PUBLIC INTERNATIONAL LAW

November 7, 2015

Is PIL a true law?Two views: (depends on how it is perceived)

1. Positivist: (law is imposed by a higher authority) NO, it is not a true law.How about the UN? Is it not a higher political government?

- No, because UN is not sovereign. If UN is sovereign, there would no longer be a sovereignty of the State.

- UN will only be binding if consented by State-members. Ex: The jurisdiction of ICJ is dependent on the consent of the State.

Compulsory v. Voluntary jurisdiction of ICJ

2. Binding or not: Yes, it is a true law.

Why do States obey international law? 1. Fear of sanctions: psychological/afraid to be punished

Ex: Russia, 2. Self-interest: advantages and rewards (with regard to stronger States)3. Norms: norms undeniably proper and binding (jus cogens)

Ex: Genocide is universally knwon as a wrongful act and should be punished. Art. 53 (Vienna Convention).

4. Acculturation theory: States have been used to obeying jus cogens and it has become a culture

PIL has a HORIZONTAL legal system. - dealing with co-equal states

Reparation for Injuries case 1949What happened in this case?What was the issue?Resolution?

November 20, 2015

Definition of Public International Law

Traditional (JL Brierly): It is a body of rules and principles of action which are binding upon civilized states in their relations to one another

Modern (GH Hackworth): It is that branch of public law which relates the relations of states and other entities which have been granted an international personality.

Post-modern or Contemporary Definition: (Sec. 101, Restatement of the Law by the American...): “rules and principles of general application dealing with the conduct of

states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”

Example: What is the role of the government?

- In both 1935 and 1973 Const: Role of gov’t is to protect the State. (Utilitarianism)

- 1987: Role of the government is to protect the people. - When we began making international organizations, like UN and similar

organizations on various fields (like trade) like GATT, WTO, etc. ; as a redefinition which is now the Modern view.

- PIL is now more concerned on individuals. - UN called all states to decolonize territories, because it has contributed to the continued resistance of people which leads to no peace.

DecolonizationGave options to colonized states:

- part of mother state- be new state- be annexed to another state

Right to self-determination- recognizing a territory where they have different culture, etc. - customary international law Two types of armed conflict (Akehusrt)

International- between states; governed by Art. 3 of 4th Geneva Conventions- combatants have rights as prisoners of war- regular armed force and national liberation movements (exercising right to self-

determination) ;in one territoryNon-int’l

- conflict confined in one territory between two armed groups- governed by municipal law

Are persons subjects of international law?- It depends on the context. Persons can be subject in certain cases; one circumstance is when the right of a person to self-determination is in question. - People are OBJECTS of international law.

Diplomatic protection (espousal of claim)- which refers to the right of a state to intervene diplomatically or to raise an international claim on behalf of its nationals against another state.

Ex: When Phil. lawfully admitted a foreigner, Philippines has the obligation to treat

him just and fair (minimum standard of treatment). This is also applicable to foreign corporations. The moment, either by deliberate act or omissions, we fail to accord the fair and just treatment to the international, it can be a basis for charging Phil for committing an internationally wrongful act (telling State that your are responsible under international law). The offense committed is not towards the foreigner but against the country or state where the foreigner belongs.

In this case, only the State can file a case against the Phil because it is the only one who has INTERNATIONAL LEGAL PERSONALITY. The foreigner will only be the OBJECTS.

Public v. Private International Law

- Public: governs activities of states and other int’l persons/entities in relation to each other. It governs int’l persons inter se. - Private: governs activities of individuals, corporations and other private entities when they cross nat’l borders and in controversies involving foreign element. It resolves “conflicts of laws.”

History of PIL

1625- Hugo Grotius (Father of Public Int’l Law) published “On the Law of War and Peace”, “Mare Liberum” the freedom of the seas in 1609

- helped in the formation of UNCLOS1648- Treaty of Westphalia (Spain, Roman Empire, etc.)

- in every territory, the authority of that territory is sovereign- conception of sovereignty- principle of co-equality

16th- 17th Centuries were the “classical age of public international law”1789- birth of term “internationa law” by J. Bentham1863- Lieber Code (Lincoln’s General Order No. 100 or the the “Lieber Instructions”), the first document that governs conduct of war

- influential in the writing of the Geneva Conventions- resolving conflict considering rights of humanity

1899- Permanent of Court of Arbitration1907- Hague and Geneva Conventions (there were four Geneva Conventions in 1949)

- Geneva conventions: governs conduct of war1922-1946- PCIJ of the League of Nations, then replaced by the ICJ of the UN1948- creation of Int’l Law Commission tasked to codify international law 19th -20th centuries- the increase in global trade, armed conflict, environmental deterioration in a worldwide scale, awareness of human rights violations, rapid and vast increases in international transportation and a boom in global communications saw the importance and usefulness of PIL, which at this time began establish new and modern areas in international law (trade and investment, technology, human rights, environment, space, etc.)

Why have ILC?- Int’l law commission, at the time they codified, they underwent preparatory works.What’s the use of codification of preparatory works?- to guide in the enforcement.- Art. 38, ILC offers persuasive effects on decisions

Three Regimes/Divisions of PILLaw of Peace

- Law of Treaties- Law of the Sea-Diplomatic Relations, etc.

The Laws of War- Jus ad Bellum (legality of engaging in war)

- when may a state lawfully engage in war; when may a state use of force- whether it is justifiable for a state to engage in war

- Jus in Bello (legality of conduct of war)- there is already armed conflict, what law governs the belligerents?-

The Law of Neutrality- governs the conduct of states not engaged in war- how should other countries behave when they are not involved in war?

