INTERNATIONAL LAW

Law of theaties
CONTENT
1. Concept

2. Elements of a treaty

3. Classification of treaties

4. Celebration of treaties

5. Observance of treaties

6. Interpretation of treaties

7. Reservations to treaties

8. Invalidity of treaties
TREATIES

Definition: Art. 2.1 (a) VCLT

“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.”
ELEMENTS OF A TREATY

a) Agreement between States

b) Written form
c) Governed by PIL (normative
effect)
d) Whatever its designation
e) Embodied in a single or more
instruments
CLASSIFICATION OF TREATIES

1. By the number of State parties:

bilateral or multilateral
2. By the possibility of accession: open or
closed
3. By the form of expressing consent:
simplified (consent by signature) or
complex (solemn)
4. By content: treaty-contract or treaty-
law
5. By subject matter: political, economic,
comercial, cultural, humanitary, etc.
6. By duration: temporary or permanent.
CELEBRATION OF TREATIES

 Treaties spring from a process (series

of succesive acts).

 This process spans from negotiation

to consent of the states parties to the
treaty.
CELEBRATION OF TREATIES
1. Formation stage:

a) Negotiation: Representatives of States

reach an understanding on a certain
matter and agree on it.
b) Capacity to c-onclude a Treaty:
 States are free to designate anyone
to represent the state for the
purpose of conlcuding a treaty
provided that a due autorization has
been granted.
 “Full powers”
CELEBRATION OF TREATIES

Certain representatives of the state are

automatically considered to have “full
powers”: head of state, leader of
government or foreign affairs minister.
VCLT art. 7 (2) (a)
CELEBRATION OF TREATIES
2. Stage of consent:

 Expression of a State´s will to become

obliged by means of a treaty.
 There are a number of ways in which a
state may express its consent to a treaty.
 They all have the same value.
CELEBRATION OF TREATIES

Art. 11 VCLT.
Means of expressing consent to be bound by a treaty
The consent of a State to be bound by a treaty may be expressed by
signature, exhange of instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any other means if so agreed.
CELEBRATION OF TREATIES

a) Simplified Form: Also known as “executive agreements”, taking place by

means of exchange of letters or consent by signature (Head of State or
Government, Minister of Foreign Affairs, ambassadors).
Arts. 12 and 13 VCLT.
b) Complex Form: Requires ratification acording to internal procedures. Sole
signature is not enough for consent. e ratificación (según procedimientos
internos). Consent by ratification requires the treaty to provide that consent is
to be expressed by means of ratification.
Art. 14.1.
CELEBRATION OF TREATIES
3. Entry into force

 States are free to choose how and the date on which a treaty enters into force.
 Most modern treaties specify how and when the treaty enters into force.
 If a treaty does not specify when entry into force occurs then it will occur “as
soon as consent to be bound by the treaty has been established for all the
negotiating states”.

 A falta de estipulación, por consentimiento de las partes.

 Algunas disposiciones pueden tener aplicación previa.
 Art. 24.
CELEBRATION OF TREATIES

4. Stage of registration and publication

 The UN establishes the obligation of registering treaties before the SG

 Not constitutive
 Arts. 80.1 and 102 UN Charter
OBSERVANCE OF TREATIES

The Pacta sunt servanda principle:

Art. 26 of the VCLT: “Every treaty in force is binding upon the parties to it
and must be performed by them in good faith.”

- Looks to guarantee stability of the international system

OBSERVANCE OF TREATIES

Effects of treaties regarding third parties:

Art. 34 VCLT: A treaty does not create either obligations or rights for a third State
without its consent
- relative effect of treaties
- requires consent
OBSERVANCE OF TREATIES

Art. 27 VCLT:

• Internal law cannot be raised as a justification for the failure of

complying with a treaty.

Art. 46 VCLT:

• A State may not invoke the fact that its consent to be bound by a
treaty has been expressed in violation of a provision of its internal
law regarding competence to conclude treaties as invalidating its
consent unless that violation was manifest and concerned a rule
of its internal law of fundamental importance.
INTERPRETATION OF TREATIES

General aspects:
• Determine content and reach of the treaty.
• Who interprets: parties or third party.
• Methods of interpretation (meaning of the text vs. intention of the
parties).
INTERPRETATION OF TREATIES

Principles of interpretation:

a) Ordinary meaning of terms

b) Context
c) Object and purpose
d) Subsequent agreement and practice of the parties
e) Effectiveness (effet utile)
f) Preparatory works
INTERPRETATION OF TREATIES

Non-regulated aspects:

• intertemporality of facts and law

• ambiguity of terms (“constructive ambiguity”)

RESERVATIONS TO TREATIES

Art. 2.1.d VCLT defines a reservation:

“a unilateral statement, however phrased or named, made by a state,
when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or modify the legal effect of certain
provisions of the treaty in their application to that state.”
RESERVATIONS TO TREATIES

