Types Conclusion 3. Entry into force 4. Reservations 5 ...lepo.it.da.ut.ee/~yana/iltreaties.pdf ·...

INTERNATIONAL TREATIES

1. Types

2. Conclusion

3. Entry into force

4. Reservations

5. Observance

6. Pacta sunt servanda

7. Application

8. Interpretation

9. Treaties and Third States

10. Amendment

11. Invalidity

12. Termination

13. Rebus sic stantibus

14. Withdrawal

15. Suspension

J. Erne, RIO 7009, 2010

2

Literature:

Malanczuk 2010 8th edn., alternatively 7th edn. 130-146

Vienna Convention on the Law of Treaties (1969)

Brownlie 2008 607-645

/Kiviorg jt 2010 34-40/

Vienna Convention on the Law of Treaties between States and International Organizations or between International

Organizations (1986)

J. Erne, RIO 7009, 2010

3 I TYPES OF INTERNATIONAL TREATIES

See the previous lecture and literature!

CHARACTERISTICS OF INTERNATIONAL TREATIES:

a) written form;

b) concluded between at least two States or State and other subject of international law or between subjects

of international law;

c) embodied in a single instrument or in two or more related instruments;

d) governed by international law;

e) is binding under international law toward the parties.

International law, actually, recognizes also oral international treaties (although they are extremely rare

today).

See about that judgments of the International Court of Justice in cases:

● Nuclear Tests (New-Zealand v. France) (ICJ) and Nuclear Tests (Australia v. France (ICJ) –

judgments of 20 December 1974.

J. Erne, RIO 7009, 2010

4

International law also knows written declarations that are not legally binding acts, but declarative by nature.

For instance: Universal Declaration of Human Rights.

Declarative nature means that although States sign a declaration and that declaration is a binding document,

declaration cannot have legal effect equal to international treaties.

Hannes Vallikivi states that the distinction between a binding international treaty and declarative act may

sometimes be blurred.

STRUCTURE OF AN INTERNATIONAL TREATY Generally, at least 4 parts:

1. Heading.

2. Preamble.

3. Body Articles.

4. Conclusive Articles.

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5

TWO PILLARS OF INTERNATIONAL TREATY LAW:

● consensuality principle;

● pacta sunt servanda.

(Jan Klabbers)

LIFE OF AN INTERNATIONAL TREATY:

1) conclusion;

2) entry into force, performance and application;

3) validity;

4) termination.

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6

II CONCLUSION OF INTERNATIONAL TREATIES

CASE PATTERN:

Estonia signs new trade agreement with Japan, the pre-condition of entry into force of which

agreement is its ratification. Can Estonia, already during the period after having signed the agreement

but prior to the entry into force of the agreement, demand import of its goods under favourable

regime under that agreement?

● Does signing of an agreement create preliminary obligations?

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7

Article 18 of the Vienna 1969 Convention on the Law of Treaties: Obligation not to defeat the object

and purpose of a treaty prior to its entry into force

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.

„[E]ntry into force is not unduly delayed“ – A deadline by what a signed treaty should be ratified is absent

from the Vienna Convention on the Law of Treaties.

„[F]rom acts which would defeat the object and purpose of a treaty“ – What kind of acts could defeat

the object and purpose of a treaty?

● What is the object and purpose of the European Union Treaties? Do the European Union Treaties

have one or multiple purposes?

J. Erne, RIO 7009, 2010

8

FROM CONCLUSION OF INTERNATIONAL TREATIES TO ENTRY INTO FORCE OF

INTERNATIONAL TREATIES

↓

Signatures ↓

Ratification,

adoption or

approval ↓

Accession to a treaty ↓

Entry into

force

Inter-state

negotiations

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POSSIBILITIES TO EXPRESS CONSENT TO BE BOUND BY A TREATY:

The consent of a State to be bound by a treaty may be expressed by:

● signature (a treaty may foresee that signature has binding legal meaning! Also the negotiations

may express the consent of a State to be legally bound by a treaty!),

● exchange of instruments constituting a treaty,

● ratification,

● acceptance,

● approval,

● accession, or

● any other means if so agreed.

(Article 11. Vienna 1969 Convention on the Law of Treaties.)

