LAW OF TREATIES
Art. 38(1) (a) ICJ Statute: In deciding disputes regarding international law, the court shall refer to international covenants [treaties]…
Definition of treaty
Refer Art. 2 of VCLT
ELEMENTS TO MAKE A VALID TREATY (ART 2 OF VCLT):
1) Treaty must have international character
The treaty is to be concluded by an international legal person who has capacity to enter into treaty.
Who is an international legal person who can conclude treaties?
a) States (Art 6 VCLT), which includes Head of States, Head of Gov, and Minister of Foreign Affairs (refer to Art 7 VCLT)
b) International organization (in Anglo-Iranian Oil Company case, ICJ held that contract between the company and Iranian government was not a treaty because there is no privity of contract.
2) In written form
Oral form of agreement is also acceptable (Eastern Greenland case)
3) Governed by international law
International law governs all treaties whether or not they are within the scope of VCLT
4) Embodied in single or 2 instruments
Treaties may be several forms:
e) Exchange of notes
There are less formal agreements such as exchange of notes (letters). States may send letters to each other and agree on certain things. If the letters intended to be a treaty, it is customary to expressly state that it shall constitute an agreement between our Governments.
In the case of Qatar and Bahrain, exchange of notes that was done by parties conferred jurisdiction to ICJ to hear the dispute.
5) There is an intention to create legal relation
This element is not expressly mentioned in Art 2 VCLT. But, it is very important because without intention, an instrument will not be a treaty.
What are the effects of Unilateral Statements (only 1 party enter into treaty)?
If the state made such declaration with intention to be bound, a state may be bound by such unilateral statement.
In Legal Status of Eastern Greenland case, Norway made unilateral statement that it won’t create difficulties in respect of Danish’s claim over Eastern Greenland. ICJ held that Norway is bound by this unilateral statement.
This was confirmed again by ICJ in Nuclear Test cases.
Once the text is adopted, THE NEGOTIATING PARTIES MUST GIVE CONSENT TO BE BOUND BY A TREATY
The methods of giving consent are provided under Art 11 – 16 VCLT
WHAT IF A STATE MAKES RESERVATION TO ONE OF TERMS IN THE TREATY?
Refer to Art 19 – 23 VCLT.
If the Treaty allows reservation, then can reserve. But, if do not allow, cannot.
Art 120 Rome Statute: No reservation may be made to the statute of ICC.
What if there are no provisions stating about reservation in that Treaty? Are states not allowed to make reservation?
ICJ in the case of Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide answered this question. If there are no provisions stating about reservation, it does not automatically mean that you cannot reserve. But, you need to look at the purpose of the Treaty. Your reservation cannot defeat the purpose and object of the Treaty, otherwise, you are not a party to the Treaty.
ENTRY INTO FORCE
A treaty does not enter into force until certain number of States ratified it. For example, Art 308 of UNCLOS provides:
“This convention shall enter into force 12 months after the date of deposit of the 16th ratification“
REGISTRATION AND PUBLICATION OF TREATY
Every treaty needs to be registered with UN, ~refer to Art 102 UN Charter & Art 80 VCLT
APPLICATION OF A TREATY
A) Upon its Parties
Art 26 VCLT: every treaty in force is binding upon its parties and must be performed in good faith
Art 27 VCLT: a party may not invoke the provision of internal law as justification for its failure to perform a treaty
B) Successive Treaties on the same subject matter
Art 30 VLCT: If there are 2 same treaties concluded on the same matter, the one concluded later will prevail.
However, if the provision of an ordinary treaty is in conflict with UN Charter, Art 30 VCLT & Art 103 UN Charter provides that UN Charter prevails.
C) Application of a Treaty upon 3rd States
Art 34 VCLT: 3rd party states are not bound by the Treaty without its consent.
However, Art 35-38 VCLT states that there are exceptions where 3rd party states may be bound.
INVALIDATION OF TREATIES
There are several grounds which a Treaty may be invalid:
a) Violation of fundamental domestic law (Art 46 VCLT)
A state may invoke Art 46 if:
- the violated internal law was related to competence to conclude Treaty
(The person who ratified the Treaty was not capable of doing it.)
- the violation was manifest and other party must be aware of it
- the violation concerned a rule of fundamental importance
b) Error (Art 48 VCLT)
That State may have erred in entering the Treaty due to some misunderstanding. However, error does not make the Treaty automatically void. The mistaken party may invoke the error as invalidating its consent.
c) Fraud Art 49 VCLT
d)Corruption Art 50 VCLT
e)Coercion Art 51 VCLT
f) Coercion by threat or use of force Art 52
Art 2 (4) UN Charter provides use of force is prohibited. Force means ‘military force’.
g) Treaty conflicting with jus cogens, e.g.
