Appunti completi di International Law

TREATIES AND THIRD STATES

"Third State" = 'a State not a party to a treaty' (VCLT, art. 2(1)(h))

Art. 34: A treaty does not create either obligations or rights for a third State without its consent. If 2 states are contracting a treaty, because of the general idea of CONSENT, they cannot create rights of obligations for third states without their consent.

Article 35 Treaties providing for obligations for third States

An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.

Article 36 Treaties providing for rights for third States

1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State

assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.

2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty.

NB: difference between creation of obligation and of right:

à - a right is something positive, so there is the assumption that silence=assent

- an obligation has to be accepted expressly and in writing.

Article 37 Revocation or modification of obligations or rights of third States

à1. When an OBLIGATION has arisen for a third State in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed.

2. When a RIGHT has arisen for a third State in conformity with article 36, the right may not be revoked or modified by the parties if it is

It has been established that the right was intended not to be revocable or subject to modification without the consent of the third State.

Article 38 Rules in a treaty becoming binding on third States through international custom:

Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.

NB: the creation of rights/obligations for third states has to be DISTINGUISHED from the mere creation of legal facts, that are NOT in themselves creating obligations for or infringing rights of third states:

• eg Treaties establishing territorial regimes
• eg Treaties giving rise to international legal personality of international organizations

INVALIDITY OF TREATIES

When states are contracting and consenting, there is something that happens in the process that can vitiate the consent the treaty will be invalid:

We can divide the grounds of invalidity in 2 categories:

1. Some of them are NOT

provision is more procedural. This provision hasn't been invoked a lot, because the threshold is very high. Ex. Maritime Delimitation in the Indian Ocean at paras 48-9: "The rules concerning the authority to sign treaties for a State are constitutional rules of fundamental importance. However, a limitation of a Head of State's capacity in this respect is not manifest in the sense of Article 46, paragraph 2, unless at least properly publicized."

Article 47 Specific restrictions on authority to express the consent of a State: If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him UNLESS the restriction was notified to the other negotiating States prior to his expressing such consent.

Article 48 Error: 1. A State may invoke an error in a

Article 48 Error in relation to consent

A State may invoke an error as invalidating its consent to be bound by a treaty if the error 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. It cannot be an error of law.

Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error.

An error relating only to the wording of the text of a treaty does not affect its validity; article 79 then applies.

Article 49 Fraud

If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.

Article 50 Corruption of a representative of a State

If the expression of a State's consent to be bound by a treaty has been procured through the corruption of its representative.

directly or indirectly by another negotiating State, the State MAY INVOKE such corruption as invalidating its consent to be bound by the treaty.

MANDATORY:

Article 51 Coercion of a representative of a Stateà 19

The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him SHALL be without any legal effect.

Article 52 Coercion of a State by the threat or use of forceà

A treaty IS VOID if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. it regards the state as a wholeà it says “it’s void” because it’s not a choice of the state, it’s automaticà

Article 53 Treaties conflicting with a peremptory norm of general international law (= “jus cogens”)à

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.

Examples: prohibition of the use of force, prohibition of genocide, of torture; also self-determination became a jus cogens norm

Article 64 Emergence of a new peremptory norm of general international law (“jus cogens”)

If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes VOID and terminates.

In cases of subsequently emerging jus cogens, so jus cogens that emerges after the treaty has entered into force, a conflicting treaty will become void.

consequences of the conflict: parties will need to try to maintain

The treaty, as far as it does not conflict with jus cogens, can maintain the parts of the treaty which were not vitiated.

Article 69 CONSEQUENCES OF THE INVALIDITY of a treaty:

1. A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force.
2. If acts have nevertheless been performed in reliance on such a treaty:
   1. each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed;
   2. acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty.
3. In cases falling under article 49, 50, 51 or 52, paragraph 2 does not apply with respect to the party to which the fraud, the act of corruption or the coercion is imputable.
4. In the case of the invalidity of a particular State's consent to be bound by a multilateral treaty, the

The foregoing rules apply in the relations between that State and the parties to the treaty. Who says that a treaty is invalid? The parties are going to have a dispute regarding the validity, and they may address it by different means: diplomacy, negotiation, international court...

TERMINATION OF THE TREATY ('Termination' of treaty, 'suspension of the operation' of treaty, 'withdrawal from' treaty, 'denunciation' of treaty, 'repudiation' of treaty)

We have to refer to the text of the treaty, and then to the VC, which is an exhaustive list (arts 54-64).

à• àArticle 54 The TERMINATION of a treaty or the WITHDRAWAL of a party may take place:
(a) in conformity with the provisions of the treaty; or
(b) at any time by consent of all the parties after consultation with the other contracting States.

• àArticle 55 Unless the treaty otherwise provides, a multilateral treaty DOES NOT terminate by reason

onlyof the fact that the number of the parties falls below the number necessary for its entry into force. 20• àArticle 56 1.A treaty which contains no provision regarding its termination and which does not provide forDENUNCIATION or WITHDRAWAL is not subject to denunciation or withdrawal UNLESS:(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.2.A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treatyunder paragraph 1.• àArticle 57 The operation of a treaty in regard to all the parties or to a particular party may be SUSPENDED:(a) in conformity with the provisions of the treaty; or(b) at any time by consent of all the parties after consultation with the other contracting States.• &agra