Article 1. Scope of the present convention

The present Convention applies to treaties between States.

Article 2. Use of terms

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;

…

Article 3. International agreements not within the scope of the present convention

The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect:

(a) The legal force of such agreements;

(b) The application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention;

(c) The application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.

Article 4. Non-retroactivity of the present convention

Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.

s2(1)(a) definition of a treaty only applies to VCLT, other treaties can have different definitions

VCLT only applies PROSPECTIVELY -> therefore doesn’t apply to Genocide Convention

The ICJ in Namibia Advisory Opinion held that the VCLT may be considered a codification of customary law.

How treaties are negotiated and brought into force depends on the intention of parties – there are no overriding requirements of form.

An agreement recorded in an exchange of letters or the minutes of a conference may have the same legal effect as a formally drafted treaty contained in a single instrument (Maritime Delimitation)

Minutes of a discussion by 3 foreign ministers, that Saudi Arabia did not succeed to bring a political settlement between Bahrain and Qatar, both parties can go to ICJ
Court adopted expansive notion of the term treaty

If parties wish to record mutual understandings but do not intend to create legally binding obligations they often conclude non-binding instruments such as memoranda of understanding. The name of the instrument is not conclusive as to its legal status – what matters is the intention of the parties.

Intent to create legal relations

When determining whether there is an intent to create legal relations, the court will consider (i) all the actual terms of the agreement and (ii) the circumstances in which it had been drawn up (Aegean Sea (Greece v Turkey))

In Aegean Sea, the question was whether the Joint Brussels communiqué issued by Greece and Turkey amounted to an agreement in international law to submit the dispute to the ICJ. It did not bear any signatures. According to the Turkish government it did not constitute an agreement under international law and accordingly had not been ratified. The Greek government maintained that the joint communiqué did constitute an agreement. It argued that the joint communiqué was a modern ritual which has acquired full status in international practice.

Applying the test, the court found that there had been no intention to conclude an international agreement to submit to the jurisdiction of the Court.

In Maritime Delimitation (Qatar v. Bahrain), the ICJ had to decide on the legal effect of two instruments. The first was a double exchange of letters between Qatar and Saudi Arabia, and Bahrain and Saudi Arabia. The second was the minutes of a meeting between the states which were signed by their foreign ministers.

The court applied the test in Aegean Sea and inferred the parties’ intentions from the text of the agreement and the surrounding circumstances. It concluded that the instruments were to be construed as a binding agreement submitting the dispute to the ICJ, since they enumerated the commitments to which the parties had consented.

Minutes of a discussion by 3 foreign ministers, that Saudi Arabia did not succeed to bring a political settlement between Bahrain and Qatar, both parties can go to ICJ
Court adopted expansive notion of the term treaty

Article 7. Full powers

1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) He produces appropriate full powers; or

(b) It appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.

2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:

(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;

(b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;

(c) Representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

Article 8. Subsequent confirmation of an act performed without authorization

An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State.

Persons must produce ‘full powers’ according to art 7 of the Convention before being accepted as capable of representing their countries.

Article 2. Use of terms

…

(c) "Full powers" means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;

…

Certain persons do not need to produce such full powers, by virtue of their position and functions (Art 7(2)). In Maritime Boundary (Cameroon v Nigeria) the ICJ confirmed that the full powers afforded to a head of state derive from his or her position. This position was expanded beyond the law of treaties in Genocide (Bosnia v Yugoslavia). The ICJ held that ‘every head of State is presumed to be able to act on behalf of the State in its international relations’. Others included in this exception are foreign ministers and heads of diplomatic missions.

Once a treaty has been drafted, the text has to be adopted.

Article 9. Adoption of the text

1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2.

2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule.

The consent of the states parties to the treaty is vital since states may (in the absence of a rule being also one of customary law) be bound only by their consent.

Article 11. Means of expressing consent to be bound by a treaty

The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

Ie ways to express consent:

Signature
Ratification
Accession

Following adoption, there has to be authentication of an agreed text. Signature has as one of its functions, authentication, but a text may be authenticated in other ways:

Article 10. Authentication of the text

The text of a treaty is established as authentic and definitive:

(a) By such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or

(b) Failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text.

A state may regard itself as having given its consent to the text of the treaty by signature in defined circumstances:

Article 12. Consent to be bound by a treaty expressed by signature

1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when:

(a) The treaty provides that signature shall have that effect;

(b) It is otherwise established that the negotiating States were agreed that signature should have that effect; or

(c) The intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.

2. For the purposes of paragraph 1 :

(a) The initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed;

(b) The signature ad...

#14982 - Treaties - Public International Law

About Oxbridge

More Public International Law Samples