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INTER-STATE NEGOTIATIONS

Conclusion of an international treaty begins with agreement on the text of the treaty that takes place:

- in bi- or multilateral negotiations;

- in a working body of an international organization or its subsidiary;

- with adoption of the text at an international conference (by the vote of two thirds of the States present

and voting, unless by the same majority they shall decide to apply a different rule).

J. Erne, RIO 7009, 2010

11 CAPACITY OF STATES TO CONCLUDE TREATIES

Passive legal capacity (legal capacity) and active legal capacity (capacity to act) of the parties of the

treaty are also important at conclusion of international treaties.

● Passive legal capacity and active legal capacity of a State begin with the birth of a State. Thus, every

State has passive legal capacity and active legal capacity.

● An international organization receives its powers (capacities) from other subjects of international law

(therefore, for instance, international organizations are named implied or derivatory subjects of international

law).

I.e. other subjects of international law confer active legal capacity on an international organization and fix an

international organization’s passive legal capacity in an international organization’s founding treaty. For

instance, the European Union has active and passive legal capacity. According to Article 47 of the Treaty on

European Union, the EU has legal personality.

J. Erne, RIO 7009, 2010

12 SIGNING AN INTERNATIONAL TREATY

Solely the passive legal capacity and active legal capacity do not suffice for signing an international treaty,

but required is a competent person who has the right to conclude international treaties on behalf of a subject

of international law. Such persons usually are:

● Heads of State,

● Heads of Government,

● Ministers for Foreign Affairs,

● Diplomats.

The signatories of an international treaty must prove their authorization to represent a State or international

organization.

Article 7 (1) of the Vienna 1969 Convention on the Law of Treaties:

1. A person is considered as representing a State for the purpose of adopting or authenticating the text

of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:

(a) he produces appropriate full powers; or

(b) it appears from the practice of the States concerned or from other circumstances that their intention

was to consider that person as representing the State for such purposes and to dispense with full

powers.

J. Erne, RIO 7009, 2010

13 Representatives ex officio (Head of State; Heads of Government; Minister for Foreign Affairs; heads of

diplomatic missions) does not have obligation to prove:


2. In virtue of their functions and without having to produce full powers, the following are considered

as representing their State:

(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of

performing all acts relating to the conclusion of a treaty;

(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the

accrediting State and the State to which they are accredited;

(c) representatives accredited by States to an international conference or to an international

organization or one of its organs, for the purpose of adopting the text of a treaty in that conference,

organization or organ.

Article 8 of the Vienna 1969 Convention on the Law of Treaties „Subsequent confirmation of an act

performed without authorization“:

An act relating to the conclusion of a treaty performed by a person who cannot be considered under

article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards

confirmed by that State.

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14

The Vienna 1969 Convention on the Law of Treaties distinguishes between conclusion of an international

treaty and accession to an international treaty.

a) Conclusion of an international treaty begins with agreement on the text of the treaty on negotiations

and ends with signing of a treaty. Frequently, for entry into force an international treaty requires

ratification in addition to signing of it. In such cases, the treaty enters into force after ratification, but

after having been signed, already prior to ratification, it creates to the parties preliminary obligations.

Sometimes there may remain 20 or more years between signing a treaty and its ratification.

Ratification means State consent to be bound by a treaty – unilateral statement by a State that a

competent State body has given its consent to fulfill a treaty.

b) When acceding to an international treaty, a State may not participate in the negotiations over the

text of an international treaty or adoption of the text, because the text has already been adopted. A State

participates in working out and signing of the accession treaty then.

J. Erne, RIO 7009, 2010

15 Article 15 of the Vienna 1969 Convention on the Law of Treaties: „Consent to be bound by a treaty

expressed by accession“:

The consent of a State to be bound by a treaty is expressed by accession when:

(a) the treaty provides that such consent may be expressed by that State by means of accession;

(b) it is otherwise established that the negotiating States were agreed that such consent may be

expressed by that State by means of accession; or

(c) all the parties have subsequently agreed that such consent may be expressed by that State by means

of accession.

NB! Accession to an international treaty differs from choice of treaty provisions by a party to a treaty.

The latter is allowed only if:

● if it is made clear to which of the provisions the consent relates; and

● if the treaty so permits; or

● if the other contracting States so agree.

