Unit 4: Treaties in International Law

(With Extended Treatment of Human Rights Treaties)

This Unit studies treaties. It begins by examining how treaties are made, with a focus on the Vienna Convention on the Law of Treaties (VCLT).

It moves on to explore other important doctrinal points from the traditional law of treaties, such as how states can become bound to a treaty and the ways in which a state can end its treaty obligations. Following this, it analyzes the interpretation of treaties, with examples from different courts. It then explores the doctrine of state responsibility in international law, with a particular focus on countermeasures. Next, a study of treaties in U.S. law further illuminates the two-level game framework, as it provides an example of the interaction between the domestic and international planes. Finally, the Unit returns to many issues studied previously (such as the interpretation of treaties and state responsibility), examining these issues in the context of human rights treaties.

Reading Guide

I. A First Look at the International Law of Treaties

A. Introduction and Overview: Malgosia Fitzmaurice, “The Practical Working of the Law of Treaties” in Evans (ed.), International Law (3rd ed., 2010), pp. 172-83

B. The Making of Treaties

  1. VCLT Arts 13, 14, 15, 18, 24

C. Validity of a Treaty

VCLT Arts 46-53

Panama Canal Treaty of 1903

Note on Invalidity of Treaties under Art. 46

Revocation: VCLT Arts 42, 45

Rebus sic stantibus

 VCLT Art. 62

International Law Commission Commentary(excerpts)

U.S. Government Comments (excerpts)

D. Effect of Unilateral Declarations

1. Excerpts from Eastern Greenland Case (PCIJ, 1933); Nuclear Tests Case (ICJ, 1974), Case Concerning Sections 301-310 of U.S. Trade Act of 1976 (WTO Panel, 1999)

2. ILC “Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations” (2006)


II. Interpretation of Treaties 

A. Overview: Malgosia Fitzmaurice, “The Practical Working of the Law of Treaties” in Evans (ed.), International Law (3rd ed., 2010), pp. 183-9

B. VCLT Art. 31-33

C. Interpretive Approaches across Cases and Tribunals

1. Oil Platforms Case (Islamic Republic of Iran v. US), ICJ, Nov. 6, 2003:

a. Provisions of the 1955 Treaty of Amity, Economic Relations and Consular Rights

b. Judgment (excerpts)

c. Separate Opinion of Judge Higgins

2. Air France v. Saks, US Supreme Court, March 4, 1985 (excerpts)

3. Golder Case, ECtHR, Feb. 21, 1975 (excerpts) (refer to Art 6, ECHR)

4. Case Concerning Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, Feb. 26, 2007:

a. Summary of case

b. Judgment (excerpts)

c. Joint Declaration of Judges Shi and Koroma (excerpts)

5. Maloney v. The Queen, High Court of Australia, 19 June 2013

a. Judgment (Opinions of Chief Justice French and Judges Kiefel and Gageler) (excerpts)

b. Summary of Case

c. Convention on the Elimination of All Forms of Racial Discrimination Arts 1-8


III. Breach of Treaty, State Responsibility and Countermeasures

A. Evans (ed.), International Law (3rd ed., 2010) pp. 195-8, 441-69
(from Fitzmaurice, “The Practical Working of the Law of Treaties”, and James Crawford & Simon Olleson, “The Nature and Forms of International Responsibility”)

