Advanced Course on the Law of Treaties Sources and Interpretationin International Law

Advanced Course on the Law of Treaties Sources and Interpretationin International Law

Syllabus

ADVANCED COURSE ON THE LAW OF TREATIES – SOURCES AND INTERPRETATIONIN INTERNATIONAL LAW

Thursdays 15.00-17-00 Sala Triaria, starting on 10 October 2013.

General Description:

This seminar will explore various contentious issues pertaining to the law of treaties as a branch of public international law. The 1969 Vienna Convention on the Law of Treaties (VCLT) will form a frame of reference for the discussions but not be subjected to systematic study. Rather, the course seeks to go beyond and behind the VCLT through in-depth examination of specific topics that are indicative of more general issues and problems. Among these topics are:

  • The concept of treaty and its various manifestations;
  • Treaty-making powers of international organizations;
  • Methods of resolving conflicts between treaties;
  • The special character of human rights treaties (including the availability of reservations to human rights treaties);
  • The complex interrelationship between various sources of international law;
  • The alleged demise of jus cogens;
  • Rules of interpretation in the VCLT and their applicability to human rights treaties, statutes of international courts and tribunals as well as other international instruments;
  • Challenges associated with the gap between treaty content and treaty-making;
  • Relationship between domestic law and international obligations in public international law and human rights law;thedoctrine of self-executing treaties.

The course is addressed to the researchers focusing on public international law, international humanitarian law, international criminal law and human rights law, or wishing to gain a perspective on the sources of international law and develop their methodological skills in utilizing international treaties and non-treaty instruments in their research.Hence, this course provides skills in the methodology of international law.

All participants are required to read the assigned materials and engage in seminar discussions. The reading materials for each session will be available online before 1 August 2013. Some of the readings have been marked as optional in order to keep the volume of each session under control. Each participant will choose a topic within the seminar readings on which to give a short (10-15 minute) presentation in the course of the seminar

Session 1:The concept of treaty. Sources of international law.

This introductory session will look into a number of issues related to the law of treaties as a branch of public international law. The Vienna Convention on the Law of Treaties (VCLT) will be introduced as a general framework for the seminar. In particular, it will focus on treaties and other sources of international law: relationship between treaty and custom; relationship between treaty and other written instruments drawn up between states or within an international organization, including those characterized as "soft law", memoranda of understanding, political document etc. Terminology: We will compare and discuss the terminology employed in the VCLT and in the United Nations Treaty Reference Guide, both included in the readings for the first session.

Readings:

  1. Jan Klabbers, The Concept of Treaty in International Law, Kluwer 1996, pp. 37-64; 245-250;
  2. Ian Sinclair, The Vienna Convention on the Law of the Treaties, 2nd edition, Manchester University Press, 1984, pp. 1-21 (Chapter “The Scope of the Convention and its relationship to customary law”);
  3. Mark Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Nijhoff 2009, pp. 1-27; 57-61; 127-131;
  4. OPTIONAL: Malgosia Fitzmaurice and Olufemi Elias, Contemporary issues in the law of treaties, International publishing, 2005, pp. 1-47.

Documents:

  1. United Nations Treaty Reference Guide (1999);
  2. Vienna Convention of the Law of Treaties (1969).

Cases:

  1. Salini Construttori S.p.A. and Italstrade S.p.A v. The Hashemite Kindgom of Jordan, ICSID Case No. ARB/02/13 (2004), esp. paras. 68-101.

Questions:

  1. How and why did the VCLT come about? Does it mirror customary international law as a complete codification of its norms related to treaties between states? Does it define what a treaty is?
  2. How does one determine whether an international agreement is legally binding?
  3. How does one distinguish a purely contractual dispute and a dispute stemming from an international agreement? What are the consequences of this distinction?Do you agree with the Salini reasoning?
  4. What is the legal status of the United Nations Treaty Reference Guide? How does it define treaty vs. other types of written instruments? Are the definitions authoritative?

Session 2: The role of consent. Subjects of international law and treaty-making capacity.

The second session will build upon the discussions in the first session on the concept of a treaty in and beyond the VCLT, including the conditions that a treaty is between “states” and falls under the legal order of international law. We will also discuss the presumption that explicit consent is a defining element to the legal effect of treaty norms, for instance in comparison to norms of customary international law. Related to this, we will address modern forms of treaty-making where consent to be bound is less explicit when taking on board new obligations.

