2.

SOURCES: TREATY LAW

1. GENERAL

With ‘formal’ sources we mean: law-making processes. So no substantial sources, not the content
but the way in which norms are produced. It is so different from domestic law. We have the well
stablished role of the parliament, the legislator and on the other hand there is the executive, the
government, the judiciary and so on. In international law is different, it has a special way of
working and it is because it is largely horizontal legal order between more or less 200 sovereign
states, which are all equally in their sovereignty (principle of sovereign equality, basic tenet of
international law). One of the consequences of this is that in principle, you can not impose an
international norm to a sovereign nation; and that applies in the very first place to treaty law.

Treaty law is the way of making norms in a consensual manner. The idea that a state is only going
to be bound if it has given its sovereign consent to be bound. Very important notion in the Vienna
Convention on the law of treaties.

Art. 38 Statute ICJ:

“1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognized by
the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) ... judicial decisions and the teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.”

This provision was more or less the same in the original statute, the permanent court of
international justice, which was the first international court in the Hague. It was stablished between
the two WW until 1946. Besides, you see in this article that treaties are mention first.

Letter C) is incredibly politically incorrect because we don’t use terms such as “civilized nations”…
but yes, until a century ago we made distinctions between civilised nations (tipically european) and
those which “were not” (colonies). Then, we read it different today more as: general principles that
are common to the national legal systems of the world. But it is important to note that is general
principles that derive from national legal systems. We are talking about general principles in
national legal orders but that are common to those national legal orders and that therefore we can
extract and transpose to the international system. By that you see what they are aim to; to fill the
gaps. General principles of international law in essence means customary law.

Letter D) is basically case law and scholars writings (doctrine) but as you can imagine, this are
hardly ever mention. It is not like we are in the times of Grocius. In any case, these two sources are
mean to be subsidiary, that can never be the main source.

The paragraph 2 mention ex aequo et bono, so we could say the equitable principles of
international law.

Shortcomings of this list: no mention of unilateral acts, acts of international organizations, jus
cogens (those norms of international law that are consider to be really fundamental for the

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 international community, parentally norms of general international law as it is named in the Viena
Convention), soft law, informal lawmaking; no mention of hierarchy.

Treaties = most important popular formal source. States loves treaties, sometimes they produced
totally empty treaties (sign for the media).
- > 73.000 registered with UN (cf. Art. 102 UN Charter). That article states the duty of
mandatory registration and publicity. Footnote: there is a secret world of unregistered
treaties, there is still secret diplomacy around.
- Advantages. a treaty says what you wanted to say, you can keep out what you want. It
should be clear and made in writing. It is good for predictability, stability…
- Replace customary law in growing number of areas. Since the UN treaties have been made
to codified unwritten norms of customary international law. One of them is the Vienna
Convention on Law of Treaties.

Consensualist instrument par excellence.

States = only bound after expressing ‘consent to be bound’. States sometimes make reservations to
a treaty and this in itself is an illustration of this consensualism because it means States will agree
to the treaty but minus certain provisions.

Treaty law = codified in Vienna Convention on Law of Treaties (1969). It is a treaty in the law of
treaties. It is a codification of contract law between States. Specially known for the article 31 and 32
“the interpretation rules”.
• Customary law status. The Vienna convention is relevant as a treaty and as rules of customary
international law itself. You can play two ways. It can be applicable as a treaty for the States who
ratified it but it can also be just applicable as customary law, and the advantage is that then it
applies to everybody, including non-state entities.
• Vienna Convention on the Law of Treaties between States and International Organizations or
between International Organizations, 1986 (UE )

2. DEFINITION

There are two definitions of treaty. The one laid down in the Vienna Convention and the customary
law definition, which is broader.

Art. 2(1)(a) VCLT:

‘Treaty’ 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

Art. 3 VCLT:
The fact that the present Convention does not apply to international agreements concluded between
States and other subjects of international law or between such other subjects of international law, or
to international agreements not in written form, shall not affect:
(a) the legal force of such agreements;
(b) the application to them of any of the rules set forth in the present Convention to which they
would be subject under international law independently of the Convention;
(c) the application of the Convention to the relations of States as between themselves under
international agreements to which other subjects of international law are also parties.

