Mcrae Treaty

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Roan Salanga Public International Law P a g e | 1

CHAPTER 1 SOURCES OF INTERNATIONAL LAW

Art. 38(1) of the Statue of International Court of Justice1. International Conventions2. International Custom3. General principles of law4. Subsidiary means for the determination of rules of law

a. Judicial decisionsb. Teachings of the most highly qualified publicists

TREATY

International agreement concluded between States in written form andgoverned by international law, whether embodied in a single instrument orin 2 or more related instruments and whatever its particular designation

Reasons why the expression treaties should be employed rather thaninternational agreementsa. Treaty is very common and its use is steadily increasingb. Juridical differences lie almost exclusively in the method of conclusion

and entry into force and these spring exclusively from the content of theagreement, whatever its form

c. An extraordinarily varied nomenclature has developed which serves toconfuse the question of classifying international agreements

d. The term treaty as a generic term embraces all kinds of internationalagreements in written form is accepted by the majority of jurists

e. Term treaty, as used in draft articles, covers only internationalagreements made between 2 or more States, however, this does notintend to deny that other subjects of international law may concludetreaties

f. The phrase governed by international law serves to distinguishbetween international agreements required by public international lawand those which are regulated by the national law of one of the partieso The element of intention is embraced in the phrase governed by

international lawg. However, this does not deny the legal force of oral agreements under

international law

Capacity of States to Conclude Treaties

Intl Law Commission Commentary: treaty-making capacity is vestedexclusively in the Federal government, but there is no rule of internationallaw which precludes the component States from being vested with power toconclude treaties with third States

Representatives of the State to conclude treaties must have1. Appropriate full powers2. Appeared from the practice of the States concerned or from other

circumstances that their intention was to consider that person asrepresenting the State for such purposes and to dispense with full

powers

Representatives of the State not having to produce full powers:1. For all acts relating to the conclusion of a treaty

a. Heads of Stateb. Heads of Governmentc. Ministers for Foreign Affairs

2. For adopting the text of a treatya. Heads of Diplomatic missionsb. Representatives accredited by States to an international conference

or to an international organization or one of its organs

An act relating to the conclusion of a treaty performed by a person whocannot be considered as authorized to represent a State for that purpose iswithout legal effect unless afterwards confirmed by that State

Adoption of the Text of a Treaty

Takes place by the consent of all the States participating in its drawingexcept at an international conference where two-thirds vote of the Statespresent and voting is needed unless by the same majority, they shall decide

to apply a different rule Unanimity remains the general rule for bilateral treaties and for treaties

drawn up between few States

Means of Expressing Consent to be bound by a Treaty1. Signatureprovides an effect to be bound when

a. Treaty provides that signature shall have the effectb. Negotiating States agreed that signature should have the effectc. Intention of the State to give effect appears from the full powers of

its representative or was expressed during negotiationd. Signature ad referendum by a representative, if confirmed by his

State, constitutes full signature of the treaty2. Exchange of instruments constituting a treatyprovides an effect to be

bound when

a. Instruments provide sob. Agreed by the States

3. Ratification provides an effect to be bound whena. Treaty provides sob. Agreed by the Statesc. Representative of the State has signed the treaty subject to

ratificationd. Intention of the State appears from the full powers of its

representative or was expressed during negotiation4. Acceptanceestablished as a name given to new procedures: ratification

and accessiono Forms of acceptance:

a. Act establishing the States consent to be bound after a priorsignature

b. Without any prior signature5. Approval or Accession

o Signature subject to approval


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o Accessiontraditional method1. Treaty provides so2. Agreed by the States3. Subsequently agreed by all the parties

6. By any other means if so agreedExchange or deposit of instruments of ratification, acceptance, approval oraccession

1. Exchange between contracting States2. Deposit with the depositary3. Notification to the contracting States or to the depositary, if so agreed Treaty is in force at the moment of exchange because the act of deposit

establishes the legal nexus

Obligation not to defeat the object and purpose of a treaty prior to its entry intoforce

An obligation of good faith to refrain from acts calculated to frustrate theobject of the treaty attaches to a State which has signed a treaty subject toratification