Is the Laws of War applicable during war?-

Tom: Reparation to Damages Case, Paquete Habana, Nicaragua case (focus on Sources of Int’l law), North Sea case

November 21, 2012

Characterization of PIL- Concensus, rather than command. - Problems which arise:

- formation of int’l law- instilling compliance to states- enforcement

Doctrine of self-help- in the form of either: Retorsion- lawful act which is designed to injure the wrongdoing state

- for example, cutting off economic aidReprisal

Basic Characteristics of PIL1. PIL is a horizontal legal system (“billiard ball theory”)

2. PIL lacks supreme authority (there is no legislature, no executive branch and no system of courts), except to the extent that states may have subjected themselves certain “compulsory” processes and consequences under treaties an conventions;3. Self-help, unlike in domestic sphere applying... (same p.1)

Sources (Formal or Material) of PIL

Formal - how international law is created or established- appear to embody the constitutional mechanism for identifying lawEx: Treaty, formal if it was done by “agreement”

Material sources- incorporate the essence or subject-matter of the regulations.Ex: Treaty, if State is party to torture convention because agreed and that is in

the subject matter of the convention

Why look into the formal and material source?- legitimacy of the norm on how it is created, its acceptability as binding- Formal: how the law is formed- Material: substance of the law

Article 38 (1), Statute of ICJPrimary:

a) international conventionsb) International customc) General principles of law

Subsidiary:d) judicial decisions and teachings of the most highly qualified publicists

Article 38(1) of the Statute of the International Court of Justice15 provides: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

(b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) judicial decisions and the teachings of the most highly qualified publicists of

the various nations, as subsidiary means for the determination of rules of law

Why classify into primary or subsidiary?- To know what to apply first in making advisory opinions, resolving conflicts, etc. - Can be viewed in many ways.

- law-creating processes v. Law-determining (Schwarzenberger)- overlapping sources (Shaw)- Hierarchy of sources? (see travaux preparatoires)

It is also true that the Charter, as shown by the travaux préparatories, originally did not attach as much significance to the promotion and protection of human rights as to the maintenance of international peace and security (p 220, Akehurst)

On hierarchy: - Intent: treaty should prevail over customary- Uniformity and Binding effect (how expansive): customary over treaty (except

persistent objectors)- jus cogens: universal character

Judicial decisions- can also include domestic judicial decisions

Raul Pangalanan- one of the justices of the international criminal court; Filipino

International conventions/Treaties- whether general or particular and establishing rules expressly recognized by the contesting States- The term “convention” includes (and actually means) “treaty”- Other terms: agreement, pact, understanding, protocol, charter, ...

- name depends on the reason or subject matter of the treaty or convention- “charter”: creation of organization- “statute”: creates a court-

- “Law-making treaties” vs. “contract treaties”?

What is the Rome Statute?- created the international criminal court- before, there are only ad hoc courts

Relationship of convention and customary international law- depends on how expansive the treaty is; problem, is when a customary norm is abandoned in a treaty binding by many states (or majority)

1940s, UN charter--- non-violence, prohibition of the use of force for acquisition of territories.

Seatwork: Sources of PIL

December 3, 2015

May a State validly exempt itself from the application of a customary int’l law? Are all states, therefore, bound by all norms of customary int’l law? Is there such as thing as “majority rule” in int’l law?-

- Bar exam: What is the persistent dissenter doctrine? Or the persistent objector Doctrine?- what is required is that its more than non-practice of the norm. It should be that:

1. At the inception of that customary intl law, or when it started to develop as intl law, the objector must already objected or expressed it dissent from that time; not when it has already emerged.

2. Objection must be consistent.3. Objection must be categorical.

Anglo Norwegian Fisheries case ()Key principle:

A state, that from the outset consistently objects to a particular practice, is not bound by any rule of alleged customary int’l law which may arise from the practice. (Persistent objector doctrine)ICJ:

“In any event, the ten-mile rule would appear to be inapplicable as against Norway, inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.”

Fisheries Jurisdiction Case (UK v Iceland, ICJ Reports)

Key principle: Art. 62 of the Vienna COnvention on the Law of Treaties, relating to termination of a

treaty...

Legality of Threat or Use of Nuclear Weapons Case

Key principles: 1. General Assembly resolutions may show the formation of opinio juris. Even if they are not legally binding, they may sometimes have normative value.

2. A State is barred to do an act only when it is so prohibited under atreaty or customary int’l law. Restriction to state’s sovereignty is not presumed. (see Lotus case)

When can sovereignty be stopped?1. Conventional int’l law2. Customary int’l law prohibiting doing a particular act

Lotus case- no customary int’l law, nor conventional, PCIJ cannot rule that Turkey is barred from hearing the case against the French officers.

ICJ Opinion and Voting: - Unanimous, on the principle that there is in neither customary nor conventional int’l law any specific authorization of the threat or use of nuclear weapons; - 11-3, on the principle that “there is in neither customary nor conventional int’l law any

comprehensive and universal prohibition of the threat or use of nuclear weapons as such”;“as such”- depending on how it is to be used

- Unanimous, on the principle that “a threat or use of force by means of nuclear weapons that is contrary to Art. 2, par. 4 (but does not fall under Art. 51) of UN chapter and that fails to meet all the reqts of Art. 51, is unlawful.”;

- Art 2, par. 4, prohibits the use of force against ... However, that prohibition deals with an exception: collective self-defense.