Customary international law definition

✓Agreement. A meeting of the minds between at least two subjects of international law. It is the
essence of consensualism, you need consent between those actors to be bound.
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 ✓Two or more subjects of IL. Treaties can involve a great number of parties (multilateral).
✓Intention to produce legal consequences. That is extremely important. MOU. You see immediately
how in international life not everything is really a treaty, there are even some things called a
charter, or a compact, maybe an agreement are not necessarily treaties within the meaning of
international law, it can be very confusing. That is also why it has been stated in the definition of
the Vienna convention but also in customary law that the name of the instrument is irrelevant, how
then do we know if it is a treaty? When it has the other condition PLUS the intention to produce
legally binding consequences. If that intention is not there, then you are talking about a
memorandum of understandings MOU. Some documents called MOU has been treaties so how do
we clarified this? The first thing is how is it written, how is the formulation of the document: “the
parties SHALL…” In an MOU they wont use the word shall, but “will” or “should”, not treaty
language.
✓Governed by international law. Here is subject to international law.

Form and name irrelevant. International treaty law is very INformal. It is not a formalistic brunch of
international law, it is actually taking many different ways of taking treaties for granted because
essentially the Vienna Convention express that treaties are good. Most of the Vienna Convention
you will see lots of flexibility on how to get there, incredibly liberal and flexible because it wants to
facilitate States into making treaties because they are seen as beneficial for the international
community.
• Quid: treaties in simplified form?
• Joint press communiqu : Aegean Sea Continental Shelf Case (Greece/Turkey) (1978). Very
remarkable one where the ICJ ruled that a join press communicate could count as evidence of a
treaty.
• Exchanges of letters: Maritime Delimitation and Territorial Questions between Qatar and
Bahrein (1994).
• Memorandum of Understanding (MOU): Maritime Delimitation in the Indian Ocean –
Preliminary Questions (Somalia/Kenia) (2017). MOU has the advantage that they avoid the
formalism of treaty making processes because of the constitutions of States that are demanding. It
is easier, it don’t need to be register in the UN so they are popular.

Quid: framework conventions? In Environmental law we have a very important framework treaty:
the UNFCCC 1992. Kyoto Protocol (a protocol is a treaty), which became the 2015 Paris Agreement.
Non-covered treaties
Oral treaties
Treaties between States and non-state actors?
• Trilateral / mixed agreements: watch Art. 3(c) VCTL
• International organizations
• Agreements between a foreign investor and host State
• Holy See / ICRC; the practice of “seat agreements”. It is such a strange actor in
international law. A Holy See is a special sui generis legal person in international law, we
don’t talk about treaties here, but concordats. International committee of the Red Cross
is a sui generis actor, is a private foundation but is not a NGO because they do special
agreements, called seat agreements…
• Sub-state entities
- Federated entities: the case of Belgium
- Local authorities: transfrontier cooperation. In Europe we have many boundaries,
sometimes they need to work together so they have special cooperations. Is not a
traditional treaty, is a cooperation between cross-boarder locations.
Difference between treaties and MOUs
Discussion: The 2016 ‘EU-Turkey Statement’. It was a deal in which Turkey was supposed to
continue to take up refugees for money.
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é
 3. CONCLUSION

Representation. There is not indications on how to negotiate.

• Full powers (Art. 7(1) VCLT). There are some actors that don’t need that document of full
powers. They are assumed to be able to negotiate. Those are:
• Heads of State, Heads of Government, Ministers for Foreign Affairs, head of diplomatic missions,
reps accredited to int conference/IO (Art. 7(2) VCLT)

Adoption of the text (Art. 9 VCLT). Agree on the text doesn’t mean giving consent nor the text
enters into force.
• Consent of all parties
• International conference: 2/3 majority. Never say that the Vienna convention states that it has to
be 2/3 majority. This is the fall back option, when there is no rule applicable.
• Legal effects: cf. Art. 24(4) VCLT

Authentication (Art. 10 VCLT)

Means of expressing consent to be bound by a treaty (Art.11 VCLT). Article 11 show you how
flexible the Vienna convention is.
• Signature
• Exchange of instruments
• Ratification
• Acceptance
• Approval
• Accession
• Any other agreed means

Art. 16 VCLT: ratification, accession

Signature (Art. 10 VCLT). Important moment. It can be the final step for some treaties.
Signature ad referendum. This is one there is doubts about the actual competence of one of
the representatives, she or he will give ad referendum signature.
Can be consent to be bound
Art. 18 VCLT: obligation not to defeat the object and purpose of a treaty prior to its entry
into force. Basically introduce a good faith obligation. Treaty is not yet to be bound by all
the treaty conditions but they are under a good faith obligation of not defeat the object and
purpose of the treaty. OBJECT AND PURPOSE OF THE TREATY, that is really a core notion
of the Vienna Convention, is about the reservation wether or not can be, the interpretation,
violation… what is saying here is: if you have sign the treaty you have shown the
international community that you are on the path towards ratification so your intention is to
become treaty part in the end. So you have build some trust and expectations, therefore it is
not binding but you should respect the spirit of it (you should not do something inconsistent
with the treaty)
• No codification of CIL
• Application of good faith principle
• Notion of ‘object and purpose’
Illustration: US ‘unsigning’ of the Rome Statute

