Summary Public international law (PIL)
,WEEK 1
- Sources
- Public international law subjects
- Law of treaties
- Reservations
Learning objectives:
1. What are reservations and who can make reservations?
2. What is the relationship between states formulating reservations and state sovereignty?
3. When can states make reservations? Can states make reservations about everything?
What are the legal effects of reservations?
Literature:
Klabbers Chapters 1, 2, 3, and 4
Blog: On the Paris Agreement's Imminent Entry Into Force Part I
Blog: On the Paris Agreement's Imminent Entry Into Force Part II
Case law:
ICJ AO Reperation for Injuries (1949) -> not in case-law bundle
ICJ AO Reservations to the Genocide Convention (1951)
ICJ North-Sea Continental Shelf (1969)
ECHR Tyer v UK (1978)
ICJ AO Legality of the Use of Nuclear Weapons (1996)
Arbitral Award Rainbow Warrior (1990)
ICJ Gabçíkovo-Nagymaros (1997)
ICJ LaGrand (2001)
ICJ Armed Activities on the Territory of Congo (2006)
Joint Separate Opinion by Judges Higgins e.a. (2006)
CJEU Kadi and Al Barakaat (2008)
ECHR Stichting Mothers of Srebrenica (2013)
ICJ AO the Separation of the Chagos Archipelago (2019)
Lectures and literature
Weblecture 1: Climate change (law of treaties: interpretation, application, reservations)
Subjects:
- What is a Treaty?
- Conclusion, Interpretation and Application of Treaties
- Reservations
- Validity and Grounds for termination
What is the law of treaties?
- The law of treaties is primarily governed by the Vienna Convention on the Law of
Treaties (VCLT, 1969). It establishes rules regarding the formation, interpretation, and
application of treaties.
- However, it does not regulate their substantive content but provides "meta rules" on their
form and operation. These rules are supplemented by customary international law.
meta rules on the (form of) treaties, not their substance!
- Importantly, the VCLT does not specify the consequences of breaching treaty provisions,
leaving this to the broader framework of state responsibility under international law.
Understanding the vexed question of the definition of a treaty
The definition of a treaty, under Article 2(1) VCLT, is “an international agreement concluded
between States in written form and governed by international law.” This includes agreements
contained in a single document or multiple related ones, irrespective of their specific designation.
, - The principle of pacta sunt servanda (art. 26 VCLT) underscores the balance between
states' consent to be bound and the stability of treaties.
- A treaty requires no specific form and may include instruments such as joint
communiqués or exchanged notes.
So, an important principle of treaties is pacta punt servanda. These rules are adopted in the
VCLT, which has become the leading instrument on the law of treaties, although its scope limits to
treaties concluded between states. If a treaty falls outside the scope of the VCLT, it is still a treaty,
the CLT is just not applicable.
The law of treaties is based on two foundational principles:
1. Treaties need to be based on the free consent of states.
2. The freedom of states is not unlimited, once consent to be bound has been expressed
and the treaty has entered into force, the treaty shall be kept by the parties in good faith.
Another relevant principle is that treaties are only treaties if governed by international law.
ICJ Gabçíkovo-Nagymaros (1997)
This case revolved around a dispute concerning a 1977 treaty between Hungary and
Czechoslovakia for a hydroelectric project on the Danube River. The ICJ ruled that Hungary
violated the treaty by suspending and abandoning the project, breaching its international
obligations. Slovakia also breached the treaty by unilaterally diverting the Danube, which
undermined the agreed cooperative framework.
This judgment remains a landmark in balancing treaty obligations with environmental
considerations in international law. Pacta sunt servanda (art. 26 VCLT).
Courts, like the ICJ (Qatar v. Bahrain) and ITLOS (Bangladesh/Myanmar), assess treaties based
on objective criteria, the context of their conclusion, and the intent of the parties to create legally
binding obligations. What are the criteria to identify a treaty if no particular form is required?
- ICJ: Qatar v. Bahrain: Objective test + circumstances of Conclusion
- ITLOS: Bangladesh/Myanmar: Objective test + circumstances of Conclusion + Intention of
the parties to be bound
What about the Paris Agreement?
The Paris Agreement, in seeking to strengthen the global response to climate change, reaffirms
the goal of limiting global temperature increase to well below 2 degrees Celsius, while pursuing
efforts to limit the increase to 1.5 degrees.
The Paris Agreement, aimed at limiting global temperature increases, is an international treaty
and legally binding under the VCLT. However, many of its provisions lack enforceable obligations,
as some states rejected binding commitments for reducing greenhouse gas emissions. While it
contains binding elements (e.g., use of the verb "shall"), enforcement mechanisms and
sustainability are weak. Importantly, the Paris Agreement demonstrates that bindingness is
separate from justiciability and enforceability, as these depend on the specific terms and
mechanisms outlined in the treaty.
- (contains both binding and non-binding provisions)
- So legally binding, but not under VCLT: Certain countries did not want binding
commitment for global greenhouse gasses. No enforcement mechanism (no body
overviews on compliance). So it lacks sustainability and enforcement (consequences for
non-compliance). But it is a treaty! The bindingness does not matter. Justiciable or
enforceable are different questions.
- ‘Objective assessment’ test + intention of the parties: multiple clauses related to e.g. entry
into force, consent to be bound, reservations, withdrawal etc.
