Public International Law - the 1969 Vienna Convention - Assignment Example

Order # 336504  Word count 2880 Public International Law Academic year 2009 Problem Question In 1994, s A, B, C and D (all parties to the1969 Vienna Convention on the Law of Treaties since 1985) concluded a treaty according to which they agree to extradite to each other, pursuant to the provisions of the treaty, persons sought by the authorities in the requesting state for trial or punishment for offences punishable under the laws in both the requiring and the required states by deprivation of liberty for a period of one year or more or by a more severe penalty. As the 1994 treaty does not contain a prohibition on reservations, State B appended a reservation when ratifying the treaty, providing that extradition does not have to be granted if the death penalty may be imposed on the suspect or if the suspect might not be given a fair trial in arrival, or will be subject to cruel, inhumane or degrading treatment if extradited. State C objected to this reservation 3 months after its notification, claiming that it is incompatible with the object and purpose of the 1994 treaty and opposing the entry into force of the treaty between itself and State B unless the reservation is withdrawn. State D issued an objection 15 months from its notification which merely criticizes the reservation. State B has decided not to withdraw its reservation and has thus rejected a request of extradition from State D claiming that the military junta in power in State D would not allow a fair trial and that the suspect would probably be submitted to torture. State D accuses State B of a material breach of the 1994 extradition treaty and decides to terminate its participation to the treaty although this does not contain any specific provision on withdrawal. State D also claims that the conclusion of the 1994 treaty was coerced by the threat of economic and military sanctions by the United Nations Security Council, therefore its consent to be bound by the treaty is invalid. Answer ALL the following questions: 1) Is the 1969 Vienna Convention on the Law of Treaties applicable to the present case? Yes. The 1969 Vienna Convention on the Law of Treaties is highly applicable to the present case because the Article 1 of the Treaty mentions that the treaties formed between the states comes under the present convention (Vienna Convention on the Law of Treaties, 1969)1. In the present case all the four states A, B, C and D concluded a treaty and hence 1969 Vienna Convention on the Law of Treaties is relevant under this case study. Moreover, all the four states under present case became signatory of 1969 Vienna Convention on the Law of Treaties since 1985 and the present treaty was concluded in the year 1994, hence Vienna Convention on the Law of Treaties (1969) is applicable here. This is because the Article 4 of the Treaty is satisfied. Article 4 of the Vienna Convention on the Law of Treaties states that the convention applies only to treaties that are concluded by States after the entry into force of the present Convention (Sinclair, 1973)2. The present treaty was concluded in 1994 which is 9 years after the effective year of enforcement of Vienna Convention on the Law of Treaties in these four states and hence clearly satisfies the Article 4 of the Vienna Convention on the Law of Treaties. The Vienna Convention on the law of treaties also states that every state has full right to conclude treaty under Article 6. Therefore the present treaty among the four states A, B, C and D absolutely comes under the purview of Vienna Convention on the Law of Treaties (1969). Article 19 of the Convention clearly states that the reservation can be implemented in the treaty if any State wants to do so with valid ground unless the prohibition for the reservation is mentioned in the treaty. In the present case, the prohibition for reservation was not mentioned in the Treaty and hence it reservation stand taken by the State B would be considered as valid. Moreover, State B took this decision keeping the interests of the persons who are subjected to trials, it believed strongly that they would not be subjected to fair means of trials in State D where military administration dominates. However, the State D wanted an amendment by deleting the clause of reservation. According to the Article 20 of the Convention, there is a provision for acceptance of objection of reservations. It mentions that “a reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides” (Sinclair, 1984)3. In the present case, State B wants reservation and State C and State D oppose the same. In Vienna convention on Law of treaties (1969), the Article 21 clearly states about the legal effects of reservations and of objections to reservations and the Article 22 mentions about the procedure for withdrawal of reservations and hence the modification of treaty is possible under certain circumstances. One more important aspect is that Article 21, defines the precondition for expressing objection to a reservation by any State. The state opposing the reservation must oppose the entry into force of the treaty between itself and the reserving State, other wise, the provisions to which the reservation relates would not be applicable between the two States to the extent of the reservation. Hence the arguments and counter arguments made by State B and State D would certainly fall under the purview of Vienna Convention on the Law of treaties (1969). Similarly, the Article 40 of the Vienna Convention states about the