TREATY Extraction
[UNC]
Principles:
 Article 1: Purposes of the UN: maintain international peace and security; develop friendly relations based on equal rights and respect for
self-determination of people; achieve intl cooperation in solving international problems; harmonize actions to attend common ends.
 Article 2(4): all members should refrain in their intl relations from threat or use of force against territorial integrity or political
independence of any state, or in any other manner inconsistent with the purposes of the UN
Important Clauses:
 Article 51: [self defense] Nothing in the Charter shall impair the inherent right of individual or collective self-defense if an attack occurs
against a member state until the Security Council has taken measures necessary to maintain international peace and security. The
actions of the state should not however affect the authority and responsibility of the Security Council to take action to maintain or
restore international peace and security.
 Article 103: When there is a conflict with the UN Charter obligation and another international agreement, obligations in the UN Charter
trumps
 Article 104: The UN shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its
functions and the fulfilment of its purposes
 Article 105: The UN shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment
of its purposes
o Representatives of the UN and officials of UN shall enjoy privileges and immunities as necessary for independent exercise of
their functions
Legal Personality**
 UN has limited legal personality, so there is an individual inquiry each time as to its function in international law if it tries to bring a claim
at the ICJ. Looks to see if the action is functionally necessary to UN’s purpose.
 Article 2(5): All members shall give the UN every assistance in any action it takes in accordance with the present charter and shall refrain
from giving assistance to any state against which the United Nations is taking preventive or enforcement action
 Article 5: A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may
be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the
Security Council. The exercise of these rights and privileges may be restored by the Security Council.
Structure:
 General Assembly: every member state is present [article 9]; no formal ability to make law, although it makes recommendations (not
binding!) [Article 10]
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Article 23: Security council: has the power to make binding laws – need 9/11 votes, requiring all five permanent members w/o veto (if a
permanent member abstains, then you can fill up nine with other rotating members).
o 5 permanent members: UK, France, US, Russia, China
o 10 rotating members (every two years)
o Article 25: “the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance
with the present Charter”
o Article 32: member of UN not member of Security Council or any non UN member state can be invited to participate without
vote if they are party to a dispute under consideration in the Security Council.
Secretariat: [article 92]
ICJ: any state party to UN is a ipso facto party to statute of ICJ, although it doesn’t have automatic jurisdiction over the states [article 93]
o Jurisdiction: ICJ statute +
 treaty-based jurisdiction/
 acceptance of ICJ compulsory jurisdiction/
 jurisdiction by compromi (special agreement/consent after the fact)/
 advisory jurisdiction (organs of UN agree to submit to court’s jurisdiction)
o Article 94: party needs to comply with decision of the ICJ; if it doesn’t, the other party may seek recourse with the ICJ. Binding
decision only to the parties, though persuasive for others.
ECOSOC
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Sources of Law: Is there Duty?
Overview:
 Lex posterior: most recent treaty/custom
 Lex specialis: whichever one is more specific or relevant to case at hand
Treaties: (VCLT)
Treaty Making Process:
1. Negotiation
2. Writing
3. Signing (president, secretary of state, other diplomat)
4. Ratification (state agrees to be formally bound to act in compliance with terms; deposits ratification instrument at UN or online)
Elements of Treaty:
 Article 2(1)(a) : 3 elements – governed by international law + between states (strict application; no UN) + written form
 Article 1: applies to treaties between states
 Article 11: consent to be bound by signature and ratification
 Article 16: registered with the appropriate authorities of the contracting state + UN Secretariat (UNC 102)
 Article 18: obligation not to defeat the object and purpose of the treaty prior to entry into force.
General Purpose
 Good faith: “noting that the principles of free consent and of good faith and the pacta sunt servada rule are universally recognized.”
Pactus Sunt Servanda: “Promises will be kept,” and performed in “good faith.” Art 26
Reservation:
 Article 2(1)(d): A unilateral statement made by a state when signing, ratifying, accepting, approving or acceding to a treaty, purporting
to exclude or modify the legal effect of certain provisions of the treaty in their application to that state (similar to a counter offer in
contract).
