TREATIES

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TREATIES

• Lecture 7
• January 28

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ASSIGNMENT -

• Friday, January 30 Read both cases for Friday!
• Finish Eastern Greenland Case (short case)
• B. Customary International Law -
• Start the Paquete Habana Case p.92
• SHORT QUIZ Feb. 2 10 minutes - 5 multiple
  choice questions
  
• REMEMBER DEADLINE FOR TOPIC FOR RESEARCH PAPERS
  IS Friday, Feb. 6, sign-up sheet on my desk
  
• Wednesday, March 4 Guest Speaker
• Adjunct Professor David Akerson - Add it to
  your syllabus
  
• TODAY
• Gabcikovo Case
• Start Eastern Greenland Case (short case)

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How do you enter into a treaty

• FORMATION
• 1. Exchange of full powers
• 2. Negotiate and adopt the text
• 3. Sign
• 4. Ratify (US law after Senate Advice
  Consent)
  
• Include reservations (if not prohibited)
• 5. Entry into force unlike a contract it
  ensures that an agreed-upon minimum ratify the
  treaty.
  

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Why are reservations important?

• A. They exclude or modify obligations in a treaty
  in their application to the reserving State
  
• B. The reserving State will only still be a Party
  if the reservation is incompatible with the
  object or purpose of the treaty
  
• C. The objecting State can consider the reserving
  Party as not being a Party to the treaty
  
• D. Both A and C.

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Clickers

• 5 extra points on top of grade
• 12/12 5pts.
• 10/12 4pts.
• 8/12 - 3pts.
• 6/12 - 2pts.
• 4/12 - 1pt.

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Case Gabcikovo-Nagymaros

• 1. Court ICJ - 1997
• 2. Sources Vienna Convention, even though the
  1977 agreement was made before Vienna Conv.
  entered into force and it does not have
  retroactive force Art. 4 and Art.28
• WHY?? - CIL
• MAIN ARTS. 60-62 TERMINATION OR SUSPENSION

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Draft Articles on State Responsibility

• http//untreaty.un.org/ilc/texts/instruments/engli
  sh/draft20articles/9_6_2001.pdf
  
• Responsibility for wrongful act breach of
  international law
  
• - liable for compensation
• State of necessity Circumstance precluding
  wrongfulness

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Gabcikovo-Nagymaros -1

• 3. Facts Events or transactions that led one
  party to initiate legal proceedings against the
  other party. Sometimes facts are disputed.
  
• Hungary (H) and Czechoslovakia (C)entered into
  treaty in 1977 to divert water from the Danube
  river. Hungary suspended works in 1989 due to
  protests focusing on environmental concerns. C
  began provisional solution Variant C. May,
  1992 H denounced the treaty. C diverted waters
  into bypass canals in Oct.1992. 1993 C breaks-up
  into Cz. Republikk and Slovakia. Slovakia and H
  agree to bring their dispute to the ICJ.

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Gabcikovo-Nagymaros -2

• 4. Issue You ask who wants what and then go on
  to ask why did that party succeed or fail in
  getting it. That why gets turned into a
  question. One sentence. A few times 2-3 issues
  of equal importance to the resolution of the
  case. We are looking at the intl law issues.
• Question presented What should the principle
  be- how the relevant rule will be applied to the
  case. Written in terms of the particular facts or
  in general terms.
• Whether Hungarys notification brought the 1977
  Treaty to an end or whether it did not meet the
  requirements of intl law, with the consequence
  that it did not terminate the Treaty.

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Gabcikovo-Nagymaros -3

• 5. Holding (each issue has only one holding
  the legal answer to each issue) rule of law
  necessary for the decision (judgment) of the
  court. What the court actually did in the case
  (what it decided), rather than what it said. The
  rule modified by the facts of a particular case.
• No - Notification of termination by a state does
  not have the legal effect of terminating the
  treaty if the ground for termination do not
  conform to the requirements enumerated in the
  Vienna Convention and the treaty has no
  provisions regarding its termination.

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Gabcikovo-Nagymaros -4

• When can a valid treaty legally be terminated
  under the law of treaties?
  
• 1) May H terminate the treaty on the grounds of
  state of necessity? State responsibility issue
  (not VCLOT)
  
• 2)May H terminate the treaty on the grounds of
  impossibility of performance
  
• 3)May H terminate the treaty on the grounds of
  changed circumstances
  
• 4)May H terminate the treaty on the grounds of
  material breach
  
• 5) Jus cogens Art.64
• 6) Mutual termination consent of both parties
• FOCUS ON 2)- 6) (No. (1) will be dealt with
  later in course).

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Holding Reasoning -1

• 1) Could H invoke state of necessity? No, state
  of necessity is not a grounds for termination of
  a treaty, it may preclude wrongfulness, but
  environmental concerns did not amount to actual
  and imminent peril to preclude wrongfulness.
• Reasoning Reasoning /DISCUSSION/ rationale the
  legal arguments the court used to justify
  applying the rule
  
• It is not mentioned in Vienna Conv. as one of
  the grounds for termination as it only comes
  into play with regard to state responsibility
  the treaty would just be ineffective while the
  condition of necessity exists, unless the parties
  agreed to terminate it. Environmental concerns
  did not amount to necessity (not grave and
  imminent peril under the Draft Articles on state
  responsibility).

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Holding Reasoning -2

• 2) Could H. invoke impossibility of performance
  No, H could not invoke impossibility as a grounds
  for termination that the economic joint
  investment plan had permanently disappeared.
• A)Permanent disappearance or destruction of the
  object indispensable for the execution of the
  treaty. Art.61,1.
  
• B) Art. 61,2 cant invoke the grounds of
  impossibility if you were the cause of it.
  
• Reasoning- H suspended works - instead they
  could have adjusted through negotiations for
  economic and envtl imperatives in accordance with
  the 1977 Treaty, Art.15, 19, and 20. If one
  considered the joint exploitation of the
  investment was no longer possible H could not
  invoke this because it was H that had breached
  its obligation had not carried out most of the
  works.

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Holding Reasoning -3

• 3) fundamental change of circumstances? (rebus
  sic stantibus) No. H could not invoke fundamental
  change of circumstances based on political or
  economic changes.
• Reasoning Art. 62 Fundamental or vital imperil
  the existence or vital development for one of the
  parties. Radical transformation of the extent of
  the obligations still to be performed. Change
  must have increased the burden of the
  obligations. To be executed to the extent of
  rendering the performance something essentially
  different from that originally undertaken. The
  goal was to produce energy and flood control.
  The political situation was not so closely linked
  to the object and purpose of the treaty. New
  envtl knowledge adjust through Articles 15, 19,
  and 20 of the 1977 Treaty.

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Holding Reasoning -4

• 4) material breach? No, H could not invoke
  material breach, H termination was premature.
  
• ReasoningArt. 60(1)(3)only material breach of
  the treaty itself entitles the party to rely on
  it as grounds for termination. (not violation of
  other conventions and rules of general intl law.)
  Construction and putting into operation Variant
  C, Czechoslovakia violated the treaty only when
  it diverted the waters of the Danube in Oct.1992.
  Hs notification of termination in May 1992 was
  premature. No breach had yet taken place.