Chapter 3 Audio podcast

Just before Christmas 2020, the Prime Minister of the United Kingdom, Boris Johnson, was finally able to declare to the British people, and to the rest of us for that matter, that his Brexit negotiators and his government had at long last agreed with the negotiators of the EU on what the future relationship should be between the UK and the EU. The agreement between the UK and the EU, known as the UK-EU Trade and Cooperation Agreement, was concluded shortly before the end of the transition period that was set to end by the end of the year. The transition period itself started on January 31, 2020, when the UK formally withdrew from the EU. As I'm sure listeners of this podcast is well aware, the entire saga of how, when, and under what terms the UK would leave the Union started when a narrow majority of the British people in June 2016 voted to leave the EU. The recent December 2020 UK-EU Trade and Cooperation Agreement explicitly states that it is an agreement that is based on international law, not EU law, and that there is no role for the European Court of Justice.

In this episode of the International Law Podcast, episode three, I will focus on the international law treaties.In practice, I will make three points that I think are worth noting about that law.The first point concerns how a state can give its consent to be bound by a treaty, because before a state is bound by a treaty, it must give its consent.Consent can take many forms, and it is generally up to the parties themselves to decide how they give their consent to a treaty. In fact, the most useful is simply to sign the document. The term accession is used when a state consents to be bound by an existing treaty that is already enforced. Let's take an example:the United States is not a party to the Rome Statute that has created the International Criminal Court. Now, if a Biden administration were to suddenly decide that the United States should join-- something that does not look very likely at present--it would technically take the form of the USacceding to the Rome Statute.

When discussing how a state can give its consent to be bound by a treaty, the concept of ratification is important, because sometimes it is not enough for a state to simply sign a document before it becomes binding on the state. For certain treaties, an initial signature needs to be followed up by a subsequent confirmation by the state that it actually intends to be bound by the treaty. And that subsequent confirmation is called ratification. Most major multilateral treaties require ratification. For example, that is also the case for the Rome Statute that established the ICC, the International Criminal Court. In fact, the ICC is a particularly interesting example, because in 2000, before he left presidency, US president Bill Clinton signed the Rome Statute, but the United States never ratified it. In fact, Clinton’s successor in the White House, George W. Bush, famously unsigned the statute to signal his administration's opposition to the court. The purpose of ratification is to give a state that has signed a treaty sometime to consider if it really wants to give its binding consent. Some times it may be because a government is bound by constitutional law to seek the approval of a national parliament before the state can bind itself internationally.In the period between the signature and the ratification--this is also known as the interim period--the treaty is not yet enforced.And since it is not enforced, the treaty cannot, as such, create any legal obligations on the states that have not yet ratified it.However,Article 18 of the Vienna Convention of the Law and Treaties states that a state that has signed but not yet ratified a treaty must not refrain from acts that can defeat the object and purpose of the treaty. In fact, the same principle applies in cases where a state has given its final and binding consent to be bound by treaty, but where the treaty itself has not yet entered intoforce.

The second point I want to stress here concerns the difference between a reservation and an interpretive declaration.In most cases, a state can become a party to a multilateral treaty without having to accept all of the obligations in the treaty. When a state hereby excludes the application of certain provisions in a treaty, we say that it makes reservations. There is an important distinction between a reservation and what we call an interpretive declaration. Because, again, when a state makes a reservation, it means it will not be bound by a provision at all. But when the state makes an interpretive declaration, it accepts to be bound by the provision in question, but it merely states how it interprets the content of that probation.

Let's take a concrete example. Let's assume that the Human Rights Treaty, among its many provisions, contains a prohibition on the imposition of the death penalty on minors. Now, if a state makes a reservation to that article and we allow it to do so, the state will not be bound by the article at all. But if, however, the state does not make a reservation to the article, but instead declares that it does not interpret a person of, let's say, sixteen years old to be a minor,the state is still bound by the article,and all the state has done is to let the other states know who it considers to be a minor under that particular provision.

The third point I'll mention in this episode concerns treaty interpretation, because it is important for a lawyer to know how to interpret its national treaties. The relevant principles are found in Article 31 and 32 of the Vienna Convention of the Law of Treaties. And these principles, in general, reflect customary international law.The focus must always be on the intention of the parties. What did the parties intend when they adopted the treaty and a particular provision in a treaty?In practice,when you interpret a provision in a treaty, you must consider the text of the provision, the context that surrounds the provision, such as the other provisions in the treaty, and the object and purpose of the treaty as a whole. All of these elements are relevant, and in principle, none of the elements is more important than the others. Here, I want you to also remember that the text is only the natural starting point, and it is only often possible to understand the ordinary meaning of provision when that ordinary meaning is considered in this context and in light of the overall purpose of the treaty in question.

Now, in national law, when one needs to interpret provision in a piece of national legislation, you will often find important guidance in the preparatory work to the law in question.Here in the preparatory work, the interpreter can usually see what the legislator means and what it wanted to accomplish when it drafted a particular provision.But in international law, preparatory work to a treaty, also known as travaux préparatoires,is not as important. In fact, according to Article 32 of the Vienna Convention of the Law of Treaties, such works are merely supplementary means of interpretation. Now, in principle, the basic principles of interpretation apply to all treaties ininternational law. However, not all treaties are always interpreted exactly the same way.In general, if a treaty resembles a contract between two or more states, the focus on the interpretation will naturally be on what the parties intended with the very particular terms they used when they adopt the treaty.Here,then, the interpretation will generally focus on the specific texts and the specific terms used. But for other treaties, the interpretation often sends us more on the overall purpose of the treaty, and therefore less on a very literal understanding of the terms used. In such cases, the interpreter often needs to ask, what did the states actually want to accomplish when they adopted the particular treaty?Constitutivetreaties, that is, treaties that establish international organizations, such as the EU, are often interpreted in a way that ensures that the organs of the organization can fulfill their role effectively. And if there's any doubt, the competences of the organs will generally be interpreted in an expansive manner if that is required for the organs to function properly.

Human rights conventions are also often interpreted so that its provisionsprovide an effective protection of the individuals the treaties are supposed to protect. Also, the terms of the provision in a human rights treaty is generally interpreted in light of a modern understanding of the terms. So, instead of asking what the parties meant with a particular term, such as, for example, family life or degrading treatment, back at the day when the treaty was adopted, something that can often be back in the 1950s or 60s, the interpreter of the human rights convention will instead ask what such term should mean today. This interpretation of human rights conventions is something I'll return to in a later episode of this podcast.Regardless, as any follower of American constitutional law will know, this form of interpretation is the exact opposite of so-called originalist interpretation. Those who adhere to originalism in the interpretation of the American Constitution believe that the provisions of the constitution shall be interpreted and understood the exact same way they were understood when they were drafted. In practice, interpreting a treaty, like a human rights treaty, in accordance with present day conditions, is generally the best way to avoid that the treaty becomes outdated as time passes and sentiments and priorities change.