Syllabus
ADVANCED COURSE ON THE LAW OF TREATIES – SOURCES AND INTERPRETATION IN
INTERNATIONAL LAW
Thursdays 15.00-17-00 Sala Triaria, starting on 10 October 2013.
General Description:
This seminar will explore various contentious issues pertaining to the law of treaties
as a branch of public international law. The 1969 Vienna Convention on the Law of
Treaties (VCLT) will form a frame of reference for the discussions but not be
subjected to systematic study. Rather, the course seeks to go beyond and behind the
VCLT through in-depth examination of specific topics that are indicative of more
general issues and problems. Among these topics are:
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The concept of treaty and its various manifestations;
Treaty-making powers of international organizations;
Methods of resolving conflicts between treaties;
The special character of human rights treaties (including the availability of
reservations to human rights treaties);
The complex interrelationship between various sources of international law;
The alleged demise of jus cogens;
Rules of interpretation in the VCLT and their applicability to human rights
treaties, statutes of international courts and tribunals as well as other
international instruments;
Challenges associated with the gap between treaty content and treatymaking;
Relationship between domestic law and international obligations in public
international law and human rights law; the doctrine of self-executing
treaties.
The course is addressed to the researchers focusing on public international law,
international humanitarian law, international criminal law and human rights law, or
wishing to gain a perspective on the sources of international law and develop their
methodological skills in utilizing international treaties and non-treaty instruments in
their research. Hence, this course provides skills in the methodology of international
law.
All participants are required to read the assigned materials and engage in seminar
discussions. The reading materials for each session will be available online before 1
August 2013. Some of the readings have been marked as optional in order to keep
the volume of each session under control. Each participant will choose a topic within
the seminar readings on which to give a short (10-15 minute) presentation in the
course of the seminar
Session 1: The concept of treaty. Sources of international law.
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This introductory session will look into a number of issues related to the law of
treaties as a branch of public international law. The Vienna Convention on the Law of
Treaties (VCLT) will be introduced as a general framework for the seminar. In
particular, it will focus on treaties and other sources of international law:
relationship between treaty and custom; relationship between treaty and other
written instruments drawn up between states or within an international
organization, including those characterized as "soft law", memoranda of
understanding, political document etc. Terminology: We will compare and discuss
the terminology employed in the VCLT and in the United Nations Treaty Reference
Guide, both included in the readings for the first session.
Readings:
1. Jan Klabbers, The Concept of Treaty in International Law, Kluwer 1996, pp.
37-64; 245-250;
2. Ian Sinclair, The Vienna Convention on the Law of the Treaties, 2nd edition,
Manchester University Press, 1984, pp. 1-21 (Chapter “The Scope of the
Convention and its relationship to customary law”);
3. Mark Villiger, Commentary on the 1969 Vienna Convention on the Law of
Treaties, Nijhoff 2009, pp. 1-27; 57-61; 127-131;
4. OPTIONAL: Malgosia Fitzmaurice and Olufemi Elias, Contemporary issues in
the law of treaties, International publishing, 2005, pp. 1-47.
Documents:
5. United Nations Treaty Reference Guide (1999);
6. Vienna Convention of the Law of Treaties (1969).
Cases:
7. Salini Construttori S.p.A. and Italstrade S.p.A v. The Hashemite Kindgom of
Jordan, ICSID Case No. ARB/02/13 (2004), esp. paras. 68-101.
Questions:
1. How and why did the VCLT come about? Does it mirror customary
international law as a complete codification of its norms related to treaties
between states? Does it define what a treaty is?
2. How does one determine whether an international agreement is legally
binding?
3. How does one distinguish a purely contractual dispute and a dispute
stemming from an international agreement? What are the consequences of
this distinction? Do you agree with the Salini reasoning?
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4. What is the legal status of the United Nations Treaty Reference Guide? How
does it define treaty vs. other types of written instruments? Are the
definitions authoritative?
Session 2: The role of consent. Subjects of international law and treaty-making
capacity.
