PIL – WEEK 3
Chapter 2 Law of Treaties (79)
Definition of “treaty” (81)
Article 2(1)(a) of the VCLT (Vienna Convention on the Law of Treaties) contains a definition of “treaty”
1. For the purposes of the present Convention:
(a) "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;
Only treaties concluded between states may be regulated by the VCLT (so not those created by
private entitities)
Written/Oral:

The PCIJ held that an oral undertaking made by a person with sufficient authority, and in the
context of diplomatic negotiations, was capable of binding a State (Legal Status of Eastern
Greenland case (Norway v Denmark).
Intent:

The intention to create legal relations in the decisive factor in deciding whether an oral
statement/document gives rise to treaty relations.
Formation of treaties (86)
Article 6 VCLT:
Capacity of States to conclude treaties
Every State possesses capacity to conclude treaties.
Full powers (86):
Being legal persons, states can perform acts relating to states only through the agency of the natural
person
Only heads of state, heads of govt and foreign ministers and deemed to be capable of respresengin a
state for the purposes of entering into a treaty.
Adoption of this text see (87)
X
Authentication of the text (88)
Once adopted, a final version of the doc is prepared then it is usually authenticated as per Article 10
of the VCLT.
PIL – WEEK 3
Consent to be bound (89)

Consenting to be bound by a treaty is the most critical step in a treaty’s formation.
Effect of treaties (93)

A treaty is fully effective only after it has entered into force and in respect of States that are
parties to it.

Once it is effective is binds the arties thereto pursuant to the general principle of law known
as pacta Sunt Servanda.

Occasionally (Exceptionally) treaties bind third party states (See 94)

Article 28 states hat treaties are not retroactive.
Inconsistent treaties (96):

Later treated override any past treaties that might be inconsistent.
Reservations (98)
A reservation is a device sometimes employed by states in the course of expressing their consent to be
bound by a treaty (Art 2(1)(d) of the VCLT.
Interpretation (108)
Sir Gen. FitzgMAURICE Identified 3 distinct schools of thought in connection with the interpretation
of text:
1. The “intention of the parties”
2. The “Textual” or “ordinary meaning: of the words
3. The “teleological” or “aims and objects” school
As Fitzmaurice pointed out, these 3 approaches exists side by side and are used to interpret treaties.
Article 31of the VCLT sets out general rules for interpreting treaties (109).
Amendment and modification (113)
A bilateral treaty may be amended by a subsequent agreement between the parties. Unless the treaty
itself otherwise provides, the VCLT’s rules governing the conclusion and entry into force of treaties
apply to any amending agreement.
A multilateral treaty may be amended by notice to all contracting states etc…. (See 113)
Invalidity (114)
See page
PIL – WEEK 3
But examples include Constitutional Ultra Vires, error, fraud corruption, coercion, unequal treaties, +
jus covens and obligations ergo omnes.

See 122 for consequences of invalidity
Denunciation and withdrawal (124)
Art 56(1) of the VDLT prescribes the Greer always rule that statues may not denounce or withdraw
from a treaty that contains no express provision for denunciation or withdrawal .2 EXCEPTIONS:
1. A treaty without a relevant clause may be withdrawn form if: “it is established that the parties
intended to admit the possibility of dedication or withdrawal”
2. May be implied by the nature of the treaty.
Withdrawing state must give at least 12 months notice (if the treaty is silent on the matter)
Termination and suspension (126)
A treaty terminates when all rights and obligations under it come to an end. A bilateral treaty can
come to an end by the denunciation of one of the parties. Other means of termination include:
o
o
o
o
o
o
Valid consent of all parties to the treaty
The subsequent conclusion of an incompatible treaty
the occurrence of material breach
A supervening impossibility of performance;
A fundamental change of circumstances; and
The emergence of a new rule of the “jus cogent” with which the treaty is in conflict.
See more 126/127
Procedures relating to invalidity, denunciation, withdrawal, termination and suspension (137)
See 137.
PIL – WEEK 3
INTERNATIONAL LAW IN AUSTRALIAN LAW – CHAPTER 3 (149)
Key instruments (150)


Constitution fo Aus s 51xxix
Acts Interpretation Act 1901
Monism and dualism (150)
These are two diff theories.
International law os neither Monist or Dualist. — It simply requires that States comply with their
international obligations.
Int’l law and the common law (153)
Customary int’l law – incorporation (153)
According to the HC in Chow Hung Ching, int’l law cannot be regarded as automatically part of
Austrlaia’s Common Law, but Customary int’l law can be regarded as one of the common law’s
sources.
Customary int’l law – stare decisis (160)
It has been said that stare decisis is probably not applicable to customary international law (therefore
it is not a barrier).
Customary int’l law – legislation (164)
Common law rules sourced in Int’l law will be subject to inconsistent legislative enactment.
Customary int’l law – Basic Juridical Principles (164)
Int’l laws must also give way to constitutional or other fundamentally important requirements of the
Legal system. Viewed as such, Int’l law may be viewed not so much as a part of the common law, but
a source of law upon which the common law may draw upon.

E.G. MABO case chose not to incorporate Int’l law concepts such as terra nullius is (170)
Customary int’l law- Constitutional structure (173)
Conflict with legislation or with an essential or “skeletal” requirement of the common law are not the
only barriers to the incorporation of customary int’l law into the common law. There are also
constitutional barriers;
PIL – WEEK 3


EG: In Nulyamiira, it was observed that the common law of the several Australian states
could not incorporate the Int’l crime of genocide. (Due to this power being constituonally
assigned to the Federal govt.)
EG: R v. Jones (Margaret) is another relevant case.
Customary int’l law – Act of state (177)
The act-of-state doctrine or foreign act of state doctrine is a principle in English and United States law
which states that every sovereign state is bound to respect the independence of every other sovereign
state, and the courts will not sit in judgment of another government's acts done within its own
territory.
See Habib v Cth (179)
Treaty law: transformation (182)
Treaty law: human right (186)
Int’l Law and Legislation (186)
Customary Int’l Law (187)
Treaty Law 187 (187)
International Law and legislative power (195)
Implementation of treaties and recommendations (195)
Statutory. Implementation of recommendations by int’k organisations (196)
Statutory implementation of customary Int’l law (205)
Int’l law and executive discretion (206)