Parliamentary consent. Between signature and ratification. Not regulated by Vienna Convention
In what cases? National / EU level

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 • ‘Mixity’ or not of international agreements concluded by the EU: CETA, Singapore,
Withdrawal Agreement / Trade and Cooperation Agreement EU-UK. This is some of the
international agreements that EU negotiate with a third country, are not limited to
exclusive EU powers. Such a treaty can be ratified by the EU alone. States sometimes
drop a little provision about “political” consultations which is a matter where EU doesn’t
have competence. Once you drop this, then is a mix international agreement and apart
from the EU, also states have to ratified it. Dropping that clause is called “the Pastis
principle”. The trick EU use against this is the provisional application of treaties.
The democratic deficit of treaties. Treaties are still primarily negotiated by governments and
then push trough national parliaments. That is one of the problems in democratic law
making.
• During negotiations
• At the time of parliamentary consent
• During the life/at the end of a treaty
Relationship with ratification

4. RESERVATIONS

Bilateral – multilateral treaties. This reservation does not apply for bilateral treaties.

Definition: Art. 2(1)(d) VCLT

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

Treaties are instruments based upon the sovereign consent of a state. A state can go for the whole
treaty and it can go for less. For multilateral treaties, the general majority will be 2/3 so for that
reason there are reservation for those not fully satisfied. It is an international practice, although
some treaties don’t allow it, specially environmental treaties.

Limits to the making of reservations:

ICJ, Reservations to Genocide Convention (1951). 1948, Convention for Prevention and
Punishment of Genocide. This convention triggered a lot of discussion in the General Assembly,
because it was after Cold War, communist countries didn’t like the provision that gives jurisdiction
to ICJ for the interpretation of the convention in case there is a dispute between us. Is a provision in
a treaty that in case of dispute, gives jurisdiction to ICJ to interpret. ICJ allowed that type of
reservation.

Art. 19 VCLT:
1) prohibited by the treaty. Environmental conventions, Treaty of Rome (Criminal Law)…
2) only specified reservations may be made under the treaty: e.g. Art. 57(1) ECHR. Only in
particular field, for example the European Convention on Human Rights.
3) Incompatible with object and purpose. Who decides when? The treaty parties.

Legal consequences of reservation:

1 Treaty operates between State and other parties minus article in question
2 No change for relations other parties inter se

Consequences of objection to reservations (Art. 20 VCLT)

Precludes entry into force as between objecting and reserving State if that intention is definitely
expressed by objecting State. There is two kind of objections, one “lighter” than the other. Certain
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 objections are basically saying “we think this is not compatible with the objects of the treaty” but we
accept you as a treaty party. But there is a heavier one in which the party that makes the objection
does not accept the other as a treaty part. Between them there is no treaty relationship. All is part of
this sovereign consent notion.

Does not preclude …

5. APPLICATION

Provisional application: Art. 25 VCLT. Keep in mind the treat has not yet entered into force, it can
only enter when all the parties have ratified. Sometimes there is urgency, you don’t want to wait for
years, how can you do that? The EU practice is the EU will sign, the EU parliament will give its
consent and the council of ministers will take a decision on the provisional application of the treaty
for the part that corresponds to exclusive EU competence. so, council will authorise the signature,
the EU parliament will be asked to give its consent and then the council will decide on a decision to
give provisional application of the part of the treaty that is about the exclusive EU powers, trade
and investment. The other parts that are about national powers (political consultations, etc.) that is
the part that will require ratification by all the 27 MS.
• Purpose: to give immediate effect to (some) substantive provisions of treaty without awaiting
fulfillment of all conditions for entry into force
• Motives: urgency; avoid legal gaps; amend convention without waiting results ratification;
constitutional difficulties
• Risk: problems with domestic constitutional law
• Instrumentum: treaty itself, protocol, exchange of notes/letters
• Illustrations:
- GATT. General Agreement on Tariffs and Trade which has been provisionally applied
between 1947 and 1995 when the WTO entered into force. This was because there was a
problem with the US.
- Mixed agreements EU

Pacta sunt servanda : Art. 26 VCLT

Art. 27 VCLT: Internal law cannot be invoked to justify failure to perform. You as a country can not
starts relying on arguments based on your national legal system that you can not in the end
perform the treaty.
But: Art. 46 VCLT later in the Vienna Convention that to some extend but only to a very
limited extend provides for some qualification of this article 27.

