Discussion of Problem on pps. 52-53.

1. Discussion of Problem on pps. 52-53. • Make the argument that Alba has good title to the island of Manca. • Make the argument that Benir has good title to Manca. • Be sure to discuss the cases and principles you have learned and explain why they are, or are not, applicable.

2. The Law of Treaties, p. 55ff. • Reference the Vienna Convention on the Law of Treaties (VCLT) • What is a treaty? See VCLT art. 2(1)(a) and art. 3. • Note the many names given to treaties. • Who has the capacity to enter into a treaty on behalf of a state? See art. 7(2)(a). • Internal/International Ratification: What has to happen in the US before the President may ratify a treaty? Once the President has ratified a treaty under US law, how is the treaty ratified at the international level?

3. Reservations to Treaties • What is a reservation to a treaty? See VCLT art. 2(1)(d). • Can you have a reservation to a bi-lateral treaty? • Reservations to the Genocide Convention Case, 1951 I.C.J.15 (Advisory Opinion). • What was the general type of reservation to the Genocide Convention that gave rise to this case?

4. Reservations to the Genocide Case continued Before the Reservations Case was decided, how many of the states party to a multi-lateral treaty had to consent to a reservation before a state could be considered a party to the treaty? Can a reserving state be considered a party to the treaty if all of the other parties object to the reservation?

5. Genocide Reservations Case continued • If the state appending a reservation to the Convention can be regarded as a party to the treaty, is there a treaty relationship between that state and the states that objected to the reservation? What about between the reserving state and the states that accepted the reservation? • The Court stated that the usual rule of unanimity was being set aside because of the perceived intention of the Convention’s drafters and the unusual nature of human rights treaties. What did the court mean by that? Do you think the Court’s new rule is justified and helpful or not warranted and confusing? Did you find the dissenters opinion convincing? • Now see VCLT arts. 19-23.

6. Problems, p. 64 • 1) What is your response for the State of Alpha to the US reservations? • 2) What issues would you take into account when trying to decide whether to allow reservations to particular articles of a treaty? • Read Judge Koroma’s dissent in D.R. of Congo v. Rwanda, 2006 I.C.J.--- at: • www.icj-cij.org/docket/files/126/10439.pdf What is Judge Koroma’s view of reservations like the US reservation?

7. Entry into Force, Observance, and Application of Treaties • What are the obligations of a state when it has signed but not yet ratified a treaty? (VCLT art. 18). • When does a treaty enter into force? (VCLT art. 24). • What is meant by pactasuntservanda? (VCLT art. 26). • What is the scope of the territorial application of treaties?(VCLT art.29). (See discussion about territorial scope of the Convention on the Elimination of All Forms of Racial Discrimination in Georgia v. RussianFederation, Order on Provisional Measures, Oct. 15, 2008) at: • www.icj-cij.org/docket/files/140/14801.pdf Do treaties apply on the high seas? See Sale v. Haitian Centers Council Inc., 509 U.S. 155 (1993) or during war time? See Construction of a Wall Case, 2004 I.C.J. 136 (Advisory Opinion) and Techt v. Hughes p.95.

8. Interpretation of Treaties • Name two schools of thought on the methodology for the interpretation of treaties. Which methodology do you prefer and why? • Which method does the VCLT adopt? (VCLT arts. 31 & 32).

9. Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.)2004 I.C.J.12 What were Mexico’s complaints against the US? • How did the Court get jurisdiction over Mexico and the U.S.? • Do treaties create rights for individuals? Did the VCCR create rights for individuals? • How does the Court go about determining the meaning of “without delay”? • How long was the delay in informing the La Grand brothers of their VCCR’s rights in the La Grand Case? The Mexicans in the AvenaCase? • How had the US violated its obligations under the VCCR to the 52 named Mexican nationals and to Mexico? • Why did the Court not require all the defendants to exhaust all remedies in US courts before Mexico could proceed with the claims?

10. Avena continued • What is the general rule for remedying a violation of a treaty? • What remedy did Mexico want? • What was the remedy the Court required for the breaches of the VCCR by the US? • Could, for example, a state governor’s clemency board provide a sufficient remedy? • How did the US indicate that it was trying to avoid repetition of the violations?

11. Avena continued Many of the cases considered by the Court in Avena had been procedurally defaulted, that is the defendants had failed to raise the violation of the treaty at trial and were therefore barred from doing so on appeal or on collateral review. Why did the the ICJ rule that the procedural default bar could not be used to prevent the defendants from raising violations of the treaty? (See para.113). (Same ruling: La Grand, para.91)

12. Medellin v. Texas, 128 S.Ct. 1346 (2008) • This case, concerning a Mexican convicted of murder and sentenced to death in Texas, has now been twice before the US Supreme Court. The first time, the Court was made aware of President Bush’s memo to the States instructing them to comply with the ICJ Avenadecision in the briefs filed in the Supreme Court. In light of this memo, the Court remanded the case to the Texas courts. On October 10th 2007, the case was argued before the Supreme Court. At issue was whether the President has the power to instruct the state courts (here Texas) to comply with a ruling of the ICJ on the interpretation of a treaty, requiring them, inter alia, to set aside their procedural default rules and grant the remedy required by the ICJ. More importantly for international law was the issue of whether the US would comply with judgments of the ICJ in a case in which it was a party, as it is required to do by art. 94 of the UN Charter. President Bush’s memo indicated that he was ordering compliance with the decision as a matter of comity but nevertheless he ordered the states to comply with the ICJ`s ruling. This case was decided by the US Supreme Court on March 25, 2008.

