Original scientific paper
Some Vague Solutions in the Codification of the Law of Treaties
Budislav Vukas
; Faculty of Law, University of Zagreb, Croatia
Abstract
As treaties are one of the sources of private as well as public international law, the codification and progressive development of the law of treaties contained in the 1969 Vienna Convention on the Law of Treaties is an instrument relevant also for private international law. However, the nature of some of the problems and the diversity of the position of the States members of the United Nations, resulted in some provisions which leave much to be desired. In this short text the author deals with some of such provisions/solutions.
The Convention is limited to the rules concerning international agreements „concluded between States in written form“ (Article 2, para. 1/a/). This restriction imposes two questions: a) are there other subjects of international law entitled to conclude agreements governed by international law; b) what is the status of international agreements which are not concluded in written form? Other international instruments and the international practice do not provide clear answers to those questions.
As well as some other codification treaties concluded in the United Nations, the Preamble of the 1969 Convention (para. 8) contains a logical, but not very useful statement that „the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention...“.
In respect of the formulation of reservations – in addition to two logical and clear provisions – the Convention contains a vague standard, the application of which has already caused problems in respect of its interpretation, particularly in respect of the 1948 International Convention on the Prevention and Punishment of the Crime of Genocide. Namely, according to Article 19 (c) of the Vienna Convention the reservation is not acceptable if it is „incompatible with the object and purpose of the treaty“.
The principle/text of Articles 53 and 69 are correct, but their application will always be difficult. Namely, according to Article 53 „a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law“. Article 64 states that any existing treaty which is in conflict with a newly emerged peremptory norm of general international law „becomes void and terminates“.
It is understandable that a party to a dispute concerning the relation of a treaty and peremptory norms of international law is entitled to submit the dispute „to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration“ (Article 66 /a/). Less acceptable is the radical solution that all other disputes can be unilaterally submitted only to a procedure of conciliation (Article 66 /b/ and the Annex to the Convention).
Keywords
international agreements; reservations; customary law; mandatory law; dispute resolution
Hrčak ID:
93132
URI
Publication date:
3.5.2012.
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