Non-retroactivity: Art. 28 VCLT

Territorial application: Art. 29 VCLT – principle of moving treaty boundaries. The idea is that treaty
follows changing boundaries either broadening or shrink.

Conflicts between treaties: Art. 30 VCLT. You will have to look at the title of those provisions
because is basically about the application in time between subsequent treaty provisions on the same
subject matter so it is not about any possible conflict between treaty provisions, is really about
treaties that has the same subject matter but some of which are subsequent in time. Article 30 is
trying to give some rules of thumb (logical and simplistic rules) to solve conflicts between treaties
on the same subject matter. The best are to illustrate it is the law of the seas.
What is an ‘earlier’/’later’ treaty? Entry into force.

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 Art. 103 UN Charter: the Charter as ‘constitution’? In case of conflict between obligation
flowing from a treaty and obligations flowing from the UN charter on the other hand, the
obligations on the UN prevail. Kind of primacy clause of UN charter.
• Cf. ICJ, Lockerbie Case (1992). Terrorist attack; Gadafi. US and UK ask Libia to
extradite those two agents to them. Libia refused. So UK and US enforce them trough
security council. When the security council acts under article 7 it is really binding.
Gadafi continues to refuse so he brings the Lockerbie case before ICJ.
• Quid CIL, jus cogens? Article 103 speaks about international agreements and doesn’t
mention customary international law, neither ius cogens. I would incline to think that in
case of a violation of ius cogens, the UN charter can not prevail. Customary International
law is a bit more tricky and there I would be inclined to argue that yes, it also applies in
case of customary international law because there is a binding obligation. States have
signed up to the UNCharter and to disclosure art. 103 and I think that you could argue
that also in case of customary law, obligations under binding security council resolutions
would have to prevail. You sometimes see besides that the security council acting under
chapter 7 sometimes really in a way changing certain rules of customary law or adapting
them to particular instances. So the security council has a power also acting under
chapter 7 in certain instances, not to overrule, but to adapt the application of rules of
customary law, in that sense I would argue that under conflict rule of 103 also customary
rules can be subject to that rule.
Treaty specifies that it is subject to/not incompatible with earlier or later treaty (para. 2). In
other words, a treaty is basically subordinating itself to an earlier or a later treaty.
Sometimes treaties have usually in the back of the treaty towards the end a clause that is
about the relationship with other treaties and that may be a clause that says “this treaty is
subject to” or “ does not go against a particular other treaty”
• Art.7 Washington Treaty. This article indeed refers to the UNCharter. so in that sense is
an illustration of this form of subordination or a conflict clause that says “we are not
going against a particular other treaty”. Sometimes you may also have conflict that says
“this treaty prevails over other treaties ”… you have to be aware if there is indeed such a
conflict clause in a treaty it may help to solve part of that problem.

All parties earlier treaty are parties to later treaty: earlier applies to extent provisions compatible
with latter treaty (para. 3). But this not happens every time, see the law of seas treaties…

When not all party to later treaty:

• Between States Parties to both treaties: see earlier rule. The older treaty can apply to the
extend it is compatible with the new treaty.
• Between State Party to both and State Party to only one: treaty to which both are parties
governs mutual rights and obligations. You choose the treaty that is applicable to both.

The insufficiencies of Art. 30 VCLT

• ‘Treaties relating to the same subject matter’? This is a very important limitation because in
international relation we often have clashes but between treaties of different subject matter.
See WTO, most agreements are from 1995. When it was concluded, there was a big frustration
with French speaking countries, the wanted a cultural exception, but it didn’t happened. The
battle was moved to Paris (UNESCO) and they concluded the Cultural Diversity Convention,
which is a multilateral treaty that wants to protect cultural diversity, is a bit reaction to the
“americanisation” of culture. This allows countries to protect their cultural diversity by giving
subsidies and it has been signed by EU, EU countries but not by US (who was against). This is
basically a clash between two different legal regimes, free trade (so you can not favour your
own industries, including giving subsidies) and protecting cultural diversity. so, totally
different scope, so one could think it doesn’t fall to the application of article 30 because they
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 are not treaties on the same subject matter. It is problematic also because US is not bound by
this convention of UNESCO… this is also related to the “fragmentation of international law”.
• Lex posterior/Lex specialis not always helpful