The second session will build upon the discussions in the first session on the concept
of a treaty in and beyond the VCLT, including the conditions that a treaty is between
“states” and falls under the legal order of international law. We will also discuss the
presumption that explicit consent is a defining element to the legal effect of treaty
norms, for instance in comparison to norms of customary international law. Related
to this, we will address modern forms of treaty-making where consent to be bound
is less explicit when taking on board new obligations.
Readings:
1. Ian Sinclair, The Vienna Convention on the Law of the Treaties, 2nd edition,
Manchester University Press, 1984, pp. 29-­­47;
2. Malgosia Fitzmaurice, “Consent to be Bound – Anything New under the Sun?”
(2005) Nordic Journal of International Law, pp. 483-­­507;
3. Gudmundur Alfredsson, “Indigenous Peoples, Treaties with”, Max Planck
Encyclopedia of International Law 2009;
4. Menno T. Kamminga: Impact on State Succession in Respect of Treaties" in
Menno T. Kamminga and Martin Scheinin, The Impact of Human Rights Law
on General International Law, Oxford University Press, 2009;
5. Mark Villiger, Commentary on the 1969 Vienna Convention on the Law of
Treaties, Nijhoff 2009, pp. 698-706, 735-751, 792-795.
Documents:
6. Human Rights Committee, General Comment No. 26 (1997).
Cases:
7. Questions Relating to the Obligation to Prosecute or Extradite (Belgium vs.
Senegal), ICJ, 2012, Paras. 96-105.
Questions:
1. How does Gudmundur Alfredsson’s discussion on treaties between a state
and an indigenous people relate to our discussion in Session 1 on the
definition of a treaty, for the purposes of the VCLT?
2. What is the relationship of the principle of consent as a fundamental
principle of public international law and the doctrine of automatic treaty
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succession for certain (which?) categories of treaties? See Kamminga’s
discussion on the topic.
3. In the light of modern form of treaty-making, including the creation of lawmaking powers coupled with an opt-out provision (see Fitzmaurice), how
much is left of the traditional position of (active) consent constituting the
limit to any state obligations?
4. What are the various forms in which consent to be bound can be expressed
(e.g. signature, ratification, accession), and what are their distinctive legal
effects? See Sinclair, and Fitzmaurice.
5. Did the ICJ rule that Senegal is obliged to prosecute Mr. Habré for the acts
allegedly committed before the UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment entered into force for
Senegal? Do you agree with the Court’s conclusion?
Session 3: Reservations and declarations.
This session focuses on articles 19-23 of the VCLT. We will discuss state practice on
reservations and emerging trends. The seminar will explore the competing goals of
ensuring integrity and universality, as well as problematic situations when the treaty
is silent on the issue of reservations, and some states object to a proposed
reservation.
Readings:
1. Frank Horn, Reservations and Interpretative Declarations to Multilateral
Treaties, T.M.C. Asser Institut, 1988, pp. 7-­­13 (The emergence of
reservations);
2. Daniel Hylton, Default breakdown: “The Vienna Convention on the law of
treaties' inadequate framework on reservations,” (1994) 27 Vanderbildt
Journal of Transnational Law 419, pp. 419-­­51;
Documents:
3. Guide to Practice on Reservations to Treaties Adopted by the International
Law Commission at its sixty-third session, in 2011, and submitted to the
General Assembly as a part of the Commission’s report covering the work of
that session (A/66/10, para. 75) (23 pages);
4. General Comment No. 24 by the Human Rights Committee.
Questions:
1. Are the permissibility and consequences of reservations a zero-sum game
between states only, or do other actors have a say? One well-known version
of this debate is the question whether the VCLT regime on reservations is at
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all suitable for human rights treaties, or any treaties with third-party
beneficiaries, or those treaties that establish independent expert bodies or
courts as adjudicatory bodies under the treaty.
2. If a reservation is impermissible under article 19 (e.g. as incompatible with
the object and purpose of the treaty), do articles 20 and 21 at all come into
play? In other words, do the latter merely address acceptance of, objections
to, and consequences of, permissible reservations? If so, what would then be
the law in respect of impermissible reservations?
