JOBNAME:Kolb PAGE:1 SESS:2 OUTPUT:ThuDec 310:58:292015 TheLawofTreaties Robert Kolb - 9781785360145 Downloaded from Elgar Online at 04/05/2017 01:40:59AM via Duke University Law Library ColumnsDesignXMLLtd / Job:Kolb-The_Law_of_Treaties / Division:Prelims /Pg.Position:1/ Date:28/10 JOBNAME:Kolb PAGE:2 SESS:2 OUTPUT:ThuDec 310:58:292015 Robert Kolb - 9781785360145 Downloaded from Elgar Online at 04/05/2017 01:40:59AM via Duke University Law Library ColumnsDesignXMLLtd / Job:Kolb-The_Law_of_Treaties / Division:Prelims /Pg.Position:2/ Date:28/10 JOBNAME:Kolb PAGE:3 SESS:2 OUTPUT:ThuDec 310:58:292015 The Law of Treaties An Introduction RobertKolb ProfessorofPublicInternationalLaw,UniversityofGeneva,Switzerland Cheltenham,UK+Northampton,MA,USA Robert Kolb - 9781785360145 Downloaded from Elgar Online at 04/05/2017 01:40:59AM via Duke University Law Library ColumnsDesignXMLLtd / Job:Kolb-The_Law_of_Treaties / Division:Prelims /Pg.Position:1/ Date:28/10 JOBNAME:Kolb PAGE:4 SESS:2 OUTPUT:ThuDec 310:58:292015 ©RobertKolb2016 Allrightsreserved.Nopartofthispublicationmaybereproduced,storedina retrievalsystemortransmittedinanyformorbyanymeans,electronic,mechanical orphotocopying,recording,orotherwisewithoutthepriorpermissionofthe publisher. Publishedby EdwardElgarPublishingLimited TheLypiatts 15LansdownRoad Cheltenham GlosGL502JA UK EdwardElgarPublishing,Inc. WilliamPrattHouse 9DeweyCourt Northampton Massachusetts01060 USA Acataloguerecordforthisbook isavailablefromtheBritishLibrary LibraryofCongressControlNumber:2015950298 Thisbookisavailableelectronicallyinthe Lawsubjectcollection DOI10.4337/9781785360152 ISBN9781785360145(cased) ISBN9781785360152(eBook) TypesetbyColumnsDesignXMLLtd,Reading Robert Kolb - 9781785360145 Downloaded from Elgar Online at 04/05/2017 01:40:59AM via Duke University Law Library 1 0 ColumnsDesignXMLLtd / Job:Kolb-The_Law_of_Treaties / Division:Prelims /Pg.Position:2/ Date:28/10 JOBNAME:Kolb PAGE:5 SESS:3 OUTPUT:ThuDec 310:58:292015 Contents Preface vi Listofabbreviations ix I Introduction:treatiesininternationalrelations 1 II Concept 16 III Conclusion 37 IV Reservations 63 V Validity 89 VI ThirdStates 115 VII Interpretation 128 VIII Implementation 166 IX Conflict 182 X Modification 193 XI Termination 206 XII Treatiesandcustomaryinternationallaw 260 XIII Conclusion 270 Bibliography 273 Index 283 v Robert Kolb - 9781785360145 Downloaded from Elgar Online at 04/05/2017 01:40:59AM via Duke University Law Library ColumnsDesignXMLLtd / Job:Kolb-The_Law_of_Treaties / Division:Prelims /Pg.Position:1/ Date:28/10 JOBNAME:Kolb PAGE:6 SESS:2 OUTPUT:ThuDec 310:58:292015 Preface There are three main reasons for having written this Introduction to the Law of Treaties. First, I have been keenly interested in issues relating to treaties since the time I wrote my doctoral thesis. This source of international law represents the core of ‘lawyer’s law’. It spans, more- over, a bridge to the jurisprudence of municipal law contracts. The great legal precision and yet the constant presence of broader policy problems – for example, the painstakingly detailed regulation on suspension and termination and the concomitant general issue of stability of treaties and respect for policy choices of national constituencies – are the gist of the law of treaties. This is a fascinating spectrum of thought and action, of theory and practice, of generals and particulars. Second, the importance that treaties have always had, but in particular in the modern ‘democra- tized’ world, where each State is keen to defend the principle of ‘one State one vote’, needs hardly to be stressed. There are a great number of treaties applicable in the world, probably not far from 100,000 (with approximately 60,000 registered with the UN). When complex regu- lations are sought, for instance in the realm of environmental protection or on some commercial régime, treaties are indispensable. There is no area of international law which would not be permeated by treaties. Unfortunately, not everyone approaching such issues as, for example, human rights law, understands properly the working of treaties. Such persons will not be able to apply the law in this area correctly, if they have no proper understanding of treaties. Third, the literature on the law of treaties does not lack good quality monographs, but a succinct and up-to-date presentation, written in a legally analytical style, is still needed. There are, on the one hand, some Introductions which were written at the time of the adoption of theVienna Convention on the Law of Treaties (VCLT) of 1969, in particular by Elias, Reuter and Sinclair (see the bibliography). These are rooted in the law of the 1960s and are to some extent now out of date. There are books of a more in-depth character, still more ancient and focusing on old practice essentially emanatingfromtheUKandUS(McNair).Thereisthegeneraltreatiseof Aust, which is essentially of a practical nature and contains much valuable information. On properly legal issues, it does not go into depth. vi Robert Kolb - 9781785360145 Downloaded from Elgar Online at 04/05/2017 01:40:59AM via Duke University Law Library ColumnsDesignXMLLtd / Job:Kolb-The_Law_of_Treaties / Division:Prelims /Pg.Position:1/ Date:28/10 JOBNAME:Kolb PAGE:7 SESS:2 OUTPUT:ThuDec 310:58:292015 Preface vii There are general Handbooks, such as those by Hollis or Tams, Tzana- kopoulos and Zimmermann, or the more specific one by Cannizzaro. These propose an analysis through a series of contributions which go further than a general overview. There are also three detailed commen- taries, mentioned in the bibliography appended to this book. Their purpose is to