6. INTERPRETATION

Schools of interpretation: intention of parties (the founding fathers, is a little bit more subjective. It
is not always easy because this things are not always on record), textual (that is the thing on the
Vienna Convention, we know is only applicable to written treaties so you have to read the text),
teleological (the object and purpose, article 18 and 19, and 31 Vienna Convention). Can they lead
to different results? Yes, clearly. Depending on the method, see case:

Cf. PCIJ, Interpretation of the Convention of 1919 concerning employment of women at night
(1932). ALO Convention, the big dispute was that they couldn’t figure out what was the scope of
the convention. Some say it applies to all women, others to manual workers… the majority decides
that it could apply to all the female workers, they looked at the intention of the parties (“dont find
anywhere during the negotiations an indication that it was limited to manual labour”). They went
to the text on the convention then, and decided the scope was to the majority. Someone dissent
because said that they want looking to the object of the Convention…

1. General rule of interpretation

4 para’s of Art. 31 hierarchical but logical order Article 31(1) VCLT:
“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object and purpose.” This is a
world famous provision.

✓ Good faith interpretation=> Art. 26: pacta sunt servanda

✓ Ordinary meaning of the terms=> textual/literal approach. There are provisions here that
indicate that sometimes terms may be given a special meaning. Some treaties may be very
technical, of course those have to be followed and you don’t go to the general dictionary.
✓ In context & in light of object and purpose=> teleological. but, what is context?:

What is ‘context’? Article 31(2): “in addition to text, preamble and annexes: (a) any agreement
relating to the treaty which was made between all the parties in connexion with the conclusion of the
treaty; (b) any instrument made by one or more parties in connexion with the conclusion of the treaty
and accepted by the other parties as an instrument related to the treaty” this sounds pretty abstract.
Text, preamble, annexes e.g. technical annexes. The binding provisions are in the treaty but
they as such do not comprise the preamble. The preamble is not traditionally see as the
binding part of the treaty BUT as part of the context.
Protocols, declarations e.g. interpretative statements WTO Agreement; even unilateral
declarations attached to Treaty: e.g. Lisbon Treaty. There can be other agreements in relation
to the treaty, meaning declarations attached to the treaty. Declarations are part of the
treaties, provide context.

Article 31(3): “taken into account, together with context: (a) any subsequent agreement between the
parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent
practice in the application of the treaty which establishes the agreement of the parties regarding its
interpretation; (c) any relevant rules of international law applicable in the relations between the
parties” it refers to additional things… the problem is c), because what about multilateral treaties?
Subsequent practice: e.g. ICJ, Israeli Wall, para. 25
Relevant rules of international law: e.g. ICJ, Oil Platforms, para. 41

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 Art. 31(4): “A special meaning shall be given to a term if it is established that the parties so intended”
= again intention of the parties, ‘subjective’ school
CJEU: ‘autonomous’ meaning

2. Supplementary means of interpretation (Art. 32)

This article is a little bit left overs of what you could probably use if you don’t get good results
based on article 31.

“including the preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from application of Art. 31, or determine the meaning when the
interpretation according to Art. 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a
result which is manifestly absurd or unreasonable.”

alternative, autonomous but supplementary means

Rarely useful if interpreter has been guided by object and purpose of treaty; ‘manifestly’ reduces
utility further

No exhaustive list of supplementary means.

Subsequent practice of many States (all States: Art. 31(3)(b))
Rules derived from domestic law: e.g. contra preferentem. That is basically referring that if a
treaty has been mainly written by one of the parties, then, in fact, you should interpret it not
solely in the interest of that party contra preferentem (contra the one who had mainly
drafted the treaty).

Article 33: Interpretation of treaties authenticated in two or more languages

1. When a treaty has been authenticated in two or more languages, the text is equally authoritative
in each language, unless the treaty provides or the parties agree that, in case of divergence, a
particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the text was authenticated
shall be considered an authentic text only if the treaty so provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each authentic text.
4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of
the authentic texts discloses a difference of meaning which the application of articles 31 and 32
does not remove, the meaning which best reconciles the texts, having regard to the object and
purpose of the treaty, shall be adopted.

7. TREATIES AND THIRD STATES

As private law contracts, they are only binding for those parties.

Art. 34 VCLT: general rule: Pacta tertiis nocent nec prosunt – relativity of treaties. Treaties will not
harm, nor benefit third parties. You look at this point of view of consensualism, only binding
between sovereign actors that gave their consent to be bound. But you can imagine in some cases
treaties will have ripple effects, spill over effects, at least factually to the situation of third parties. In
that respect the Vienna Convention is rather consistent.

