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TreatiesLaw of treaties is governed by Vienna Convention on Law of Treaties (1969) (VCLT) oCodifies customary law Does notapply to treaties between states and international organisations Vienna Convention on Treaties b/w States/IOs 1986 does this INTENTION is central to treaty makingo 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 TreatiesTreaties 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= bilateralMemorandum of understandingusually not binding (but it depends)Pacta Sunt Servanda: Every treaty in force is binding upon the partiesto it and must be performed by them in good faith. (Art 26)Definition of a treatyNB: oral treaties are rare! Only writtentreaties 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 Statesin written formand governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.
Two key requirements:o Between states (Articles 1; 3; 5)o Written form (Article 3; Cambodia v Thailand; Norway v Denmark) Making of Treaties FormNo specific requirements for formhowever intention to create legal relations is essential.oTo determine intention: all facts of situation need to be examined carefully.oIf no intention, agreement will not be a treaty but may still have considerable political effect.oWhether 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