 Reservations to treaties must be made at the time of expressing final

consent to be obliged by the terms of the treaty, not before nor after.
 A reservation allows a treaty party who does not like all of the terms of a
treaty unilaterally to announce that certain parts of the treaty will not
apply to it.
 A good number of treaties either prohibit or limit reservations e.g. United
Nations Convention on the Law of the Sea.
RESERVATIONS TO TREATIES

• State A and State B enter into a treaty containing eight articles. State A
inlcudes the following reservation at the time it ratifies: “State A does not
agree to article number eight and hereby notifies State B of its
reservation to article eight.”
RESERVATIONS TO TREATIES

There can be no reservations to bilateral treaties

• Classical Rule or Unanimity Rule (second half of the 20th

Century): states were not allowed to make reservations to
treaties unless all of the other parties to the treaty accepted
the reservation.
RESERVATIONS TO TREATIES

Modern Rule or Rule of Divisibility:

If a state makes a reservation to a treaty and that reservation is accepted
by some, but not all, of the parties, then the reserving state could be
considered a party to the treaty provided the reservation was not
incompatible with the object and purpose of the treaty.
RESERVATIONS TO TREATIES

Object and Purpose

 The Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment states: “No exceptional circumstances
whatsoever, whether a state of war or a threat of war, internal political
instability or any other public emergency, may be invoked as justfication
of torture.”
 State X ratifies and includes the following reservation: “State X reserves
the right to use any means necessary to protect its citizens from the
threat of terrorist attacks where it is convinced that such means will
protect human life.”
RESERVATIONS TO TREATIES

Modern Rule or Divisibility Rule:

If the reservation is accepted by some states but rejected by other
states, then the reserving state would be considered a party to the
treaty and would have a treaty relationship with the states that accept
the reservation but only with respect to the articles to which no
reservation had been made. The rejecting states woud have no treaty
relationship with the state making the reservation.
RESERVATIONS TO TREATIES

 States A, B, C, D and E negotiate entering into a treaty. The treaty has

ten different articles. States A, B, C and D accept all ten articles wihout
reservations. State E does not agree with article 10, so it notifies its
wish to make a reservation.
 Classical rule.
 Modern rule.
INVALIDITY OF TREATIES

 Juridical acts are subject to certain conditions regarding their validity.

 The grounds of invalidity belong to one of two groups: absolute invalidity
(not subject to remedy) and relative invalidity (repairable).
 These grounds are alleged by the parties but decided upon by a third
party (judge, arbitrator).
INVALIDITY OF TREATIES
1. Absolute invalidity:

1.1.Substantial vices regarding consent (will)

a) Coercion of the representative of a State (art. 51 VCLT)

b) Coercion of a State by the threat or use of forcé (art. 52 VCLT)

1.2 Regarding the object of a treaty:

a) Conflict with an existing Peremptory Norm (Jus Cogens) (art. 53 VCLT)

b) Conflict with an emerging Peremptory Norm (Jus Cogens) (art. 64 VCLT)
INVALIDITY OF TREATIES

2. Grounds of relative invalidity:

2.1. Vices regarding consent:

a) Error: (art. 48 VCLT) requisitos
a.1 Error of fact
a.2 Essential basis of consent
a.3 Excusable error
b) Fraud (art. 49 VCLT)
c) Corruption of the State´s representative (art. 50 VCLT)
INVALIDITY OF TREATIES

2. Grounds of relative invalidity:

2.2 Formal vices :

a) Provisions of Internal Law regarding competence to conclude Treaties (art.
46 VCLT).
b) Restrictions on authority to express the consent of States (art. 47 VCLT).
INVALIDITY OF TREATIES

Consequences of Invalidity:
 Absolute invalidity: Affects the treaty ab initio.
 Relative invalidity: Affects the treaty from the invalidity declaration
onwards.
 Relative invalidity admits express or tacit remedying.
INVALIDITY OF TREATIES

Consequences of invalidty:
 Absolute invalidity: May de alleged by any interested State.
 Relative invalidity: May only be alleged by the incumbent State.
THE GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS

 “Recognized by civilized nations”.

 Used to decide cases when there is
no applicable rule or norm.
THE GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS

 Principles common to the major national legal

systems e.g. “a party cannot take advantage of his
own wrong”.
 Principles derived from the nature of the
international legal system e.g. legal equality of
states.
JUDICIAL DECISIONS

 Art. 59 of the ICJ Statute: the Court´s decisions are

only binding on the parties beore it in respect of
the particular case.
 No stare decisis.
 However precedent from international judicial
decisions is important, influential and often cited.
TEACHINGS AND WRITINGS

 In the most influential time of Natural Law wrieters were the primary
source (XVI to XVIII Century).
 With the rise of Positivism treaties and custom became the primary
sources.
 The International Law Commission: “the progressive development of
international law and its codification”.