Art. 35: obligations only if third State accepts in writing. You can not impose obligations on third
party, unless that third party accepts in writing the obligations.

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 Art. 36: rights: if third State assents (rebuttable presumption). Yes, also the third state has to assent
with that but is a rebuttable presumption that the third state will not mind to be given certain
rights. For example, typical treaties about the use of canals.

Art. 38: Treaty rules can become binding as customary international law to third State. Confirms
that they may be other way for a treaty to become relevant for third parties and that is through
becoming part of customary international law. When talking about sources you have to be aware
that certain rules can be at the same time a treaty rule and at the same time a rule of customary
international law. The Vienna convention is a good example, because it is widely consider to be part
of customary international law. So in that sense, you could argue that some treaties may indirectly
become binding upon countries when they have started to become part of general international law
or customary international law.

8. INVALIDITY

Relative invalidity vs. absolute invalidity:

Relative invalidity: can be remedied. This typically relates to the expression of the free will of a
state.
• Violation of provisions of national law regarding competence to conclude treaties: Art. 46(1)
VCLT =>article 46 is negatively worded so you have to read it carefully. It indicates that it is a
difficult compromise and it was a tension field in the negotiation between the camp of the
internationalist (the ones who say international law prevails over domestic law, you can not
invoque elements of you domestic law to get rid of obligations) and the camp of the
constitutionalist (these will always look at the supreme law of the land and say that it can not
be that a treaty which has been negotiated in a manner that really flies in the face of
constitutional rules, that this will be binding upon a state). Article 46 says “yes, there is a
slight possibility that you can invoque the invalidity of the consent that was given when is
clear that there was a manifest violation of a rule of internal law of fundamental importance”.
Fundamental importance points already to constitutional rules. Land and Maritime
Boundary between Cameroon and Nigeria (2002); Maritime Delimitation in the Indean
Ocean (Somalia/Kenia) (2017). In the Somalia case is about EMU, which was considered a
treaty. The argument of Somalia was constitutionalist, first needed the approval of Somalias
parliament. ICJ proved the limitations of article 46.
• Error (Art. 47) – must not be inexcusable: Case concerning the Temple of Preah Vihear
(1962). If there is an error, it has to be excused.
• Fraud (Art. 49). It is of course a ground of invalidity.
• Corruption (Art. 50). International law commission has indicated that small hints doesn’t
necessarily means corruption.

Absolute invalidity: treaty void ab initio and without legal effect

• Coercion of a representative of a State (Art. 51).
• Coercion of a State by the threat or use of force (Art. 52)

Violation of jus cogens: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a peremptory norm of
general international law is a norm accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character” (Art. 53) ius cogens is one
of those beautiful but contested notions of law. Vienna convention has introduced it. This article
basically says that at the time of conclusion when a treaty flies in the face of a norm of ius cogens
that then the treaty will be void.
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 Components of jus cogens norms. You can see kind of an analogy of public policy exceptions
in private law. The list is rather short. Genocide, piracy, torture but event there some states
have a different view, slavery…. The use of force is discussed because the rule itself has
exceptions, for example when the security council authorise it.
Examples of jus cogens - ICTY, Furundzija (1998), ECtHR, Jones et al. v. United Kingdom
(2014)
Art. 64 VCLT: existing treaty void because emergence new jus cogens norm – jus cogens
superveniens

Fear for abuses: procedure of Art. 66 VCLT.

Consequences violation of jus cogens:

• No separability: Art. 44 (5) VCLT=>treaty void in toto. The hole treaty is null in void.
• Art. 71 VCLT: eliminating consequences/bringing relations in order
• Relationship with State immunity: ICJ, Jurisdictional Immunities of the State (Germany/
Italy) (2012), paras 92 ff). ICJ gives a very procedural form of interpretation of ius cogens. It
was a case about what happened as consequences of IIWW, Germany occupied Italy and
during that you have slavery and for that situation of force labour the Italians wanted some
compensation, Germany considered the case closed but families of victims not. Italy brought
the case to ICJ, Germany argued that ius cogens was something that could not affect immunity
as such but it was about the substantive nullity of the particular treaty and ICJ basically
followed the German argument. It was basically saying yes, a violation of ius cogens does not
have an impact upon state immunity, ius cogens that indeed of into the substance of violation
of rules and obligations whereas an immunity is a formal thing, is a procedural thing.

