Vclt pdf

In this context, the evaluation of the process of formation of a treaty in international law is of considerable significance since treaties have been playing incredibly important role in regulating such matters as armed conflicts, nuclear proliferation, human security and human rights, environmental issues and poverty that have always taken place at the head of the global agenda.

Hence it could be said that international treaties constitute an important part of international cooperation. Every state is a party to numerous agreements. There are two types of agreements; bilateral and multilateral.

The main objective of this paper is to critically examine the process of treaty formation under international law with reference to the Vienna Convention on the Law of Treaties which was concluded on 23 May According to this definition, treaties have three characteristics in common: a They must be in written form; b they must be formulated between states; c they must comply with international law. Article 6 of the VCLT emphasizes that every state has the ability to conclude treaties.

It does not exclude the ability of international organizations to formulate agreement, however, the Vienna Convention does not govern those treaties. Accrediting of Representatives 2. Negotiation and Adoption of the Text of a Treaty 3. Expression of Consent 4. Attaching Reservations 5. Entry into Force 6. Registration and Publication In this section, all aspects of the above stages listed will be examined.

Accrediting of Representatives States conduct negotiations through their agents in the formation process of international agreements. Representation of a State in the treaty-making process is regulated by Article 7 of the Vienna Convention. Since representatives were regarded as the agents of their sovereigns, full powers were given them for concluding a treaty.

The form and language of a treaty is of great importance since Head of State could only reject to ratify a treaty concluded by his representative if the latter exceeded his power. Pursuant to Article 8, the formation of a treaty performed by an unauthorised person does not give rise to legal consequences unless afterwards approved by the State concerned. What is most important to note here is that certain representatives of a state possess the treaty-making authority without the obligation of producing full powers by virtue of the office they hold which are; heads of State, heads of government and Ministers for Foreign Affairs.

After comprehensive discussions, parties reach a tentative compromise on the text of a treaty. Subsequently, a proposed treaty text is finalized and adopted. In other words, Article 9 1 calls for the unanimous consent of all negotiating parties. VCLT Related titles. Carousel Previous Carousel Next. Jump to Page. Search inside document. Emmanuel Emigdio Dumlao. Luigi Manzanares. Ricarr Wee Chiong.

Marie Gabay Damocles. Kiks Jampas. Mohammad Rahimizade. Tenet Manzano. Doan Chi Thien. Bryan Gai Taguiam Idmilao.

Pam Miraflor. Rijwana Begum. Ro Che. Siddharth Pandey. John Marti Maghopoy. Kenedy Flores. Kit Belgira. Jae Lee. On the other hand, the discovery of just one black swan 63 can completely disprove the first statement. Consequently, the probative value of each instance is widely different. However, and in order to demonstrate how wide-spread and integral to the function of cil is its interpretation, I will in this Section prove that not only some customary rules can be interpreted, but even the rules of interpretation themselves.

If even in this extreme case, where we have what amounts to a self-referential set, we can prove that the customary rules of interpretation can be the object of interpretation, then by application of the logical principle a majore ad minus , it is evident that interpretation of cil is relevant for each and every rule of cil.

In our inquiry into examples of interpretation of the customary rules of interpretation, the work of the ilc proves to be extremely useful. Despite this there are some limited cases that have provided answers, sometimes contradictory ones.

Consequently, all these instances are nothing more than different interpretations of the same customary rule. Such interpretations may at a future time reach the required level of density of practice and opinio juris , but for the time being since that is not the case, they cannot be considered as the established content of an existing customary rule, but rather an interpretation of the general customary rule, i.

The aim in this Section is not to provide based on these reports an extensive and exhaustive list of all such cases where interpretation of the customary law equivalents of Article 31 3 a and b vclt 67 occurred, but rather to highlight some of the most interesting examples that will more than suffice to prove that the cil rules of interpretation can and have been interpreted in international case-law.

Two points need to be underlined in this scenario. Firstly, there exists no international case, let alone sufficient practice and opinio juris , addressing this specific point. Second, a similar issue has been raised quite a few times with respect to Article 32 and it was also the object of a similar process of interpretation. It would be difficult to assume that a party to a treaty has agreed, by its consent to be bound by the treaty, to accept decisions which are subsequently taken in its absence by other States parties within the framework of the Conference of States Parties concerned.

