Chapter 3 Guidance on Answering the Questions in the Book

Question 1:

In what ways does the interpretation of constituent treaties and human rights treaties differ from a more traditional approach to interpretation?

Guidance:

The question seeks to engage with the student’s ability to apply the principles of treaty interpretation to different treaties. The book notes that the general principles of treaty interpretation are found in the articles 31–33 of the VCLT. According to art. 31, a treaty is interpreted with regard to the ordinary meaning of its terms in their context and in the light of its object and purpose. However, the book also notes that the precise weight that must be given to these elements may differ from treaty to treaty. Treaties that create an international organization or institution – constituent treaties – are generally interpreted in a manner that ensures the effective functioning of the organization. Human rights treaties differ from many other treaties because they seek to establish standards of behavior of a general nature. They are therefore usually interpreted in a manner that emphasizes the object and purpose of the treaty, see also Question 4 to Chapter 9.

Question 2:

What is the meaning of pacta sunt servanda and how does the principle manifest itself in the law of treaties?

Guidance:

The question asks the student to examine the fundamental nature of the pact sunt servanda principle. The most important principle of the law of treaties is that of pacta sunt servanda whereby a treaty-based obligation is binding and must be performed by the parties in good faith. The principle is found in Art. 26 of the VCLT but is reflected in many of the other articles in the VCLT. Art. 27 holds, for example, that national law is no excuse for not performing a treaty-based obligation. The principle is also reflected in the rules on invalidity of treaties contained in Art. 46-53 and 64 of the VCLT. These rules illustrate that as a main rule treaties entered into must be honored.

Question 3:

How should one determine if an agreement is a treaty governed by international law or is merely a political pledge?

Guidance:

The question encourages the student to engage with the distinction between legally binding treaties and instruments that are not legally binding. It is therefore related to Questions 6 and 7 in Chapter 2 on legal sources and the concept of so-called “soft” law. The book notes that it is only when a political pledge to behave in a certain manner is accompanied with an intention to create a legally binding obligation that an agreement constitutes a treaty for the purposes of international law. The determining factor is the intention of the parties. Did they mean to create a legal obligation when they signed the instrument? Or did they only seek to create a political commitment? To assist, the lawyers may rely upon both the terminology and the form of the instrument as well as the overall circumstances that surrounds the conclusion of the instrument. The book also notes that it may be of relevance to examine how the parties dealt with the instrument after it was concluded, as that can give an indication of what the parties intended. Art. 102 stipulates that treaties must be registered with the UN Secretariat and registration, or a lack thereof may also be an indication. The book notes that jurisprudence from the ICJ indicates that the Court does not believe that it requires a lot for an agreement to fulfill the conditions for being a treaty under international law.

Question 4:

It is often the case that a treaty does not enter into force until after a certain amount of time has passed. While a consenting state cannot be bound by a treaty that has yet to enter into force it is not entirely free to act as it pleases. Why is that? From where is such an ‘obligation’ derived?

Guidance:

The question concerns the so-called interim period that is referred to as the time that passes from the moment a state consents to be bound by a treaty and the moment the treaty enters into force. The book notes that Art. 18(b) of the VCLT stipulates that consenting states must refrain from acts which would ‘defeat the object and purpose’ of the treaty during the interim period. The determination of whether a concrete act qualifies is made on a case-by-case basis but the book states that it will probably only be acts that seem to be motivated by bad intentions that are prohibited. Since the treaty has not yet entered into force, the basis for the obligations in the interim period cannot be the pacta sunt servanda principle. Instead, the obligations are deemed to derive from a more general obligation of good faith.

Question 5:

Can you provide some examples of when it is important to identify the object and purpose of a treaty?

Guidance:

The question asks the student to engage with the principles of treaty interpretation and identify some examples of where the object and purpose of a treaty is of importance. Question 1 touched upon the interpretation of human rights treaties where it is generally the case that the interpreter relies extensively upon a teleological interpretation of the treaty and thus the treaty’s object and purpose. In general, as noted in the guidance to Question 1, the object and purpose of a treaty is of particular importance in treaties that have a “law-making” character.