(Article 17 of the Vienna 1969 Convention on the Law of Treaties.)

J. Erne, RIO 7009, 2010

16

PRINCIPLES OF INTERNATIONAL TREATY LAW AT CONCLUSION OF INTERNATIONAL

TREATIES:

Concluding international treaties, the principles of international treaty law that base on custom and have

written to the Vienna conventions on the Law of Treaties, should be taken into account. Although the Vienna

1969 Convention on the Law of Treaties incorporates the principle that this convention does not apply

retroactively (Article 4), it partly (another part consisting of developments of law by the ILC) constitutes

codification of international customary law, which means that the principles incorporated in the Vienna

Convention apply also toward, for instance, the European Union’s basic treaties that had entered into force

toward their Member States prior to and independent of the Vienna conventions.

For instance, an important principle of international law of treaties is the formed on customary law principle

pacta sunt servanda – treaties must be performed.

An important principle of international treaty law is also rebus sic stantibus – A fundamental change of

circumstances giving ground for terminating or withdrawing from the treaty.

Discussion Question – Is the fact in itself that a State does not wish to participate in a treaty a fundamental

change of circumstances?

If a State refuses to perform a treaty, other parties to a treaty may apply sanctions foreseen in a treaty

toward the State.

J. Erne, RIO 7009, 2010

17

III ENTRY INTO FORCE OF INTERNATIONAL TREATIES

The way of entry into force of an international treaty is agreed upon:

● in a treaty, or

● during the preparation of a treaty.


„1. A treaty enters into force in such manner and upon such date as it may provide or as the

negotiating States may agree.“

Pursuant to Article 25 of the Vienna 1969 Convention on the Law of Treaties a treaty or a part of a treaty

is applied provisionally pending its entry into force.

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18

A State’s internal law determines:

● consent on bindingness of a treaty; as well as

● body authorized to conclude an International treaty; and

● the relevant procedure.

J. Erne, RIO 7009, 2010

19 Article 12 of the Estonian Foreign Relations Act: The right to initiate conclusion of international

agreements belongs to the Ministry of Foreign Affairs, to whom the Ministries and the State Chancellery

submit proposals to initiate conclusion of international agreements.

Article 13 of the Estonian Foreign Relations Act: The Ministry of Foreign Affairs or, with the approval of

the Ministry of Foreign Affairs, another ministry or the State Chancellery, involving a representative of the

Ministry of Foreign Affairs, shall direct the preparations for conclusion of international agreements.

Ministries and other governmental authorities whose area of government the international agreement

concerns shall be involved in the preparation of the conclusion of international agreements.

Article 16 of the Estonian Foreign Relations Act: The Government of the Republic approves international

agreements prepared for conclusion.

Article 17 of the Estonian Foreign Relations Act: (1) International agreements approved by the Government of the Republic shall be signed on

behalf of the Republic of Estonia ex officio and without producing full powers by:

1) the President of the Republic, the Prime Minister or the Minister of Foreign Affairs, or

2) the head of a diplomatic mission who is accredited to the state or the international organisation

with whom the agreement is entered into.

(2) Persons not specified in subsection (1) of this section shall sign an approved international

agreement by authorisation of the Government of the Republic on the basis of the full powers signed

by the Prime Minister or the Minister of Foreign Affairs and registered at the Ministry of Foreign

Affairs.

J. Erne, RIO 7009, 2010

20

Article 19 of the Estonian Foreign Relations Act:

Upon conclusion of an international agreement, the Republic of Estonia assumes the obligations prescribed

by the international agreement.

An international agreement is concluded by:

● the signing thereof,

● by ratification,

● adoption,

● approval of,

● accession to, or

● in another manner prescribed in the agreement.

J. Erne, RIO 7009, 2010

21 Article 20 of the Estonian Foreign Relations Act:

An international agreement is ratified in the Riigikogu if:

1) state borders are altered by the international agreement;

2) the implementation of the international agreement requires the passage, amendment or repeal

of Acts of the Republic of Estonia;

3) the Republic of Estonia joins an international organisation or union according to the

international agreement;

4) the Republic of Estonia assumes military obligations by the international agreement;

5) by the international agreement, the Republic of Estonia assumes proprietary obligations in

relations in public law for the performance of which no funds have been designated in the state

budget, or which exceed the limits for proprietary obligations established by the state budget within

which the Government of the Republic is authorised to conclude the international agreement.