It should therefore be possible for non-participating States to subsequently express their disagreement with a decision that was taken within the framework of a Conference of States Parties.

On the other hand, the principle of good faith and the duty to cooperate within the treaty framework speak in favour of a duty of non-participating States to articulate their possible disagreement as soon as possible under the circumstances; otherwise their agreement in the form of silence acquiescence would have to be assumed. The whole structure of this paragraph clearly demonstrates that this is an example of logical, teleological and systemic interpretation.

So, clearly this is an example of interpretation of Article 31 3 a cil. Another example comes from a nafta Panel in the Cross-Border Trucking Services , where it rejected the possibility of interpretative recourse to domestic law. In a Section discussing the rules of interpretation the Panel, does a volte face and refers to Article 27 vclt.

In detail:. Thus, neither the internal law of the United States nor the Mexican law should be utilized for the interpretation of nafta.

To do so would be to apply an inappropriate legal framework. This reference to Article 27 of the vclt although seemingly untethered to the overall interpretative discussion, is in actuality nothing more than another example of systemic interpretation of Article 31 3 b cil. While discussing the customary rules of interpretation, and in order to conclude that domestic law is not an interpretative element to be taken into account, it refers to a relevant rule of international law, the vclt and in particular Article The World Trade Organization wto Appellate Body, in us — Clove Cigarettes , also resorted to the terms used in the vclt , in order to interpret Article 31 3 a cil.

At no point did the judicial reasoning touch upon the issue of whether this solution was evidenced by State practice and opinio juris. Thus, in our view, paragraph 5. Each and every element of this provision 76 raises significant interpretative issues. Depending on the approach taken this will have long-term knock-on effects as to the rules that can be taken into account for interpretative purposes under Article 31 3 c.

This, of course, especially in the case of multilateral treaties would significantly restrict the pool of treaties, to which an international judge could resort to for interpretative inspiration. Consequently, the range of treaties that would fall within the ambit of Article 31 3 c would be much greater.

One of the most-cited cases regarding Articles 31 3 c is the ec -Biotech. In that case, the wto Panel had to find whether treaties could be taken into account under Article 31 3 c. In doing so, it concluded that:.

Taking account of the fact that Article 31 3 c mandates consideration of other applicable rules of international law, and that such consideration may prompt a treaty interpreter to adopt one interpretation rather than another, we think it makes sense to interpret Article 31 3 c as requiring consideration of those rules of international law which are applicable in the relations between all parties to the treaty which is being interpreted.

However, that is not accurate at all. Although indeed the Panel was inclined to consider that interpretation as the more appropriate one in the case at hand, the Panel made it abundantly clear that:.

Before applying our interpretation of Article 31 3 c to the present case, it is important to note that the present case is not one in which relevant rules of international law are applicable in the relations between all parties to the dispute, but not between all wto Members, and in which all parties to the dispute argue that a multilateral wto agreement should be interpreted in the light of these other rules of international law.

Therefore, we need not, and do not, take a position on whether in such a situation we would be entitled to take the relevant other rules of international law into account. However, what is significant is how the Panel arrived at this conclusion. Consequently, the Panel is well aware that it is engaged in an interpretative process.

In addition to this, the Panel is not interpreting Article 31 3 c vclt but its equivalent in cil. When they are talking about the interpretation of Article 31 3 c , they are not interpreting the vclt provision but cil.

Of course, one could argue that they are interpreting the vclt provision 81 and then transposing that interpretation to cil. But such an argument is still far removed from the classical approach of identifying the existence of a customary rule through State practice and opinio juris. The only manner in which such a process can be explained without rending asunder the theoretical fabric of the sources of international law, is by accepting that cil is being interpreted and that the vclt is referred to as a document that can be taken into account for interpretative purposes.

Consequently, codification or partly codification treaties and in this case the rules of interpretation in the vclt , are resorted to in the context of the principle of systemic integration. But this is not the end of the line of reasoning and, in fact, this final step of legal analysis demonstrates the dangers and creeping inconsistencies that emerge as a direct result of a lack of discussion on the interpretability of cil and the rules regulating that process. As mentioned above, the Panel felt that the restrictive interpretation of Article 31 3 c was the one indicated by the text and context of the vclt.

