The Law of Treaties

Scott Davidson, Scott Davidson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351543033
• Edition: 1
• Topic: Geschichte
• Subtopic: Weltgeschichte

The centrality of treaties to the international legal system requires little emphasis. Not only is the treaty a source of law that the International Court of Justice (ICJ) is bound to apply when resolving international disputes, but it is also the medium through which the vast preponderance of international legal intercourse is now conducted. The essays contained in this informative volume disclose a wide variety of opinion on a broad range of issues concerning the conclusion, application and termination of treaties.

Part I
Evolution

[1]
The Treaty on Treaties

BY RICHARD D. KEARNEY and ROBERT E. DALTON^*

The Vienna Convention on the Law of Treaties,¹ the product of two lengthy sessions of the hundred-and-ten-nation conference held in 1968 and 1969 and of preparatory work extending over fifteen years by the International Law Commission, is the first essential element of infrastructure that has been worked out in the enormous task of codifying international law pursuant to Article 13 of the United Nations Charter. The previous codification treaties, the four conventions on the Law of the Sea, the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations and the Convention on the Reduction of Statelessness, did not, despite their intrinsic importance, grapple with the fundamentals of constructing a world legal order.

The Diplomatic and Consular Conventions are essentially “in-house” efforts, concerned with blueprinting the mechanics of international relations. The Law of the Sea Conventions, while affecting issues of primary interest to the international community, are concerned with special regimes within a substantially self-contained area of international law.²

The Convention on the Law of Treaties sets forth the code of rules that will govern the indispensable element³ in the conduct of foreign affairs, the mechanism without which international intercourse could not exist, much less function. It is possible to imagine a future in which the treaty will no longer be the standard device for dealing with any and all international problems—a future in which, for example, the use of regulations promulgated by international organizations in special fields of activity, such as the World Health Organization’s sanitary regulations,⁴ will become the accepted substitute for the lawmaking activity now effected through international agreement. But, in the present state of international development, this is crystal-gazing. For the foreseeable future, the treaty will remain the cement that holds the world community together.

BACKGROUND

Given the indispensability of the international agreement and an ancestry that has been traced back to Sumer,⁵ it is reasonable to expect that, of all the areas of international law, the law of treaties would have become the most thoroughly developed and the most broadly accepted. However, as late as 1935, the introductory comment to the Harvard Draft Convention on the Law of Treaties remarked that “at the threshold of this subject, one encounters the fact that there is no clear and well-defined law of treaties.”⁶

Thirteen years later an even more pessimistic analysis was expressed in the Survey of International Law in Relation to the Work of Codification of the International Law Commission, the study that was prepared by the United Nations Secretariat to assist the International Law Commission in deciding upon a long-range program of work. Despite efforts to bring order into the field of treaty law, such as the codification efforts under the League of Nations,⁷ the International Commission of American Jurists, and the Harvard Research in International Law, the United Nations Survey found that there was scarcely a topic in the entire field that was “free from doubt and, in some cases, from confusion.”⁸

This judgment pertained “not only to the question of the terminology applied to the conception of treaties, to the legal consequences of the distinction between treaties proper and [other] intergovernmental agreements, and to the designation of the parties to treaties”; there was “uncertainty as to the necessity of ratification with regard to treaties which have no provision for ratification; in the matter of the important subject of the relevance of the constitutional limitations upon the treaty-making power; and in respect of conferment of benefits upon third parties.”⁹ Possibly this lack of law in light of the elemental importance of the subject impelled the Commission in drawing up its order of codification priority at the first session in 1949 to give the law of treaties top billing.¹⁰ At the same session the Commission elected the distinguished British jurist, James L. Brierly, Chichele Professor at Oxford, as the special rapporteur for the subject.¹¹

In the Commission’s task of codifying international law, the special rapporteur plays the most important individual role. He does the basic research, delimits the scope of a topic, provides the conceptual approach, and submits the original content and form of specific rules.¹² In the fifteen years the Commission was concerned with the law of treaties, four outstanding British lawyers successively served as special rapporteurs. In 1952 Brierly was succeeded by Sir Hersch Lauterpacht, widely known for a number of magisterial works, including his editions of Oppenheim’s International Law, who in turn was succeeded by Sir Gerald Fitzmaurice, Legal Adviser of the British Foreign Office. Upon the latter’s election to the International Court of Justice, the Commission selected in 1981 Sir Humphrey Waldock, Chichele Professor of International Law at Oxford and quondam Chairman of the European Commission on Human Rights, to carry on the work.

Each of the rapporteurs approached the law of treaties not only with a different colligatory approach¹³ but also from widely varying viewpoints on many of the individual issues.¹⁴

The threshold question—who can be a party to a treaty—is an interesting illustration of variations on a theme. Brierly advanced the broad principle that all states and international organizations have capacity to make treaties, coupled with the vague qualification that this capacity could be limited in respect of some states entering into certain treaties.¹⁵

Lauterpacht handled the question as a validity issue and held “an instrument is void as a treaty if concluded in disregard of the international limitations upon the capacity of the parties to conclude treaties.”¹⁶ This would appear to imply that some states do not have capacity to enter into a treaty even though the instrument concerned may not lack all aspects of legal enforceability.

Fitzmaurice laid down the prescription “a State has the capacity to participate in a given treaty (a) if its general treaty-making capacity is not limited so as to exclude participation in that treaty or class of treaty; (b) if it fulfils any special conditions of participation that may be laid down by the treaty itself.”¹⁷ The proposition is almost, but not quite, circular. Finally, Waldock, in his first report, laid down as the guiding principle that every independent state, whether unitary or federated or otherwise unified, has capacity to become a party to treaties and that other subjects of international law have this capacity if given them by treaty or by international custom. Waldock also laid down specific rules regarding the capacity of constituent States of a federal union, of dependent states and of international to enter into treaties.¹⁸

Differences in approach and viewpoint regarding the law of treaties were much greater in the Commission itself, which is intended to represent … the main forms of civilization and … the principal legal systems of the world.”¹⁹ Its twenty-five members, in fact, come from every corner of the world. The members who worked out the final draft articles on the law of treaties were drawn from states as remote from each other as Finland and Argentina, as diverse in size as Brazil and Togo, as different in culture as the United States and Afghanistan, as unlike in legal practice as the United Kingdom and Uruguay, as dissimilar in political philosophy as Austria and Iraq, as disparate in economic theory as Japan and Poland.²⁰

That a Commission containing such diversities and dealing with a subject as difficult and as unsettled as the law of treaties was able to reach agreement on the seventy-five draft articles²¹ which served as the working text for the Vienna Conference was a substantial achievement. The Commission’s methodology was to lay down general rules regarding treaties in general language. The vast majority of the articles set forth two or three basic rules on a subject that could have called for an entire section of detailed regulation.

The capacity of states to make treaties again supplies an apt example. Waldock’s 1982 draft article was a series of rules that dealt with the major aspects of the problem in sufficient detail to answer the most obvious questions regarding the treaty-making powers of a constituent unit of a federal state, the circumstances under which a dependent state may enter into treaties and the capacity of international organizations to make treaties.²² The article as it appeared at the end of the 1962 session in the Report to the General Assembly is much shorter and leaves open a number of questions:

1. Capacity to conclude treaties under international law is possessed by States and by other subjects of international law.

2. In a federal State, the capacity of the member states of a federal un...