Difference jus cogens norms – erga omnes obligations.

• Treaty law vs. law on State responsibility. The main difference is that ius cogens we discuss
on the context of treaty law (art. 64 VCLT) while the other is about state responsibility,
meaning that if you have interstate aggression (for example), an erga omnes obligation
would be for all states not to recognise the consequences of that violations of law.
• Example: genocide or act of aggression committed by State officials/attributable to the State
• ICJ: Barcelona Traction (paras 33-34) where the court did not embrace the notion as such
but spoke about the so called erga omnes obligations, Namibia (para. 126), East Timor
(para. 29); Genocide Convention (para. 31); Israeli Wall (paras 155- 160); ICTY,
Furundzija (paras 151-152)

9. TERMINATION

The final provisions of the Vienna Convention are about the pathology of international treaty law.
The possibility to get rid of your treaty obligations by denunciating (bilateral) or by withdrawing
(multilateral). The drafters wanted to make it difficult for countries to get rid of treaty obligations.

Artt. 54-64 VCLT

General rule Art. 54 & 57:
- In conformity with the provisions of the treaty, or
- By consent of all the parties → possibly implicit, cf. desuetudo
Residual rule: Art. 56 → denunciation (bilateral) or withdrawal (multilateral) not possible
unless (1) clear that parties intended to admit possibility, or (2) this flows from the nature of
the treaty + 12 months notice.

ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (1980)

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 Art. 60: material breach.
= a repudiation of the treaty not sanctioned by the VCLT, or the violation of an essential
provision
- Bilateral treaties vs. multilateral treaties
- Not applicable to treaties concerning the protection of the human person
ICJ, Legal consequences for States of the continued presence of South Africa in Namibia
(1971)

Art. 61: force majeure (e.g., drying up of a river, destruction railway by earthquake,…). Something
that you don’t have control of. Definitive PERMANENT impossibility. Not temporary things.

Art. 62: rebus sic stantibus → but very restrictive. Very big reluctance to accept this provision in case
law by ICJ: cf. ICJ, Fisheries Jurisdiction (1973), Gab kovo-Nagymaros (1997)

SOME ADDITIONS ON TREATY LAW

1. THE UN TREATY ON THE HIGH SEAS

Ocean ecosystems produce half the oxygen we breathe, represent 95% of the planet’s biosphere and
soak up carbon dioxide; but fragmented and loosely enforced rules governing high seas have
rendered them susceptible to exploitation

SDGs: 14.c Enhance the conservation and sustainable use of oceans and their resources by
implementing international law as reflected in the United Nations Convention on the Law of the
Sea, which provides the legal framework for the conservation and sustainable use of oceans and
their resources

Cf “30x30” pledge: designate 30% of land and ocean area as protected areas by 2030 => agreed as
target 3 at COP15 (conference of parties) of Convention on Biological Diversity (“Kunming-
Montreal Global Biodiversity Framework”)
“Ensure and enable that by 2030 at least 30 per cent of terrestrial, inland water, and of coastal
and marine areas, especially areas of particular importance for biodiversity and ecosystem
functions and services, are effectively conserved and managed through ecologically
representative, well-connected and equitably governed systems of protected areas [...]”

4/3/2023 in NY: intergovernmental conference adopts “Draft agreement under the United
Nations Convention on the Law of the Sea on the conservation and sustainable use of marine
biological diversity of areas beyond national jurisdiction”

Will be officially adopted at UN meeting later; “no reopening of discussions on substance of text”

Treaty provides:
• Legal framework for establishing and managing vast marine protected areas (MPAs) to protect
against the loss of wildlife and share out the genetic resources of the high seas
• Rules on access to and use of marine genetic resources and requirements for environmental
assessments for deep sea activities

Third international agreement on high seas, following 1994 Agreement on Part XI UNCLOS
(deepseabed mining) and 1995 straddling fish stocks agreement

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 Article 4 Relationship between this Agreement and the Convention and relevant legal
instruments and frameworks and relevant global, regional, subregional and sectoral bodies

1. This Agreement shall be interpreted and applied in the context of and in a manner consistent
with the Convention. Nothing in this Agreement shall prejudice the rights, jurisdiction and duties of
States under the Convention, including in respect of the exclusive economic zone and the
continental shelf within and beyond 200 nautical miles.

2. This Agreement shall be interpreted and applied in a manner that does not undermine relevant
legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies
and that promotes coherence and coordination with those instruments, frameworks and bodies.

3. The legal status of non-parties to the Convention or any other related agreements with regard to
those instruments is not affected by this Agreement.

