The Law of Treaties: An Introduction

306 Pages·2016·1.665 MB·English

by  Robert Kolb

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The Law of Treaties
An Introduction
RobertKolb
ProfessorofPublicInternationalLaw,UniversityofGeneva,Switzerland
Cheltenham,UK+Northampton,MA,USA
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©RobertKolb2016
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Contents
Preface vi
Listofabbreviations ix
I Introduction:treatiesininternationalrelations 1
II Concept 16
III Conclusion 37
IV Reservations 63
V Validity 89
VI ThirdStates 115
VII Interpretation 128
VIII Implementation 166
IX Conflict 182
X Modification 193
XI Termination 206
XII Treatiesandcustomaryinternationallaw 260
XIII Conclusion 270
Bibliography 273
Index 283
v
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Preface
There are three main reasons for having written this Introduction to the
Law of Treaties. First, I have been keenly interested in issues relating to
treaties since the time I wrote my doctoral thesis. This source of
international law represents the core of ‘lawyer’s law’. It spans, more-
over, a bridge to the jurisprudence of municipal law contracts. The great
legal precision and yet the constant presence of broader policy problems
– for example, the painstakingly detailed regulation on suspension and
termination and the concomitant general issue of stability of treaties and
respect for policy choices of national constituencies – are the gist of the
law of treaties. This is a fascinating spectrum of thought and action, of
theory and practice, of generals and particulars. Second, the importance
that treaties have always had, but in particular in the modern ‘democra-
tized’ world, where each State is keen to defend the principle of ‘one
State one vote’, needs hardly to be stressed. There are a great number of
treaties applicable in the world, probably not far from 100,000 (with
approximately 60,000 registered with the UN). When complex regu-
lations are sought, for instance in the realm of environmental protection
or on some commercial régime, treaties are indispensable. There is no
area of international law which would not be permeated by treaties.
Unfortunately, not everyone approaching such issues as, for example,
human rights law, understands properly the working of treaties. Such
persons will not be able to apply the law in this area correctly, if they
have no proper understanding of treaties. Third, the literature on the law
of treaties does not lack good quality monographs, but a succinct and
up-to-date presentation, written in a legally analytical style, is still
needed. There are, on the one hand, some Introductions which were
written at the time of the adoption of theVienna Convention on the Law
of Treaties (VCLT) of 1969, in particular by Elias, Reuter and Sinclair
(see the bibliography). These are rooted in the law of the 1960s and are
to some extent now out of date. There are books of a more in-depth
character, still more ancient and focusing on old practice essentially
emanatingfromtheUKandUS(McNair).Thereisthegeneraltreatiseof
Aust, which is essentially of a practical nature and contains much
valuable information. On properly legal issues, it does not go into depth.
vi
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Preface vii
There are general Handbooks, such as those by Hollis or Tams, Tzana-
kopoulos and Zimmermann, or the more specific one by Cannizzaro.
These propose an analysis through a series of contributions which go
further than a general overview. There are also three detailed commen-
taries, mentioned in the bibliography appended to this book. Their
purpose is to present each provision of the VCLT of 1969 (for treaties
between States) and of 1986 (for treaties of international organizations).
And there are many monographs on particular issues of the law of
treaties. There is thus some room for an enterprise such as the present
one.
How will this Introduction be constructed? The chapters it contains
have been presented in the table of contents. All important issues of the
law of treaties will be considered, but with some exceptions. For
example, the rather technical activities of the depositary are left out.This
is mainly for reasons of space, rather than for reasons of lesser
importance. Each chapter will be in two parts. In the first and main part
of each, the law will be set out in as much detail as the overall narrow
compass of the journey allows. The accent will be on a legally tight and
precise analysis, short in ambit but still point by point.At the same time,
practical examples will be provided as much as is feasible. In a second
and to some extent secondary part, difficult and unexpected issues related
to the law discussed in the chapter, idiosyncratic cases of treaty practice,
or some extracts on such issues, will be presented (‘Digging Deeper’).
The aim is to test and apply the knowledge acquired in the context of
situations somewhat apart – sometimes far apart – from the mainstream.
It is in such marginal cases that the law can be subjected to acid tests of
appropriatenessandadaptability,aswellasthemindofthereaderopened
to a more comprehensive view on the multi-dimensional problems raised
by the legal regulations. I will sometimes provide some examples of
Swiss practice, being my own country, which I know best. I have to
thankMr.ClaudeSchenker,fromtheSwissInternationalLawDirectorate
(Ministry of Foreign Affairs) for some useful indications as to Swiss
practice on treaties. Most examples come, however, from other and
indeed very different backgrounds. For the practice of the UN, I have to
thank my friend, Mr. SantiagoVillalpando of the UN Treaty Service, for
very useful information.
The introductory nature of this book means that I have been sparing
with footnotes.The interested reader is referred to the bibliography at the
end of the book, in which he or she will find material which will allow
further insight into the subject matter of treaties. A last point: certain
standard works contained in this bibliography are just quoted with the
name of the author. The reader is thereby referred to the bibliography.
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viii Thelawof treaties
May I express the hope that this short preface may have stimulated the
appetite of the unknown reader and, as the case may be, of my
professional brethren?
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Abbreviations
AfCtHR African Court of Human Rights
AFDI Annuaire français de droit international
AJIL American Journal of International Law
ASDI Annuaire suisse de droit international
ASEAN Association of SoutheastAsian Nations
BYIL BritishYearbook of International Law
CIL Customary International Law
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EJIL European Journal of International Law
FCN Friendship, Commerce and Navigation (Treaties)
FYROM FormerYugoslavian Republic of Macedonia
GATT GeneralAgreement onTariffs andTrade
GC Geneva Conventions of 1949 on International
Humanitarian Law (Conventions I-IV)
GYIL GermanYearbook of International Law
IACHR Interamerican Convention on Human Rights
IACtHR Interamerican Court on Human Rights
ICJ International Court of Justice
ICLQ International and Comparative Law Quarterly
ICRC International Committee of the Red Cross
ICTR International CriminalTribunal for Rwanda
ICTY International CriminalTribunal for the formerYugoslavia
IDI Institut de droit international
IHL International Humanitarian Law
ILC International Law Commission
ITLOS InternationalTribunal of the Law of the Sea
LOSC Law of the Sea Convention
MOU Memorandum of Understanding
NILR Netherlands International Law Review
ix
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NYIL NetherlandsYearbook of International Law
PCIJ Permanent Court of International Justice
RBDI Revue belge de droit international
RCADI Recueil des Cours de l’Académie de droit international de
La Haye, Hague Recueil
RGDIP Revue générale de droit international public
RIAA Reports on InternationalArbitralAwards
RSDIE Revue suisse de droit international et européen
SFRY Socialist Federal Republic ofYugoslavia
UN United Nations
UNEF United Nations Emergency Forces
UNGA United Nations GeneralAssembly
VCLT Vienna Convention on the Law ofTreaties
VCSST Vienna Convention on State Succession toTreaties
WTO WorldTrade Organization
Yb Yearbook
ZaöRV Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht
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