Podpora cizojazyčného profilu výuky práva na PF UP. reg. č.: CZ.1.07/2.2.00/

Transcription

1 Podpora cizojazyčného profilu výuky práva na PF UP reg. č.: CZ.1.07/2.2.00/

2 The Law of Treaties 2 nd part

3 The Law of Treaties I. Scope, definitions Making of treaties negotiations, adoption, signature, entry into force Reservations Interpretation

4 The Law of Treaties II. Treaties & 3 rd States Modification of treaties Validity Termination & Suspension Succession

5 Treaties & 3 rd States General rule (art. 34 VCLT) A treaty does not create either obligations or rights for a third State without its consent. Treaties providing for obligation Express consent in writing Treaties providing for rights Consent is presumed if the contrary is not indicated (unless the treaty provides otherwise)

6 Modification of treaties 1. General rule regarding the amendments of treaties (art. 39 VCLT) A treaty may be amended by agreement between the parties. Usually in way of amending/additional protocols (ex. Protocol n 14 and n 14 bis to ECHR) Different procedures Ex. Art. 108 UN Charter Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.

7 Modification of treaties 2. Agreements to modify multilateral treaties between certain of the parties only conditions: The treaty provides that possibility OR The treaty does not prohibit it and it would not affect the enjoyment of rights or performance of obligations of other States

8 Invalidity, termination, suspension in operation in general Obligations imposed by international law independently of a treaty State is in duty to fulfill any obligation embodied in the treaty to which it would be subject under international law independently of the treaty

9 Invalidity of treaties 1. Invalidity of a treaty can occur: The object is not allowed The consent to be bound was not voluntary The person expressing the consent has exceeded its powers

10 Invalidity of treaties 2. Provisions of internal law regarding competence to conclude treaties constitutional limitations determine validity Notorious constitutional limitations are effective on international plane State is bound irrespective of internal limitations by consent given by an agent (presumption of competence) Representative's lack of authority Error in fact forming a essential bases of State's consent Fraud fraudulent conduct by another State Corruption of a representative of a State

11 Invalidity of treaties 3. Coercion of a representative of a State Coercion of a State by the threat or use of force Treaties conflicting with a peremptory norm of general international law ( jus cogens )

12 Withdrawal, Termination and Suspension of the operation of treaties 1. Pacta sunt servanda principle War and armed conflict (suspension in time of war??, impossibility to perform, fundamental change of circumstances) Denunciation (provided in/ no provisions) Conditional denunciation (upon notice) Treaties of peace are presumably not open to denunciation Termination by agreement Consent of all parties (implied) Conclusion of a new treaty with intent to supplant an earlier one

13 Withdrawal, Termination and Suspension of the operation of treaties 2. Material breach?? ground for termination/ suspension of operation (bilateral/multilateral) Sanction for securing the observance of treaties Provisions do not apply to treaties regarding to protection of human persons Supervening impossibility of performance Impossibility results from the permanent disappearance or destruction of an object indispensable for the execution (impossibility cannot result from the party's own breach) Fundamental change of circumstances

14 Fundamental change of circumstances or doctrine of rebus sic stantibus Art. 62 VCLT : A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. Conditions: Changes of circumstances have to be fundamental Changes of circumstances could not be foreseen Those circumstances constituted an essential basis of the consent Changes provoke a radical transformation of the extent of obligation Fundamental changes of circumstances cannot be invoke to treaties establishing boundaries Fundamental changes of circumstances cannot be invoke by a party that had brought about to them by a breach of the treaty

15 Fundamental change of circumstances or doctrine of rebus sic stantibus ICJ Fisheries Jurisdiction Case (UK v. Iceland) 1973 accepted art. 62 VCLT as a statement of customary law ICJ - Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) did not recognize political changes after 1989 as a fundamental change of circumstances for the operation of the treaty of 1977, nor the changes in environmental matters

16 Succession in respect of the treaties 1. Succession = definitive replacement of one state by another in respect of sovereignty over a given territory in conformity with IL Total dismemberment Secession Decolonization Partial cession Is the successor bound by all treaties of the predecessor? Vienna Convention on Succession of States in respect of Treaties 1978 (1996)

17 Succession in respect of the treaties 2. Inheritance or devolution of treaty rights and obligation are subject of agreements between predecessor and successor states > certainty and stability of relations Third states cannot be legally bound by these agreements Newly independent states (secession, union or dissolution of states) Principle of tabula rasa can apply