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TREATIES. Prof David K. Linnan USC LAW # 783 Unit 16. DEFINITION. TREATY DEFINITION RE VIENNA CONVENTION ART 1(a)

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TREATIES

Prof David K. Linnan

USC LAW # 783

Unit 16

definition
DEFINITION

TREATY DEFINITION RE VIENNA CONVENTION ART 1(a)

“[T]reaty means 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….”

NOTE IMPLICITLY AT LEAST IN CUSTOMARY LAW STILL MAY BE TREATIES INVOLVING AN INTERNATIONAL ORGANIZATION, OR ORAL UNDERTAKINGS

us vs foreign law
US VS FOREIGN LAW

TREATIES IN INTERNATIONAL LAW

1. Leading source under modern doctrine (ICJ Statute art 38)

a. Good for “instant law”

b. Complications with other int’l law sources

c. Remember difference between political agmt & treaty [Off the record]

2. Distinguish US art II constitutional treaty from international law treaty (encompassing, ie, all forms of US international agreements both treaty & executive agreement)

[Off the record] [Off the record] [Off the record]

3. Formal interpretation rules separate in dualistic system, and interpretation rules in int’l sources (i.e., Vienna Convention on Law of Treaties (1969), especially art 31 & 32)

CANNOT INTERPRETE TREATY LIKE DOMESTIC LEGISLATION DUE TO TECHNICAL RULE DIFFERENCES

functions
FUNCTIONS

TREATIES IN INTERNATIONAL LAW (CONT’D)

4. Multilateral versus bilateral (or small number of states)

5. Issues re older adminstration coordination (e.g., Postal Union) against newer framework vs package deal approaches as with environmental treaties

6. Issues re “constitutional function” for int’l organizations

CONSULT BASIC ASIL ONLINE TREATY SOURCES FOR RESEARCH PURPOSES

vienna convention
VIENNA CONVENTION

VIENNA CONVENTION & CUSTOMARY LAW

1. Treaties as agreements intended to have legal effect versus non-binding or political undertakings

[Off the record] [Do you agree?]

2. Vienna Convention (1969) viewed generally as codification of customary law rules, some progressive development (US position as non-signatory)

[Off the record]

3. 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 1986 Vienna Convention covering treaties involving international organizations concerning which there is more controversy)

doctrine
DOCTRINE

WHAT IS A TREATY?

1. Distinction with political undertaking

[Off the record] [Off the record]

2. Distinction with commercial contracts between states, or states and private parties (ie, for wheat delivery)

3. Issue whether purely determined by party intent, versus objective criteria like subject matter

4. Unilateral undertakings can be treaties (Legal Status of Eastern Greenland (Norway v, Denmark) PCIJ 1933)

capacity
CAPACITY

CAPACITY AND AUTHORITY TO CONCLUDE AGREEMENTS

1. Remember one of four elements of being a state (constitutive vs declarative views)

2. Capacity being judged at state level (ie, non-self governing territory like a colony, also problems of federal states)

3. Authorization being judged at level of individual representative, although less an issue in practical terms in today’s world of instant communications

4. Full powers (Vienna Convention art 2(1)(c))versus authority by virtue of position (Vienna Convention art 7; head of state, head of government, foreign minister conclusively presumed to be authorized)

process i
PROCESS I

TREATY PROCESS

1. Adoption and authentication of text

2. Signature

3. Ratification

4. Acceptance/approval

5. Accession

process ii
PROCESS II

TREATY PROCESS (CONTD)

6. Reservations (for multilateral treaties)

a. Permissibility (is it inconsistent with basic object and purpose of the treaty) re Vienna Convention art 19

[Off the record]

b. Acceptance (assuming permissibility, states can refuse reservation with effect of differentiated obligations as to different states under multilateral treaties re Vienna Convention art 20))

c. May be excluded specifically (i.e., package deal under LOS)

[Off the record] [Off the record] [Off the record]

good faith
GOOD FAITH

GOOD FAITH ISSUES

1. Obligation not to defeat object of treaty between reservation and accession

[Off the record]

2. Changed circumstances problem and when basic assumptions underlying treaty have changed sufficiently to justify releasing obligations

3. Pacta sunt servanda as including good faith

interpretation
INTERPRETATION

PROBLEMS OF TREATY INTERPRETATION

1. Unilateral party interpretations versus “authentic” interpretations of all concerned (reservation vs interpretation)

2. Domestic interpretation problems (ie, legislative versus executive as under antiballistic missile treaty)

3. Primary reliance on textual interpretation (art 31 Vienna Convention, versus interpretation of parties’ intent based on preparatory materials (art 32 Vienna Convention) (opposition to US legislative interpretation approaches)

a. Objective or ordinary meaning of text approach

b. Subjective or intention of the parties approach

c. Teleological or treaty aims & objectives

REMEMBER, TREATIES NOW WITH REAL DOMESTIC LAW EFFECT LIKE NAFTA AGREEMENT FOLLOWS THESE RULES & NOT LEGISLATIVE INTERPRETATION RULES

amendment mod
AMENDMENT & MOD

PROBLEMS OF TREATY AMENDMENT VERSUS 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 in a framework approach context)

treaty validity
TREATY VALIDITY

BASES FOR CHALLENGING TREATY VALIDITY

1. Municipal law non-compliance (manifest)(Vienna Convention art 46)

2. Error (art 48)

3. Fraud & corruption (art 49 & 50)

4. Coercion (art 51 & 52)

5. Jus cogens (art 53)

muni law
MUNI LAW

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.”

error
ERROR

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.

fraud
FRAUD

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

coercion
COERCION

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

jus cogens
JUS COGENS

BASES FOR CHALLENGING TREATY VALIDITY (CONTD)

Jus cogens (Vienna art 53)

No derogation of preemptory norms, mostly genocide, slavery, use of unlawful force

[Off the record]

termination i
TERMINATION I

TERMINATION OF A TREATY

1. Provision or consent (Vienna Convention

art 54)

2. Material breach (art 60)

3. Supervening impossibility (art 61)

4. Fundamental change of circumstances

(art 62)

Off the record] [Off the record] [Off the record]

termination ii
TERMINATION II

TERMINATION OF A TREATY (CONTD)

1. Termination normally of agreement as a whole (but can be selective as to parties (Vienna Convention art 57 & 58)

2. Prospective effect only, not disturbing (art 70)

[Off the record]

3. Suspension of a treaty is effective temporary termination with possibility springs back to life (art 57 & 58)

succession
SUCCESSION

TREATY OBLIGATIONS AND STATE SUCCESSION

1. Vienna Convention specifically takes no position on succession (Vienna Convention art 73)

2. 1978 ILC Vienna Succession Treaty follows “clean slate” view, contentious, with US view that customary law broader

[Off the record] [Off the record]

3. Consensus that border treaties enjoy succession