- Unanimous, on the principle that “a threat or use of nuclear weapons should also be compatible with the reqts of the int’l law applicable to armed conflict and IHL as well as specific obligations under treaties dealing with nuclear weapons”;

- 7-7, on the principle that “while the threat or use of nuclear weapons would generally be contrary to the rules of IHL in armed conflict, the COurt cannot conclude definitively whether it would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of the State would be at stake”;

Why can’t they ban nuclear use altogether?- because there can be instances when nuclear weapons may be used and may

give a positive effect in the long-term. Bar (possible): What is the status of nuclear weapons in international law?What is an accelerated customary int’l law?

- Unanimous, on the principle that there exists an obligation to pursue in good faith efforts towards nuclear disarmament.

Key principles 1. Restriction upon the independence or sovereignty of states cannot be presumed2. Jurisdiction is territorial but intl law does not prohibit a state from exercising jurisdiction in its own territory over a case relating to acts which have taken place abroad;3. No definite rule of customary intl law regarding collision cases in the high seas (note: there are some rules now on collision cases in the high seas under UNCLOS III of 1982)What about abstention by some states to exercise of criminal jurisdiction for crimes committed abroad, does it offer evidence that such practice of abstention is obligatory?

Subjective territorial jurisdictionObjective territorial jurisdiction

Effects doctrine- acts committed abroad, if effects of criminal acts are felt in a particular state

What is the normative value of state’s abstention?- must also include that the abstention is with the belief that it was obligatory to abstain that customary intl law - abstention adds to proposition that state could not practice jurisdiction ... - more on opinio juris

Turkey: france is bound to respect the nor,France: I dont think it is a norm because a lot of states abstents over that belief

Collision cases (applicable now): 1. Flag state2. Nationality of defendant

*English Rule / French Rule- not applicable in collision on high seas

What if the ships involved are military ships?- this will be governed by a different provision in the convention

Sources of PIL: Article 38 (1), Statute of ICJ

Primary: d) international conventionse) International customf) General principles of law

Subsidiary:d) judicial decisions and teachings of the most highly qualified publicists

General Principles of Law- principles of law, orginating from domestic jurisdiction- recognized by civilized (peace-loving) nations;- norms developed through state practice- exercised at domestic level, transposed and applied by the ICJ in various cases and other tribunals- Aimed at providing solutions to controversies where treaty law or customary law provides no guidance;- “Law” can refer to both “international law” and “municipal law” elevated as international

Ex: estoppel, good faith, exhaustion of local remedies, prescription, etc.

Akehurst: preparatory works of Statutes of ICj, they did not intend that these 3 shall be treated in heirarchical form. The intention was to find a solution where there may be a gap in the law where there is neither conventional or customary intl law. These laws can be seen in ...

Barcelona Traction case: Key principle- In the absence of applicable intl law cognizance must be given to the relevant institutions of domestic law, otherwise, the ICJ would lose touch with reality, particularly as there are no corresponding institutions of intl law to which the Court could make reference.

Q: What general principle of law was applied in this case?

- Canada did not exercise diplomatic protection so they asked Belgium (nationality of most stockholders) to sue Spain. Issue: WON Belgium has the personalityRuling: In the field of diplomatic...

December 11, 2015

General principles of law- travaux preparatoires, this general principles of law has the purpose of filling the gaps- non liquit: principle of law will be applied in the absence of clear or conventional customary of intl law (related to equitable principles)

Barcelona Traction caseWhat principle of law?

- since the injury was against the corp, and becaue at the domestic level, there was an understanding that corp has distinct personality; the injury of corp is different from injury of stockholders.

- So Belgium cannot exercise diplomatic protection- Principle of law at domestic law, transmused to international law

River Meuse case- Meuse is a common river. - Clean-hands doctrine

Soft law- what makes a soft law not legally binding is: it is only meant to guide states in legislation, incoming up with their own lawsEx: UDHR - Bill of Rights, in Phil. - The emergence of ‘soft law’ also has to do with the fact that states in agreement frequently do not (yet) wish to bind themselves legally, but nevertheless wish to adopt and test certain rules and principles before they become law.

- It is sometimes argued more generally that particular non-binding instruments or documents or non-binding provisions in treaties form a special category that may be termed ‘soft law’.

Other Possible Sources of PIL- Acts of International Organizations- Soft law- Equity (Justice)

Ex aequo et bono- equity overrides all other rules

Equity v. Ex aequo et bono

- equity, parties need not consent, regardless of consent of parties (non liquit)- latter, application may not be actually fair for parties, apply equity and they will be

fine with it

Bar: What is soft law? How do you distinguish t from hard law?What is the normative value of soft law?

Non self-executing lawsJimenez case:

Custom v. Usage/ComityCustom is a practice that states believe themselves to be under a legal obligation to follow. (ex: State immunity)

Usage or comity is a practice that states generally follow w/o believing themselves legally bound by it (ex: alternat)Alternat- method of signing a treaty where each rep will bring a copy to bring to the State and ask chief of state to ratify it; out of convenience

Hierarchy of Sources of PIL- travaux preparatoires: Primary and Subsidiary sources only- Art. 53 of VCLT, one source is not to be treated as always superior to the other. The sources of intl law are not therefore arranged in a strict hierarchy.

Which should prevail, treaty or CIL?Guidelines in determining which source prevails: - Jus cogens- lex posterior derogat priori- lex posterior generalis non derogat priori speciali- lex specialis derogat legi generali- Consider “Desuetude” (mutual rejection by the parties of a treaty usually due to the emergence of new norm)- Bernhardt: If there is a clear conflict, treaties prevail over custom and custom prevails over general...