3. Is there a difference between the permissibility and validity of reservations?
4. Is it better to have a maximum number of states join the treaty, albeit with
reservations, or is it preferable to see the treaty regime in terms of uniform
rights and obligations?
5. Keeping in mind our earlier discussions on whether the VCLT is a complete
codification of customary law, or a more or less incomplete reflection of
underlying norms of customary law, what is the relevance of article 20 (3)? Is
it a narrow exception related only to treaties with the status of a
charter/statute of an international organization? Or would it be an
expression of a more general principle, applicable whenever a treaty
establishes a body entrusted with some powers to interpret the treaty?
Session 4: Interpretation of treaties (and other international sources).
Interpretation of treaties has been referred to being closer to an art than a science,
perhaps reflecting a voluntarist view that in the world of diplomacy ‘anything goes’,
as long as the states parties to a treaty can agree of the outcome. In contrast, those
who think of international law as some sort of constitutional order, would seek for
uniform rules of interpretation that could not be changed at will.
Readings:
1. Antony Aust, Modern Treaty Law and Practice, Cambridge University Press,
2nd ed, Chapter 13 on Interpretation, pp. 230 – 255;
2. Richard Gardiner, “The Vienna Convention on Treaty Interpretation” in
Duncan B. Hollis (eds) The Oxford Guide to Treaties, Oxford University Press,
2012, pp. 475-506;
3. Mark Villiger, Commentary on the 1969 Vienna Convention on the Law of
Treaties, Nijhoff 2009, pp. 415-441;
4. OPTIONAL: Cambell McLachlan, “The Principle of Systemic Integration and
Article 31(3)(c) of the Vienna Convention”, ICLQ, Vol. 54, April 2005, pp. 279320.
Cases:
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5. Case Concerning Application of the International Convention on the
Elimination of All Forms of Racial Discrimination, Georgia v Russian
Federation, Judgment on preliminary objections, ICGJ 429 (ICJ 2011), 01 April
2011, paras. 115-184.
Questions:
1. What is being interpreted: the text of the treaty, the norm behind the treaty,
or the intention of states? This question is relevant in assessing the
relationship between VCLT articles 31 and 32 – why?
2. Is there a hierarchy, or a logical structure, for the use of the various elements
of the "general rule" in VCLT article 31?
3. What counts as “subsequent practice”? In particular, under treaties where
the states parties have created an independent international body with a
mandate to assess states' compliance with the treaty, what is the role of such
pronouncements in treaty interpretation?
4. To what extent, and with what kind of modifications, are the rules and
principles of treaty interpretation applicable also in relation to international
instruments not adopted in the form of a treaty, such as United Nations
Security Council resolutions?
5. Do you agree with the ICJ’s interpretation of Article 22 of the Convention on
the Elimination of Racial Discrimination?
Session 5: Conflicts between treaties
This session will focus on the rules for resolving conflicts between different treaty
norms. In addition to that, the session will explore conflicts between treaties and
other sources of international law. In the recent Jurisdictional Immunities Case
(Germany vs. Italy: Greece Intervening), the ICJ ruled that neither the 2004 UN
Convention on Jurisdictional Immunities of States, nor the 1972 European
Convention on State Immunity, envisaged, at the time of their adoption, a jus cogens
limitation to state immunity (para. 89). It is noteworthy that the court used treaties
in determining the scope of customary international law. The ICJ further held that
there exists no conflict between the rule of customary law which requires one state
to accord immunity to another and rules of jus cogens prohibiting, inter alia, murder
of civilians, slave labour and deportations because these two sets of rules address
different matters (para. 93). This case illustrates two points: first, continued
relevance of different sources of international law, with particular emphasis on
treaties; and, secondly, the complexity of interrelationship between the sources of
international law.
