Application of Treaties

Anjeni Siswoko - 1006661405Lauditta Humaira - 100677006Damayanti Athiah- 1006708693Rantika Adhiningtyas - 1006709872Safina Meida Baqo - 1006709992{

application ratione temporis{

VCLT (Art. 28)

“Unless a different intention appears from the treaty or is otherwise established, its

provisions do not bind a party in relation to any act or fact which took place or any

situation which ceased to exist before the date of the entry into force of the treaty

with respect to that party..”

VCLT (Art. 18)

“A State is obliged to refrain from acts which would defeat the object and purpose of a treaty

when: (a) it has signed the treaty or has exchanged

instruments constituting the treaty subject to ratification, acceptance or approval, until it shall

have made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the

treaty and provided that such entry into force is not unduly delayed.”

Q:Is there any contradictions between acts 28 and 18?

VCLT (Art. 24 (4))

“(4) The provisions of a treaty regulating the authentication of its text, the

establishment of the consent of States to be bound by the treaty, the manner or date

of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the

entry into force of the treaty apply from the time of the adoption of its text..”

territorial scope of treaties{

Before VCLT entry into force

Nigeria : Treaty-making power is vested in federal government, but the consent of each State in the federation was required to the treaty having effect in its boundaries

Colonial application clause by imperial powers

Lord McNair : A treaty is applicable to all the territories of the contracting parties

Huber & Mr. Godber : treaty which contains no express provision to that effect doesn’t in principle apply to those territories, until they are in a position to accept

ILC was influenced by state practice, the jurisprudence of international tribunals and juristic opinions : a treaty applies to all the territory of each party to it unless it otherwise appears from the treaty (soon to be Article 29 VCLT)

After VCLT entry into force

“Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory” (Article 29

Vienna Conv. On the Law of Treaties)

Exception

• Territorial application clause in the treaty

• Signature or ratification• Reservation

ExpressExceptio

n

• Treaty adopted by regional organisation or intended to apply only within a particular region.

• Treaty which specified a particular zone of application

Implied Exceptio

n

application of successive treaties relating to the same subject matter{

Background

Conflicts between norms relating to the same subject matter are no peculiarity of public international law. However, while such conflicts can be solved quite clearly in domestic law due to its hierarchical structure, the same problem gives rise to many difficulties at international level. Public international law is characterized by the lack of a central legislator and, therefore, by the lack of a comprehensive hierarchical order as well as by the lack of continuity and systematic congruency in international law making.

Public international law is a ‘fragmented’ legal order where the probability of contradictions and the need for rules of conflict resolution is extremely high. Colliding treaties are, therefore, no new phenomenon in public international law. The rapidly increasing number of treaties, however, has aggravated the dimension of the problem dramatically.

Background

Rules aimed at solving conflicts between treaties not only enhance legal certainty and clarity; by delimiting the rights and obligations of States Parties to various treaties, they also contribute to the observance of treaties and, therefore, to the observance of public international law. There are many rules and principles which are theoretically applicable.

Background

The most important of these are the hierarchical principle, the lex posterior rule, the lex prior rule and the lex specialis rule.

The Convention, however, does not embody all of them. The lex prior and the lex specialis rules have not been codified and the hierarchical principle has only found rudimentary codification.

Background

Q:How to apply successive treaties which relate to

the same subject matter?

McNair

Treaties that are in conflict, made by the same parties on different dates.

Earlier treaty is general in nature and the later treaty contains special and detailed rules

Later treaty will prevail, if…

McNair

Where, by virtue of the earlier treaty, State A has surrendered or diminished its treaty making capacity and the later treaty has been concluded by State A in the absence, or in excess of its treaty making capacity.

If the earlier treaty is a multipartite law-making treaty clearly intended to create permanent rules and containing no power of denunciation, and the later treaty purports to derogate from its provisions

Where the earlier treaty is of a constitutive character and State A later concludes a treaty which in conflict with an imperative provisions of the earlier treaty.

