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TREATIES

TREATIES. Lecture 8 January 30. ASSIGNMENT -. Monday, Feb.2 SHORT QUIZ – 10 minutes multiple choice Customary International Law Paquette Habana Asylum Case Jus cogens – read the hand-out (download from class website) – REMEMBER DEADLINE FOR TOPIC FOR RESEARCH PAPERS IS

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TREATIES

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  1. TREATIES Lecture 8 January 30

  2. ASSIGNMENT - Monday, Feb.2 SHORT QUIZ – 10 minutes multiple choice Customary International Law • Paquette Habana • Asylum Case • Jus cogens – read the hand-out (download from class website) –REMEMBER DEADLINE FOR TOPIC FOR RESEARCH PAPERS IS Feb.6sign-up sheet on my desk Today: Eastern Greenland Case (short case) B. Customary International Law – Paquette Habana

  3. Gabcikovo-Nagymaros -3 • 5. Holding: (each issue has only one holding – the legal answer to each issue) rule of law necessary for the decision (judgment) of the court. What the court actually did in the case (what it decided), rather than what it said. The rule modified by the facts of a particular case. • No - Notification of termination by a state does not have the legal effect of terminating the treatyif the ground for termination do not conform to the requirements enumerated in the Vienna Convention and the treaty has no provisions regarding its termination.

  4. Gabcikovo-Nagymaros -4 • When can a valid treaty legally be terminated under the law of treaties? • 1) May H terminate the treaty on the grounds of state of necessity? – State responsibility issue (not VCLOT) • 2)May H terminate the treaty on the grounds of impossibility of performance • 3)May H terminate the treaty on the grounds of changed circumstances • 4)May H terminate the treaty on the grounds of material breach • 5) Jus cogens – Art.64 • 6) Mutual termination – consent of both parties FOCUS ON 2)- 6) – (No. (1) will be dealt with later in course).

  5. Holding + Reasoning -1 • 1) Could H invoke state of necessity? No, state of necessity is not a grounds for termination of a treaty, it may preclude wrongfulness, but environmental concerns did not amount to “actual” and “imminent peril” to preclude wrongfulness. • Reasoning: Reasoning /DISCUSSION/ rationale: the legal arguments the court used to justify applying the rule • It is not mentioned in Vienna Conv. as one of the grounds for termination – as it only comes into play with regard to state responsibility – the treaty would just be ineffective while the condition of necessity exists, unless the parties agreed to terminate it. Environmental concerns did not amount to necessity (not “grave and imminent peril” under the Draft Articles on state responsibility).

  6. Holding + Reasoning -2 • 2) Could H. invoke impossibility of performance – No, H could not invoke impossibility as a grounds for termination – that the economic joint investment plan had permanently disappeared. • A)Permanent disappearance or destruction of the object indispensable for the execution of the treaty. Art.61,1. • B) Art. 61,2 can’t invoke the grounds of impossibility if you were the cause of it. • Reasoning:- H suspended works - instead they could have adjusted through negotiations for economic and envtl imperatives in accordance with the 1977 Treaty, Art.15, 19, and 20. If one considered the joint exploitation of the investment was no longer possible H could not invoke this because it was H that had breached it’s obligation – had not carried out most of the works.

  7. Holding + Reasoning -3 • 3) fundamental change of circumstances? (rebus sic stantibus) No. H could not invoke fundamental change of circumstances based on political or economic changes. • Reasoning: Art. 62 Fundamental or vital – imperil the existence or vital development for one of the parties. Radical transformation of the extent of the obligations still to be performed. Change must have increased the burden of the obligations. To be executed to the extent of rendering the performance something essentially different from that originally undertaken. The goal was to produce energy and flood control. The political situation was not so closely linked to the object and purpose of the treaty. New envtl knowledge – adjust through Articles 15, 19, and 20 of the 1977 Treaty.

  8. Holding + Reasoning -4 • 4) material breach? – No, H could not invoke material breach, H termination was premature. • Reasoning:Art. 60(1)(3)only material breach of the treaty itself entitles the party to rely on it as grounds for termination. (not violation of other conventions and rules of general intl law.) Construction and putting into operation Variant C, Czechoslovakia violated the treaty only when it diverted the waters of the Danube in Oct.1992. H’s notification of termination in May 1992 was premature. No breach had yet taken place.