13. Medellin continued • Although the S. Ct. acknowledged that the US had international obligations to abide by the ICJ’s decision in Avena, it held that the Texas courts were not required to set aside the procedural default bar in order to reexamine the defendant’s conviction and sentence in accordance with the ICJ’s judgment either in compliance with the President’s memorandum or in compliance with US treaty obligations. The reasoning was based on the ruling that the treaties at issue were not self-executing (i.e. they required implementing legislation to make them enforceable in U.S. courts). Justice Breyer wrote a vigorous dissent.

14. Invalidity of Treaties Error (VCLT art.48). • Fraud and corruption (VCLT arts. 49 & 50). • Coercion (VCLT arts. 51 & 52). • Conflict with a Peremptory Norm, Jus Cogens (VCLT arts. 53 & 64). • Termination, Suspension and Withdrawal (VCLT arts. 54-59).

15. Grounds for Invalidity continued • Material Breach (VCLT art. 60) • South-West Africa/Namibia Case, 1971 I.C.J. 16 (Advisory Opinion) p.83. Discussion of the right to terminate a treaty in light of the repudiation of the treaty and violations of essential provisions. What was the treaty in question here? How had it been breached? Why was the breach considered material? What can a party do once it has decided that the other party has materially breached the treaty?

16. Grounds for Invalidity continued • Supervening Impossibility of Performance (VCLT art. 61). • Fundamental Change of Circumstances (VCLT art. 62) also referred to as rebus sic stantibus. Also see Fisheries Jurisdiction Case (U.K. v. Iceland) 1974 I.C.J. 3. What was the treaty in question here? What were the fundamental change of circumstances cited by Iceland? Why did the Court reject Iceland’s argument without even examining whether the alleged change of circumstances had actually occurred?

17. Supervening Impossibility of Performance, Fundamental Change of Circumstances and Material Breach • Gabcikova-Nagymaros Project Case (Hungary v. Slovakia) 1997 I.C.J. 7 • The parties to the case had agreed that Slovakia had succeeded to the treaty obligations of the former Czechoslovakia. In general terms, what was the treaty at issue in this case? Hungary announced its termination of the treaty on May 19, 1992. She argued that she had a right to terminate on the basis of 1) Supervening impossibility of performance (VCLT art.61). 2) Fundamental change of circumstances (VCLT art.62). 3) Material breach (VCLT art.60). Articulate Hungary’s arguments. Why did the Court not agree with Hungary’s arguments?

18. Gabcikovo Case continued • Slovakia started building a new system of water diversion (called Variant C), not permitted under the treaty, after Hungary refused to proceed with her obligations under the treaty. The building of Variant C was not considered unlawful until it was actually operative. Slovakia argued that any wrongfulness in the operation of Variant C was precluded by Hungary’s prior unlawful acts in refusing to proceed with the project agreed to under the treaty. In other words, Slovakia claimed that her action was a lawful countermeasure to a prior illegal act by Hungary. The Court agreed that Hungary had committed a prior unlawful act, why then did the Court not uphold Slovakia’s right to make Variant C operational? • Note: Another phase of the case is still pending in the ICJ www.icj-cij.org/docket/index.php?p1=3&p2=1

19. Procedure for Termination • Pay attention to VCLT arts. 65-67 for the procedure to be followed in the event of invalidity, termination, withdrawal or suspension from a treaty. A simple unilateral assessment that the conditions for termination of obligations under a treaty have been met is not sufficient to permit a lawful termination.

20. State Succession in Respect of Treaties • What happens to treaty obligations when a state breaks up into a number of separate states (e.g., former Soviet Union, or Sweden and Norway in 1905), or when two or more states combine (East and West Germany), or when part of a state breaks away and declares itself a new state (Kosovo)? • What is the clean slate theory? • What is the continuity theory?

21. Bosnia- Herzegovina v. Yugoslavia, 1996 I.C. J. 595 • When the former Yugoslavia broke into number of new states in the early 1990s, Serbia-Montenegro declared itself to be The Federal Republic of Yugoslavia (FRY). Why did the Court decide that FRY was bound by the Genocide Convention even though FRY had never signed or ratified the treaty? • One part of the former Yugoslavia renamed itself Bosnia-Herzegovina (B-H). Why did the Court decide that B-H was bound by the Genocide Convention even though it had never signed or ratified the treaty?

22. The Effect of War on Treaties: Generally and on Human Rights Treaties • Note: VCLT does not address the effect of war on treaties, see VCLT art. 73. • Techt v. Hughes, (Ct. App. N.Y. 1920) p. 95ff. How would you state the principle of this case? • See Restatement of the Foreign Relations Law of the US section 336, Comment e and Reporter’s Note 4 on p. 98. • The I.C.J. in its Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) stated that Human Rights treaties continue during war unless they are specifically ousted by the lex specialis of international humanitarian law (the laws of armed conflict). E.g., The right to life, found in many HRs treaties (e.g. art. 6, ICCPR) continues in warfare but is set aside by the “combatant’s privilege” of killing a lawful military opponent when engaged in inter-state armed conflict.