C. The Law of
Treaties
·
Reservations:
THE RESERVATIONS TO THE GENOCIDE CONVENTION CASE, p. 56 (ICJ 1951)
o
How did this case get to the ICJ?
o
What is a “reservation”, and what is
its effect in a typical two-party situation?
(See Vienna Convention on Law of Treaties (VCLT) art. 2(d), CB p.
926)
o
How does the situation change, when there are
multiple parties to the treaty? Should
there be any difference in treatment of reservations? (See now VCLT arts. 19-23, CB pp. 931-933
– esp art. 21)
o
N. 4 p. 62, and Belilos,
n. 5 p. 63 (ECtHR 1988)
§
How does one distinguish between reservations
and other kinds of statements accompanying a ratification? (In Belilos,
the Swiss called the particular statement an “interpretive
declaration”, but the court treated it as a reservation for purposes of
the decision!)
§
When is a reservation invalid?
§
What is the effect of an invalid reservation?
·
Interpretation: EASTERN AIRLINES, INC. V.
FLOYD, p. 64 (U.S.
1991).
o
what is the precise
issue to be decided by the Court?
o
what sources of
guidance does the Court invoke in the interpretation of the Warsaw Convention?
§
text? How to determine the meaning of a provision
in a foreign language?
§
negotiating history?
§
subsequent conduct and
interpretive acts of the Parties?
o
is the Court’s
approach consistent with VCLT arts. 31 and 32, CB pp. 935-6?
·
Suspension and Termination: CASE
CONCERNING THE GABCIKOVO-NAGYMAROS PROJECT, p. 74 (ICJ 1997)
o
what is the precise
issue addressed by the Court in the excerpt?
o
What is the role played by the VCLT in the
Court’s decision?
§
Is the Convention binding on the parties as a
treaty?
§
How does the Court know whether it states
binding rules under customary international law?
o
Did Hungary have adequate grounds for
suspending the operation of the treaty in 1989, or of withholding its
performance, under the VCLT? (Arts. 54-64, CB pp. 941-5)
§
Did the treaty itself provide for such a
suspension?
§
Is an exception for “necessity”
found in the VCLT provisions?
§
What other ground might apply?
o
Did Hungary have grounds for denouncing
the treaty unilaterally in 1992?
§
Are “environmental concerns”
sufficient?
§
Has performance of its obligations become
impossible? (Art. 61)
§
Has there been a fundamental change in
circumstances? (Art. 62)
o
what was the effect on
the parties’ treaty obligations, of the breakup of Czechoslovakia
into two independent republics?
·
Other agreements,
and scope of VCLT: THE EASTERN GREENLAND CASE, p. 84 (PCIJ 1933).
o
Denmark
is Applicant, Norway
is Respondent: what is Denmark
complaining about? Why does it claim Norway has
acted in violation of IL?
o
what are the precise
terms of the alleged agreement that Denmark relies on?
o
what is Norway’s
defense, and how does the Court resolve it?
o
what about the
“bargain” made between the U.S.
and Denmark in 1916, in
conjunction with the transfer of the Virgin Islands to the US?
§
what did the US promise to
do, and what was the quid pro quo?
§
was the US bound by it
under IL?
§
was it an agreement
that the US
government had the power to make, under US constitutional law?
o
Is the PCIJ decision consistent with, or
overridden by, the VCLT?