- A treaty allowing an unlawful use of force
- A treaty which allow parties to commit crimes under International law
- A treaty which allows genocide, piracy or slavery
TERMINATION OF TREATY
~refer to Art 54-60 VCLT
A Treaty may be terminated automatically by 3 ways:
a) Art 61 VCLT –supervening impossibility of performance
b) Art 62 VCLT – there is a fundamental change of circumstances
c) Art 64 VCLT – emergence of a new jus cogens.
CONSEQUENCES OF INVALIDITY OR TERMINATION OF TREATY
Refer Art 69 – 71 VCLT
A state may incur liability if it violate a rule of customary international law or ignore its obligation under a treaty.
However, to make a state responsible, Art 2 of Draft Articles (DA) put 2 requirements:
1) THE WRONGFUL CONDUCT IN QUESTION MUST BE ATTRIBUTABLE TO THE STATE
State cannot act on its own. State Organs shall represent the State in any matters.
Art 4 DA provides that the conduct of any state organ shall be considered an act of that state under international law whether the organ exercises legislative, executive or judiciary function. An organ includes any person or entity.
Conduct in Art 4 DA means action or omission. E.g.:
Diplomatic and Consular Staff case: Iran was responsible because of omission to act when it should have done so.
Corfu Channel case: Albanian was responsible because it should have known about presence of mines in its territorial waters and failed to inform the 3rd state about it.
a) Wrongful conduct of judiciary attributable to the state
Judicial organ can be the cause of state responsibility because of ‘denial of justice’.
Janes Claim case: Mexico failed to arrest and punish an offender which caused death to an American citizen. ICJ held that this is ‘a denial of justice’ and Mexico should be liable.
b) Wrongful conduct of the executive attributable to the state
e.g. conduct of police, army, gov officers
Massey claim case: a US citizen who was working in Mexico was killed. Mexican authority failed to punish the offender. Mexico is liable and should pay damages to US.
Does the state be responsible if wrongful conduct committed by its organ when off duty?
No. A state would only be attributable to such wrongful conduct when it is committed on duty. If committed off duty, it cannot be attributable to the State.
Mallen case: A consul has been attacked by American police officer 2 times. 1st attack was when he was off duty. 2nd attack he showed his badge to assert his official capacity. US was responsible for the 2nd attack.
A state may also be liable for de facto State organs i.e. public corporations or private company performing element of governmental authority
SEDCO case: there was a seizure of vehicle. The claimant argued that a state owned company took it. However, argument was rejected because there was no proof to show that government directed it to be seized.
Foremost Tehran Inc v Iran case: Iranian company did not pay dividends to shareholders. The conduct was attributable to Iran because it had been influenced by Government representatives on the board of directors.
Ultra vires conduct cannot be a defense to exclude state responsibility
Refer Art 7 DA
US v Mexico: Mexican soldiers ignored their orders and attacked on a house where Americans was seeking refuge. It was held Mexico liable.
Conduct of private persons may be attributable to State in 2 circumstances if [Art 8 DA]:
a) It was carried out on instructions of the State
b) It was under direction or control of State
However, what is the degree of control that State need to exercise over the persons?
i) According to Nicaragua case, Stateneeds to exercise effective control. Control by State is effective when, for example:
- State finances the persons
- State coordinates the conduct of such persons
- State issued specific instruction to such persons
ii) According to Prosecutor v Tadic, State only need to exercise overall control. State does not necessarily need issue instructions concerning each specific action.
2) THE CONDUCT MUST CONSTITUTE A BREACH OF AN INTERNATIONAL LEGAL OBLIGATION
Art 12 DA: A State is in breach of its obligation when any act of the State does not conform to its obligation.
DEFENCES [Art 20-27 DA)
a) Consent [Art 20 DA]
b) self-defense [Art 21 DA]
c) countermeasures [Art 22 DA]
d) force majeure [Art 23 DA]
There must be unforeseen circumstances to perform the obligation.
Rainbow Warrior: New Zealand argued that French breached its obligation because French failed to seek consent of NZ before removing NZ’s soldiers from the island. French said that NZ soldiers were sick and need medical attention, so it was a force majeure. It was held that this situation does not suffice to amount to force majeure.
e) Distress [Art 24 DA]
f) Necessity [Art 25 DA]
NATIONALITY OF CLAIM
Every state has the right to protect its nationals. However, it is up to the state whether to take up the claim or not.
Nottebohm: a state’s right to extend diplomatic protection to its individual is not unlimited.
However, according to Art 1 of Hague Convention, there must be a genuine link between the State and the national.
Mr. N was born in Germany & had German nationality until his naturalisation with Liechtenstein. Later he went to Guatemala and resided & conducts business there. L sued GU for unlawfully expelled and seized property of Mr N who had been neutralised by L. Court said that for the claim to succeed, a genuine link between L and Mr N must be proven.
Court said that for a genuine link to exist, there must be dominant nationality. Here, Mr. N’s link with L is not dominant.
EXHAUSTION OF LOCAL REMEDIES
Art 44 (b) DA: responsibility of a state cannot be invoked if local remedies still available.