Readings:
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1. Christopher J Borgen, “Treaty Conflicts and Normative Fragmentation” in
Duncan B. Hollis (eds) The Oxford Guide to Treaties, Oxford University Press,
2012, pp. 448-474;
2. Anthony D'Amato, It's a Bird, It's a Plane, It's Jus Cogens, 6 CONN. J. INT'L L. 2
(1990-1991);
3. Mark Villiger, Commentary on the 1969 Vienna Convention on the Law of
Treaties, Nijhoff 2009, pp. 399-411;
4. OPTIONAL: Joost Pauwelyn, “Bridging Fragmentation and Unity: International
Law as a University of Inter-Connected Islands”, 2004;
5. OPTIONAL: Jan B. Mus, “Conflicts Between Treaties in International Law”,
NILR 1998, pp. 208-232.
Documents:
6. Conclusions of the work of the Study Group on the Fragmentation of
International Law: Difficulties arising from the Diversification and Expansion
of International Law, adopted by the International Law Commission at its
Fifty-eighth session, in 2006, and submitted to the General Assembly as a
part of the Commission’s report covering the work of that session (A/61/10,
para. 251).
Cases:
6. The Jurisdictional Immunities Case (Germany vs. Italy: Greece Intervening),
ICJ, 2012, paras. 89, 92-97.
Statutes:
7. The Rome Statute of International Criminal Court, Article 21;
8. The VCLT, Article 53.
ILC:
9. Articles on State Responsibility, Articles 40-41.
Questions:
1. What is the relationship between interpretation of treaties and resolving
conflicts between them? Do conflicts relate to treaties before or after their
interpretation? What does it mean when lex posterior is referred to as being
a conflict clause while lex specialis not being one?
2. Does the ILC study group on fragmentation - intentionally or unintentionally contribute to elevating the VCLT to the status of a "constitution" for the
system of international law?
3. To what extent can international law accommodate axiological factors (value
priorities) in resolving conflicts between treaties, including through the
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notion of jus cogens? Does lex specialis represent an opposite trend of
reducing the effect of fairly abstract norms with a moral foundation,
compared to technical rules that as to their formulation often happen to be
more specific?
4. Does the Jurisdictional Immunities Case signify the demise of jus cogens in
international law?
Session 6: The special character of the human rights treaties. Treaty as a living
instrument.
This session will explore the role of treaties as a source of human rights obligations.
It will focus on the issues specific to the interpretation and application of human
rights treaties. In particular, it will investigate the notion of a human rights treaty as
a ‘living instrument’.
Readings:
1. Bruno Simma and Philip Alston, The Sources of Human Rights Law: Custom,
Jus Cogens, and General Principles, 12 AUSTL.Y.B.INT'L L.82, 107(1992);
2. Martin Scheinin, “Impact on the Law of Treaties” in Menno T. Kamminga and
Martin Scheinin, The Impact of Human Rights Law on General International
Law, Oxford University Press, 2009, pp. 23-36;
3. Başak Çali, “Specialized Rules of Treaty Interpretation: Human Rights” in
Duncan B. Hollis (eds) The Oxford Guide to Treaties, Oxford University Press,
2012, pp. 525-550;
4. Roberto Baratta, “Should invalid reservations to human rights treaties be
disregarded?” (2005) European Journal of International Law 413-­­425;
5. OPTIONAL: Ben Emmerson, Ashword, McDonald, Human Rights and Criminal
Justice, Sweet&Maxwell, 3rd eds, 2012, Chapter 2 (Principles of
Interpretation), pp. 79-143.
Cases:
6. Golder v. United Kingdom, ECHR Judgment of 21 February 1975, Series A, no.
18 (esp. paras. 28-36 and Separate Opinion of Judge Verdross);
7. Airey v Ireland 32 Eur Ct HR Ser A (1979), esp. para 26;
8. Dudgeon v. United Kingdom, 45 Series Eur Ct HR Ser A (1981), esp. para. 6.
State practice:
9. Objections by states parties to the ICCPR to reservations by other states (pp.
22-53 in UNTS status report of the ICCPR as of 4 July 2013).
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Questions:
1. What are the challenges associated with the sources of human rights law?
Why do they require an independent assessment?
2. Is treaty-making a preferable way of embodying human rights obligations?
3. Should the general rules of interpretation embodied in the VCLT be modified
when it comes to interpreting human rights treaties?
