California Class 5-6

Why do nations negotiate and how do they make treaties?

Presentation of Boldizsár Nagy on the law of treaties

In place of a motto „On April 9, 1997, John R. Bolton, a former Assistant Secretary of State for International Organization Affairs in the Bush Administration [and US ambassador to the UN in 2006 – BN], testified before the House International Relations Committee. In his written statement he asserted, »Treaties are 'law' only for U.S. domestic purposes. In their international operation, treaties are simply 'political,' and not legally binding«.„ From: „Treaties as Binding International Obligation” By Frederic L. Kirgis: ASIL Insights May 1997 http://www.asil.org/insights/insight9.htm

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Vienna Convention on the Law of Treaties, 1969, preamble

„Considering

the fundamental role of treaties in the history of international relations, .... Recalling the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained,....

Overview of the issues -

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The role of treaties in the international community Piece of paper or sacrosanct pactum – are treaties really binding? Why? The treaty making process - Who negotiates? - What happens in the corridors - Is a text ever ready? „Expressing consent to be bound” - ways of becoming party to a treaty Making room for the national interest: reservations, objections Freedom re-gained: the termination of treaties

Where to find, how many,? Where to find: – United Nations Treaty Series (http://untreaty.un.org/ ) – International Legal Materials (http://www.asil.org/resources/ilm.html ) – „Multilateral Projects” of the Fletcher School ( http://fletcher.tufts.edu/multilaterals.html )

– ASIL sources: • Resource Guide: http://www.asil.org/resource/treaty1.htm#Section2 • Treaty collection links ( http://www.eisil.org/index.php?sid=297648529&cat=705&t=sub_pages )

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Special collections, e.g.: www.ecolex.org United Kingdom: Treaty Series. Annual. London : H.M.S.O., 1892Numbers: UNTS ≈ 42.000 Hungary ≈ 3.000

Definition 1969 Vienna Convention on the Law of Treaties Article 2 = Use of terms 1. For the purposes of the present Convention: • “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; Paul Reuter: „A Treaty is an expression of the concurring wills, attributable to two or more subjects of international law, and intended to have legal effects under rules of international law” Introduction to the Law of Treaties, 1989, p. 22

The role of treaties in the international community

„Contract”

„Law making”

Deal on identical or constitutional codificatory different purposes

Conveyance

Charters

Transfer of Int’l org. territory

Explanations why treaties (and international law) are binding

Theories based on state will

Normativistneopozitivist

Sociological politological approaches

Natural law school

(Hans Kelsen)

Functionalism

Determinacy

Symbolic validation

Coherence

Thomas Franck’s legitimacy pull

Adherence to „secondary norms”

The conclusion of a treaty and ancillary steps Exploratory talks Full powers / entitlement Domestic (political and legal empowering)

Negotiations Initialling Entry into force (international)

Signing

Ratification, approval, acceptance Registration with the Secretary General of the United Nations

Transformation into domestic law

Negotiation – key elements Goals of negotiations Genuine Extension Redistribution Innovation Normalisation

Disguised

Communication itself

Win time Gather information Create „black sheep” Impact 3rd states

Techniques applied Package deals

Square bracketing

„Consensus”

Negotiation – key elements •

The role of the language

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The weight of the personalities (chairperson, president of the conference)

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The significance of the informal entities (open-ended working groups, „friends of the president” group)

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Rules of procedure - frequently the key to substantive victory

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Time factor and the „definitive text”

Expressing consent to be bound by a treaty Vienna Convention, Article 11 Means of expressing consent to be bound by a treaty

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

signature, exchange of instruments constituting a treaty, ratification, acceptance, approval

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or accession,

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or by any other means if so agreed.

Reservation - objection “'reservation”' means 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 (VC § 2 d)

Article 21 Legal effects of reservations and of objections to reservations (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. ... 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

Overview of reservations and objections to them (Assume Russia requires permit for transit of foreign navy in her territorial waters, when Law of the Sea Convention permits „innocent passage”) Russia reservation

original+reservation = permit required

Tr

No treaty between Russia and UK

ea

ty

Venezuela: accepts

ty

mi

nu s

l

ina g i r

a tre

Original treaty

O

ru le

on t

ran sit

UK Exclusionary objection

Original Treaty

US: objection

Overview of treaty termination On the basis of the parties` will

event

denun ciation or withdrawal

consent of parties

On the basis of a rule of int. law

new treaty

breach (material)

Performing?

fundam entalchange of circums tances

impossibility -physical - legal (jus cogens)

wa r

succession

Recommended readings •

Books: Arnold D. McNair [Lord Mc Nair]: The Law of treaties, Oxford, 1961

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Paul Reuter: Introduction to the Law of Treaties, London, Kegan, 1995

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Ian Sinclair [Sir]: The Vienna Convention on the Law of Treaties 2nd ed. Manchster university press, 1984

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Jan Klabbers: The Concept of Treaty in international Law, The Hague, Kluwer, 1996

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National Treaty Law and Practice (series of the American Siciety of Int’l Law, edited by Monroe Leigh and Merritt R Blakeslee) 1995: France, Germany, India, Switzerland, Thailand, UK, 1999: (Leigh, Blekeslee and - Benjamin Ederington eds) – Austria, Chile, Colombia, Japan, The Netherlands, United States, 2003: (The same eds.): Canada, Egypt, Israel, Mexico, Russia, South Africa

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Anthony Aust: Modern Traety Law and Practice, Cambridge, CUP, 2000

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Rüdiger Wolfrum – Volker Röben (eds.) Developments of international Law in Treaty Making, Springer, Berlin-Heidelberg, 2005

Recommended readings Recent Articles Kal Raustiala: Form and Substance in International Agreements American Journal of International Law vol. 99 (2005) No 3, 581-614 p. Andrew T. Guzman: The Design of International Agreements European Journal of International Law vol. 16 (2005) No 4, 579 – 612. p.

Thanks! Boldizsár Nagy Eötvös Loránd University and Central European University Budapest [email protected] www.nagyboldizsar.hu