Conclusion of treaties
The treaty-making process typically involves:
1. Drafting: Initial negotiations and text preparation.
,WEEK 1
- Sources
- Public international law subjects
- Law of treaties
- Reservations
Learning objectives:
1. What are reservations and who can make reservations?
2. What is the relationship between states formulating reservations and state sovereignty?
3. When can states make reservations? Can states make reservations about everything?
What are the legal effects of reservations?
Literature:
Klabbers Chapters 1, 2, 3, and 4
Blog: On the Paris Agreement's Imminent Entry Into Force Part I
Blog: On the Paris Agreement's Imminent Entry Into Force Part II
Case law:
ICJ AO Reperation for Injuries (1949) -> not in case-law bundle
ICJ AO Reservations to the Genocide Convention (1951)
ICJ North-Sea Continental Shelf (1969)
ECHR Tyer v UK (1978)
ICJ AO Legality of the Use of Nuclear Weapons (1996)
Arbitral Award Rainbow Warrior (1990)
ICJ Gabçíkovo-Nagymaros (1997)
ICJ LaGrand (2001)
ICJ Armed Activities on the Territory of Congo (2006)
Joint Separate Opinion by Judges Higgins e.a. (2006)
CJEU Kadi and Al Barakaat (2008)
ECHR Stichting Mothers of Srebrenica (2013)
ICJ AO the Separation of the Chagos Archipelago (2019)
Lectures and literature
Weblecture 1: Climate change (law of treaties: interpretation, application, reservations)
Subjects:
- What is a Treaty?
- Conclusion, Interpretation and Application of Treaties
- Reservations
- Validity and Grounds for termination
What is the law of treaties?
- The law of treaties is primarily governed by the Vienna Convention on the Law of
Treaties (VCLT, 1969). It establishes rules regarding the formation, interpretation, and
application of treaties.
- However, it does not regulate their substantive content but provides "meta rules" on their
form and operation. These rules are supplemented by customary international law.
meta rules on the (form of) treaties, not their substance!
- Importantly, the VCLT does not specify the consequences of breaching treaty provisions,
leaving this to the broader framework of state responsibility under international law.
Understanding the vexed question of the definition of a treaty
The definition of a treaty, under Article 2(1) VCLT, is “an international agreement concluded
between States in written form and governed by international law.” This includes agreements
contained in a single document or multiple related ones, irrespective of their specific designation.
, - The principle of pacta sunt servanda (art. 26 VCLT) underscores the balance between
states' consent to be bound and the stability of treaties.
- A treaty requires no specific form and may include instruments such as joint
communiqués or exchanged notes.
So, an important principle of treaties is pacta punt servanda. These rules are adopted in the
VCLT, which has become the leading instrument on the law of treaties, although its scope limits to
treaties concluded between states. If a treaty falls outside the scope of the VCLT, it is still a treaty,
the CLT is just not applicable.
The law of treaties is based on two foundational principles:
1. Treaties need to be based on the free consent of states.
2. The freedom of states is not unlimited, once consent to be bound has been expressed
and the treaty has entered into force, the treaty shall be kept by the parties in good faith.
Another relevant principle is that treaties are only treaties if governed by international law.
ICJ Gabçíkovo-Nagymaros (1997)
This case revolved around a dispute concerning a 1977 treaty between Hungary and
Czechoslovakia for a hydroelectric project on the Danube River. The ICJ ruled that Hungary
violated the treaty by suspending and abandoning the project, breaching its international
obligations. Slovakia also breached the treaty by unilaterally diverting the Danube, which
undermined the agreed cooperative framework.
This judgment remains a landmark in balancing treaty obligations with environmental
considerations in international law. Pacta sunt servanda (art. 26 VCLT).
Courts, like the ICJ (Qatar v. Bahrain) and ITLOS (Bangladesh/Myanmar), assess treaties based
on objective criteria, the context of their conclusion, and the intent of the parties to create legally
binding obligations. What are the criteria to identify a treaty if no particular form is required?
- ICJ: Qatar v. Bahrain: Objective test + circumstances of Conclusion
- ITLOS: Bangladesh/Myanmar: Objective test + circumstances of Conclusion + Intention of
the parties to be bound
What about the Paris Agreement?
The Paris Agreement, in seeking to strengthen the global response to climate change, reaffirms
the goal of limiting global temperature increase to well below 2 degrees Celsius, while pursuing
efforts to limit the increase to 1.5 degrees.
The Paris Agreement, aimed at limiting global temperature increases, is an international treaty
and legally binding under the VCLT. However, many of its provisions lack enforceable obligations,
as some states rejected binding commitments for reducing greenhouse gas emissions. While it
contains binding elements (e.g., use of the verb "shall"), enforcement mechanisms and
sustainability are weak. Importantly, the Paris Agreement demonstrates that bindingness is
separate from justiciability and enforceability, as these depend on the specific terms and
mechanisms outlined in the treaty.
- (contains both binding and non-binding provisions)
- So legally binding, but not under VCLT: Certain countries did not want binding
commitment for global greenhouse gasses. No enforcement mechanism (no body
overviews on compliance). So it lacks sustainability and enforcement (consequences for
non-compliance). But it is a treaty! The bindingness does not matter. Justiciable or
enforceable are different questions.
- ‘Objective assessment’ test + intention of the parties: multiple clauses related to e.g. entry
into force, consent to be bound, reservations, withdrawal etc.
Conclusion of treaties
The treaty-making process typically involves:
1. Drafting: Initial negotiations and text preparation.
