scholarly journals Treaty-Making Capacity of  Components of Federal States from the Perspective of the Works of the UN International Law Commission

2018 ◽  
Vol 5 (2) ◽  
pp. 9
Author(s):  
Karol Karski ◽  
Tomasz Kamiński
Keyword(s):  
International Law ◽  
Federal State ◽  
Vienna Convention ◽  
International Treaties ◽  
Federal States ◽  
The Subject ◽  
The Law ◽  
Formed Part ◽  
International Law Commission ◽  
Law Commission

The submitted paper concerns the treaty-making capacity of components of federal (non-unitary) states. As the division of powers in respect to the conclusion of international treaties between a federal state and its components is based on the provisions of internal federal law, the authors decided to start the consideration of the topic with the presentation of selected appropriate internal law regulations of federal states. Although the study concentrates on an analysis of Swiss and German constitutional rules on the subject, the provisions of i.a. Belgian, US and Canadian law are also commented upon. Therefore it apparently seems to be an important legal question.The treaty-making capacity of components of federal (non-unitary) states was comprehensively discussed during the International Law Commission preparatory works on the regulation on the law of treaties. The provisions dedicated to that issue formed part of the reports prepared by each of the ILC Special Rapporteurs on the subject. The paper presents the draft propositions submitted by them, the views of ILC members, and responses received from states.The final draft of ILC articles on the law of treaties contained a paragraph concerning the issue at stake (than art. 5 § 2 of the draft) stipulating that member states of a federal union may possess such capacity only if such capacity is admitted by the federal constitution and within the scope defined therein. Nevertheless, this issue was omitted in the 1969 Vienna Convention on Law of Treaties (VCLT). Art. 6 of the VCLT on the capacity of States to conclude treaties does not mention the rights of components of federal states. It consists of one paragraph simply stating that every State possesses the capacity to conclude treaties. And the term ‘state’ for the purposes of that regulation possesses the same meaning as i.a. in the Charter of the United Nations, that is a State for the purposes of international law, or a state in the international meaning of that term.This does not mean however that territorial units forming a part of a federal state cannot conclude international agreements. But, this issue depends both on the provisions of internal law of the given state and on the practice of the states recognising the potential rights of the components of the federal (non-unitary) states in respect to conclusion of the treaties.

Case Analysis: The Gabčíkovo-Nagymaros Case: The Law of Treaties

1998 ◽  
Vol 11 (2) ◽  
pp. 321-344 ◽  
Author(s):  
Malgosia Fitzmaurice
Keyword(s):  
International Law ◽  
Legal Status ◽  
Case Analysis ◽  
Vienna Convention ◽  
Fundamental Change ◽  
Unilateral Termination ◽  
The Subject ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The subject-matter of this article are the issues of treaty law as expounded in the Judgment in the Gabčíkovo-Nagymaros case. The following problems are discussed: unilateral suspension and abandonment of obligations deriving from the binding treaty; the principle of fundamental change of circumstances; unilateral termination of a treaty; applicability of the 1969 Vienna Convention on the Law of Treaties in this case; legal status of so-called ‘provisional solution’; impossibility of performance and material breach of treaty; the application of the principle of ‘approximate application’; and the principle pacta sunt servanda. The issues arc discussed at the background of the Drafts of the International Law Commission.

More on the Depositary of International Treaties

1970 ◽  
Vol 64 (5) ◽  
pp. 838-852 ◽  
Author(s):  
Shabtai Rosenne
Keyword(s):  
United Nations ◽  
International Law ◽  
Previous Article ◽  
Vienna Convention ◽  
International Treaties ◽  
The United Nations ◽  
The Law ◽  
International Law Commission ◽  
Law Commission ◽  
Made In

The purpose of this article is to bring up to date the present writer’s previous article on “The Depositary of International Treaties” published in this Journal, in the light of the deliberations of the United Nations Conference on the Law of Treaties in 1968 and 1969 and the changes there made in the texts. The relevant provisions now appear as Articles 76, 77 and 78 of the so-called Vienna Convention on the Law of Treaties, corresponding to Articles 71, 72 and 73 of the draft articles on the law of treaties of the International Law Commission.