If CIL- it is all encompassing- even if States do not like CIL, it will still be binding unless persistent objector doctrine (3 requirements)

One way of changing CIL: - treaty or convention- adhere to it for long time

Non-derogable: applicable at all times and in all conditions- it stands true even if it is war time, peace time

Ex: Genocide, Torture

*At war time, there are still possibility that killing is valid, as long as it complies the standards.

Belligerent- participants of war or armed conflict

How is Jus cogens related to Erga Omnes norm?- see notes

Erga omnes inter partes: applied to specific stateEx: 1970 Cultural Property Convention, for stolen properties and such is found in

state member of the convention, that state is reqd to repatriate the property to the country of origin.

Bar: Distinguish erga omnes with erga omnes inter partes.

Philippine Practice- Sec. 2, Art. II, Constitution- Incorporation clause v. Transformation“positive act”: SC decisions, legislations- Sec. 21, Art. 7, Senate concurs in ratification of treaties

2 principles of making intl law part of municipal law. In the Phil., which principle is observed?

Kuroda v Jalandoni- see notes

USA v. Guinto- see notes- par in parem, non habet imperium- juri imperii v juri gestionis:

- important in contracts- ex contractu, there is State immunity (?)

Consider ICSID in State Immunity- International Center for Settlement of Investment Disputes: allowing foreign investors to directly initiate a suit for arbitration or conciliation involving disputes against states. - As an intl agreement, states have therefore waived their immunity from suit the cases covered by the ICSID. The ICSID rule, however requires “double consent”. The arbitration case will be filed in acc arbitral bodies, not in domestic courts.

Reyes v. Bagatsing- see notes

Holy See v. Rosario- see notes

TREATIES- treaty law vs. law of treaties

- treaty law: substantive content of treaties- law of treaties: body of rules that apply to all treaties,

- For purposes of application of VCLT, a treaty means an “international agreement... ” (Art. 2)

May the rules found in the VCLT be applied in the following?A. Dispute involving a treaty bet State A and the IMF- World Bank. YesB. Dispute involving a 1960 treaty bet State A and State B. YesC. Dispute involving a 1995 treaty bet State A and State B which are not parties to the VCLT. Yes- Depends on the rule.

Elements of a treaty (VCLT): 1. Codified 2.

December 16, 2015

Q: What is the difference between a “signatory” from a “party” to a treaty? (p. 36 on reviewer)Q: Distinguish “signature” from ratification. Q: Distinguish “Treaty Law” from “Law of Treaties”Q: Distinguish “cpncluded treaty” from “treaty entered into force”

Signatory v. Party1. As to meaning (Entry into force)

- Signatory: signed (not necessarily bound, it may be subject to domestic ratification)Why ratify?

(a) Opportunity to inquire into scope of authority on treaty signed by representative. (for President)

(b) Enables State to ponder further whether or not it will be bound by the treaty. Ex: US on Rome Statute, Senate conducted several debates and prevailing sentiment was:

Provisions on: compulsory surrender of criminal found in your territory- US, after 2 years, withdrew from Rome Statute

- Party: already bound into the treatyEx: The text of the treaty provides: “This treaty, after having been signed by all

States, upon submission of the 20th State, will entry into force.”

2. As to obligation - Signatory: not yet bound by the substantive content of the treaty

Art. 18. All negotiating States are bound to refrain from doing “acts that will defeat the purpose” of the treaty. Opinion: Codified (Art.18); Principle: negotiating in good faith

What is the threshold of defeating the purpose of the treaty?Oust (?)- acts that make the State incapable of doing its obligations in the treaty.

Example of “act not necessarily defeating”: Kyoto Protocol, State signatory increased gas emissions instead of reducing.

Formation of Treaties1. Proposal to draft a treaty2. Negotiation and drafting of terms3. Adoption and Authentication of the text of the treaty by the negotiating States4. Signature/expression of consent to be bound by the treaty by the individual State5. Ratification of the treaty by the individual states6. Exchange of instruments of ratification and entry into force of the treaty7. Accession to the treaty by states wishing to join after its entry into force, if any.

What NGO initiated Geneva Convention? - International Committee of the Red Cross (ICRC)

What is the importance of Negotiation? - To know the intent of the parties.

What is the importance of Adoption and Authentication? Given you are already adopting text of the treaty, how will you express your consent to be bound? - Text of the treaty now governs the subsequent stages of the enforcement process.

January 8, 2016

Formation of Treaties1. Proposal to draft a treaty

- can be done in various ways. a) most common: A State will propose that a treaty will be drafted and results to

bilateral treatyb) States attend conference, motion will be made to draft a treaty applicable to

particular concernc) NGO may draft a treaty for states to consider

Ex: Geneva Conventions of 1949Geneva Convention was initiated by ICRC

2. Negotiation and drafting of termsWhat is the relevance of knowing what transpired during negotiation? - To know and understand the meaning of particular provision of the treaty for

purposes of interpretation. When will we need to know the intent of the parties?

- Q: How are treaties to be interpreted?

- Probably, in most jurisdictions, we go by preferences. In fact, SC held that we should start with particular approach before going into another. We should first look at the law and interpret literally (verba legis). If there is still failure, then ratio legis est anima.

- Art. 31 of Vienna Convention is specific.

Article 31, GENERAL RULE OF INTERPRETATION 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context: a) Any subsequent agreement between the parties regarding the interpretation of

the treaty or the application of its provisions; b) Any subsequent practice in the application of the treaty which establishes the

agreement of the parties regarding its interpretation; c) Any relevant rules of international law applicable in the relations between the

parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.