 Article 19: state can make reservations UNLESS:
o a) reservation prohibited by state,
o b) treaty species reservations that can be made,
o c) reservation incompatible with object and purpose of treaty (for O/P, look to intent of states entering into treaty; preamble of
treaty; weigh reservation against object of treaty)
 Article 20:
o Reservation that’s expressly authorized by the treaty doesn’t require subsequence acceptances by contracting states
o When there is limited number of negotiation states and object and purpose in its entirety is essential condition for consent,
reservation requires acceptance by all parties
o When treaty is part of international organization, reservation needs acceptance of relevant organ of organization
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In other scenarios:
 Acceptance  makes legal obligation between accepting and reserving state
 Objection doesn’t bar entry into the treaty unless specifically specified
 Treaty with reservation effective as soon as there is acceptance
 Default: 12 months after notification of the reservation or after date state consent to be bound, if there is no
objection, the reservation is accepted.
Interpretation
 Balance (1) intent of states w/ (2) meaning of the language
 **Article 31: treaty interpreted in good faith according to ordinary meaning given terms of treaty in context and object and purpose.
o Ordinary meaning (text, dictionary)
o Context
o Subsequent agreements, practices, relevant rules of int’l law
o Special meanings: express testimony by parties
 **Article 32: when there is still ambiguity or if the interpretation based on text leads to absurd result, then supplemental sources,
external to the agreement can be used.
o Look to preparatory work (traveux rapporteur), treaty negotiations, initial drafts, ratification history, statement of meaning
 Article 33: language: if two different languages, both languages are determinative unless the parties agree that particular text shall
prevail
 State’s unilateral interpretation of the text isn’t binding (Jessie Lewis Claim; US-Argentina Bilateral Treaty)
Application
 Article 27: party cannot invoke provision of internal law as justification for failure to perform treaty
o Domestic law changing is not a justification for not performing treaty obligations
o unless that internal law is of fundamental importance Article 46
 2 ways to Invalidate Treaty:
o Voidable: harmed state can decide whether to stay in or not; duties applicable until point when voided.
 Article 48 Error
 Must (1) have been essential basis for consent and (2) not result of party’s own error (Cambodia v. Thailand)
 Narrow threshold
 Article 49 Fraud
 Need intentional fraudulent inducement
 Article 50 Corruption
 Only valid of negotiator was corrupt and the treaty was not ratified (or state doesn’t have ratification process).
Once the treaty has been ratified via domestic process, corruption cannot be invoked to avoid the treaty.
 Rule of thumb: state usually has 1 year after corruption was publicized to invoke corruption to invalidate treaty.
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Void ab Initio: as if treaty has never existed; duties are erased; go back to status quo ante even if states don’t want to
 Article 51: Coercion
 Consent obtained by threat
 Article 52: Use of Force
 Exception: war context – US threat to drop more bombs during WWII  Japan signs peace treaty. Ask whether
use of force was consistent with principles of UN Charter. Here, the threat was used to end war for peaceful
ends (UNC Art. 2(4)).