  9. Holding + Reasoning -5 + 6 • 5) New requirements of intl law for the protection of the environment precluded performance. • Both agree there are no new jus cogens norms – Art. 64 • Newly developed envtl norms could be taken into account through the application of the 1977 Treaties Arts.15,19, and 20 - evolving provisions • The treaty could adapt to new envtl norms through consultation and negotiation. • 6) Both parties repudiated the treaty by their conduct • reciprocal wrongful conduct does not bring the treaty to an end. • Would be against – pacta sunt servanda – contracts are binding and must be carried out in good faith (Art.26) good faith – standards of reasonableness, fairness, and decency. • Unless they both consent to terminate the treaty - mutual consent (Art.54).

  10. Case: Gabcikovo-Nagymaros Separate Opinion of Vice-President of ICJ Weeramantry • Sustainable Development - How was the concept applied in this case? Balance environmental and economic concerns

  11. EASTERN GREENLAND CASE1933 1. Court: • PCIJ – PRECURSOR TO ICJ 2. Sources: • Vienna Conv. on the Law of Treaties (as codification of customary international law, since it hadn’t been adopted yet.) • Customary intl law –by analogy follow the same rules as you would for agreement between states – unilateral declaration can also form basis of obligations. • If you put Ihlen Declaration as a source – IF WE ASSUME IT WAS BINDING THEN THAT FORMS THE BASIS OF NORWAY’S OBLIGATION.

  12. 3. Facts: • The Danish minister stated that Denmark would not object to Norwegian claims of Sovereignty on the issue of Spitzbergen and asked if he could count on Norway doing the same in the case of Denmark’s claim of sovereignty of the whole of Greenland. Norway’s minister of foreign affairs said Norway would not make any difficulties for Denmark on the issue of Greenland.(Ihlen Declaration 1919). Then Norway occupied certain territories in East Greenland in 1931. • Denmark brought the case to the PCIJ – wanting Norway’s declaration of occupation and steps taken in that regard • found illegal and invalid.

  13. 4. Issue: • 1) Are affirmations made by one government to another binding? • 2) May the Norwegian occupation of East Greenland be considered to violate the Ihlen Declaration (affirmation made by the Norwegian Foreign Minister) and accordingly unlawful and invalid.

  14. Issue: • 3) Was the declaration valid if it was made in violation of Norwegian municipal law Art. 46 -invalidity (Art.27 - observance). of the Norwegian Constitution requiring consent by the Norwegian Parliament to enter into a treaty? Should Denmark have known that assent by the Norwegian Parliament was needed to make a treaty?

  15. 5. Holding and Reasoning: • 1)Yes. Affirmations (declaration) made by one government to another are binding. Unilateral statements, the Court implied, can be as binding as a bilateral agreement. • Reasoning: A unilateral declaration made in the context of a negotiating situation - as a response to a request of another state can create binding international obligations. The promise was unconditional and definitive.

  16. 6. Holding and Reasoning: • 2) Yes the Norwegian proclamation of occupation of certain territories of Eastern Greenland may be considered to violate the Ihlen Declaration, therefore unlawful and invalid. • Reasoning: Ihlen Declaration – Norway was under an obligation not to make difficulties for Denmark on the Greenland issue and a fortiori (with even greater sense of logic) to refrain from occupying a part of Greenland

  17. 7. Holding and Reasoning: • 3) Yes, Art.46 of Vienna Conv. A state cannot invoke internal law. • For the purpose of all acts w/o having to produce full powers – the head of state and head of gov’t (prime minister) or foreign minister can represent the state – Vienna Conv. Art. 7.

  18. Customary international law • PUT IN PERSPECTIVE • Sources of Intl Law • 1. Treaties • 2. Customary Intl Law • 3. General Principles recognized by civilized nations • 4. Judicial Decisions and teachings • 5. Soft law • CUSTOMARY INTL LAW • - non-treaty sources are more universal in their reach than treaties • - provide the essential context of law in which to interpret treaties • - But more difficult in terms of defining the rules and ascertaining party consent (if any)

  19. Customary international law Customary intl law – DEFINITION - state practice + opinio juris I. State practice – Objective element • 1) Duration - • 2) Uniformity, consistency of the practice - • 3) Generality of practice – universality is not required II. Opinio juris – Subjective element = “accepted by states” Art.38(1)(b)– ‘doing the practice out of a sense of legal obligation – as opposed to motives of courtesy, morality or fairness • The problem is one of proof. • (sometimes the court infers opinion juris) Persistent objector- a state may contract out of a custom in the process of formation. Objection must be clear. Anglo-Norwegian Fisheries case – Norway was allowed to enforce her system of wider than ordinary exclusive fishing zone. Different types of custom • regional or general custom • may adjust through treaties UNLESS – JUS COGENS

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