Flashcards in Module 3 – The Law of Treaties Deck (29)
What does 'jus cogens' mean?
'Jus cogens' ('compelling law') is a fundamental principle of international law.
Describe the relationship between customary international law and treaties.
Treaties are often informed by custom (eg. the Vienna Convention on the Law of Treaties 1969). States can alter customary international law between themselves by treaty, but this will not affect third-party States. Customary law binding on all states.
What are the two most important sources of international law?
Customary international law and treaties.
In what instrument is the law of treaties set out?
The Vienna Convention on the Law of Treaties 1969 (VCLT).
What article defines 'treaty' and what is the definition?
Article 2(1)(a) of the VCLT - "an international agreement between states in written form governed by international law"
Describe the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation.
(1988) - adopted after the Italian cruise ship Achille Lauro was hijacked near Egypt and a US hostage killed by the PLF.
What are the two types of treaties?
bilateral between two parties or multilateral betwen multiple parties.
Describe the Maritime Delimitation and Territorial Questions case.
(1994) between Qatar and Bahrain over maritime territory. Significant in that relied on body of work developed by ICJ to modernise maritime territorial disputes.
What two articles are significant in interpretting treaties?
Articles 31 (interprtation) and 32 (language) of the VCLT.
Describe Article 31 of the VCLT.
(Article 31) 'interpretted in good faith and ordinary meaning', considering circumstantial documentation and subsequent custom.
Describe Article 32 of the VCLT.
(Article 32) may rely on prepartory work to avoid absurd or unreasoanble interpretation under Article 31.
What is inter-temporal law?
Issues faced where abuses have occurred but subsequent reform have made redress impossible.
What is the effectiveness approach?
A method of treaty interpretation that looks at the intention of the treaty.
What are travaux?
The record of treaty negotiations used to determine purpose for interpretation.
What Article is relevant to interpretation of treaties in multiple languages and describe its effect.
Article 33 of the VCLT - each is language version is equally authoritive unless otherwise agreed.
Describe Article 26 of the VCLT.
(Article 26) every treaty in force is binding on the parties to it and must be performed in good faith.
What is 'pacta sunt servanda'?
("agreements must be kept") per Article 26 of the VCLT.
Describe the significance of the Gabcikovo-Nagymaros case.
(Hungary and Slovakia, 1997), project on the Danube following the Budapest Treaty (1977) to prevent floods and produce electricity. ICJ found both parties failed act in good faith (pacta sunt servanda)
Give an Australian example of pacta sunt savanda.
The Nuclear Test cases (1974) concering legality of French nuclear testing.
What are 'border treaties' and give an example.
Border treaties are exemptions to the rule that only signatory states are bound by treaties. Example is Aaland Islands Question Case, where Finland was bound to decision by Russia after acquiring soveriengty of the islands.
How can the validity of treaties be challenged?
Under Article 65 of the VCLT.
Describe Article 44 of the VCLT.
States withdraw from a treaty must withdraw from the whole treaty, not part of it, unless otherwise agreed or allowed by the treaty.
What are the 'severability' clauses of the VCLT?
Articles 44(2) and 44(3)(b)
Describe Article 45 of the VCLT?
A State may not invalidate a treaty where it has agreed to its continuing validity.
List five ways a State may challenge the vailidity of a treaty?
where the treaty (1) conflicts with an internal law (2) contains an error (3) was obtained by fraud or corruption (4) coercion, or (5) conflicts with new jus cogens.
How may a State terminate a treaty?
Where there has been a material breach, performance is impossible or circumstances have changed.
Describe Article 60 of the VCLT.
Allows for termination of a treaty where there has been a fundamental breach.
Describe Article 61 of the VCLT.
Allows for termination of a treaty where performance is impossible.