Readings:

  1. Ian Sinclair, The Vienna Convention on the Law of the Treaties, 2nd edition, Manchester University Press, 1984, pp. 29-­‐47;
  2. Malgosia Fitzmaurice, “Consent to be Bound – Anything New under the Sun?” (2005) Nordic Journal of International Law, pp. 483-­‐507;
  3. Gudmundur Alfredsson, “Indigenous Peoples, Treaties with”, Max Planck Encyclopedia of International Law 2009;
  4. Menno T. Kamminga: Impact on State Succession in Respect of Treaties" in Menno T. Kamminga and Martin Scheinin, The Impact of Human Rights Law on General International Law, Oxford University Press, 2009;
  1. Mark Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Nijhoff 2009, pp. 698-706, 735-751, 792-795.

Documents:

  1. Human Rights Committee, General Comment No. 26 (1997).

Cases:

  1. Questions Relating to the Obligation to Prosecute or Extradite (Belgium vs. Senegal), ICJ, 2012, Paras. 96-105.

Questions:

  1. How does Gudmundur Alfredsson’s discussion on treaties between a state and an indigenous people relate to our discussion in Session 1 on the definition of a treaty, for the purposes of the VCLT?
  2. What is the relationship of the principle of consent as a fundamental principle of public international law and the doctrine of automatic treaty succession for certain (which?) categories of treaties? See Kamminga’s discussion on the topic.
  3. In the light of modern form of treaty-making, including the creation of law-making powers coupled with an opt-out provision (see Fitzmaurice), how much is left of the traditional position of (active) consent constituting the limit to any state obligations?
  4. What are the various forms in which consent to be bound can be expressed (e.g. signature, ratification, accession), and what are their distinctive legal effects? See Sinclair, and Fitzmaurice.
  5. Did the ICJ rule that Senegal is obliged to prosecute Mr. Habré for the acts allegedly committed before the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment entered into force for Senegal? Do you agree with the Court’s conclusion?

Session 3: Reservations and declarations.

This session focuses on articles 19-23 of the VCLT. We will discuss state practice on reservations and emerging trends. The seminar will explore the competing goals of ensuring integrity and universality, as well as problematic situations when the treaty is silent on the issue of reservations, and some states object to a proposed reservation.

Readings:

  1. Frank Horn, Reservations and Interpretative Declarations to Multilateral Treaties, T.M.C. Asser Institut, 1988, pp. 7-­‐13 (The emergence of reservations);
  2. Daniel Hylton, Default breakdown: “The Vienna Convention on the law of treaties' inadequate framework on reservations,” (1994) 27 Vanderbildt Journal of Transnational Law 419, pp. 419-­‐51;

Documents:

  1. Guide to Practice on Reservations to Treaties Adopted by the International Law Commission at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/66/10, para. 75) (23 pages);
  2. General Comment No. 24 by the Human Rights Committee.

Questions:

  1. Are the permissibility and consequences of reservations a zero-sum game between states only, or do other actors have a say? One well-known version of this debate is the question whether the VCLT regime on reservations is at all suitable for human rights treaties, or any treaties with third-party beneficiaries, or those treaties that establish independent expert bodies or courts as adjudicatory bodies under the treaty.
  2. If a reservation is impermissible under article 19 (e.g. as incompatible with the object and purpose of the treaty), do articles 20 and 21 at all come into play? In other words, do the latter merely address acceptance of, objections to, and consequences of,permissible reservations? If so, what would then be the law in respect of impermissible reservations?
  3. Is there a difference between the permissibility and validity of reservations?
  4. Is it better to have a maximum number of states join the treaty, albeit with reservations, or is it preferable to see the treaty regime in terms of uniform rights and obligations?
  5. Keeping in mind our earlier discussions on whether the VCLT is a complete codification of customary law, or a more or less incomplete reflection of underlying norms of customary law, what is the relevance of article 20 (3)? Is it a narrow exception related only to treaties with the status of a charter/statute of an international organization? Or would it be an expression of a more general principle, applicable whenever a treaty establishes a body entrusted with some powers to interpret the treaty?

Session 4: Interpretation of treaties (and other international sources).

Interpretation of treaties has been referred to being closer to an art than a science, perhaps reflecting a voluntarist view that in the world of diplomacy ‘anything goes’, as long as the states parties to a treaty can agree of the outcome. In contrast, those who think of international law as some sort of constitutional order, would seek for uniform rules of interpretation that could not be changed at will.

