6- Treaties.docx - Treaties Law of treaties is governed by Vienna Convention on Law of Treaties(1969(VCLT o Codifies customary law Does not apply to

6- Treaties.docx - Treaties Law of treaties is governed by...

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Treaties Law of treaties is governed by Vienna Convention on Law of Treaties (1969) (VCLT) o Codifies customary law Does not apply to treaties between states and international organisations  Vienna Convention on Treaties b/w States/IOs 1986 does this INTENTION is central to treaty making o Must be a specific intent to create legal relations, otherwise will just generally be a memoranda of understanding and not a legally binding treaty Custom and the Vienna Convention on the Law of Treaties Treaties are binding upon the parties to them and must be performed in good faith (pacta sunt servanda) = oldest principle of IL, reaffirmed in Art 26 and underlies every international agreement. VCLT reflects customary law and constitutes basic framework for discussion of nature & characteristics of treaties. Some provisions are reflective of customary IL e.g. rules on interpretation, material breach and fundamental change of circumstances. VCLT applies to all treaties a state enters into after they ratify the VCLT ( Article 4 ) Referred to as each state’s ‘retroactivity date’ o IE. will not apply to treaties created before retroactivity date Although, these treaties are not invalid – the VCLT will just not apply to them NB: convention= multilateral; Agreement= bilateral Memorandum of understanding usually not binding (but it depends) Pacta Sunt Servanda : Every treaty in force is binding upon the parties to it and must be performed by them in good faith. ( Art 26) Definition of a treaty NB: oral treaties are rare! Only written treaties apply to the VCLT. Does not cover agreements between states which are governed by municipal law e.g. large number of commercial accords. Art 5: Convention applies to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation. Vienna Convention on the Law of Treaties (1969) Article 2(1)(a) 1. For the purposes of the present Convention: a. “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.
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Two key requirements: o Between states ( Articles 1; 3; 5 ) o Written form ( Article 3 ; Cambodia v Thailand; Norway v Denmark ) Making of Treaties Form No specific requirements for form however intention to create legal relations is essential . o To determine intention: all facts of situation need to be examined carefully . o If no intention, agreement will not be a treaty but may still have considerable political effect. o Whether agreement constituted a binding agreement depends on ‘all its actual terms’ and the circumstances in which it had been drawn up ( Qatar v Bahrain 1994: was an FORMATION OF TREATIES No strictly prescribed form or procedure for treaties ( Maritime Delimitation ) o Can be in several instruments – described as ‘whatever its particular designation’ ( Art 2 ) CAPACITY to conclude treaties o All states have capacity under Article 6
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