- Words, Context, Object, Purpose- Problem is when one is not compatible with the other. So, apply the RULE ON PREFERENCE. - Use Temple case. - Some lean on to Textualist approach. There had been cases where ICJ will adapt the teleological (object and purpose) approach. - Art. 32 provides for supplementary means of interpretation of treaty.

1. This will be used if use of approaches will lead to ambiguity. 2. It will result to absurditya) Preparatory worksb) Contemporaneity

Article 32. SUPPLEMENTARY MEANS OF INTERPRETATION Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 :(a) Leaves the meaning ambiguous or obscure; or

(b) Leads to a result which is manifestly absurd or unreasonable.

What are the supplementary means of treaty interpretation- may be resorted to if interpretation using Art. 31 will result to ambuguity or absurdity.- In that case, you can use the preparatory works and contemporaneity.

3. Adoption and Authentication of the text of the treaty by the negotiating StatesWhat is the relevance of adoption of text of treaty?

- X State is adopting the text of the treaty, and all other states are. How will the state express its consent to be bound?In this particular treaty, when will this enter into force?Are the parties allowed to make reservations in this particular treaty?Are third parties allowed to become third parties via accession?

What is the normative value of the text of the treaty?- After having been adopted, the text will now govern the subsequent stages of the enforcement process.

When will this enter into force? - First, in accordance with text of treaty.

Ex: This treaty will entry into force after 1 year after the 60th ... - Signature or expression of consent to be bound. Assuming that signature is considered as a way to express consent to be bound. - Ratification of the treaty by individual states.

IN the area of ratification, it contemplates of two kinds: 1. Domestic level

- depend on domestic law. - In Phil., the method we use is treaty is ratified by Pres to be concurred with Senate. - There are at least 2 important reasons for ratification in a state

1. To check whether the representative has acted only up to his authority. 2. Give state concerned and public time to reflect whether they will consent to be

bound. 2. International level

- In a bilateral treaty, ratification means exchange of instruments of ratification. - Multilateral treaties, if parties have submitted, transmitted their instruments of ratification to their specified Depositary.

Is accession allowed? Is reservation allowed?- Depends on the text of the treaty.

Capacity to Enter into Treaties- States have inherent capacity to enter into treaties (Art. 6, VCLT)

Right to Legation- right to send diplomatic missions to enter into foreign relations- Since states are legal persons, they are represented by their agents. So, who is permitted

to represent the State?1. He must have Full Powers (Art. 7)

Art. 2(c) "Full powers" means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty.

2. Exceptions: i. Art. 7 (1)(b) - Apparent authority

It appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.

ii. Art 7 (2) - Implied authorityIn virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;(b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) Representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

- See Art. 8 if person is unauthorized.Article 8. An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State.

Adoption/Authentication under VCLT1. Adoption of the Text of a Treaty:

a) Unanimityb) 2/3 of the states present and voting

Article 9. ADOPTION OF THE TEXT 1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. 2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. *Example of Progressive intl law

Q: What is the legal significance of “Adoption of the text of the treaty”?- After adoption of the text, the treaty will be prepared in final form, at which point it is usually authenticated. (See Art. 10)

Consent to be bound

Article 11.

- Ratification (Arts. 2 1b and 16)- By Accession, a third state which did not

Q: Is the consenting State now bound by the terms or substantive provisions of the treaty?

Legal Obligations before Treaty enters into force

Article 18. OBLIGATION NOT TO DEFEAT THE OBJECT AND PURPOSE OF A TREATY PRIOR TO ITS ENTRY INTO FORCE A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

States A, B and C signed a mutual defense treaty where each state is allowed to build a military state in every one’s territory. However, the treaty has to be ratified in domestic level. State A created a mutual defense treaty with State X. State B and C protested stating that State A have committed acts which will defeat the object and purpose of a treaty. Did State A commit such act?- If X is an enemy state of B or C, it will be burdensome to State A to comply with the previous treaty signed. Thus, such act will constitute an act which would defeat the object and purpose of the treaty.- If X is not an enemy state, then State A have not committed such act.

- Importance of Art. 18 is to give signatories obligations. - “Negotiating in good faith” principle of international lawProblem: What particular acts constitutes such acts? - Authors have suggested that: The act constitutes an act that would defeat the object and purpose of the treaty when a State commits acts which would render it incapable of performing essential provisions of the treaty.

- A State commits an “internationally wrongful act” when one violates:- treaty obligation- non-treaty obligations.

* Then, you will have to be liable for committing such internationally wrongful act

Entry into ForceAs a rule: as soon as all negotiating states.. (Art. 24(2))

Problem: States A, B, C, D and E entered into a treaty. The treaty had 10 different articles. States A, B, C and D accepted all 10 articles without reservations. State E, however, did not agree with Art.10, so it indicated that it wished to make a reservation to

Art. 10.

1. Did State E become a party to the treaty?- If the other state did not object, yes. - No, if all others object. - If one of the contracting states object, - Genocide Reservation case: study!- You must ask: When did this happen? Is there a compatibility?

2. Assuming that State E had become a party to the treaty, what is the treaty relationship between State E and States A, B, C and D?

-

What is a reservation?- It allows multilateral treaties to be entered into by states while having reservations on specific provisions of the treaty.

Difference of Reservation, Understanding, Declaration- Reservation: State will want to be exempted of specific provision/s of the treaty.- Understanding: rules on interpretation- Declaration: Declaring that a particular article is bound to us in a certain context. Ex: Treaty provides that “All States must adopt legislative measures on adopting the treaty”. State A makes an Understanding that legislative measures means “Statutes” only.