Debating the Ouroboros of International Law: The Drafting History of Article 31(3)(c)

2007 ◽  
Vol 9 (1) ◽  
pp. 1-31 ◽  
Author(s):  
Panos Merkouris
Keyword(s):  
International Law ◽  
Present Status ◽  
Vienna Convention ◽  
History Of ◽  
The Law ◽  
Droit International ◽  
International Law Commission ◽  
Law Commission

AbstractThe Diversification and expansion of International Law has sparked a series of debates on the present status and future of International Law; even more so, since the ILC decided to tackle the issue of fragmentation. One of the areas of research and controversy has been Article 31(3)(c) of the Vienna Convention on the Law of Treaties which, arguably, enshrines the principle of systemic integration. The aim of this article is to explore the evolution of Article 31(3)(c) from its first inception by the forefathers of international law up to the finalization of the text of the Vienna Convention on the Law of Treaties. By mapping the critical arguments in the three main fora of debate (i.e the Institut de Droit International, the International Law Commission and the Vienna Conference on the Law of treaties) what arises is a series of conclusions with respect to certain aspects of Article 31(3)(c) as well as certain recurring themes in the nature and progress of the discussions. All of the above will show that the drafting history of Article 31(3)(c) seems to suggest that the relevant provision was meant to serve a purpose expressed more concisely by the symbol of Ouroboros rather than of a mere "master-key" to the house of International Law.

scholarly journals ‘Codification by Interpretation’: The International Law Commission as an Interpreter of International Law

2020 ◽  
Vol 31 (1) ◽  
pp. 171-200
Author(s):  
Danae Azaria
Keyword(s):  
International Law ◽  
Focal Point ◽  
Vienna Convention ◽  
Customary International Law ◽  
Treaty Interpretation ◽  
Per Se ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

Abstract This article argues that the International Law Commission (ILC) interprets international law. In recent years, in documents intended to remain non-binding, the Commission has made interpretative pronouncements about a treaty in force, the Vienna Convention on the Law of Treaties, and customary international law reflected therein. This development is called the ‘codification by interpretation’ paradigm in this article. This article argues that interpretation falls within the ILC’s function, and it analyses the effects of the Commission’s interpretative pronouncements. It explains that the ILC’s interpretative pronouncements are not per se binding or authentic. However, they may trigger an interpretative dialogue with states. The ILC’s interpretative pronouncements may constitute a focal point for coordination among states, a subsidiary means for determining rules of law and a supplementary means of (treaty) interpretation. The aim of the ILC’s ‘codification-by-interpretation’ paradigm in the four topics considered in this article is to introduce clarity and predictability into secondary rules on the law of treaties, thus ensuring the clarity and predictability of primary treaty rules across all fields of international law. The ILC endeavours to convince states to use international law as a medium by which they regulate their affairs.

The International Law Commission's Draft Articles on the Effects of Armed Conflicts on Treaties: Evaluating the Applicability of Impossibility of Performance and Fundamental Change

2013 ◽  
Vol 3 (1) ◽  
pp. 51-76
Author(s):  
Benny TAN Zhi Peng
Keyword(s):  
International Law ◽  
Armed Conflicts ◽  
Controversial Issue ◽  
Vienna Convention ◽  
Fundamental Change ◽  
Insufficient Attention ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The International Law Commission recently completed its work on the controversial issue of the effects of armed conflicts on treaties, culminating in the adoption of a set of eighteen draft articles and an annex. The Commission's efforts are nothing short of commendable, but this article argues that insufficient attention has been paid to the role of supervening impossibility of performance and fundamental change of circumstances in determining the effects of armed conflicts on treaties. Although both doctrines may in fact appropriately apply in the context of armed conflicts, the mere referencing of them in the adopted draft articles gives rise to several problems. In particular, the two doctrines were codified by the 1969 Vienna Convention on the Law of Treaties without their application to armed conflicts in mind. Some changes to the draft articles are proposed to address these difficulties.

