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by: Berniece Hane


Berniece Hane
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This 7 page Class Notes was uploaded by Berniece Hane on Saturday September 12, 2015. The Class Notes belongs to JURI 5750 at University of Georgia taught by Bodansky in Fall. Since its upload, it has received 51 views. For similar materials see /class/202629/juri-5750-university-of-georgia in Law and Legal Studies at University of Georgia.

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Date Created: 09/12/15
JURI 5750 International Environmental Inw Professor Bodansky Spring 2007 ANALYZING AND UNDERSTANDING INTERNATIONAL AGREEMENTS 20 QUESTIONS ABOUT TREATIES I Introduction Much of international law can be found in international agreements referred to here as quottreatiesquot1 One question we will ask in this course is whether the treaties that we read are effective ie whether they advance efforts to solve the problem to which they are addressed In order to consider this question with respect to a particular treaty we need to understand the relevant problem and the available policy options We also need a basic understanding of treaty law To provide a basis of comparison we should know what types of provisions are often found in treaties and what provisions might conceivably be included in a treaty This exercise is intended to help you to learn to read and evaluate treaties It asks a series of questions designed to elucidate the important provisions of a treaty2 As we review various treaties in this course we will develop a growing base of knowledge that will enable us to 1 The word quottreatyquot can lead to con lsion As used here a quottreatyquot is an international agreement concluded between or among states in written form and governed by international law This is the meaning given to the word by international law Used in this way the word quottreaty is a synonym for quotinternational agreementquot International agreements come with a variety of monikers including quotconventionquot e g the Framework Convention on Climate Change quottreatyquot eg the USCanada Migratory Bird Treaty and quotagreementquot eg the 1990 USCanada Air Quality Agreement These different labels have no legal effect A fourth sort of international agreement is a quotprotocolquot which is usually an agreement that builds upon or modifies an earlier agreement eg the Montreal Protocol on Substances that Deplete the Ozone Inyer to the Vienna Convention for the Protection of the Ozone Inyer For US lawyers in particular a second source of con lsion is that US law and practice draw a distinction between quottreatiesquot which are international agreements as to which the Senate gives advice and consent before the President ratifies and quotexecutive agreementsquot which are international agreements that do not receive Senate advice and consent 2 Not all of these questions will apply to all treaties You may want to think about why that is the case Similarly if you identify provisions of a particular treaty that seem important but that are not addressed by these questions you should include them in the treaty review JURI 5750 International Environmental Inw Page 2 Treaty Questions compare treaties to assemble a quottool chestquot of mechanisms and devices that have been used or could be used in treaties and to explore the relative effectiveness of these mechanisms and devices I urge you to consider these questions with respect to all of treaties that we read in the course 11 Overview of the International Lawmaking Process United States federal law is made through a familiar process A bill passes Congress and becomes law upon the President39s signature or less frequently after Congress overrides the President39s veto The Executive Branch then implements the law usually through the promulgation of regulations Some laws govern the conduct of the federal government e g the National Environmental Policy Act which requires the federal government to assess the impacts of major federal actions that have a significant impact on the environment Others directly regulate the conduct of private persons eg the Clean Air Act and the Clean Water Act Mechanisms for promoting compliance with federal laws and regulations include administrative measures by federal agencies eg permitting requirements and administrative hearings and actions in US courts including actions by private parties against the federal government and enforcement actions brought by the federal government against private parties The international system of lawmaking bears little resemblance to our domestic system There is no international legislature comparable to the Congress Instead there are several ways that governments organize collective responses to international problems Sometimes governments issue declarations of guiding principles such as the 1972 Declaration of the United Nations Conference on the Human Environment the quotStockholm Declarationquot Such instruments are often called quotsoft lawquot because they are not legally binding Other soft law instruments include quotaction plansquot which are usually more concrete than declarations and generally focus on a particular problem or region3 3 In addition to quotdeclarationsquot and quotaction plansquot you may hear of such instruments as quotresolutionsquot quotguidelinesquot recommendationsquot and quotdecisionsquot These may be general and political as is the case with many UN General Assembly resolutions or may be specific and practical such as a resolution at the conclusion of a treaty negotiation in which the participants agree to implement the treaty before it enters into force The name given to any of these instruments does not determine Whether or not it is legally binding For example recommendations of the Organization for Economic Cooperation and Development OECD are not legally binding but recommendations pursuant to the Antarctic Treaty are usually considered to be legally binding Thus if it matters to you Whether a particular instrument is legally binding you need to look more closely into the procedures of the particular institution and the intentions of the governments that adopted the instrument JURI 5750 International Environmental Inw Page 3 Treaty Questions When governments decide to enter into legally binding commitments they most commonly record their commitments in a treaty Once law has been created in a treaty What mechanisms are available to promote the achievement of the treaty39s objectives The international system offers no analogue to the US Executive Branch that is charged with quotenforcingquot a treaty Moreover judicial proceedings play a limited role in enforcing international law Such institutions e g the Intemational Court of Justice or ad hoc arbitral tribunals are available only with the consent of the parties to a dispute Some treaties contain provisions on the resolution of disputes that express the consent of the parties to particular methods of dispute settlement In addition some treaties use other devices for promoting compliance with the treaty eg reporting requirements 111 The Treaty Review A The Scope and Function of the Treaty Treaties can be grouped generally into two categories although many treaties have elements of both types 1 Constitutive treaties Some treaties are constitutive like a national constitution they are intended to establish a general system of governance for an issuearea or region possibly by establishing an international organization The most obvious example of a constitutive treaty is the UN Charter 2 Regulatory treaties Other treaties like domestic statutes have tended