Treaties -
Bilateral
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Constitutive
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Establishes an international organization or regime
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E.g. UN Charter, Rome Charter creating ICC
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Multilateral
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Establishes general norms, common in human rights
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Many terms for treaties, e.g. accord, understanding, agreement, protocol, concordat, pact, charter.
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Internationally recognized treaty diff from treaty under US Const Art II
Relationship of Treaties and CIL -
Treaties can’t “make” customary international law (i.e. law binding on non-signatories)
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Codification
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Progressive development
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However, although a treaty doesn’t create new law, it can restate law that is already party of the corpus of customary int’l law
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Vienna Convention on the Law of Treaties is a treaty of this nature
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Formally only binding on signatories
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But states principles that are part of CIL
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One can say that all nations are bound by CIL, that CIL by its nature applies to all states
Book: 39- most of international law norms applicable to treaties have been codified in the Vienna Convention on the Law of Treaties- adopted by a states at an international conference in 1960.
- many provisions restate or codify CIL already in place.
- other provisions reflect a deliberate effort to modify existing law or to create new law- referred to as progressive development.
- rules are now so widely accepted that they have acquired the status of custom.
Vienna Convention on Treaties (VCLT)
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“Treaty on Treaties” – project of UN Int’l Law Commission
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US is not a party
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State Dept. recognizes Convention as “the authoritative guide of current treaty law and practice”
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US routinely treats itself as subject to the treaty to the extent that it recognizes the Treaty states current int’l law, although not formally bound
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VCLT applies only to written agreements
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Implicitly recognizes the existence of oral agreements
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Possibility of binding unilateral statements
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Eastern Greenland: Greenland will belong to Denmark
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French Nuclear Testing: France will not engage in nuclear testing
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(see p. 41, note 2 for more on unilateral statements/declarations)
Book: 39-
US is not a party to the treaty but the executive branch has described the convention as the authoritative guide to current treaty law and practice.
Vienna Convention definition of a treaty: art. 2 (p40) a treaty means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever is particular designation…
Art 3- International Agreements not within the scope of present convention- the fact that the present convention does not apply to international agreements concluded between states and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect the legal force of such agreements.
- rules may also be relevant to international agreements involving parties other than states (insurgent groups, international organizations) and to oral agreements (this is made clear in the ILC’s final draft of the Vienna Convention- 40)
Cyprus
Status of Cyprus: involves a number of treaties.
- Cyprus was part of the Ottoman empire- had been under Turkish Control
Great Britain receives administrative authority over Cyprus from Turkey, then operates a crown colony there until 1960 when as part of decolonization, the British take down their flag and turn it over to the local population for autonomous self regulation
- Cyprus has two ethnic communities- Greeks and Turkish- how can you cobble together a new state that will provide an equitable distribution of power between two communities inhabiting the same territory. (great challenge of international law)
In same period Greece obtains independence
- there are movements in both communities for unification with Greece or with Turkey.
British trying to prevent a mess, tries to structure a political deal among UK, Greece, Turkey and the communities.
A newly emergent republic of Cyprus emerges- this is a country to be
- there is something that looks like a constitution but also international structures built around it- treaty of guarantee (used to justify turkeys military intervention into Cyprus which effectively partions the country and continues to today)
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Are the 1960 Treaties treaties?
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Are the Cypriot communities (and Cyprus) parties to the 1960 treaties?
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Did Makarios and Kutchuk have authority to bind their respective communities? Were their acts subsequently confirmed?
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Was Makarios’ consent to the 1960 treaties coerced?
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When a territory is decolonized, it could be made independent or turned over to another sovereign power
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Here, there was a decision that Cyprus would be independent, not incorporated into Greece or Turkey
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It was understood there would have to be a commitment from Greece and Turkey for support in order for Cyprus to have chance at stability
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Constitution devised power-sharing relationship between the 2 ethnic communities
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This same model was followed with disastrous consequences in Lebanon
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Idea is to designate along ethnic lines which offices belong to which group
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Greek President, Turkish vice president, separate legislative blocs, each with veto power
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Who is making this Constitution?
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No Cypriots helped develop the Const
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Can a departing power dictate the political structure of what will become a newly independent state?
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To what extent does a former colony have to accept the Const handed to it?
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There is a series of treaties to which Turkey, Cyprus, UK are parties:
Does it authorize Turkish military intervention (interpretation?
Is the prior authorization of intervention a violation of “sovereignty”?
Does the authorization of military intervention violate a “premptory norm” (jus cogens)?
Does this render void the Treaty of Guarantee?
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Meant to support arrangements that were given to the Cypriots, in order to give Cypriots confidence that the power bargain would be preserved
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Also a commitment to keep hands off, quell aspirations that might develop in Greece or Turkey for incorporation
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Article IV: In the event of a breach of the provisions, Greece, Turkey and UK undertake to consult together. If not possible, each power reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present treaty.
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Turkey later uses this as justification for military activity
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What authority did Makarios (Greek Cypriot representative) and Kutchuk (Turkish Cypriot representative) have to bind their respective communities?
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As a political act, their signatures provide legitimacy for the agreement, bind the communities
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These people had no official power
SEE BOOK- p. 41- Making Treaties: Who speaks for the State? (Vienna Convention contains several articles (6,7,8) pertaining to the capacity of states to enter into treaties and the authority of particular individuals to represent and commit their states- see p. 41 for articles and ntoes)
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There is a coup in 1974, when the (Greek?) President is ousted by a Greek-engineered coup
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In response, Turkey invades and occupies the northern third of the island
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This state of affairs remains to this day
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Greece and Turkey were NATO powers at the time
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Greece objects to Turkey’s attempts today to get into EU
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Is Turkey’s use of force justified?
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UN Charter prohibits use of force except in self-defense, unless the Security Council gives approval.
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Hitler used argument to invade Czechoslovakia and Poland that the Germans there were being mistreated
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International law sees the conflict as Cypriots attacking Cypriots, not Turks attacking Greeks
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Does country have a right to protect a particular community in another state by use of force?
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Charter seems to preclude this; a country cannot unilaterally use force to protect people in another state
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This is why Turkey needs to turn to the Treaty of Guarantee Art 4 as justification for its actions
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Does “right to take action” mean the right to a military occupation that wouldn’t be justified otherwise under int’l law? Can you contract that away?
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A country can consent to have foreign troops come to the country. Argument: Art 4 is like a pre-authorization for troops to be invited into the country
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Cuban Constitution gave US the right to invade whenever US interests were threatened. This gave impetus to the revolutionaries to take over, and influenced Castro to nationalize US assets
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US may have Iraq put into its Const that US can reestablish order
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Move in modern int’l law that newly independent state should be bound by treaties by its prior colonial master
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States should be able to elect which treaties are in its favor and should be followed, and which should not
Invalidating Treaties: Coercion and Consent
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Greek Cyprus arguments
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Treaty of Guarantee is invalid because Cyprus was not a party to it
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Coercion argument: Cyprus was forced to sign the treaty and thus did not give its approval
Book 43: many Greek Cypriots suggest that the treaties were imposed on Cyprus and that Makarios had no choice but to accept the treaties.
Vienna Convention has articles which speak to the validity of treaties, when you can not say one is invalid and about coercion.
Also some talk about unequal treaties (46)
Interpreting Treaties
Interpretation: what does “take action” mean? What does it mean to “reestablish the state of affairs”?
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