sources

Question 1

rules of making treaties:

Answer 1

• customary IL
• VCLT (1969) - mostly codification of customary law
• Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations 1986 (not yet in force)
• Vienna Convention on the Succession of States in respect of Treaties 1978 (1996, Austria not party)

Question 2

definition of treaty

Answer 2

• written
• between states
• governed by IL
• concluded after the entry into force of VCLT

Question 3

types of treaties

Answer 3

• bilateral or multilateral
• law-making or contract-type
• open or relatively closed or closed
• self-executing or non-self-executing

Question 4

can IOs conclude treaties?

Answer 4

only those which fall into their competences

Question 5

who can conclude treaties under VCLT?

Answer 5

• persons acting on behalf of the state have to produce full powers to show that they represent the state

Question 6

full powers

Answer 6

Heads of State
Heads of government
Foreign ministers

Question 7

heads of diplomatic delegations accredited by states and heads of diplomatic missions between home country and accredited country

Answer 7

have the right to adopt the text but not to express consent

Question 8

stages of treaty making

Answer 8

1. negotiations
2. authenitcation of the text
3. consent to be bound
4. deposit
5. entry into force
6. registration with the UN

Question 9

negotiations and adoption of the text

Answer 9

by agreed majority or 2/3 or consensus

Question 10

authentication

Answer 10

the state representatives express their agreement to the text and prevent it from further changes with initials

Question 11

consent to be bound

Answer 11

a) signature (if no further requirement)
b) ratification: internal act of approval and international act
c) accession: if the state hasn’t signed
d) exchange of instruments (when declared)

Question 12

deposit

Answer 12

transmission of the instrument of ratification to the depositary (usually one of the contracting parties or the SG); depositaries exchange treaty-related information between parties

Question 13

entry into force

Answer 13

when all the negotiating states have consented to be bound OR on a specified date

Question 14

registration

Answer 14

with the Secretary General of the UN, to prevent secret treaties

Question 15

objective entry into force

Answer 15

the treaty enters into force on the date agreed by the contracting parties

Question 16

subjective entry into force

Answer 16

the date when treaty becomes binding for a state that only expresses consent to be bound later

Question 17

obligation before entry into force

Answer 17

prohibition to defeat the object and purpose of the treaty - Art 18 VCLT

Question 18

a reservation can be made unless:

Answer 18

• the treaty prohibits this reservation
• the treaty allows only specific reservation and this reservation is not included
• the reservation is incompatible with the purpose and object of the treaty

Question 18

reservation

Answer 18

unilateral statement by a state to exclude certain provisions of a treaty in its application to the state

Question 19

views on not allowed reservations

Answer 19

a) inadmissible reservations are void
b) the inadmissible reservations render the the consent to be bound ineffective

ILC: entire treaty without reservation will bound state unless clear intention showing that it does not want to be bound in that situation.

Question 20

possible reactions to a reservation:

Answer 20

1. acceptance
2. no reaction = tacit acceptance after 12 months
3. objection - this provision does not apply between these states
4. object and declare intention to exclude the effect of the treaty between the 2 states

Question 21

pacta tertiis nec nocent nec prosunt

Answer 21

treaties neither harm, nor benefit third parties
consent is presumed for rights, but imposing duties requires the party’s consent

Question 22

interpretation methods according to VCLT

Answer 22

• objective, textual interpretation: ordinary meaning
• contextual interpretation: considering the intention of the parties
  (preamble, annexes, subsequent agreements and practice)
• object and purpose of the treaties

Question 23

amendment of a multilateral treaty - only by some parties

Answer 23

1. the treaty doesn’t prohibit it
2. rights of other parties aren’t affected
3. object and purpose of the treaty is not impaired

Question 24

grounds for invalidity of a treaty

Answer 24

1. lack of consent - only when the treaty was concluded in manifest violation of a rule of fundamental importance 2. error - about a fact or situation which was essential for conclusion but only if: the state didn't contribute to the error wasn't on notice of a possible error 3. material defects: fraud, coercion of a state, corruption/coercion of state representatives 4. incompatibility with ius cogens - prohibition of the use of force, slavery, genocide, apartheid, slavery

Question 25

conditions for termination

Answer 25

- the treaty provides termination options - customary law on termination exists in VCLT - peace treaties cannot be denounced unilaterally

Question 26

grounds of termination in VCLT

Answer 26

- material breach - supervening impossibility of performance - fundamental change of circumstances

Question 27

material breach of bilateral treaty

Answer 27

= the rejection of the whole treaty or a provision essential for the object and purpose - entitles a party to terminate the bilateral treaty

Question 28

material breach of multilateral treaty

Answer 28

1. all other parties must unanimously agree to terminate/suspend the treaty 2. the affected party may suspend the treaty in its relations with the breaching state 3. if the violation radically changes the position of each party, each party may suspend the treaty with all parties

Question 29

supervening impossibility of performance

Answer 29

when an object necessary for the performance of the treaty is destroyed or permanently disappears - a party may invoke supervening impossibility to terminate the treaty - the causing state cannot terminate, withdraw or suspend the treaty

Question 30

fundamental change of circumstances (clausal rebus sic stantibus)

Answer 30

if the treaty no longer corresponds to political realities: - relevant circumstances existed at time of conclusion - these circumstances were essential to conclude the treaty - the change was unforseen - it would lead ti a radical reshaping of treaty obligations - the state hasn't brought that change by breaching IL obligations

Question 31

desuetudo

Answer 31

conflicting customary law has developed

Question 32

obsolence

Answer 32

performance is no longer expected in the face of a new situation

Question 33

disputes about the invalidity or termination

Answer 33

on grounds of ius cogens - ICJ otherwise - VCLT optional rules for conciliation procedure in an annex

Question 34

who concludes treaties under austrian law?

Answer 34

Federal President

Question 35

self-executing treaty

Answer 35

doesn't require a domestic legal act to become applicable in national law

Question 36

non-self-executing treaty

Answer 36

requires a national legal act for its implementation and applicability