jurisdiction à no court that binds countries
Rebuttal to critiques by International law lawyers
There are implications for violating International Law:
Horizontal enforcement (by pressure)
Imposing sanctions
Reciprocity that a country might want another country to behave that way at a later time (tit for tat)
By custom
Civic duty and responsibility
There is an interest to comply with the law in the long term
Instead of asking whether International law exists, ask if there is a rule that is legalized or binding on the state
Sources of International Law
ICJ Statute, Article 38:
International conventions, whether general or particular, establishing rules expressly recognized by contesting states
International custom, as evidence of a general practice accepted as law
The general principles of law recognized by civilized nations
Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law
Vienna Convention on the Law of Treaties Article 2(a) – a treaty is:
International agreement
Concluded between states
In written form
Governed by international law
To determine if a treaty is governed by international law – would be written in “governed by international law,” or might say “governed by this state’s law” – you would look to the text of the agreement and make an argument either way
Two steps:
Sign a treaty
Ratify a treaty
– if a treaty is signed, but not ratified – state MUST refrain from acts that would defeat the Object and Purpose (until they make it clear that they have no intention of becoming a party to the treaty – VCLT Article 18
Note: sometimes treaties are defined differently under a state’s domestic law than under international law – different states have their own domestic law process for being bound to a treaty
Ex. US – concluded by President and 2/3 of Senate gives advice and consent
Treaties can be bilateral or multilateral
Note: multilateral treaties may provide (within the context of CIL):
Evidence of an existing custom
Inspiration or model for adoption of a new custom
Can assist in crystallization of emerging custom
Give rise to a new custom
Formation and entry into force:
VCLT Article 7 – representative of the state (if the person that entered into a treaty on behalf of a state was not a rightful representative, his actions are ineffective unless the state later confirms his actions)
VCLT Article 9 – agreed upon text, adoption of the text (still not binding)
VCLT Article 10 – authentication of the text (still not binding)
Consent – VCLT Articles 11, 12, etc.
Two common steps to show consent to be bound by a treaty:
State has negotiated its terms, AND
Ratified the treaty domestically
Ex. US by 2/3 of Senate
BUT, the International Law community does not get involved with each and every state’s ratification process
State NOT involved in drafting the original text
But state ratifies treaty domestically
Distinguishing between treaties and political commitments
Test: Did they intend to create a legally binding obligation? Did they consent to creating a treaty?
Not every agreement between states is meant to be binding as a treaty – if it is a treaty, it creates legal obligations, but a political commitment is not binding
Look to:
Title (whether it is called a treaty or not – not dispositive)
Language in the treaty itself – “shall” seems to endow rights and obligations cf Will, Should (Aspects of conditionality – shows that additional steps are required before the agreement is binding)
Negotiating history – travaux preparatoires
Intended to create enforceable rights?
Took steps for implementation?
Is it registered with the UN (or another body that may be required to collect treaties of member states) under the Charter Art. 102 ASAP after it’s in force?
Domestic compilation of treaties in force?
Similar prior instruments treated as treaties?
Reasons why a state might want to create a political commitment instead of a treaty:
Self-interests of the state
Might have aggressive goals but if they don’t meet them then there will not be consequences (Kyoto treaty)
State still think that a document has value and is a priority but not liable if not met
State might be working towards a binding treaty and might prefer a political commitment rather than nothing
Easier to withdraw form a non-binding commitment than a binding treaty
No reparations for breach of a political commitment nor grounds for judicial action
BUT violations of political commitments can carry sanctions
Maybe the executive branch of a state does not have the authority to make certain legal commitments, but wants to do something nonetheless – federalism reasons
Steps in making a treaty
Agreement on the text
Representative signing the treaty (authenticating the treaty)
Look to the law of individual states to see what it takes to be binding under the law of that state
US – 2/3 approval of the Senate
US issue – we have signed many treaties and not sent them to the Senate for them to be approved
Entry into force is the effective date of the treaty – treaties will usually specify what the requirements are to get the treaty into force
Obligation not to defeat object and purpose (prior to entry into force of the treaty)
VCLT Article 18 – a state is obligated to refrain from acts which would defeat the “object and purpose” of the treaty
To which it has signed and accepted
Or it has expressed consent to be bound by it
Reservations to treaties – unilateral statement, made by a state seeking to exclude/modify a specific section
“We like the agreement, but we don’t like this one article”
Can happen between signing and ratification
Don’t always have to be called a reservation to be one à what matters is what the statement purports to do
Note: Bilateral treaties typically do not allow for reservations
Reasons to not allow reservations to a treaty
Because the agreement is super-sensitive
In economic treaties, if you allow reservations, the object and purpose of the treaty is changed
Reason to allow reservations: to entice states to be a part of the treaty
Reasons a state might want to make a reservation:
If terms are unclear à want to make sure what they mean before agreeing to be bound by them
If part of the treaty is not compatible with domestic law
Avoid responsibility
Concerns about territories within your jurisdiction à federalism
Protect its sovereignty
Conflicts with another treaty
Reservations are prohibited when (VCLT Article 19):
The treaty prohibits them
The treaty gives only a set number of acceptable reservations and this reservation is not one of them
If the reservation defeats the object and purpose of the treaty – to determine object and purpose, look to:
Negotiating history aka travaux preparatories
First couple of articles + the rest of the treaty can give you a sense of what the treaty is about
Legal effect of reservations
hat IS sufficient to be a basis for invalidation on error?
Fraud à if a state was induced to conclude a treaty by the fraudulent conduct of another negotiating state, the state may invoke the fraud as invalidating its consent
Corruption or coercion à if a state consented because of corruption of its representative or was coerced through acts or threats directed against him by another negotiating state, the consent can be invalidated
Termination – VLCT Articles 60-63, 70
Material breach – repudiation of a treaty not sanctioned under VCLT or violation of provision essential to accomplish the object and purpose of the treaty
Bilateral treaty – choice to terminate or suspend treaty in whole or in part
Multilateral treaty – 100% others agree to suspend, or terminate (either with all states or just with default state)
Specially affected state can suspend whole or in part with breaching
Cannot suspend performance if not involved in breach, UNLESS breach radically changes the position of every party with respect to their further performance of their obligations
Impossibility – impossible to perform under treaty because of a permanent disappearance or destruction of an object essential to performance
If not permanent, may only suspend, not terminate
Unclean hands – if you cause impossibility, may not use this defense
Rebus Sic Stantibus/Fundamental change of circumstances (rare)
Only if essential basis of the consent AND radically transforms extent of obligations still to be performed
“Had the original circumstances not existed, the party would not have become a party to the treaty,” “party would not have become party to the treaty if change in circumstances existed during conclusion of the treaty”
No unclean hands
Hungary v. Slovakia case
Termination NOT valid
Impossibility because of Hungary’s own breach – Hungary argued that the fall of communism and change in politics amounted to impossibility and fundamental change in circumstances
Impossibility because central object of the treaty was joint investment consistent with environmental protection, that this disappeared with the change of political tides, and because there have been new developments in environmental law that change the circumstances from when the treaty was first created
Court applied Article 62
Changes in economic and political conditions did not radically transform the obligations under the treaty
Fall of communism not a fundamental change in circumstances
Political conditions when concluded were not so closely linked to the object and purpose that constituted an essential basis of consent of the parties
Environmental changes are foreseeable
Stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional circumstances
ALSO, Hungary only gave 6 days notice of its withdrawal from the treaty (56 says you’re supposed to give 12 months notice for termination)