Readings:

  1. Antony Aust, Modern Treaty Law and Practice, Cambridge University Press, 2nd ed, Chapter 13 on Interpretation, pp. 230 – 255;
  2. Richard Gardiner, “The Vienna Convention on Treaty Interpretation” in Duncan B. Hollis (eds) The Oxford Guide to Treaties, Oxford University Press, 2012, pp. 475-506;
  3. Mark Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Nijhoff 2009, pp. 415-441;
  4. OPTIONAL: Cambell McLachlan, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention”, ICLQ, Vol. 54, April 2005, pp. 279-320.

Cases:

  1. Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Georgia v Russian Federation, Judgment on preliminary objections, ICGJ 429 (ICJ 2011), 01 April 2011, paras. 115-184.

Questions:

  1. What is being interpreted: the text of the treaty, the norm behind the treaty, or the intention of states? This question is relevant in assessing the relationship between VCLT articles 31 and 32 – why?
  2. Is there a hierarchy, or a logical structure, for the use of the various elements of the "general rule" in VCLT article 31?
  3. What counts as “subsequent practice”? In particular, under treaties where the states parties have created an independent international body with a mandate to assess states' compliance with the treaty, what is the role of such pronouncements in treaty interpretation?
  4. To what extent, and with what kind of modifications, are the rules and principles of treaty interpretation applicable also in relation to international instruments not adopted in the form of a treaty, such as United Nations Security Council resolutions?
  5. Do you agree with the ICJ’s interpretation of Article 22 of the Convention on the Elimination of Racial Discrimination?

Session 5: Conflicts between treaties

This session will focus on the rules for resolving conflicts between different treaty norms.In addition to that, the session will exploreconflicts between treaties and other sources of international law. In the recent Jurisdictional Immunities Case (Germany vs. Italy: Greece Intervening), the ICJ ruled that neither the 2004 UN Convention on JurisdictionalImmunities of States, nor the 1972 European Convention on State Immunity, envisaged, at the time of their adoption, a jus cogens limitation to state immunity (para. 89). It is noteworthy that the court used treaties in determining the scope of customary international law. The ICJ further held that there exists no conflict between the rule of customary law which requires one state to accord immunity to another and rules of jus cogens prohibiting, inter alia, murder of civilians, slave labour and deportations because these two sets of rules address different matters (para. 93). This case illustrates two points: first, continued relevance of different sources of international law, with particular emphasis on treaties; and, secondly, the complexity of interrelationship between the sources of international law.

Readings:

  1. Christopher J Borgen, “Treaty Conflicts and Normative Fragmentation” in Duncan B. Hollis (eds) The Oxford Guide to Treaties, Oxford University Press, 2012, pp. 448-474;
  2. Anthony D'Amato, It's a Bird, It's a Plane, It'sJus Cogens, 6 CONN. J. INT'L L. 2 (1990-1991);
  3. Mark Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Nijhoff 2009, pp. 399-411;
  4. OPTIONAL: Joost Pauwelyn, “Bridging Fragmentation and Unity: International Law as a University of Inter-Connected Islands”, 2004;
  5. OPTIONAL: Jan B. Mus, “Conflicts Between Treaties in International Law”, NILR 1998, pp. 208-232.

Documents:

  1. Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, adopted by the International Law Commission at its Fifty-eighth session, in 2006, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/61/10, para. 251).

Cases:

  1. The Jurisdictional Immunities Case (Germany vs. Italy: Greece Intervening),ICJ, 2012, paras. 89, 92-97.

Statutes:

  1. The Rome Statute of International Criminal Court, Article 21;
  2. The VCLT, Article 53.

ILC:

  1. Articles on State Responsibility, Articles 40-41.

Questions:

  1. What is the relationship between interpretation of treaties and resolving conflicts between them? Do conflicts relate to treaties before or after their interpretation? What does it mean when lex posterior is referred to as being a conflict clause while lex specialis not being one?
  2. Does the ILC study group on fragmentation - intentionally or unintentionally - contribute to elevating the VCLT to the status of a "constitution" for the system of international law?
  3. To what extent can international law accommodate axiological factors (value priorities) in resolving conflicts between treaties, including through the notion of jus cogens? Does lex specialis represent an opposite trend of reducing the effect of fairly abstract norms with a moral foundation, compared to technical rules that as to their formulation often happen to be more specific?
  4. Does the Jurisdictional Immunities Case signify the demise of jus cogens in international law?

Session 6: The special character of the human rights treaties. Treaty as a living instrument.