amendment procedure of multilateral treaties which mentioned that any proposal for amending a multilateral treaty among all the parties should be notified to all the contracting States, and each State shall have the right to take part in the final decision and the negotiation and conclusion of any agreement related to the amendment of the treaty. At the same time, Article 41 of the Convention provided the flexibility in making agreements to modify multilateral treaties between certain of the parties only. It states that two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone where the possibility of such a modification is provided for by the treaty or the modification in question is not prohibited by the treaty. Another important condition is that such a modification in the treaty should not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations. Hence, the difference in opinion regarding the inclusion and exclusion of reservation by State B and State D will not affect the agreement between other two states. For example, the treaty between the State A and State D wouldn’t get affected by the agreement made between the State B and State D as the modifications related to reservation wouldn’t affect the general provisions of Vienna Convention and Extradition treaty for which State A is signatory. Hence Vienna Convention on the Law of Treaties is highly applicable to the present case. 2) Taking the reservation appended by State B into account, how does the 1994 extradition treaty operate in the relations between: States B and A The state B opted for the ‘reservation’ provision keeping the interests of the persons who are under trials and who may be subjected to unfair trials in other states if extradited. It rather feared that the possibility of death penalty and other cruel forms of punishment in the hands of the military junta of state D. State A didn’t express its stand on the reservation issue initiated by State B. Hence the relations between these two states are considered to be quite normal and they both respect each other as far as the 1994 extradition treaty is concerned. Till now, the extradition was not sought by the State A to State B, hence the stand of State A in response to reservation principle of State B cannot be assessed properly. Moreover, State A didn’t oppose the stand of State B on reservation issue means it indirectly supported the stand and respected the extradition treaty with State B. Even Article 41of the Vienna convention of the law on the treaties (1969) implied that the agreement between any two states can be of independent nature relative to the agreement between any other two states. This provided the flexibility of continuing smooth relation between the State A and state B irrespective the relation of State B with other states. States B and C State C objected to this reservation of state B 3 months after its notification. State C even claimed that it is incompatible with the object and purpose of the 1994 treaty and strongly opposed the entry into force of the treaty between itself and State B unless the reservation is withdrawn. The flexibility of having dialogue between the state B and State C has been restricted such that the 1994 extradition treaty may not be operative fully. But State C must fulfill all other obligations of the treaty which it signed as the Article 43 of the Vienna Convention on the Law of treaties (1969) clearly stated that the obligations imposed by international law would be interpreted independently of a treaty. In other words, the invalidity or termination of a treaty or the withdrawal of a party from it, as a result of the application of the present Convention, shall not in any way impair the duty of any State to fulfill the obligations defined in the treaty. Rather, the state would be subjected to international law independently of the treaty. Hence, in the present case, the State C though objected to the stand of reservation, it must fulfill the other obligations committed at the time of extradition treaty (1994). States B and D State D also opposed the stand of State B on reservation principle. It issued an objection to the reservation stand 15 months from its notification and criticized the initiative of State B on the reservation. The relations between State B and State D deteriorated further with the decision of State B not to withdraw its reservation stand and rejection of request of extradition from State D. It claimed that the military junta in power in State D would not allow a fair trial and that the suspect would probably be submitted to torture. As a consequence, the State D accused State B that it committed a material breach of the 1994 extradition treaty. It even decided to terminate its participation to the treaty by opting for the withdrawal. Article 22 of the Convention mentioned that a reservation can be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal (Villiger, 2009)4. In the present case, the State B can withdraw the reservation if it looks into the demand of State D liberally, however, State B has been rigid in continuing the reservation because it strongly believes that the persons convicted would not be subjected to fair trials in State D where Military Junta administers the general affairs. Regarding the claim made by the State D that the State B has committed the material breach of the multilateral treaty, it may not be accepted because, the extradition treaty didn’t prohibit the reservation (Article 60 of the Vienna convention on the Law of the treaties, 1969). States C and D The relations between the State C and State D can be considered as normal as they both are signatories of the 1994 extradition treaty and both respect each other and there was no clash between them till now as far as the extradition of persons is concerned. The State D and state C strongly opposed the move of State B on reservation principle, State C didn’t seek the extradition with State B. No request from State B was made till now for the extradition of persons. Hence it is very difficult to assess their relations at this moment as far as the 1994 extradition treaty is concerned. As mentioned earlier, the relation between the State C and State D is completely independent of the relation between the State D and other States under the 1994 extradition treaty (Article 41 of the Vienna Convention on the law of the Treaties, 1969). 