Part II Interpretation of Treaties, 9 Supplementary Means of Interpretation

2011 ◽  
Author(s):  
Sbolci Luigi
Keyword(s):  
International Law ◽  
General Rule ◽  
Case Law ◽  
Vienna Convention ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The Vienna Convention on the Law of Treaties of 1969 established a distinct hierarchy between the general rule of interpretation and supplementary means. Article 32 of the Convention subordinates the use of supplementary means to various assumptions connected with the outcome of the interpretation made on the basis of the general rule contained in Article 31. The list of the supplementary means laid down in Article 32 is not exhaustive and the Vienna Convention says nothing about the concept of preparatory works, of circumstances surrounding the conclusion of the treaty, and about the concept of other supplementary means of interpretation. These and other critical observations can be resolved by reference to indications from the comments of the International Law Commission and from international case law. The rule established in Article 32 can be considered to correspond to the international custom. The use of supplementary means of interpretation is important when the application of the general rule leaves the meaning ambiguous, obscure, or absurd. Recent international case law appears to illustrate the reasons that can lead the interpreter to find, in the supplementary means, a confirmation of the meaning emerging from the application of the general rule expressed in Article 31.

The Depositary of International Treaties

1967 ◽  
Vol 61 (4) ◽  
pp. 923-945 ◽  
Author(s):  
Shabtai Rosenne
Keyword(s):  
United Nations ◽  
International Law ◽  
General Assembly ◽  
Special Rapporteur ◽  
International Treaties ◽  
International Treaty ◽  
The United Nations ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The Draft Articles on the Law of Treaties completed in 1966 by the International Law Commission and submitted to the General Assembly of the United Nations, on the basis of proposals by the Special Rapporteur, Sir Humphrey Waldock, contain, in Part VII (entitled “Depositaries, Notifications, Corrections and Registration”), three articles—Articles 71, 72 and 73—dealing directly with the depositary of an international treaty; and throughout the Draft Articles are to be found other provisions which directly or indirectly relate to the same institution of contemporary international law and relations.

scholarly journals The concept of "WTO law": The Debate Continues

2018 ◽  
pp. 199-208
Author(s):  
M. R. Saliya
Keyword(s):  
International Law ◽  
Point Of View ◽  
Vienna Convention ◽  
Starting Point ◽  
The World ◽  
The Subject ◽  
The Law ◽  
International Law Commission ◽  
Scientific Doctrine ◽  
Wto Agreements

The phenomenon of the law of the World Trade Organization continues to be the starting point for the subject of study by international lawyers. The study of the provisions of the "package of WTO agreements", the practices of arbitration groups and the Appeals Body, the reports of the International Law Commission on fragmentation in international law and the scientific doctrine of various countries prove that "WTO law" is a "special treaty regime" existing in the international law framework. Its isolation is out of the discussion at least because the application of the norms of "WTO law" is carried out in accordance with the provisions of the Vienna Convention on the Law of Treaties of 1969. This article is an attempt to present the author's point of view on the existing problem.

The Travaux Préparatoires of the Vienna Convention on the Law of Treaties

1971 ◽  
Vol 65 (5) ◽  
pp. 705-712 ◽  
Author(s):  
Herbert W. Briggs
Keyword(s):  
International Law ◽  
Fundamental Importance ◽  
Vienna Convention ◽  
Rules And Principles ◽  
International Tribunals ◽  
The Law ◽  
International Law Commission ◽  
Law Commission ◽  
General Acceptability ◽  
The Way

The fundamental importance of the codification of the law of treaties by the International Law Commission and the Vienna Conference will gain increasing recognition as the rules and principles embodied in the 1969 Vienna Convention on the Law of Treaties are applied in the practice of states and the jurisprudence of international tribunals. Inevitably the records of this great codification will be searched and researched, by scholars as well as by legal advisers, and for a variety of reasons: What is the function of a particular rule? What r61e was it designed to play in the relations of states and in the international legal community? What does it require in the way of performance or abstention? Is it a residual rule, binding upon states if no other solution is agreed on? Why was the rule given the particular formulation found in the Vienna Convention,and what alternative formulations were rejected? Since the entry into force of the Vienna Convention will be delayed until after thirty-five states have ratified or acceded to it (Article 84), what assessment of the general acceptability of a particular provision can be gained from a study of the drafting record or from the number of affirmative or negative votes or abstentions?

Due diligence as a secondary rule of general international law

2021 ◽  
pp. 1-30
Author(s):  
Richard Mackenzie-Gray Scott
Keyword(s):  
International Law ◽  
Due Diligence ◽  
Legal Practice ◽  
Formed Part ◽  
International Law Commission ◽  
Domestic Law ◽  
Secondary Rule ◽  
Law Making ◽  
Law Commission ◽  
Do So

Abstract The conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.

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