6) ratification is prescribed in the international agreement.

J. Erne, RIO 7009, 2010

22 Article 21 of the Estonian Foreign Relations Act:

is about enforcement of international agreements:

(1) By enforcement of an international agreement, the Republic of Estonia expresses willingness

to perform the obligations assumed by conclusion of the agreement. An international agreement shall

be enforced by signature, by an instrument of agreement or in another manner prescribed in the

agreement.

(2) Pursuant to the international agreement, the instrument of agreement may be:

1) instrument of ratification;

2) instrument of acceptance and approval;

3) instrument of accession;

4) enforcement note;

5) other instrument of agreement.

(3) The instrument of agreement of an international agreement ratified by the Riigikogu shall be

signed by the President of the Republic.

(4) The instrument of agreement of an international agreement concluded by the Government of

the Republic shall be signed by the Prime Minister or the Minister of Foreign Affairs.

(5) The Minister of Foreign Affairs or a person authorised by him or her shall write his or her

initials on the enforcement note.

(6) The Ministry of Foreign Affairs shall organise the exchange of instruments of agreement with

the other party or deposit the instrument of agreement with the depositary.

J. Erne, RIO 7009, 2010

23 CONCEPT OF INTERNATIONAL AGREEMENT IN THE ESTONIAN FOREIGN RELATIONS

ACT:

● international agreement - a bilateral or multilateral written agreement consisting of one or several

documents which is concluded between the Republic of Estonia and a foreign state or an international

organisation and which is regulated by international law;

● inter-agency international agreement - a written agreement between a state agency or local government

of the Republic of Estonia and an agency of a foreign state or an international organisation which is

concluded according to their competence and regulated by international law.

(Article 3 of the Foreign Relations Act.)

J. Erne, RIO 7009, 2010

24

IV RESERVATIONS

CONCEPT OF RESERVATION:

In the Vienna 1969 Convention on the Law of Treaties:

● reservation - 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.

J. Erne, RIO 7009, 2010

25

STATUS OF RESERVATIONS IN INTERNATIONAL LAW:

● a treaty allows reservation – no problem;

● some international treaties allow reservations only from some provisions (for instance, the European

Convention on Human Rights);

● if a treaty is silent on reservations, Articles 19-23 of the Vienna 1969 Convention on the Law of

Treaties apply,

WHICH ARTICLES DO NOT ALLOW RESERVATIONS IF:

a) the reservation is prohibited by the treaty;

b) the treaty provides that only specified reservations, which do not include the reservation in question,

may be made; or

c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and

purpose of the treaty.

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26

CASE STUDY ON RESERVATIONS:

States A – B – C – D have concluded an international treaty.

A makes reservation to the treaty.

B consents to the reservation.

C does not agree with the reservation that it considers incompatible with the object and purpose

of the treaty.

D silently consents to the reservation.

Discuss!

(Jan Klabbers)

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27

Solution offered by Jan Klabbers:

Toward B who consented to the reservation, the reservation remains in force.

Absence of consent by C does not mean invalidity of reservation, unless C contests reservation as

incompatible with the object and purpose of the treaty.

If D is silent more than one year after having been informed about the reservation, the reservation enters into

force toward him.

Thus, the reservation is valid between A – B – D. The reservation is not valid toward C who has the right to

perform the „old“ treaty.

J. Erne, RIO 7009, 2010

28 Article 20 of the Vienna 1969 Convention on the Law of Treaties:

1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the

other contracting States unless the treaty so provides.

2. When it appears from the limited number of the negotiating States and the object and purpose of a

treaty that the application of the treaty in its entirety between all the parties is an essential condition of

the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

3. When a treaty is a constituent instrument of an international organization and unless it otherwise

provides, a reservation requires the acceptance of the competent organ of that organization.