However, as demonstrated above, such reference to the vclt was interpretatively permitted only by virtue of Article 31 3 c cil. But not all the parties to the dispute were parties to the vclt. Neither the European Communities nor the usa are parties to it. In essence, the Panel disproved what it had axiomatically relied on in order to reach an interpretative conclusion. It concluded —x based on a line of reasoning that was premised on the assumption that the conclusion cannot be —x.

This is a clear argumentum ad absurdum , as an interpretation of Article 31 3 c and its opposite cannot be valid at the same time. Consequently, the wto jurisprudence on Article 3 c cil , seems to confirm the preliminary findings of Judge Tanaka in the North Sea Continental Shelf cases.

The first area concerns the scope ratione materiae of the rule, more specifically what is to be considered as supplementary means. In ccft v. It does this by referring to the terms used in two treaties; Article 32 vclt and Article 38 1 d of the icj Statute. In another set of cases, the scope ratione materiae of Article 32 cil once again became the object of interpretation, but this time the issue in question was whether preparatory work could be invoked against or by States that were not amongst the original signatories of a treaty and had not participated in the negotiations of the treaty in question.

Although the issue seems to have been resolved nowadays in the affirmative, provided that the conditions of accessibility and publication are satisfied, and arguably attained the level of customary law, originally this was not such a clear issue. Once again, there is very limited State practice and opinio juris on the matter, so no argument could be raised that any solution to this question has already attained customary law status.

Amongst these cases, Qatar v. Bahrain is perhaps the most illustrative example as there Judge Schwebel in his Dissenting Opinion analysed in extenso his interpretation of Article 32 cil. Schwebel rightly points out that the solution to this conflict is not to be found in customary law. He reinforces this conclusion by another instance of systemic interpretation.

In this article the question put forward was whether the customary rules of interpretation could also be the object of interpretation. As a first step in that direction, some common misconceptions had to be dispelled. It was demonstrated that interpretation of cil was a reflection of the continued manifestation of cil rules as rules of international law.

Whereas the inductive process of establishing the existence of sufficient State practice and opinio juris was required in order for determining the existence of a cil rule, its application in a variety of instances rested squarely upon the deductive process of interpretation.

The inductive process was apposite to the stage of determining the existence of cil rule. The deductive process of interpretation, on the other hand, was apposite to determining the content of the rule after it had been established that it had come into existence. Rather it is evaluation.

Having set the definitional framework for the present article, the analysis shifted to a brief demonstration that cil can and has been interpreted with respect to a variety of cil rules.

Most human rights treaties however apply broader than the territory only. For instance, the ICCPR includes in Article 2 that States parties undertake 'to respect and to ensure to all individuals within its territory and subject to its jurisdic- tion the rights recognized in the present Covenant' emphasis added.

Accordingly, the application of the treaty is broader than merely the terri- tory. The term 'subject to its jurisdiction' has been elaborated by the HRC as covering situations where States parties have power or effective control over territory beyond its own borders or over persons. Uruguay, Communication No. It adds, however, another factor which is that the State is in a position to 'exercise decisive influence or to take measures to realize' ESC rights.

In contrast, the cultural heritage treaties focus solely on the territory of the States parties. The World Heritage Convention and the Convention include that States parties have duties to identify, protect, conserve etc. Belgium and Others dec. Turkey, no. The term juris- diction is only used in relation to the working of the Conventions in federal States. Although both Conventions refer to cultural heritage in the broader context of its value and interest for mankind World Heritage Convention and humanity Convention , and to the universal wil] to preserve and protect heritage, the concrete obligations following from the Conventions are territorial.

The Convention includes an obliga- tion to internationally cooperate in Article 19, through the exchange of information and experiences, joint initiatives, and the establishment of assistance mechanisms, but this is a different aspect of the treaty than the application of the provisions extra-territorially.

In Article 5 it is stated that States parties 'recognise the value of cultural heritage situated on territories under their jurisdiction' emphasis added. The formulation of this provi- sion opens the possibility that cultural heritage outside the State's terri- tory, but within its jurisdiction, falls within the scope of the Convention.

