Part VI Avoiding or Exiting Treaty Commitments, 23 The Validity and Invalidity of Treaties

The validity or invalidity of treaties is a topic with no practical significance. And yet, the 1969 Vienna Convention on the Law of Treaties (VCLT) would have had a gaping hole in its middle if it had not paid any attention to the validity or invalidity of treaties: no legal system can do without rules on the validity of legal instruments, be it legislation, contracts, or treaties. This chapter discusses the rules on validity of treaties as laid down in the VCLT, paying attention to the corresponding position under the 1986 Vienna Convention as well as the presence (or lack) of relevant State practice. It addresses a few peculiarities about the function of validity that underlies the Vienna Convention(s), starting with some general reflections on validity, inspired by the curious circumstance that each and every lawyer will have some intuitive understanding of what validity refers to, yet scholarly exposés on validity are few and far between.

Part V Treaty Interpretation, 21 Specialized Rules of Treaty Interpretation: Human Rights

This chapter ask: Is the interpretation of treaties regulating international human rights a specialized regime? It starts by discussing what it means to have specialized rules for treaty interpretation in the field of international human rights treaties. It then turns to the interpretive strategies developed across human rights treaties. It shows that human rights treaty interpretation is specialized in the sense that making these treaties and their provisions ‘effective’ in application animates how human rights interpreters approach treaty interpretation. Next, the chapter considers how the forum for interpretation matters, be it specialized or generalist international bodies or domestic courts. It concludes by emphasising that the relationship between human rights treaty interpretation and general rules of treaty interpretation has a symbiotic relationship. Human rights treaty interpretation has not only produced specialised interpretive canons but has also extorted some influence on our understanding of the general rules of treaty of interpretation.

Part VI Avoiding or Exiting Treaty Commitments, 26 Terminating Treaties

This chapter reviews the research on treaty exit and draws upon a variety of recent examples and illustrations from a range of subject areas to discuss its practical, theoretical, and normative implications. Part I provides an overview of the international rules governing exit from multilateral and bilateral agreements, including key provisions of the Vienna Convention on the Law of Treaties. Part II highlights the wide variations in the design and invocation of treaty termination, denunciation, and withdrawal clauses. Part III sets forth a theory of treaty exit. It argues that termination, denunciation, and withdrawal clauses are tools for managing risk — a pervasive feature of international affairs. A concluding section identifies avenues for future research for scholars and practitioners alike.

Part V Treaty Interpretation, 20 The Interpretation of Treaties over Time

This chapter considers an issue that has garnered sustained attention by States and international courts and tribunals in recent years — the potential to allow (or deny) evolutionary interpretations to treaty terms. It highlights five conclusions about the interpretation of treaties over time. First, evolutionary interpretations are made based on an array of means of ordinary interpretation, as enshrined in Vienna Convention on the Law of the Treaties Articles 31–33 and customary international law. Second, evolutionary interpretation is an issue of fact and law arising in the circumstances of particular cases. Third, the main principle is that of ‘contemporaneous interpretation’, a term referring not to the interpreter but to the parties (i.e. contemporaneous to the time of conclusion of the treaty). Fourth, it makes no sense to apply the principle of contemporaneity in all circumstances, since there are some terms used in treaties that make legal sense only when understood to evolve over time. Finally, to keep the unity of the treaty and its terms, the new interpretation is retrospective, having effect back to the time of the treaty’s conclusion.

Part IV Treaty Application, 13 The Relationship(s) between Treaties and Territory

This chapter examines the relationship between treaties and territory. Article 29 of the 1969 Vienna Convention on the Law of Treaties provides that ‘unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory’. However, the provision quickly begs a question: Are States bound to apply all of their treaties’ provisions only on their national territory (or selected parts of it)? This chapter begins by examining the ambit of Article 29. It then contrasts the traditional territorial application of treaties with treaties that may be labelled as ‘non-territorial’ whether because of the treaty’s objects or parties. It closes with the more controversial topic of extraterritorial applications of treaties, examining whether and how States might be held to their treaty obligations in activities that they control outside their territory.

Part I Foundational Issues, 3 Alternatives to Treaty-Making— Informal Agreements

In international norm-making, actors other than States participate in ways that bear some similarities to norm-making among States. These alternatives to formal treaty-making produce a wide range of instruments with many different kinds of labels, such as MOUs, soft law, and political commitments. This chapter reviews the existing literature and practice on informal lawmaking. Section I begins by reviewing basic definitional issues, as well as three contexts in which international lawyers confront non-binding agreements. Section II canvasses the existing literature on why States and non-State actors turn to informal agreements. Section III turns to normative matters, arguing that non-binding agreements are not significantly less efficacious or accountable than binding international agreements. The chapter ends with a call for States to continue to develop guidelines for informal lawmaking — work already begun by the Inter-American Juridical Committee.

Part I Foundational Issues, 2 Current Theorizations about the Treaty in International Law

This chapter has two primary aims. First, it sketches out the existing theorizations about treaties, elaborating the various dualist modes of thinking currently dominating international legal thought and practice. Second, it seeks to supplement current theorizations with some new perspectives. Specifically, it identifies three overlooked uses of the idea of the treaty in contemporary legal thought and practice that may further current theorizations about treaties. In particular, the second part shows the extent to which the idea of the treaty allows (i) the creation of conceptual anachronisms in the making of historical narratives about international law, (ii) the simplification of the processes of its interpretation, and (iii) the construction of a magic descendance that shield those invoking the treaty from any responsibility for anything that is made in the name of the treaty.

Part V Treaty Interpretation, 19 The Vienna Convention Rules on Treaty Interpretation

This chapter offers a nuanced account of one of the Vienna Convention on the Law of Treaties’s seminal contributions to international law — a single set of interpretative ‘principles’ if not actual rules. It addresses two questions. The first is in what sense are the Vienna rules on treaty interpretation ‘rules’? The second is how are the rules to be used in interpreting treaties? The answer to the first question provides much of the answer to the second one. But the second is worth additional attention, mainly because the rules’ application in practice reveals interpretations that do not stand out from simply reading them.