4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:

(a) acceptance by another contracting State of a reservation constitutes the reserving State a party to

the treaty in relation to that other State if or when the treaty is in force for those States;

(b) an objection by another contracting State to a reservation does not preclude the entry into force of

the treaty as between the objecting and reserving States unless a contrary intention is definitely

expressed by the objecting State;

(c) an act expressing a State’s consent to be bound by the treaty and containing a reservation is

effective as soon as at least one other contracting State has accepted the reservation.

5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is

considered to have been accepted by a State if it shall have raised no objection to the reservation by

the end of a period of twelve months after it was notified of the reservation or by the date on which it

expressed its consent to be bound by the treaty, whichever is later.

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29

Article 21 of the Vienna 1969 Convention on the Law of Treaties:

1. A reservation established with regard to another party in accordance with articles 19, 20 and 23:

(a) modifies 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

(b) modifies those provisions to the same extent for that other party in its relations with the reserving

State.

2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter

se.

3. When a State objecting to a reservation has not opposed the entry into force of the treaty between

itself and the reserving State, the provisions to which the reservation relates do not apply as between

the two States to the extent of the reservation.

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30

Article 22 of the Vienna 1969 Convention on the Law of Treaties allows, unless the treaty otherwise

provides, withdrawal at any time of the reservation and the consent of a State which has accepted the

reservation is not required for its withdrawal. Also, unless the treaty otherwise provides, an objection to a

reservation may be withdrawn at any time.

Reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in

writing and communicated to the contracting States and other States entitled to become parties to the treaty.

In writing must be formulated also the withdrawal of a reservation or of an objection to a reservation.

(Article 23)

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31

V OBSERVANCE

● Pacta sunt servanda

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.1

● Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

This rule is without prejudice to article 46.2

1 Article 26 of the Vienna 1969 Convention on the Law of Treaties.


J. Erne, RIO 7009, 2010

32 VI PACTA SUNT SERVANDA

„A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty“.

May the previous mean that in case of collusion, international treaty gains priority? – In the US law,

the lex posteriori rule applies also toward international treaties. Discuss!

● DEROGATION OF THE PACTA SUNT SERVANDA–RULE –

Pursuant to Article 46 of the Vienna 1969 Convention on the Law of Treaties a State may not invoke the

fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law

regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and

concerned a rule of its internal law of fundamental importance.

A violation is manifest if it would be objectively evident to any State conducting itself in the matter in

accordance with normal practice and in good faith.

● DISCUSS:

WHY A SOVEREIGN STATE COULD NOT CONCLUDE A TREATY ON MONDAY AND

ABANDON THAT SAME TREATY, SAY, ON WEDNESDAY?

(With help of: Jan Klabbers)

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33

VII APPLICATION

● Non-retroactivity of treaties;3

● A treaty is binding upon each party in respect of its entire territory (territorial scope of treaties);4

● 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.5




J. Erne, RIO 7009, 2010

34 VIII INTERPRETATION

Article 31 of the Vienna 1969 Convention on the Law of Treaties: „General rule of interpretation“:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to

the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text,

including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the

conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection with the conclusion of the

treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the

application of its provisions; [DYNAMIC INTERPRETATION]

(b) any subsequent practice in the application of the treaty which establishes the agreement of the

parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended. [complicated to establish the intent - HISTORICAL INTERPRETATION]

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Article 32 of the Vienna 1969 Convention on the Law of Treaties: „Supplementary means of

interpretation“:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the

treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the

application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

[HISTORICAL INTERPRETATION (original method) – what could be the:

● advantages and

● disadvantages

of that method?]

Discuss it related to: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until … „

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36

Article 33 of the Vienna 1969 Convention on the Law of Treaties: „Interpretation of treaties

authenticated in two or more languages“

1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in

each language, unless the treaty provides or the parties agree that, in case of divergence, a particular

text shall prevail.

2. A version of the treaty in a language other than one of those in which the text was authenticated

shall be considered an authentic text only if the treaty so provides or the parties so agree.

3. The terms of the treaty are presumed to have the same meaning in each authentic text.

4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the

authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not

remove, the meaning which best reconciles the texts, having regard to the object and purpose of the

treaty, shall be adopted.

J. Erne, RIO 7009, 2010

37 IX TREATIES AND THIRD STATES

● Pacta tertiis nec nocent nec prosunt = pacta tertiis–rule – A treaty does not create either obligations or

rights for a third State without its consent.6

Consent of a third State may be expressed:

- expressis verbis, or

- tacitly!