 Article 53: Violation of Jus Cogens – e.g. genocide, slavery, piracy, war crimes, crimes against humanity
 Jus Cogens have retroactive effect upon past treaties (Art. 64)
 If norm becomes jus cogens after treaty comes into effect, treaty is valid until emergence of jus cogence
 Article 43: doesn’t obligate third state without consent
 Article 45: third party has obligation to treaty if parties of the treaty intend the provision to be means of establishing obligation and the
State expressly accepts that obligation in writing
Termination/Suspension
 Article 54: termination/withdrawal of treaty can take place when it’s in conformity with the treaty or by consent of all parties
o Article 56: if treaty silent, then you have one year to get out
 Article 59: treaty can be terminated if a subsequent treaty is concluded if all parties same + similar subject area/content
o Parties that signed new treaty bound by new treaty, but parties that haven’t are bound to the old treaty
 Article 60: Breach
o Bilateral treaty: when there’s material breach (fundamental/substantive), party can invoke the breach as grounds for
termination, suspension in whole or suspension in part (however, it does not automatically terminate the treaty)
o Multilateral treaty: when there’s material breach:
 Other parties unanimously suspend/terminate either a) amongst everyone or b) between themselves and defaulting
party
 A party specifically affected by the breach can invoke ground for suspending/terminating between itself and defaulting
party (// bilateral agreements)
 When a breach by one party radically changes the position of everyone else (e.g. nonproliferation treaty), any party can
invoke the breach for termination/suspension
o Material breach: essential to accomplishment of O/P; violates the VCLT
o **doesn’t apply to provisions related to protecting human person in treaties with humanitarian character
Defenses to Breach: ** these are voidable when there is breach (contra. Responsibility of states)
 Article 61: Impossibility of performance (pretty high standard)
o When there is disappearance of object indispensable for execution of treaty, unless the impossibility was caused by you
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Consider whether the party could’ve drafted the provision to protect against the possibility of foreseeable impossibility.
Socioeconomic and political change, transforming scientific knowledge about environment norms do not count for impossibility
(Gabcikovo-Nagymaros Project)
 Article 62: fundamental change of circumstance
o Rebus sic stantibus (thing thus standing): tacit condition attached to all treaties
o Has to be unforeseen AND
 Circumstance was essential basis of consent OR
 The change will radically transform the extent of obligation
o Exceptions: related to boundary changes or if caused by you
Unilateral Statements:
 To determine whether statement is binding, look to (1) intent of speakers and (2) level of specificity
o Speaker, setting, language/tone, nature of statement, reliance
Custom
VCLT Article 53: Jus Cogens: form of customary law that is a higher norm. Nothing Trumps!
 Unless new norm is established, no derogation is every permitted.
VCLT Article 38: Rules in a treaty become binding through international custom
 Widespread/systematic practice + Opinio Juris (belief that the state is acting b/c of sense of legal duty)
o General principles of law recognized by civilized nations; judicial decisions; teachings of most highly qualified publicists
o Opinion Juris Evidence:
 Government statements; protests against other state action
 if states not party to treaty follow a certain practice or
 it’s usually difficult for states that are parties of treaty to show opinion juris. In this case, look to behaviors of
states that aren’t parties, or behaviors of states prior to treaty.
 if states start objecting a certain action based on legal grounds or
 Or if states forego an interest because of custom
o Reservation: Persistent Objector Doctrine, except jus cogens.
 Caselaw:
o The Paquete Habana [SCOTUS]: extensive, multicultural survey of state practice not disturbing fishermen during wartime. Would
have been advantageous to seize fishing boats, but refrained from doing so.
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North Sea Continental Shelf Case [ICJ 1969]: adherence to a rule b/c of treaty obligation is not custom. There needs to be some
sense of legal duty amongst states that do not have treaty obligation.
o Asylum Case (Columbia v. Peru) [ICJ 1950]: local custom few exceptions need uniform, clear adoption of custom
Relationship between treaty/custom
o Codification: custom  treaty
o Crystallization: treaty gives shape to amorphous rule that loosely governs state behavior
o Subsequent development: treaty  custom
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General Principle:
designed to fill procedural gaps and deal w/ situations where intl law can’t provide specificity; common state practice/definition (e.g. definition
of rape within criminal codes)
 Recognized by civilized countries
 Derived from nature of intl community
 Intrinsic to idea of law in all legal systems
 Valid through all kinds of societies
 Nature of man as a rational/social being
Ex: definition of rape formulated by going through all the criminal codes (Rape in Bosnian War)
Judge/Scholar Opinion:
 all holdings, including domestic are persuasive. No binding precedent
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Soft Law:
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Universal Declaration of HR (political force)
Soft law is not binding
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UN Responsibility of States for Internationally Wrongful Acts (2001)
Jurisdiction
1. Optional Clause:
a. Statute Article 36: states have to say it’s open to ICJ jurisdiction (both parties). Optional clause must have been accepted when
the facts of the case has taken place.