Before Genocide convention, states followed unanimity rule. To be considered a party, all states must consent to the reservation. If one objects, he will not be considered as party.

After Genocide case, it was modified. Liberality rule was used. It is possible to have one state object and reserving state may still be a party. This is when you check if there is incompatibility of the reservation.

January 9, 2016

ICJ now made a more liberal approach. Such that even a state objects, the reserving state may still be a party to the treaty depending if the reservation involves a provision which creates incompatibility with the object and purpose of treaty of the reservation.

When will resevation be allowed?Article 19. FORMULATION OF RESERVATIONS A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) The reservation is prohibited by the treaty;

- Ex: Rome Statute and ICCPRC(b) The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or(c) In cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

ReservationArt. 2 (1) (d). "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.

- 2011 ILC Guide to Practice on Reservations to Treaties: “...made by a State or an international organization...or by a State when making

notification of succession to a treaty...”

Clean Slate Doctrine- Successor state is not bound by the treaties entered into by predecessor state.

What is reservation in the Law on Treaties?- Take note.

Reservations to the Genocide Convention CaseQ asked: 1. Can a reserving State be regarded as being a party to the convention while still maintaining its reservation, if reservation is objected...

- Can be regarded as a party to the Convention, if the reservation is ...(See ppt)2. Each state objecting to the reservation will or will not, on basis of its individual appraisal within the limits of the criterion of the object and purposes of the Convention... a“reservation as incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention.”

Why not unanimous?-

Observation: VCLT should not have adapted in general terms the liberality approach because ICJ only made such approach because the Convention involves a jus cogens norm. Some suggested to go back to the unanimity rule if case do not involve jus cogens. - Thus, we can argue that liberal approach can hardly ripen into customary intl law, only if it applies to jus cogens.

What is the status of secret treaties in international law?- Article 80 of the 1969 Convention (following article 102 of the United Nations Charter)provides that after their entry into force, treaties should be transmitted to the United Nations Secretariat for registration and publication. These provisions are intended to end the practice of secret treaties, which was regarded as contributing to the outbreak of the First World War, as well as enabling the United Nations Treaty Series, which contains all registered treaties, to be as comprehensive as possible. (Shaw)- Article 3 of UN Charter. For member nations only, we have agreed to treat UN Charter as prevailing over all other treaties. - State cannot invoke such treaties in any organs of the UN like the ICJ.

* Secret treaties- unregistered treaties; not registered or published at the Secretariat of UN.

How to enforce?- Depending on the treaty, so long as it does not involve any organ of UN.

Is there a rule which provides that a treaty prevails over the other?- For member nations only, we have agreed to treat UN Charter as prevailing over all other treaties.

Registration

Article 102 (1) of the UN Charter: “every treaty entered into by any Member of the UN after the Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. ”

Signatory v. Party

MeaningLegal ObligationsWithdrawal of the treatyEffects before entry into force

Effect of treaty after entry into force- Pacta sunt servanda (Art 2 of UN Charter, Art 26 of VCLT)- A party cannot invoke a provision of its domestic law to evade compliance (Art 27)Which should prevail, international law or domestic law? Domestic law is incompatible with treaty obligation, which will prevail?

- There are many thngs to consider: 1. Characterize what international law is in issue. 2. Idea of municipal law. - States have diff. legal systems. Examples, for states that adhere to supremacy of Constitution, if we pick an intl law which is GAPIL, you invoke incorporation clause. If GAPIL contravenes Constitution, Const prevails. - However, if it involves jus cogens, even our courts admitted in Planas v. Gil, even

our constitution may be ...if a jus cogens is involved.

Q: If it is treaty-based, not jus cogens that runs in conflict with domestic law, which should prevail?

- This will depend on the forum. If forum is an intl tribunal like ICJ, if it is to be resolved by this tribunal, they will invoke Art. 27 wherein International Law shall prevail. However, if it is to be resolved by domestic court, in the case of Ichong v. Hernandez, the law which is in conflict with must be identified. If it is Constitution then Constitution prevails, but if it is a statute, then...SC did not say that domestic law will prevail, they said it would depend on the law involved.

- Depending on its treshold...whether the jurisdiction adapts the monism and dualism

approach.

- Treaties do not prima facie operate retrospectively, unless a different intention appears (Art 28)-A treaty cannot prejudice third state without the latter’s express consent (Art 34, 35)

January 22, 2016

Stringent rule on reservation- before

When reservation may not be permitted: 1. Convention does not permit reservation. 2. Reservation involves provision which under convention reservation is not allowed. 3. In any case, where reservation is incompatible with the object and purpose of the convention.

Different ways by which State party to a treaty may get out of the treaty: 1. State withdraws from the treaty. (withdrawal/ renunciation)

How may a State validly withdraw from a treaty?- pursuant to the text of the treaty, if treaty provides for withdrawal.

When State party permitted to do so?- Normally, it is found on “exit provisions” in the treaty. - In this exit provisions will provide for the period. Ex: “Upon notice of not less than 1 year.”- If there is no time provided for, if it is presumed, it will usually be 12 months

Is it still possible to withdraw without provisions?- Yes.