If the performance of the second treaty involves a violation of ‘universal’ law.

Later treaty may be null and void, if…

McNair

State A, in hypothetical situation envisaged, would not by the fact itself be committing a wrongful act against State B by concluding a later, inconsistent treaty with State C,

Conclusion: State A would commit a

wrongful act against State B only by failing to perform its treaty with State B;

If State A fails to perform its later treaty with State C, it would incur responsibility towards the latter, provided at any rate that State C had been unaware of the earlier treaty between States A and B.

Other cases: treaty will not be void if, …

Lauterpacht

“Treaty is void if its performance involves a breach of a treaty obligation previously undertaken by one or more of the contracting parties.”

Fitzmaurice

When the treaty between State A and C was inconsistent with an earlier treaty between States A and B, the second treaty was not to be invalid, but State A might incur responsibility to either State B or State C for failure of performing its treaty obligations.

Later treaty would be invalid, when… The earlier treaty had

expressly prohibited the conclusion of a later inconsistent treaty.

The later treaty necessarily involved a direct breach of the earlier treaty.

T.O. Elias

“To determine the priority of successive treaties relating to the same subject matter, one must have regard for any clause or provision in a treaty which the parties intend to regulate the relation between the provisions of that treaty and those of any other treaty relating to the same subject-matter whether or not such other treaty is prior or later than the one in question.”

{ {first type of clause

second type of clause The parties may

not conclude any later agreement which would be incompatible with its obligation under earlier treaty.

T.O. Elias

Provide for the priority of the treaty over earlier treaties relating to the subject matter

Provide for priority over later treaties

Waldock

“The view of this issue should be approached not from the point of view of the validity or invalidity of the later treaty, but from that of the priority of incompatible treaty obligations.”

VCLT (Art. 30)

1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs.

2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.

3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.

VCLT (Art. 30)

4. When the parties to the later treaty do not include all the parties to the earlier one:

a) as between States Parties to both treaties the same rule applies as in paragraph 3;

b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.

Article 103UN Charter

In the event of a conflict between the obligations of the Members of the United Nations under present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

85th meeting records –1969

There was an element of ambiguity in the word “successive”, for it was difficult to decide which of two treaties was the later one.

Example : if convention A had been signed in 1964, and convention B in 1965. but convention B entered into force in 1966, while convention A in 1968. The question arose which should be regarded as the prior treaty?

Opinion : the decisive date should be that one of the adoption of treaty.

85th meeting records – 1969

Relating to “the same subject matter”

For example : a convention on such a specific topic as third party liability in the field of nuclear energy contained a provision relating to the taking of legal action in the courts of one state and the giving effect to judgment in the courts of another state >> it could not be regarded as the same subject-matter as a later treaty on the entirely different topic of general reciprocal recognition and enforcement of judgments.

Function

Art 30 establishes a set of rules differentiating between situations in which the States Parties to successive treaties are identical (para 3) and situations in which this is not (completely) the case (para 4). Finally, Art 30 contains rules on State responsibility where the observance of a priority treaty should lead to the breach of an inferior treaty (para 5).

Art 30 is closely linked to many other provisions of the Convention . The main decision to be taken is whether a conflict of treaties leads to the invalidity (Art 46 et seq ) of the inferior treaty

The consequences, as a matter of the law of treaties, of a succession to the codification provisions of codification conventions relating to the same subject-matter flow from the provisions of Article 30 of the VCLT dealing with priorities in the application of successive treaties of this nature. Where appropriate, the provisions of Articles 40, 41 and 59 of that Convention should also be borne in mind, these provisions constituting in many respects a codification of existing customary law on the matters which they cover.

Legal Consequences

The conflict between successive treaties does not entail the invalidity of the earlier treaty. Art 30 para 2, read in conjunction with para 3, exclusively concerns the applicability of the prevailing treaty and the inapplicability of the earlier treaty. To the extent that the earlier treaty is compatible with the later treaty, the earlier treaty applies.

Generalia specialibus non derogant