2. Treaty based jurisdiction
a. Treaties say if they will have ICJ jurisdiction. Often, states have specific things that need to be done before the case can be
arbitrated.
b. Also, UN Charter encourages negotiations or talk before.
3. Advisory Jurisdiction:
a. UN Charter Article 96: general assembly or the security council may request ICJ for advisory opinion only on legal question
4. Special Agreement
a. After dispute arose, states can voluntarily accept to go to ICJ
b. Usually, both states have incentive to resolve the conflict to prevent further harm or loss.
Standing
Harm
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Article 42(a): Direct harm
o Actual Injury Or
o Certain state actions constitute a chilling effect in violation of treaty
 Article 42(b) Ergo Omnes Obligations: owed to international community (e.g. genocide, racial discrimination, basic rights of the uman
person, etc.)
o Court can invoke Actio Popularis: to enforce this obligation. HOWEVER, COURTS HAVE NEVER DONE THIS
Local Remedies
 Article 44: Check if Local Remedies have been exhausted before state can have standing
o EXCEPTION: when harm to state is integrally linked to other harm, then doesn’t have to go through local remedies (Rainbow
Warrior)
Attribution
 Article 4: conduct of any state organ
o Corfu Channel (UK v. Albania): They should have known
o HYPO: S.O.E. murky
 Article 5: person or entity empowered by the law of the state to exercise government authority
 Article 6: organ placed at the disposal of another state by another state
 Article 8: Conduct directed or controlled by the state
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Something a little less stringent than Nicaragua v. US (US training contra-rebels in Nicaragua and furnishing them with weaons
didn’t impute liability b/c of no EFFECTIVE control)
Article 9: conduct carried out in the absence or default of the official authorities; when basic functions aren’t carried out by the state
Article 10: conduct of insurrectional movement that becomes state is considered state and liable
Article 11: if state acknowledges and adopts conduct in question without fulfilling any of above list, then liable
o US Embassy in Tehran Seized by Iranian Student Movement: EX POST FACTO ratification.
Breach
Defenses Precluding Wrongfulness
 Article 23: Force Majeure: unforeseen + impossible defense
o No contribution or A/R (foreseeable)
 Article 24: Distress
o Only when saving ur life or another in ur care
o No contribution or action creates greater peril
o You have distress defense until you’re done saving someone’s life (Rainbow Warrior)
 Article 25: Necessity
o 1) is only way to safeguard 2) essential interest against 3) grave/imminent peril
o Doesn’t impair essential interest of another state or no contribution or intl obligation doesn’t allow necessity defense
o Doesn’t have to be the ONLY way per se, but comparable to it (LG and E v. Argentina)
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Countermeasures
Article 49: countermeasures only to induce compliance (no punishment). The goal is to resume performance, meaning, you can’t have
countermeasure that makes it impossible to carry out the treaty obligation
Article 50:
o Can’t affect
 Limitations on use of threat/force as embodied in UN Charter
 Obligations for protection of human rights
 Obligations of humanitarian character
 Obligations of peremptory norm
o Coutermeasureing state still has to
 Dispute settlement procedure
 Also encouraged by UN Charter Article 2(3): seek negotiation, enquiry, mediation, conciliation, etc.
 Respect inviolability of diplomatic or consular agents, premises, archives, documents
Article 51: has to be proportional; usually in similar field, close to what was breached Pan Am Case
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Article 52: notify other state of countermeasure and offer to negotiate. Countermeasure can be in place until internationally wrongful
act as been ceased and dispute is pending before a court/tribunal.
Remedies
1. Article 35: Restitution:
a. Status quo ante – pre-K condition
b. However, this is assuming that it’s not materially impossible OR does not involve a burden that’s out of proportional to the
actual restitution sought
2. Article 36: Compensation/indemnity:
a. Needs to be foreseeable/calculable. Also, future damages can count, as long as its certain
3. Article 37: Satisfaction
Apology, acknowledgement, etc.
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