4. What are the main techniques employed by the ECrtHR in interpreting the
ECHR? Does the Court deviate from the general rules of the VCLT?
5. In Golder, how did the ECrtHR arrive to the conclusion that Article 6 of the
ECHR includes the right of access to court? Do you agree with the Court’s
methodology? Do you think it is applicable to other types of treaties?
6. Do you agree with the ECrtHR’s assessment of present day conditions in Airey
and Dudgeon?
7. Recently, a new form of objections to reservations has emerged in state
practice: particularly under human rights treaties. Some objecting states have
specified that they do consider the reserving state to be a party to the treaty
but without the benefit of the reservation regarded by them as incompatible
with the object and purpose of the treaty (see, e.g. Sweden’s objections). Do
these objections qualify as objections under the VCLT?
Session 7: Breach, termination and suspension of a treaty.
A treaty may be terminated through mutual consent, performance of obligations, or
the expiration of a time-limit. However, there are more difficult cases - for example the termination of treaties that contain no express provision for withdrawal or
termination, or terminating or suspending a treaty due to a material breach. The
session will elaborate on these questions.
Readings:
1. Anthony Aust, “Treaties, termination,” Max Planck Encyclopedia of
International Law 2009. 2. Malgosia Fitzmaurice, “Gabčikovo-­­Nagymaros Case: The Law of Treaties”
(1998) 11 Leiden Journal of International Law 321;
3. Malgosia Futzmaurice and Olufemi Elias, Contemporary issues in the law of
treaties, International publishing, 2005, pp. 173-­­200. (The Doctrine of
Fundamental Change of Circumstances Revisited);
4. OPTIONAL: Andeas Paulus, 'Dispute Resolution', in Geir Ulfstein et al.,
Making Treaties Work: Human Rights, Environment and Arms Control (2007),
pp. 351 – 372.
Cases:
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5. Application of the Interim Accord of 13 September 1995 (Macedonia vs.
Greece), ICJ, 2011, esp. paras. 108-113.
Questions:
1. In the light of our discussions in session 6 on compliance control, please
reflect on how Paulus compares dispute resolution under human rights
treaties and environmental law treaties.
2. What is the relationship between the requirement of consent to be bound
and the notion of separability of treaty provisions, discussed by Aust with
reference to VCLT articles 44 (3) and 60?
3. In light of VCLT article 62 and the reading materials, is there any meaningful
room for the doctrine of fundamental change of circumstances as a valid
ground for terminating a treaty?
4. Could Greece’s objection to Macedonia’s accession to NATO be considered
justified as a response to a material breach or as a countermeasure?
Session 8: Amending a treaty.
Multilateral treaties are typically designed to govern relations between states for the
longer term, often indefinitely. In these circumstances, provisions need to be made
for subsequent change. Part IV of the VCLT codified the rules on amendment in a
rather straightforward fashion. Despite this seeming clarity, the subject of treaty
amendment raises a number of delicate questions. These include balancing
considerations of stability and change; altering the requirement of individual party
consent by relying upon tacit (rather than express) consent; and tailoring the
amendment process depending on the treaty content.
Readings:
1. Bruno de Witte ‘Rules of Change in International Law: How Special Is the
European Community?’ (1994) 25 Netherlands Yearbook of International
Law 299–333;
2. Nancy Kontou, The Termination and Revision of Treaties in Light of New
Customary Law, pp. 1-­­15, 145-­­157. (Introduction, Conclusion);
3. Alexander Orakhelashvili, Peremptory Norms in International Law, OUP,
2006, pp. 192-­­204 or 198-­­204. (parts of the Chapter The Effect of Jus
Cogens in the Law of Treaties).
Questions:
1. In the light of our discussions in previous sessions on the role of jus cogens in
the overall framework of the VCLT, please discuss how Orakhelashvili relates
the matter specifically to amendments and modifications of a treaty.
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2. De Witte discusses the EU legal order where the ‘constitutional’ features of
the regime exclude the power of member states (represented through their
governments) informally amending the constitutive treaties. Is this a unique
case or can similar arguments be made in other contexts? Please relate to
VCLT articles 39-41.