This session will explore the role of treaties as a source of human rights obligations. It will focus onthe issuesspecific to the interpretation and application of human rights treaties. In particular, it will investigate the notion of a human rights treaty as a ‘living instrument’.

Readings:

  1. BrunoSimmaand PhilipAlston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, 12AUSTL.Y.B.INT'L L.82, 107(1992);
  2. Martin Scheinin, “Impact on the Law of Treaties” in Menno T. Kamminga and Martin Scheinin, The Impact of Human Rights Law on General International Law, Oxford University Press, 2009, pp. 23-36;
  3. BaşakÇali, “Specialized Rules of Treaty Interpretation: Human Rights” in Duncan B. Hollis (eds) The Oxford Guide to Treaties, Oxford University Press, 2012, pp. 525-550;
  4. Roberto Baratta, “Should invalid reservations to human rights treaties be disregarded?” (2005) European Journal of International Law 413-­‐425;
  5. OPTIONAL: Ben Emmerson, Ashword, McDonald, Human Rights and Criminal Justice, Sweet&Maxwell, 3rd eds, 2012, Chapter 2 (Principles of Interpretation), pp. 79-143.

Cases:

  1. Golder v. United Kingdom, ECHR Judgment of 21 February 1975, Series A, no. 18 (esp. paras. 28-36 and Separate Opinion of Judge Verdross);
  2. Airey v Ireland32 Eur Ct HR Ser A (1979), esp. para 26;
  3. Dudgeon v. United Kingdom,45 Series Eur Ct HR Ser A (1981), esp. para. 6.

State practice:

  1. Objections by states parties to the ICCPR to reservations by other states (pp. 22-53 in UNTS status report of the ICCPR as of 4 July 2013).

Questions:

  1. What are the challenges associated with the sources of human rights law? Why do they require an independent assessment?
  2. Is treaty-making a preferable way of embodying human rights obligations?
  3. Should the general rules of interpretation embodied in the VCLT be modified when it comes to interpreting human rights treaties?
  4. What are the main techniques employed by the ECrtHR in interpreting the ECHR? Does the Court deviate from the general rules of the VCLT?
  5. In Golder, how did the ECrtHR arrive to the conclusion that Article 6 of the ECHR includes the right of access to court? Do you agree with the Court’s methodology? Do you think it is applicable to other types of treaties?
  6. Do you agree with the ECrtHR’s assessment of present day conditions in Airey and Dudgeon?
  7. Recently, a new form of objections to reservations has emerged in state practice: particularly under human rights treaties. Some objecting states have specified that they do consider the reserving state to be a party to the treaty but without the benefit of the reservation regarded by them as incompatible with the object and purpose of the treaty (see, e.g. Sweden’s objections). Do these objections qualify as objections under the VCLT?

Session 7: Breach, termination and suspension of a treaty.

A treaty may be terminated through mutual consent, performance of obligations, or the expiration of a time-limit. However, there are more difficult cases - for example - the termination of treaties that contain no express provision for withdrawal or termination, or terminating or suspending a treaty due to a material breach. The session will elaborate on these questions.

Readings:

  1. Anthony Aust, “Treaties, termination,” Max Planck Encyclopedia of International Law 2009.
  2. Malgosia Fitzmaurice, “Gabčikovo-­‐Nagymaros Case: The Law of Treaties” (1998) 11 Leiden Journal of International Law 321;
  3. Malgosia Futzmaurice and Olufemi Elias, Contemporary issues in the law of treaties, International publishing, 2005, pp. 173-­‐200. (The Doctrine of Fundamental Change of Circumstances Revisited);
  4. OPTIONAL: Andeas Paulus, 'Dispute Resolution', in Geir Ulfstein et al., Making Treaties Work: Human Rights, Environment and Arms Control (2007), pp. 351 – 372.

Cases:

  1. Application of the Interim Accord of 13 September 1995 (Macedonia vs. Greece), ICJ, 2011, esp. paras. 108-113.

Questions:

  1. In the light of our discussions in session 6 on compliance control, please reflect on how Paulus compares dispute resolution under human rights treaties and environmental law treaties.
  2. What is the relationship between the requirement of consent to be bound and the notion of separability of treaty provisions, discussed by Aust with reference to VCLT articles 44 (3) and 60?
  3. In light of VCLT article 62 and the reading materials, is there any meaningful room for the doctrine of fundamental change of circumstances as a valid ground for terminating a treaty?
  4. Could Greece’s objection to Macedonia’s accession to NATObe considered justified as a response to a material breach or as a countermeasure?

Session 8: Amending a treaty.

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