present each provision of the VCLT of 1969 (for treaties between States) and of 1986 (for treaties of international organizations). And there are many monographs on particular issues of the law of treaties. There is thus some room for an enterprise such as the present one. How will this Introduction be constructed? The chapters it contains have been presented in the table of contents. All important issues of the law of treaties will be considered, but with some exceptions. For example, the rather technical activities of the depositary are left out.This is mainly for reasons of space, rather than for reasons of lesser importance. Each chapter will be in two parts. In the first and main part of each, the law will be set out in as much detail as the overall narrow compass of the journey allows. The accent will be on a legally tight and precise analysis, short in ambit but still point by point.At the same time, practical examples will be provided as much as is feasible. In a second and to some extent secondary part, difficult and unexpected issues related to the law discussed in the chapter, idiosyncratic cases of treaty practice, or some extracts on such issues, will be presented (‘Digging Deeper’). The aim is to test and apply the knowledge acquired in the context of situations somewhat apart – sometimes far apart – from the mainstream. It is in such marginal cases that the law can be subjected to acid tests of appropriatenessandadaptability,aswellasthemindofthereaderopened to a more comprehensive view on the multi-dimensional problems raised by the legal regulations. I will sometimes provide some examples of Swiss practice, being my own country, which I know best. I have to thankMr.ClaudeSchenker,fromtheSwissInternationalLawDirectorate (Ministry of Foreign Affairs) for some useful indications as to Swiss practice on treaties. Most examples come, however, from other and indeed very different backgrounds. For the practice of the UN, I have to thank my friend, Mr. SantiagoVillalpando of the UN Treaty Service, for very useful information. The introductory nature of this book means that I have been sparing with footnotes.The interested reader is referred to the bibliography at the end of the book, in which he or she will find material which will allow further insight into the subject matter of treaties. A last point: certain standard works contained in this bibliography are just quoted with the name of the author. The reader is thereby referred to the bibliography. Robert Kolb - 9781785360145 Downloaded from Elgar Online at 04/05/2017 01:40:59AM via Duke University Law Library ColumnsDesignXMLLtd / Job:Kolb-The_Law_of_Treaties / Division:Prelims /Pg.Position:2/ Date:28/10 JOBNAME:Kolb PAGE:8 SESS:2 OUTPUT:ThuDec 310:58:292015 viii Thelawof treaties May I express the hope that this short preface may have stimulated the appetite of the unknown reader and, as the case may be, of my professional brethren? Robert Kolb - 9781785360145 Downloaded from Elgar Online at 04/05/2017 01:40:59AM via Duke University Law Library ColumnsDesignXMLLtd / Job:Kolb-The_Law_of_Treaties / Division:Prelims /Pg.Position:3/ Date:28/10 JOBNAME:Kolb PAGE:9 SESS:2 OUTPUT:ThuDec 310:58:292015 Abbreviations AfCtHR African Court of Human Rights AFDI Annuaire français de droit international AJIL American Journal of International Law ASDI Annuaire suisse de droit international ASEAN Association of SoutheastAsian Nations BYIL BritishYearbook of International Law CIL Customary International Law ECHR European Convention on Human Rights ECtHR European Court of Human Rights EJIL European Journal of International Law FCN Friendship, Commerce and Navigation (Treaties) FYROM FormerYugoslavian Republic of Macedonia GATT GeneralAgreement onTariffs andTrade GC Geneva Conventions of 1949 on International Humanitarian Law (Conventions I-IV) GYIL GermanYearbook of International Law IACHR Interamerican Convention on Human Rights IACtHR Interamerican Court on Human Rights ICJ International Court of Justice ICLQ International and Comparative Law Quarterly ICRC International Committee of the Red Cross ICTR International CriminalTribunal for Rwanda ICTY International CriminalTribunal for the formerYugoslavia IDI Institut de droit international IHL International Humanitarian Law ILC International Law Commission ITLOS InternationalTribunal of the Law of the Sea LOSC Law of the Sea Convention MOU Memorandum of Understanding NILR Netherlands International Law Review ix Robert Kolb - 9781785360145 Downloaded from Elgar Online at 04/05/2017 01:40:59AM via Duke University Law Library ColumnsDesignXMLLtd / Job:Kolb-The_Law_of_Treaties / Division:Prelims /Pg.Position:1/ Date:28/10 JOBNAME:Kolb PAGE:10 SESS:4 OUTPUT:ThuDec 310:58:292015 x Thelawof treaties NYIL NetherlandsYearbook of International Law PCIJ Permanent Court of International Justice RBDI Revue belge de droit international RCADI Recueil des Cours de l’Académie de droit international de La Haye, Hague Recueil RGDIP Revue générale de droit international public RIAA Reports on InternationalArbitralAwards RSDIE Revue suisse de droit international et européen SFRY Socialist Federal Republic ofYugoslavia UN United Nations UNEF United Nations Emergency Forces UNGA United Nations GeneralAssembly VCLT Vienna Convention on the Law ofTreaties VCSST Vienna Convention on State Succession toTreaties WTO WorldTrade Organization Yb Yearbook ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht Robert Kolb - 9781785360145 Downloaded from Elgar Online at 04/05/2017 01:40:59AM via Duke University Law Library ColumnsDesignXMLLtd / Job:Kolb-The_Law_of_Treaties / Division:Prelims /Pg.Position:2/ Date:1/12