CASE STUDY: Agreement between Estonia – Finland – Sweden on m/s Estonia that forbids other

States’ entry into the area.

● Is the agreement binding on other States?

● Is the agreement valid under international law?

● If You consider the agreement valid, then on which legal basis?

(Jan Klabbers)

An answer could be found from Articles 34-38 of the Vienna 1969 Convention on the Law of Treaties.

Would Article 38 apply: „Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming

binding upon a third State as a customary rule of international law, recognized as such“. Why?


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38

X AMENDMENT

The general norm for amendment of treaties in the Vienna 1969 Convention on the Law of Treaties is

Article 39 that allows amendment of treaties by agreement between the parties.

A treaty may foresee a procedure for its amendment.

The amending agreement does not bind any State already a party to the treaty which does not become a party

to the amending agreement.7

Pursuant to Article 25 of the Foreign Relations Act, an international agreement shall be amended pursuant

to the same procedure as it was concluded unless otherwise prescribed in the international agreement.


J. Erne, RIO 7009, 2010

39 XI INVALIDITY

Grounds of invalidity of International treaties

With help of: Hannes Vallikivi in Kiviorg, M. jt. Rahvusvaheline õigus. Loengukonspekt. Tallinn, 2002, p. 56.

Invalidity

Treaty is fully

invalid …

Consent upon

bindingness of the

treaty is..

voidable

.. invalidated

Treaties

conflicting

with ius

cogens.

VCLT 53

Coercion of the State representa

tive .

VCLT 51

Consent

was

expressed

violating

internal

law.

VCLT 46

Coerci

on of a

State

by the

threat

or use

of

force.

VCLT

52

State

represent

ative

acted

ultra

vires.

VCLT 47

Error.

VCLT

48

Fraud.

VCLT

49

Corruption of the State representative.

VCLT 50

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40

XII TERMINATION

Hannes Vallikivi in Kiviorg, M. jt. Rahvusvaheline õigus. Loengukonspekt. Tallinn, 2002, p. 57.

Termination of

International

treaties

All parties

agree Automatically

Unilaterally

In

conformity

with the

treaty

provisions.

VCLT

54a

Consent of

all the

parties.

VCLT

54b

59

As a

consequen

ce of a

material

breach.

VCLT 60

Perform

ance of a

treaty.

Terminati

on of a

party.

Superve

ning

impossib

ility of

perform

ance.

VCLT

61

Fundamental

change of

circumstance

s. VCLT 62

Prescri

ption.

Emerg

ence of

a new

ius co-

gens.

VCLT

64

J. Erne, RIO 7009, 2010

41 XIII REBUS SIC STANTIBUS

Article 62 of the Vienna 1969 Convention on the Law of Treaties „Fundamental change of

circumstances“:

1. A fundamental change of circumstances which has occurred with regard to those existing at the

time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a

ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to

be bound by the treaty; and

(b) the effect of the change is radically to transform the extent of obligations still to be performed

under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or

withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation

under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a

ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for

suspending the operation of the treaty

J. Erne, RIO 7009, 2010

42

XIV WITHDRAWAL

Announcement about withdrawal is presented in written form.

Both – norms of the Vienna 1969 Convention of the Law of Treaties, as well as

internal law are observed.

J. Erne, RIO 7009, 2010

43 XV SUSPENSION

Article 57 of the Vienna 1969 Convention on the Law of Treaties:

The operation of a treaty in regard to:

-all the parties or

-a particular party

may be suspended:

(a) in conformity with the provisions of the treaty; or

(b) at any time by consent of all the parties after consultation with the other contracting States.

Article 72 of the Vienna 1969 Convention on the Law of Treaties presents the consequences of the

suspension of the operation of a treaty:

1. Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the operation

of a treaty under its provisions or in accordance with the present Convention:

(a) releases the parties between which the operation of the treaty is suspended from the obligation to

perform the treaty in their mutual relations during the period of the suspension;

(b) does not otherwise affect the legal relations between the parties established by the treaty.

2. During the period of the suspension the parties shall refrain from acts tending to obstruct the

resumption of the operation of the treaty.

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