Flashcards in Treaties Deck (16):
Restrictions to the Death Penalty
In evaluating the permissibility of the reservation, the interpretation accorded to the reservation is to be that most consistent w/ the object and purpose of the treaty
The object of the 1st Optional Protocol in ICCPR was to allow the rights obligatory for the State under the ICCPR to be tested before the HRC; T&T’s reservation, in singling out death row prisoners for lesser procedural protection, was incompatible w/ this
Congo v Rwanda (impermissible reservations)
A restrictive approach was taken to the “object and purpose of the treaty” to hold that D’s reservation excluding the jurisdiction of the ICJ merely excluded one method of dispute settlement, did not affect substantive obligations under the Genocide Convention and thus did not fall afoul of Art.19(c)
Turkey’s attempt to place territorial limits on the scope of its ECtHR rights was thought to be incompatible w/ the ECtHR’s aims of achieving greater unity in protecting human rights (NOT ratio)
Reservations Case (3 points on reservations)
1. States making impermissible reservations not parties.
2. States objecting to a permissible reservation could regard the reserving State as not a party in respect of itself.
3. The reason for departing from the LoN requirement for unanimous consent was that the GC's object and purpose was to ensure as many States as possible should participate; excluding one or more States from the Convention would subvert this purpose and detract from the authority of the moral principles that form the treaty's basis.
The VCLT rules on treaty interpretation are taken to reflect custom and are thus capable of binding non-party States!
Qatar v Bahrain (caveat)
Suggests supplements such as travaux preparatoires will only be used where Art.32(a) or (b) is satisfied, but as Dixon observes a clear distinction between Art.31 and 32 is too rigid since courts do often regard preparatory material as valuable interpretative aids, e.g. in Kasikili or Employment of Women During the Night.
Upper Savoy and Gex
Parties to a treaty may intend to confer rights and obligations on third states without the latter becoming parties to the treaty – this is a matter of interpretation in light of all the circumstances, but should not readily be inferred from the mere fact that a treaty is favourable to a third State.
What is the gloss that Germany v Italy puts on Arts.53 and 64?
• Art.53 – a treaty is void if it conflicts with an existing rule of jus cogens
• Art.64 – a treaty is void if it conflicts with an emerging rule of jus cogens quality
• A treaty regulating how an obligation/emerging obligation of jus cogens may be implemented is not void (Germany v Italy)
Danube Dam (pacta sunt servanda)
This means the purpose of the Treaty and the intentions of its parties should prevail over its literal application, and Parties are bound by the principle of good faith to apply the Treaty in a reasonable way and such that its objectives can be realised. Thus though both parties were in fundamental breach of their treaty obligations, the Court thought the Treaty could not be treated as void.
Reservations Case (performance)
As a general rule, none of the parties to a multilateral convention is entitled to frustrate or impair the purpose and raison d’etre of the convention.
Nicaragua v USA (2 points)
1. Where a treaty of friendship is concerned there is a distinction between the much wider category of “unfriendly acts” and “acts calculated to defeat the object and purpose of the treaty
2. The US’ direct attacks on Nicaragua, mining of Nicaraguan ports and an abrupt trade embargo undermined the object and purpose of the treaty, which was to promote friendship and commerce (Cf the cessation of economic aid, which was a unilateral and voluntary nature that only exceptionally could be regarded as a violation)
Macedonia v Greece
There is no defence to an alleged breach of treaty of non-performance of reciprocal obligations by the other party
Danube Dam (Art.61; 2 points)
An impossibility to maintain agreed payments due to financial difficulties is unlikely to qualify as supervening impossibility, as are later circumstances merely making execution of the treaty more difficult.
Affirmed Art.61(2) - a party cannot rely on self-induced frustration which is contrary to intl law. Here the impossibility of joint economic exploitation of the investment was rendered impossible by Hungary's own derogation from its treaty obligations.
Danube Dam (Art.62, 3 points)
1. The negative and conditional wording of S.62 indicates that it was only designed to apply very exceptionally, to preserve the stability of treaty relations.
2. Where the treaty makes provision for change, enabling parties to accommodate development, Art.62 is unlikely to apply
3. The change will generally need to be closely related to the object and purpose of the treaty to constitute an essential basis for state consent (here the change in political circumstances did not qualify)