This principle was confirmed in ELSI case and Interhandel Case.
However, there is no need to exhaust all local remedies in the following situations:
- The remedies are ineffective in municipal law
- Remedies in municipal law are futile
- There are already judicial precedents, which will be followed in your case & does not favour you
- There has been an unreasonable delay
- Local processes are biased against the individual
- The injury is to the state itself
- The local remedies requirement has been waived
LAW OF THE SEA
General treaty for law of the sea is UNCLOS.
The sea consists of several zones:
a) TERRITORIAL SEA
It is an area of the sea that is near to coast.
Art 2 UNCLOS: Coastal state can exercise sovereignty over its territorial sea.
Art 3: The limit of territorial sea extends up to 12 nautical miles measured from baselines.
What is baseline?
It refers to the starting place to calculate the breadth of territorial waters and other zones.
There are 2 types of baselines:
a) Normal baseline [Art 5]
b) Straight baseline [Art 7]
Does the coastal State have rights over its territorial sea?
Yes. This was agreed by Art 2 and Nicaragua case. The rights of coastal State include:
- Right to fish & exploit resources from seabed
- Right to enjoy air space above its territorial waters
- Right to transport goods and passengers
- Right to conduct marine research
Although coastal State have rights, it has to give right of innocent passage through its territorial sea.
Art 17: Ships of all states shall enjoy right of innocent passage.
Innocent passage means navigation through the territorial area for the purpose of proceeding to other internal waters.
Art 19: passage is not innocent if it causes prejudice to peace or security of coastal state.
When foreign ships pass territorial waters, it must abide by the coastal state’s municipal law. If municipal law is breached, it shall be tried under that municipal law.
PP v Narogne: Thai fishermen were on a vessel which was then at sea about 3 miles off the Malaysian coast. There were fishing equipment on board the vessel. They were arrested by Malaysian Naval Authority for breaching its national laws. It was held that the passage by fishermen was not innocent passage.
The coastal state has civil jurisdiction [Art 28] and criminal jurisdiction [Art 27] over ships in passage of its territorial waters.
However, warships, naval vessels and government operated for non-commercial purposes are immune from any interference from coastal state [Art 32]. If it causes damage to coastal state during its passage, the flag State (passer-by ship) shall bear international responsibility.
b) CONTIGUOUS ZONE
It is a sea zone which does not extend 24 nautical miles.
A coastal state may exercise the control over its contiguous zone. Refer Art 33
c) EXCLUSIVE ECONOMIC ZONE (EEZ)
It is the ocean area beyond territorial sea and out to 200 nautical miles. EEZ is also defined in Art 55.
The coastal state can exercise its rights over its EEZ. Such rights are laid down in Art 56, 60, 61 and 62.
[Art 73]: Coastal state may enforce jurisdiction over foreign ships including arresting and bringing them to national courts to ensure compliance with its national laws.
Rights and Duties of other states in the EEZ of a Coastal state are stated under Art 58, 88 – 115, 246 of UNCLOS
[Art 246]: Scientific research cannot be carried out by other states in a coastal State’s EEZ. That right is reserved for that coastal state.
d) CONTINENTAL SHELF
Refer to Art 76-85 UNCLOS
e) THE HIGH SEAS
Art 86 defines high seas as all parts of sea except internal waters, territorial sea and EEZ.
It is open to all States and free for enjoyment of all. Refer to Art 87-97 UNCLOS for rights of States in the high seas.
According to Lotus case, vessels on high seas are subject to no authority except that of the flag state.
The crime of piracy is prohibited and now recognized as international crime. Refer to Art 100-110 UNCLOS for details.
The right of hot pursuit [Art 111 UNCLOS]
This right is designed to prevent a foreign ship that has violated laws of a coastal state to avoid arrest by escaping to high seas.
Hot pursuit can start in any sea zones in that coastal state & can extend to high seas.
Are there limitations for this right?
Yes. There are 2 limitations:
1. Hot pursuit is limited once the foreign ship entered territorial waters of a 3rd coastal state / other states.
2. Hot pursuit should not cause sinking of ships. According to Art 293 UNCLOS, use of force should be avoided. But if need to use force, it should be reasonable only to effect boarding, searching seizing and bringing the suspected ship into port.
In I’m Alone case, a British ship named I’m Alone smuggled prohibited liquor into US. When I’m Alone was chased, it fled to high seas. US pursued and fired at it. The I’m Alone ship sunk and caused loss of 1 crew. It was held that US coast guard may use reasonable force but intentional sinking is not allowed.
Red Crusader case also held that direct firing of solid shot to the Red crusader exceeded the legitimate use of armed force.
Art 111 (4) UNCLOS: jurisdiction of a coastal state may be extended. if boats from a mother ship acted illegally within a zone while mother ship is lying outside the zone, coastal state may exercise jurisdiction on that mother ship.
by Mahyuddin bin Daud