Treaty-Making Power in Canada

This is a part of the royal prerogative

There is no obligation at law upon the government to submit treaties toParliament, either before or after their signature since treaties are not part ofthe law of the land

Reservations to Treaties

Allowed unless1. Reservation is prohibited by the treaty2. Treaty provides that only specified reservations may be made3. Reservation is incompatible with the object and purpose of the treaty

Each State which is a party to the Convention is entitled to appraise thevalidity of the reservation, and it exercises this right individually and fromits own standpoint

No State can be bound by a reservation to which it has not consentedAcceptance of and Objection to Reservations

1. Reservation expressly authorized by a treaty does not require subsequentacceptance by other contracting States unless the treaty so provides

2. Application of the treaty in its entirety between all parties is an essentialcondition, a reservation requires acceptance by all the parties

3. When a treaty is a constituent instrument of an international organization, areservation requires the acceptance of the competent organ of thatorganization

Objection by another contracting State to a reservation does not preclude theentry into force of the treaty as between the objecting and reserving States

unless a contrary intention is definitely expressed by the objecting State

A reservation is considered to have been accepted by a State if it shall haveraised no objection to the reservation by the end of 12 months after it wasnotified of the reservation or by the date on which it expressed its consent tobe bound by the treaty, whichever is later

Legal Effects of Reservations and of Objections to Reservation1. Modifies the provisions to the same extent for that other party in its relations

with the reserving State2. Reservation does not modify the provisions of the treaty for the other parties

to the treaty inter se3. When a State objecting to a reservation has not opposed the entry into force

of the treaty, provisions to which the reservation relates do not apply asbetween the 2 States to the extent of the reservation

Withdrawal of Reservations and of Objections to Reservations1. Consent of a State which has accepted the reservation is not required for its

withdrawal2. Objection to a reservation may be withdrawn at any time3. Withdrawal of a reservationnotice is required4. Withdrawal of an objectionnotice is also required

Procedure regarding Reservations1. Must be formulated in writing2. Must be communicated to the contracting States3. Considered as having been made on the date of its confirmation4. Withdrawal of a reservation or of an objection to a reservation must be

formulated in writing

Points to remember about Reservation and Objection1. If the reservation is compatible with the object and purpose of the

Convention, reserving State is considered as a party to the Convention2. If the reservation is incompatible with the object and purpose of the

Convention, reserving State is not considered as a party to the Convention3. Objection to a reservation made by a signatory State which has not yet

ratified the Convention can have the legal effect only upon ratification

Interpretation to Treaties1. Made in good faith and in accordance with the ordinary meaning given to

the terms of the treaty in their context and in the light of its object andpurpose

2. Supplementary means of interpretation area. Preparatory work of the treatyb. Circumstances of its conclusion

Preemptory Norms of International Law (Jus cogens)

A norm accepted and recognized by the international community of Statesas a whole as a norm from which no derogation is permitted and which can


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be modified only by a subsequent norm of general international law havingthe same character

Examples ofjus cogens:a. Treaty contemplating an unlawful use of force contrary to the

principles of the Charterb. Treaty contemplating the performance of any other act criminal

under international lawc. Treaty contemplating or conniving at the omission of acts such as

trade in slaves, piracy, or genocide, in the suppression of which

every State is called upon to cooperate

Withdrawal and Termination

1. In conformity with the provisions of the treaty2. At any time by consent of all parties Not subject to denunciation unless

1. Parties agree2. Implied in the nature of the treaty

A treaty is terminated if all the parties to it conclude a later treaty relating tothe same subject matter and the parties intended that the matter should begoverned by that treaty

Fundamental Change of Circumstances (Rebus sic stantibus) Fundamental change of circumstances may not be invoked as a ground for

terminating or withdrawing from the treaty1. If the treaty establishes a boundary2. Fundamental change is the result of a breach by the party invoking it

Fundamental change of circumstances may be invoked as a ground forterminating or withdrawing from the treaty when1. Existence of those circumstances constituted an essential basis of the

consent

2. Effect of the change is radically to transform the extent of obligationsstill to be performed under the treaty

Documents

Mcrae Treaty