1. It can be established that parties have intended the withdrawal 2. When implied

Article 56. DENUNCIATION OF OR WITHDRAWAL FROM A TREATY CONTAINING NO PROVISION REGARDING TERMINATION, DENUNCIATION OR WITHDRAWAL

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

(à) It is established that the parties intended to admit the possibility of denuncia tion or withdrawal; or (b) A right of denunciation or withdrawal may be implied by the nature of the treaty. 2. A party shall give not less than twelve months' notice of its intention to

denounce or withdraw from a treaty under paragraph 1. - Cutting off of diplomatic alliances/ Treaty of Alliance- If withdrawal is done pursuant to implied, it must be done in not less than 12 months

2. State party invokes a ground that invalidates a treaty. (invalidation)

Article 46. PROVISIONS OF INTERNAL LAW REGARDING COMPETENCE TO CONCLUDE TREATIES 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

May invocation of internal law permit a State which law relates to competence of State to express its consent to be bound, may it be invoked to invalidate a treaty? Art. 46, VCLT

Situation: Pres of State A, expressed its consent to be bound by ratification without first taking consent of a particular body as required in its internal laws. When State A violates provisions of such treaty, State B said A violated the treaty. But A alleged that it was invalidated because it failed to comply internal laws regarding competence with its consent to be bound. (Cameroon v. Nigeria)- Head of State, under Art. 7 of VCLT, has implied authority to ratify a treaty. - Internal law of fundamental importance: constitutional reqts. - Even if fundamental, it is not manifest. - And besides, in any case, there is no obligation in intl law for state parties to take notice of the other party to be bound by the treaty. - One ground of invalidating consent is when a state is able to comply with 2 conditions that may vitiate the consent of state in concluding a treaty:

1. Competence to enter into treaties is manifest.2. If it is a fundamental law of fundamental importance.

Article 27. INTERNAL LAW AND OBSERVANCE OF TREATIESA party may not invoke the provisions of its internal law as justification for its failure

to perform a treaty. This rule is without prejudice to article 46.

Second ground for invalidation is error.

Article 48. ERROR 1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. 2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error. 3. An error relating only to the wording of the text of a treaty does not affect its validity; article 79 then applies.

- It is hard to find error because... - But we have general conditions for error to exist. (Art. 48)

Example: State A is developing State and State B is a developed one. In B, there is a culture to use a particular mineral when they worship their Gods. Then came a point when it became rare in B. State A has very rich supply of this mineral so B asked State A to enter into a treaty where B will be allowed to exploit the minerals of A to “supply for the inhabitants practicing the religion.” A, said that if only for religious practices, it is ok. Science however discovered that the mineral can cure cancer and impotence. Production of B multiplied to 10, lowering the supply of minerals at A and even damaging the environment of A because B used it for commercial purposes.

Why did A agree in authorizing B to exploit its mineral resources?- because the purpose was only for religious practices- had A known of commercial value of mineral, it would not have allowed such

natural resources. - party invoking error must not have contributed to error

Temple case (Cambodia v. Thailand)Issue: Who was the rightful owner of the Temple? - Issue was settled by a map prepared by French commission helped by Thailand. The map suggests that such is located in Cambodia. Thailand say, we cannot use that map because there was error in preparation of the map. - ICJ invoked that if this was an error, Thailand cannot question because they have participated in the preparation of the map. - One, cannot invoke error if that State contributed by its own conduct to that error. - You must not have any notice or knowledge of such error.

Take note of 3 elements of error: 1. Must pertain to a fact or situation assumed to be true by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. 2. Such fact (no contribution...)3. Invoking state must not be in estoppel.

Third ground for error is FRAUD and CORRUPTION. (Art. 49)Fourth, CORRUPTION. (Art. 51)Fifth, Jus Cogens. (Art. 53)

3. State party invokes a ground that enables it to terminate a treaty. (termination)- By application of provision of treatyThree fundamental grounds for termination of treaty: (NOTE)1. Material breach (Art. 60)2. Impossibility of performance (Art. 61)3. Fundamental change of circumstance (Art. 62)

- rebus sic stantibus

A. Material BreachArticle 60. TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY

AS A CONSEQUENCE OF ITS BREACH 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2. A material breach of a multilateral treaty by one of the parties entitles: (a) The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:

(i) In the relations between themselves and the defaulting State, or (ii) As between all the parties;

(b) A party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) Any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3. A material breach of a treaty, for the purposes of this article, consists in: (a) A repudiation of the treaty not sanctioned by the present Convention; or (b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to pro visions prohibiting any form of reprisals against persons protected by such treaties.

- Withdrawal of treaty, treaty is valid. In 2nd, treaty is invalid. - Termination, treaty is valid. Since it is valid, Art. 26 declares that State parties must comply with treaty obligations in good faith. (pacta sunt servada)- Grounds for termination must be taken as highly exceptional. - Peace, Security, Stability and Friendly relations among States. - Thus, there must be stringent rules in terminating treaties. - Ordinary breach will not give rise to invalidation of the treaty or its termination. A violating party may only be accused of violation in ICJ and ask for possible reparation, restitution, compensation or other forms of satisfaction such as apology. - If there is breach, it will constitute internationally wrongful act, but not all breaches are grounds to terminate a treaty. - It is also possible to suspend operation of treaty.

How can you tell that breach is material, and not just ordinary?- What is an example of repudiation sanctioned by the State?- Hungary v. Slovakia: Question sa exam- countermeasure- Treaty, Hungary and Slovakia has its obligation to implement its project. (joint

investment project)- Hungary decided to suspend it, then abandon it. Because the project was being criticized in the country as such will pollute the Danube River. - As a countermeasure, Slovakia diverted the flow of water. - Termination is not automatic. There is a procedure on notification, etc. - Hungary: Implementation of variant sea is not allowed because...- Countermeasure has 3 elements:

1. In response to a material breach2. Must only be as necessary to require compliance of the obligations on treaty3. Must be proportionate

Example of repudiation of treaty permitted by intl law is COUNTERMEASURE.