3) On what legal grounds can State D terminate its participation to the 1994 extradition treaty? Some provisions of the Vienna Convention on the Law of the Treaties certainly weaken the chances of termination of participation of State D from 1994 extradition treaty. State D may not be allowed to terminate its participation to the 1994 extradition treaty because the provision of reservations is allowed under Section 2 and Article 19. This Article 19 of the Convention states that a State may formulate a reservation, at the time of signing or ratifying to a treaty if the reservation is not prohibited by the treaty and the treaty doesn’t provide that only specified reservations. In the 1994 extradition treaty, there was no specific mentioning regarding the prohibition of reservation and under Vienna Convention on the Law of treaties (1969), the clause for introducing reservation is very much present based on which the State B has initiated the proposal for reservation. Similarly, according to the Article 20 of the Convention, there is a provision for acceptance of objection of reservations. It mentions that “a reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides” (Sinclair, 1984)5. It rather suggests the element of flexibility in keeping the reservations in the treaty where some states can accept and some states may not accept. However, some articles in Vienna Convention (1969) provide scope for State D to oppose the reservation stand and then proceed towards a withdrawal or termination from the extradition treaty of 1994. Article 21 provides legal effects of reservations and of objections to reservations and Article 22 provides for withdrawal of reservations and hence the modification of treaty is possible, but State B is rigid in not changing. Showing this as a reason State D can withdraw from the treaty. According to the Article 21, the precondition for expressing objection to a reservation by any State is to oppose the entry into force of the treaty between itself and the reserving State, other wise, the provisions to which the reservation relates would not be applicable between the two States to the extent of the reservation. In the present case, the State D initially didn’t oppose the entry into the force of the Treaty between itself and State B and hence it becomes difficult to get terminated from the Treaty of extradition. Most importantly, Article 52 of the convention states that a treaty would be considered as void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations (Barkin, 2006)6. In the present case State D claims that the conclusion of the 1994 treaty was coerced by the threat of economic and military sanctions by the United Nations Security Council, therefore its consent to be bound by the treaty is invalid. If all the States agree for the termination of or withdrawal from a treaty under its provisions, the State D can take withdrawal from the treaty of extradition in conformity with the provisions of the treaty (according to the Article 54 of the Vienna Convention on the Law of treaties, 1969). Moreover, if the State D serves the notice of not less than one year of its intention to denounce or withdraw from a treaty and it is established that the parties intended to admit the possibility of denunciation, then the withdrawal of state D would be allowed (Article 56 of the Vienna Convention on the Law of treaties). This also requires the condition that the withdrawal or a right of denunciation is implied by the nature of the treaty. Lastly, if the allegation of State D regarding the material breach of the treaty by State B is found correct, then the termination or withdrawal of State D from the 1994 extradition treaty would be possible (Article 41 of the Vienna Convention on the Law of treaties, 1969). But, it requires strong proof that the provisions of the 1994 treaty have been violated by the state B which is not possible because the treaty didn’t prohibit the reservation clause. References: Barkin, J. S. (2006). International Organizations, Theories and Institutions. P;208. Palgreave Mc Milan Publication. ISBN-10: 1403972508. Sinclair, I.M. (1973). The Vienna Convention on the Law of treaties, (The Melland Schill lectures). P:150. Oceana Publication. ISBN-10: 0379119137. Sinclair, I.R. (1984). The Vienna Convention on the Law of treaties, (Melland Schill Monographs in International Law). P: 288. Manchester University. ISBN-10: 0719014808. Vienna Convnetion on the Law of Treaties. (1969). Admiralty and maritime law Guide. International Conventions. http://www.admiraltylawguide.com/conven/lawoftreaties1969.html. Villiger, M.E. (2009). Commentary on the 1969 Vienna Convention on the Law of Treaties. P:1058. Brill Publication. ISBN-10: 9004168044. Read More