It may be logical to apply the concept of jurisdiction in analogy with that of the ECHR, so if a State has power or effective control over the territory in question. But it remains unclear whether States indeed meant for such application. In other words, reservations are States' expressions that they do not want to be bound to certain elements or provisions of the treaty.

According to Article 2 d VCLT a reservation is: [A] unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. Protection and promotion of cultural heritage 65 The traditional contractual character of treaties with reciprocal rights and obligations for States parties is clearly reflected in the rules on reserva- tions.

According to Article 21 1 VCLT the reservation: [M]odifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and States parties may not formulate reservations when such is prohibited by the treaty or when only specified reservations are allowed.

Furthermore, reservations may not be 'incompatible with the object and purpose of the treaty'. However, for human rights treaties, the working and assessment of reservations operates somewhat differently. Reservations to Human Rights Treaties The working and effect of reservations to human rights treaties is strongly influenced by the limited importance of reciprocity in relation to these treaties.

Similarly, a reservation would not merely be accepted if none of the other States parties has objected to it. Reservations to the Con vent ion on the Prevention and Punishment of the l!

Because of the importance of human rights treaties for individuals and communities as beneficiaries, apart from States, international monitoring bodies have increasingly involved themselves in the assessment of the compatibility of reservations with the object and purpose of the treaty.

The HRC has given itself this role by its General Comment 24, in which it maintained that: [I]t necessarily falls to the Committee to determine whether a specific reserva- tion is compatible with the object and purpose of the Covenant. This is in part because Because of the special character of a human rights treaty, the compatibility of a reservation with the object and purpose of the Covenant must be established objectively, by reference to legal principles, and the Committee is particularly well placed to perform this task.

I, , at The International Law Commission ILC , for instance, stated that although monitoring bodies may be competent to comment upon and make recommendations with regard to the admissibility of reservations, this does not 'affect the traditional modalities of control by the contracting parties' as laid down in the VCLT. The consequences of an invalid reservation once again show the primacy of the normative character of human rights treaties over their contractual character.

International monitoring bodies broadly adhere to the so-called 'severability thesis', whereby a State is bound by the treaty even if a reservation made by that State to the treaty is invalid. The reservation is 'severed' from the rest of the treaty. This means that the VCLT regime applies and that reserva- tions should be compatible with the object and purpose of the treaty. The HRC has elaborated on the object and purpose test for the ICCPR and determined that reservations that offend peremptory norms, reservations on provisions that represent customary international law and reservations to non-derogable rights are not allowed.

Furthermore, reservations may not be formulated in general terms, but must refer to a particular provision of the Covenant and indicate their scope in precise terms. II, Part 2, , at 57, para 6. Human Rights Committee, General Comment 24 n 32 paras , Reservations of a general character shall not be permitted under this Article.

No other States parties have objected to these reservations. A thorough analysis of the reservations to these human rights treaties falls outside the scope of this chapter. The analysis and figures are meant to show that in the case of human rights treaties, reservations are often made and are subject to debate and objection by other States parties as well as by international monitoring bodies. Reservations seem to serve in reconciling the interests of the international community with those of indi- vidual States.

It is in the interest of the international community to have the largest amount of States parties possible, because of the importance of international and national human rights promotion and protection. At the same time, reservations allow individual States to express that they do not want to be bound to certain provisions of the treaty, instead of having to reject the treaty as a whole. Reservations to Cultural Heritage Treaties The cultural heritage conventions do not include a general clause on reser- vations, which implies that the VCLT regime applies.

The World Heritage Convention and the Convention do, however, include a provision on a specific possibility for reservations in Articles 16 and 26 respectively. These provisions include in paragraph a the obligation of States parties to pay every two years to the World Heritage Fund, followed in paragraph b that States parties may declare not to be bound to this provision.

Several States parties have made use of this possibility. In the case of the Convention Malaysia has filed a reservation with a reference to national law. Several other States parties, including The Netherlands, Sweden and Romania, have objected to this reservation. The above shows that reservations to cultural heritage treaties are much less common than for human rights treaties. This may well be explained by the fact that these treaties are more inter-State agreements on the basis of which individuals and communities cannot derive substantive rights.

Accordingly, obligations in cultural heritage treaties are directed towards States parties, leaving them room to implement these as they find best. Consequently, States parties may feel less need to issue reservations.