* US v. Canada arbitration , “twin smelting(?)”- smelting company from Canada. US sued Canada for allowing trans-boundary... - sic uteri tu... “you may enjoy your rights so as not to injure the right of others”- You cannot invoke material breach on an anticipated material breach.

Note for exam: - Nicaragua case- Hungary v. Slovakia case (p. 948, Shaw)- Namibia case- India v. Pakistan

A material breach of a treaty, for the purposes of this article, consists in: (Art. 60(4))(b) A repudiation of the treaty not sanctioned by the present Convention; or (b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty.

Namibia case: Repudiation not allowed by international law- First step to maintain peace, free colonized state or decolonization. (1960 gene...)- Apartheid

India v. Pakistan case- No material breach

How about fundamental change of circumstance?

Article 62. FUNDAMENTAL CHANGE OF CIRCUMSTANCES 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) The existence of those circumstances constituted an essential basis of the con sent of the parties to be bound by the treaty; and (b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) If the treaty establishes a boundary; or (b) If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. Fundamental change of circumstance- highly exceptional, can only be invoked only if ...

What are the fundamental change of circumstance?-

When is a change in that circumstance fundamental?- Test is: IF state invoking such would now be required radically to perform an esentially different obligation from that contemplated by the parties. - Just like in Hungary case:

2nd observation: if parties find it difficult to...

Procedures in termination of Treaties

Midterms: Topic 1-4.

January 23, 2016

Art. 62 (2)-

Termination of treaty is exception to pacta sunt servanda. The ground for termination in fundamental change of circumstance have been narrowly defiend and is invoked only in highly exceptional circumstances.

Purpose of treaty: Maintenance of peace, ...

- When a party to a treaty seeks to terminate a party to the treaty, even if there is material breach, victim state cannot unilaterally declare treaty as having been ended, termination is not automatic.

Procedure in termination of TreatiesQ: State A committed a material breach. You are a counsel for State B.

Section 4, VCLTArticle 65. PROCEDURE TO BE FOLLOWED WITH RESPECT TO INVALIDITY,

TERMINATION, WITHDRAWAL FROM OR SUSPENSION OF THE OPERATION OF A TREATY 1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor. 2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in article 67 the measure which it has proposed. 3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations.4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settle ment of disputes. 5. Without prejudice to article 45, the fact that a State has not previously made the notification prescribed in paragraph 1 shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation.

Notification-Sommation Requirement (Procedure)- this is a customary, except three-month period to respond to any accusation

1. Notify other parties in writing- in WRITING, must be duly SIGNED- If communicated by another official, he should provide for full powers- Should state reason and the proposed measure. Article 67. INSTRUMENTS FOR DECLARING INVALID, TERMINATING, WITHDRAWING FROM OR SUSPENDING THE OPERATION OF A TREATY 1. The notification provided for under article 65, paragraph 1 must be made in writing. 2. Any act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of article 65 shall be carried out through an instrument communicated to the other parties. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the State communicating it may be called upon to produce full powers.

Who has to sign notification?- Head of State, Head of Government or Minister for Foreign AffairsAfter notification, what happens next? Sommation.

- this is done to avoid threat of peace or conflict between the parties

2. After three months, if no party has objected, treaty is already terminated. Sommation is a very important process.

- this allows the other party to refute or explain their side. - In this period, two things may happen and you cannot implement your proposed

measure of termination.a) Objectb) Explain

- If the other party objects, there would be a dispute. Whenever there is dispute or controversy, pacific means is necessary.

3. If an objection is raised, parties shall seek a solution under the UN- Article 33(1) of the UN Charter gives a list of the usual methods of the peaceful settlement of disputes between states in international law: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice. - If ICJ, parties have no choice but to submit it to ICJ- Arbitration can choose their own judge or arbitrator. - Advantages of arbitration

a) more legitimacy or acceptability of decisionsb) quicker resolution

- In most big contracts, there usually is found arbitration clauses. - In the Hague, there are certain arbitrators.

4. If no solution is reached within 12 months following the date the objection was raised, they may consent to submit the dispute to arbitration

Article 66, PROCEDURES FOR JUDICIAL SETTLEMENT, ARBITRATION AND CONCILIATION If, under paragraph 3 of article 65, no solution has been reached within a period of twelve months following the date on which the objection was raised, the following procedures shall be followed: (a) Any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration; (b) Any one of the parties to a dispute concerning the application or the interpreta tion of any of the other articles in Part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations.

Consequences of termination of treaty

Article 69. CONSEQUENCES OF THE INVALIDITY OF A TREATY 1. A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force. 2. If acts have nevertheless been performed in reliance on such a treaty: (a) Each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed; (b) Acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty.

3. In cases falling under articles 49, 50, 51 or 52, paragraph 2 does not apply with respect to the party to which the fraud, the act of corruption or the coercion is imputable. 4. In the case of the invalidity of a particular State's consent to be bound by a multilateral treaty, the foregoing rules apply in the relations between that State and the parties to the treaty.

Article 70. CONSEQUENCES OF THE TERMINATION OF A TREATY 1. Unless the treaty otherwise provides or the parties otherwise agree, the ter mination of a treaty under its provisions or in accordance with the present Conven tion: (a) Releases the parties from any obligation further to perform the treaty; (b) Does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination. 2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.

Q: How are treaties to be terminated? What will be the consequencs of invalidity or termination of treaties?- Mutual restitution in invalidity- Respecting rights, obligations or legal situation before termination of treaty

Midterm: Start to Law of Treaties