2. THE WINDSOR FRAMEWORK

EU-UK Withdrawal Agreement of 17 October 2019 (entry into force: 1 Feb 2020)
“sets out the arrangements for the withdrawal of the United Kingdom of Great Britain and
Northern Ireland from the European Union and from the European Atomic Energy Community”
(Art 1)

Protocol on Ireland/Northern Ireland, or Northern Ireland Protocol

• Protocol to Withdrawal Agreement that governs customs and immigration issues at EU-UK
border on Ireland + on some aspects of trade in goods between Northern Ireland and rest of
UK
• Intended to protect EU single market, while avoiding imposition of a ‘hard border’ that might
incite recurrence of conflict and destabilise the peace that has held since the end of “the
Troubles”
• Northern Ireland = formally outside EU single market but EU free movement of goods and
customs union rules apply: ensures there are no custom checks between Northern Ireland and
rest of the island. Goods from Northern Ireland may be moved without restriction to Great
Britain but not conversely: in place of an Ireland/Northern Ireland land border, the Protocol
created de facto customs border in the Irish Sea

Windsor Framework of 27 February 2023

“international arrangement between the UK and the EU under which the parties commit to binding
international law obligations, including changes to the Protocol itself. The UK and EU have made
clear in the Political Declaration accompanying the Windsor Framework that the amended Protocol is
governed by the Vienna Convention on the Law of Treaties.” (HMG Legal Position: The Windsor
Framework , 27/2/2023)

“The Government of the United Kingdom and the European Commission commit to the full
implementation of the Withdrawal Agreement in all its parts. Likewise, the two sides commit to taking
all possible steps to address future disputes over the operation of these arrangements through
engagement in the Withdrawal Agreement Joint Committee before seeking dispute settlement. Both sides
recall the importance they attach to the respect of international obligations (pacta sunt servanda),
including those arising from the Vienna Convention on the Law of Treaties, done on 23 May
1969, which applies to all international agreements including the Withdrawal Agreement and its
Protocol on Ireland / Northern Ireland. Both sides are confident that the implementation of the
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 Withdrawal Agreement, and the will to jointly resolve any issues that emerge will be instrumental in
avoiding disputes.” (Political Declaration by the European Commission and the Government of the
United Kingdom, 27/2/2023)

Concrete importance: “agreement in principle” which relates to goods crossing Irish Sea from GB
to NI; introduceds green and red lanes to reduce checks and paperwork on goods that are destined
for NI + separate them from goods at risk of moving into EU single market; + agreements on
medicine control, VAT and alcohol duty

How will it come to be applied? Must be approved in Joint Committee established under Art 164
Withdrawal Agreement

3. QUITTING THE ENERGY CHARTER TREATY

International agreement that establishes a multilateral framework for cross-border cooperation in

the energy industry, principally the fossil fuel industry. The treaty covers aspects related to:
• Trade
• Protection of foreign investments
• Resolution of disputes : investor-state arbitration (17% of all fossil-fuel investor disputes;
eg multi-million UKL award for UK oil firm Rockhopper in case against Italian government’s
ban of offshore drilling in territorial waters)

Adopted 1994; entry into force 1998

Currently 53 signatories and contracting parties, including the EU

Seen today as an obstacle to implementation Paris Agreement and transition to renewable energy

Agreement in principle to modernize ECT, 12/9/2020 - many unanswered questions

=> States are withdrawing

Withdrawn: Italy

Intention to withdraw: EU (180°change DG Trade), France, Germany, the Netherlands, Poland,

Spain, Luxemburg, Slovenia, ...

Withdrawal procedure: ECT, Article 47(1) & (2): watch the 20 years “sunset clause”!

Article 47: Withdrawal

(1) At any time after five years from the date on which this Treaty has entered into force for a
Contracting Party, that Contracting Party may give written notification to the Depositary of its
withdrawal from the Treaty.
(2) Any such withdrawal shall take effect upon the expiry of one year after the date of the receipt of
the notification by the Depositary, or on such later date as may be specified in the notification of
withdrawal.
(3) The provisions of this Treaty shall continue to apply to Investments made in the Area of a
Contracting Party by Investors of other Contracting Parties or in the Area of other Contracting
Parties by Investors of that Contracting Party as of the date when that Contracting Party’s
withdrawal from the Treaty takes effect for a period of 20 years from such date.
(4) All Protocols to which a Contracting Party is party shall cease to be in force for that Contracting
Party on the effective date of its withdrawal from this Treaty.
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