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Lecture 3

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York University
Political Science
POLS 3652
Awalou O

Lecture 3 Treaty Law-Making Process  Notion o It is of growing importance in international law and is the major instrument of cooperation in international relations o It is growing because of the particularity of the international society itself and the growing number of states o The role of treaties in international law-making includes:  Treaties are a response to increasing interdependence of states  They are a solution to the controversies as to the content of customary law  States agree o “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation o Vienna Convention on the Law Of Treaties (VCLT) is the Treaty Of Treaties  5 elements in the definition of treaty: o International agreement in written form and excludes oral form o Between States and excludes individual o Governed by international law  There is a distinction between treaty and private contract or commercial arrangement of the State o Single instrument or in two or more related instruments → instrumentum and negotium o Particular designation (ex: convention, pact, covenant, agreement, charter, protocol, press release and so on)  The importance is not the form but the intention and consent of parties  Declaration by Stephen Harper in G20 was not a treaty because their intention was not to create a treaty  People gathered for the purpose to discuss economic issues instead  Conclusion of Treaties o No substantive requirement of form  No specific form o VCLT applies only to agreements ‘in written form’  Full powers and signature o It is an old practice in which a sovereign’s agent would be given a full power to negotiate  A full power involves an authority to negotiate, and to sign and seal a treaty  Has to be discussed by each country’s parliament  Depending on the topic and the power of the state, one state can force another full power to sign a document o Successful outcome of negotiation includes the adoption and authentication of the agreed text  It can be a bilateral or a multilateral treaty  Effects of the signature o Discussed before parliament of each country o It can be signed without ratification (ex: League of Nations) o It does not establish state consent to be bound o It qualifies signatory state to proceed to ratification, acceptance or approval o It creates an obligation of good faith to refrain from acts calculated to frustrate the objects of the treaty  Consent to be bound o Ratification, accession or adhesion or approval  Only federal government of Canada has power to seal a treaty o Not the only means by which consent to be bound may be expressed (ex: any other means may be used if so agreed) o Ratification is the most important mean  It involves two separate procedural acts:  Act of the appropriate organ  Deposit of the instrument of ratification  Validity of Treaties o Provision of municipal law o 3 main views  Constitutional limitations determine validity on the international level  Only important and ‘notorious’ constitutional limitations are effective  Irrelevance of internal provisions o Lack of authority o Error o Fraud o Direct or indirect Corruption of a representative of a State o Coercion of a representative or a State o 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 o If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates  Termination, suspension and withdrawal of treaties o Provisions of a treaty: a treaty may specify the conditions of its termination o If no provisions, the existence of a right of denunciation depends on the intention of the parties o Termination or withdrawal by agreement must have the consent of all parties o READ THE TREATY to find out how to terminate it o What if there is nothing in the treaty?  States have to agree to terminate treaty o Material breach is the right of unilateral annulment o A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty  If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty o The rebus sic stantibus doctrine →  A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless  (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty  (b) the effect of the change is radically to transform the extent of
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