PUBLIC INT L LAW CLASS ELEVEN TREATIES. Prof David K. Linnan USC LAW # /28/03

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1 PUBLIC INT L LAW CLASS ELEVEN Prof David K. Linnan USC LAW # /28/03

2 IN INTERNATIONAL LAW Leading source under modern doctrine Distinguish US constitutional treaty from international law treaty (encompassing, ie, all forms of US international agreements) Formal interpretation rules separate in dualistic system, and interpretation rules in int l sources (ie, Vienna Convention) Multilateral versus bilateral (or small number of states)

3 Treaties as agreements intended to have legal effect versus non-binding undertakings Vienna Convention (1969) viewed generally as codification of customary law rules 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 Vienna Convention concerning which there is more controversy)

4 WHAT IS A TREATY? Distinction with political undertaking Distinction with commercial contracts between states, or states and private parties (ie, for wheat delivery) Issue whether purely determined by party intent, versus objective criteria like subject matter Unilateral undertakings can be treaties

5 CAPACITY AND AUTHORITY TO CONCLUDE AGREEMENTS Capacity being judged at state level (ie, non-self governing territory like a colony, also problems of federal states) Authorization being judged at level of individual representative, although less an issue in practical terms in today s world of instant communications Full powers versus authority by virtue of position (head of state, head of government, foreign minister conclusively presumed to be authorized)

6 TREATY PROCESS Adoption and authentication of text Signature Ratification Acceptance/approval Accession

7 TREATY PROCESS (CONTD) Reservations Permisibility (is it inconsistent with basic object and purpose of the treaty) Acceptance (assuming permissibility, can states refuse reservation with what effect on reserving state?) May be excluded specifically (ie, package deal under LOS)

8 GOOD FAITH ISSUES Obligation not to defeat object of treaty between reservation and accession Changed circumstances problem and when basic assumptions underlying treaty have changed sufficiently to justify releasing obligations Pacta sunt servanda as including good faith

9 PROBLEMS OF TREATY INTERPRETATION Unilateral party interpretations versus authentic interpretations of all concerned Domestic interpretation problems (ie, legislative versus executive as under antiballistic missile treaty) Primary reliance on textual interpretation (article 31 Vienna Convention, versus interpretation of parties intent based on preparatory materials (article 32 Vienna Convention) (opposition to US legislative interpretation approaches)

10 PROBLEMS OF TREATY AMENDMENT & 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)

11 BASES FOR CHALLENGING TREATY VALIDITY 1. Municipal law non-compliance (manifest) 2. Error 3. Fraud & corruption 4. Coercion 5. Jus cogens

12 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.

13 BASES FOR CHALLENGING TREATY VALIDITY (CONTD) Error (Vienna art 48) [E]rror 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.

14 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 State s negotiating representative

15 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 2(4), but political and economic coercion not enough at State level

16 BASES FOR CHALLENGING TREATY VALIDITY (CONTD) Jus cogens (Vienna art 52) No derogation of preemptory norms, mostly genocide, slavery, use of unlawful force

17 TERMINATION OF A TREATY Provision or consent Material breach Supervening impossibility Fundamental change of circumstances

18 TERMINATION OF A TREATY (CONTD) Termination normally of agreement as a whole Prospective effect only, not disturbing Suspension of a treaty is effective temporary termination with possibility springs back to life

19 TREATY OBLIGATIONS AND STATE SUCCESSION 1978 ILC Vienna Succession Treaty follows clean slate view, contentious, with US view that customary law broader Consensus that border treaties enjoy succession