B. VCLT Art. 60-75

C. International Law Commission, Responsibility of States for Internationally Wrongful Acts, 2001

D. Rainbow Warrior Case (New Zealand v. France), France-NZ Arbitration Tribunal, Apr. 30, 1990 (excerpts)

E. Case Concerning the Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ, Sep. 25, 1997 (excerpts)

F. Corfu Channel Case (United Kingdom v. Albania), ICJ, Apr. 9, 1949 (summary)

G. Oil Platforms Case (Islamic Republic of Iran v. US), ICJ, Nov. 6, 2003 (see II.C.1 above)

H. Air Services Arbitration (France v. US), ad hoc Arbitral Tribunal, 1978 (excerpts)


IV. Treaties in U.S. Law

A. Background

1. U.S. Constitution (excerpts)

2. Louis Henkin, Foreign Affairs and the Constitution (2nd ed., 1996) (excerpts)

3. United States v. Curtiss-Wright Export Corp., Dec. 21, 1936 (excerpts)

4. Crosby v. National Foreign Trade Council, June 19, 2000 (excerpts)

B. Self-Executing and Non-Self-Executing Treaties
Self-Executing and Non-Self-Executing Treaties

1. Excerpts from Asakura v. City of Seattle (1924), People of Saipan v. Dept. of Interior (1974), U.S. v. Postal (1979)

2. Medellín v. Texas, Mar. 25, 2008 (excerpts)

C. Interpretation of Treaties

1. Hamdan v. Rumsfeld, June 29, 2006 (excerpts)

2. Sanchez-Llamas v. Oregon, June 28, 2006 (excerpts)

D. Constitutional Limits of the Treaty Power

1.Treaties and States’ Rights

a. Mark Janis, “Dred Scott and International Law“, (2005) 43 Colum J. Transnat’l Law 763 (excerpts)
b. Missouri v. Holland, Apr. 19, 1920 (excerpts)
c. American Ins. Assn. v. Garamendi, June 23, 2003 [Background – skim]

2. Treaties and Individual Rights

a.  Excerpts from Reid v. Covert (1957), Dames & Moore (1981)

b. Example of Claims Settlement Agreement: US-Libya, 2008


V. Applying the Law of Treaties: Human Rights Treaties

A. The Western Concept of Human Rights: Charles Taylor, “Conditions of an Unforced Consensus on Human Rights” (1996) (excerpts)

B. The ICCPR and the UN Human Rights Committee

1. International Covenant on Civil and Political Rights (1966)

2. First Optional Protocol to the ICCPR

3. Overview of UN Human Rights Committee 

1. Lovelace v. Canada, Human Rights Committee, July 30, 1981

***Additional Materials***

a.  Concept Paper on Unified Standing Treaty Body Proposal (2006) (note that this proposal has not been acted upon)

b. David Kretzmer, “The UN Human Rights Committee and International Human Rights Monitoring” (work in progress with Eckart Klein, 2010) (excerpts)

C. Reservations

1. Malgosia Fitzmaurice, “The Practical Working of the Law of Treaties” in Evans (ed.), International Law (3rd ed., 2010), pp. 189-94

2. Vienna Convention Arts 19-21

3. Reservations to the Genocide Convention Case (Advisory Opinion), ICJ, May 28, 1951 (excerpts)

4. Reservations and Jurisdiction: Case Concerning Armed Activities on the Territory of the Congo (DRC v. Rwanda), ICJ, Feb. 3, 2006 (excerpts)

5. US Reservations to the ICCPR :

a. US Senate Resolution on the Ratification of the ICCPR
b. US Reservations and Other States’ Objections

6. Human Rights Committee, General Comment on Reservations(1994)

7. US and UK Responses to the General Comment

8. Rosalyn Higgins, Problems and Process: International Law and How We Use It, (1994) (excerpt on reservations)

9. ***Additional Materials***

a.  Invalid Reservations: Ryan Goodman, “Human Rights Treaties, Invalid Reservations, and State Consent”, (2002) 96 Am. J. Int’l L. 531

D. Derogations

1. ICCPR Article 4

2. Brogan v. UK, ECtHR, 1988 (excerpts)

3. The Human Rights Acts 1998 (Designated Derogation) Order 2001

4. A v Secretary of State for the Home Department, UK House of Lords, Dec. 16, 2004 (excerpts from Lord Bingham (in the majority) and Lord Hoffmann (in dissent))

5. ***Additional Materials***

a. Examples of Derogations

i. Nicaragua Derogations under ICCPR

ii. Israel Derogations under ICCPR

E. Interpretation of Human Rights Treaties

1. Toonen v. Australia, UN HRC, Mar. 31, 1994 (excerpts)

2. Refah Partisi v. Turkey, ECtHR, Feb. 13, 2003 (excerpts)

F. Breach and State Responsibility

1. Jurisdiction: Banković v. Belgium et al, ECtHR, Dec. 12, 2001 (excerpts)

2. Behrami v. France, ECtHR, May 2, 2007 (excerpts)

3. R v. Al-Skeini (judgment of the Court and Concurring Opinions of Judges Rozakis and Bonello), ECtHR, July 7, 2011 (excerpts)**focus on [130]-[150] and Concurring Opinions, earlier background paragraphs are for ease of reference only**

4. R (Al-Jedda) v. Secretary of State for Defence, ECtHR, July 7, 2011 (excerpts) **focus on [74]-[110], earlier background paragraphs are for ease of reference only**

5. Al-Nashiri v. Poland: relevant materials

6. Due Diligence: Velásquez-Rodríguez,Inter-American Court of Human Rights, Jul. 29, 1988 (excerpts)

7. ***Additional Materials***

a. AT v. Hungary, CEDAW, Jan. 26, 2005

8. Arms Trade Treaty (2013); Arms Treaty Now Signed by Majority of UN Members (NY Times)