3. Please assess Kontou’s views about the right of one state to demand the
revision (amendment or modification) of a treaty due to the development of
“supervening” customary international law, and the duties of other states in
such circumstances.
Session 9: Legal Character of treaties. Treaties and international institutions.
This session will test Sir Fitzmaurice’s proposition that “treaties are, formally, the
source of an obligation rather than a source of law”. The session will explore the gap
between the form of the treaty and its functions. It will distinguish procedural
mechanisms for treaty-making and the substantive content of the treaty. The session
will also look at the treaty-making by international organizations. The VCLT is silent
in the issue of powers conferred by treaty. Under treaties that create an
international organization, and more broadly under treaties that create their own
organs and compliance control mechanisms, there is a doctrinal debate about
attributed, implied or inherent powers. The VCLT does provide some openings for a
special regime for treaties that will on the international level create powers for
organs created by the treaty. Above all, this is reflected in Article 5, according to
which the VCLT applies to constituent instruments of, and treaties adopted within,
international organizations "without prejudice to any relevant rules of the
organization". When addressing this provision, the crucial question relates to the
relationship between the treaty itself and the 'relevant rules' of the organization.
Readings:
1. Catherine Brölmann, “Law-Making Treaties: Form and Function in
International Law” (2005), Nordic Journal of International Law 74, pp. 383404;
2. Marise Cremona, “Who Can Make Treaties? The European Union” in Duncan
B. Hollis (eds) The Oxford Guide to Treaties, Oxford University Press, 2012,
pp. 93-124;
3. Arnold D. McNair, “The Functions and Differ Legal Character of Treaties”, 11
Brit. Y.B. Int’l Law, 1930, pp. 100-118;
Cases:
4. Flaminio Costa v ENEL [1964] ECR 585 (6/64).
Questions:
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1. How does one bridge the gap between the content of the treaty and the
procedure of its adoption?
2. To what extent must there be a treaty basis for the 'rules' that concern the
powers of the organization? To what extent is this an issue of international
law proper, including under the law of treaties and international
organizations law? And is there a dimension to this issue where international
law is silent and leaves it to the 'constitutional law' emerging within each
international organization whether and to what detail the powers exercised
by the organization must be regulated by states in the form of a treaty?
3. What are the distinctive features of the EU as an international, treatymaking actor?
4. What does McNair mean with “constitutional international law”.
Session 10: Constitutional law perspectives to international treaties.
This session will deal with interrelationship between international law and domestic
law in the light of the shift in modern governance that requires states to engage with
international law also at the domestic level. In particular, the focus will be on
different methods of application of human rights norms in national legal systems,
and challenges stemming from the duality of regimes.
Readings:
1. Anne-Marie Slaughter, William Burke-White, “The Future of International
Law Is Domestic (or, The European Way of Law)”, Harvard International Law
Journal, Volume 47, Number 2, Summer 2006, pp. 327 – 352.
2. Yuji Iwasawa, “The Doctrine of Self-Executing Treaties in the United States: A
Critical Analysis”, Virginia Journal of International Law, Vol. 26, 1985-1986,
pp. 627-692;
3. Martin Scheinin, “Human Rights in Finnish Law: A Study in Constitutional Law
of the Domestic Validity of International Human Rights Treaties and the
Applicability of Human and Constitutional Rights in the Finnish Legal Order”
1991, English Summary.
Questions:
1. What is the relevance of the Vienna Convention on the Law of Treaties
(including articles 26-27) for a constitutional law discussion on the status,
validity and applicability of international treaties within domestic law?
2. To what extent does international law, for example through the formulation
of a treaty or its particular provisions, affect the capacity of international
norms to become applicable (or otherwise relevant) within differing domestic
legal orders? Is there an international law concept of 'self-executing treaty
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provisions', or is this entirely a matter for domestic and comparative
constitutional law and more important for 'monist' than 'dualist' systems?
3. How can international 'soft law' become 'hard law' within (some) domestic
legal systems?
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