to be regulatory They impose constraints on action of a more or less specific character Question 1 What is the nature of the problem that the treaty seeks to address Why is international action needed Question 2 What is the mction of the treaty Is it constitutive or regulatory or both A As the previous footnote suggests however treaties also sometime create institutions with the authority to take legallybinding decisions JURI 5750 International Environmental Inw Page 4 Treaty Questions Question 3 Apart from the treaty itself are there other instruments in the overall treaty regime protocols regulations decisions of the party etc If so what are the general types of provisions contained in these other instruments Provisions that indicate what states may sign or become party to a treaty5 usually appear at the end of the treaty along with other provisions known as quotfinal clausesquot Other common final clauses address such matters as procedure for entry into force of the treaty and procedures for amendment of the treaty Question 4 What is the geographic coverage of the treaty in theory Most treaties contain a provision indicating what states may become parties to the treaty Is the geographic scope of the treaty appropriate given the geographic scope of the problem If not appropriate are there reasons why this might be the case6 Some treaties re ect a preference for collective rather than unilateral efforts perhaps to avoid free riders perhaps to keep even levels of regulation in a competitive marketplace An example of the latter motive would be treaties regulating vessel design and operation as relates to the operational discharge of oil at sea In those treaties entry into force is tied to a certain number of ratifications representing a certain percentage of the world39s tonnage7 5 quotSignaturequot of a treaty is distinct from quotentry into forcequot of a treaty When negotiators have finished their work on the text of a treaty they usually quotsignquot the treaty Normally however signature is insufficient to give a treaty legal effect Instead governments usually complete internal proceedings e g approval by their domestic parliaments and then quotratifyquot the treaty For most treaties the treaty quotenters into forcequot ie becomes legally binding once a specified number of states have ratified Only the states that have ratified are bound Signature of a treaty is a political signal that a government intends to ratify a particular treaty The final clauses usually provide some period during which signature is possible After that period some treaties permit nonsignatories to become parties through processes variously known as quotaccessionquot or quotacceptancequot Usually an acceding state follows the same internal processes that it would follow to ratify a treaty after signature An acceding state generally has the same rights and obligations under the treaty as parties that were original signatories but a treaty may specify otherwise 6 Even if the treaty in theory corresponds in geographic scope to the geographic range of the problem and the treaty may be in force the treaty may in fact fall short if for example key states decline to become parties 7 How would you find out whether a treaty is in force or determine which countries are parties to it First you could look in Treaties in F orce to Which the United States is a Party JURI 5750 International Environmental Inw Page 5 Treaty Questions Question 5 What are the requirements for entry into force of the treaty Why do you think these particular requirements were chosen B The NormsObligations Contained in the Treaty The substantive norms contained in a treaty are usually the provisions that attract the greatest interest from the media senior government officials and nongovemmental organizations NGOs They often require close reading Substantive provisions as well as other treaty p i i are nmetime i or vague You may wish to consider why that is the case and what is the effect of any ambiguity Question 6 What are the parties39 obligations How do these obligations further the treaty39s goals How much exibility do parties have in implementing their obligations Questions 7 Does the treaty establish norms that do not constitute quotobligationsquot e g principles objectives etc What mctions do these norms serve This is a publication released in the spring of each year by the State Department and available on the State Department web site Second for uptodate information you could call the State Department39s treaty office Third if you want the most authoritative information or if the US is not a party you can contact the quotdepositaryquot a government or international organization that keeps track of ratifications and accessions designated in another of the final clauses Unfortunately even after you know who the parties are to a particular treaty you may not be certain what law applies to those parties Unless a treaty prohibits reservations a party may normally make a reservation to that treaty A reservation changes the reserving party39s legal commitments under the treaty It may also modify the rights and obligations of other parties in their relations with the reserving party Some agreements prohibit reservations This prohibition however does not rule out issuance by a party of an quotunderstandingquot ie a statement that explains a government39s understanding of a provision without purporting to change its legal effect Often there is a fine line between clarification and modification Thus any relevant understanding should also be reviewed if it is important to have a thorough appreciation of applicable law As with entry into force and identification of parties the most reliable way to determine whether there are any applicable reservations or understandings is to contact the depositary JURI 5750 International Environmental Inw Page 6 Treaty Questions C The InstitutionsOrganizations Created By the Treaty International treaties usually establish bodies structures or institutions herein referred to as quottreaty organsquot to perform various legislative administrative and adjudicative mctions Question 8 What organs if any are established by the treaty Question 9 What are the tasksfunctions of these organs Question 10 What decisionmaking authority do the treaty organs have in order to carry out their tasks e g can they only make recommendations or can they make legally binding decisions What are the decisionmaking rules of the treaty institutions consensus qualified majority simple majority etc and what does that tell us about the politics of a particular kind of decision and the relative power of the parties involved As will be apparent questions 8 10 often are related For example the UN General Assembly gives a vote to every state but the General Assembly can only make recommendations and cannot even do that if the Security Council is seized of the matter D The Amendment Process In addition to prescribing substantive commitments and establishing various organs a treaty may also contain a process for the further making of law Common examples are provisions for amendment withdrawal by a party and termination of the treaty8 In addition decisions of treaty organs may quotmake lawquot9 Question 11 Describe the treaty39s process of amendment Are all amendments the same or does the treaty draw distinctions for example between amendment of the treaty itself and amendment of an annex Why are such distinctions drawn Question 12 What other provisions if any seek to ensure that the treaty regime evolves in response to new problems information etc 8 If a treaty does not include provisions on these subjects then the quotdefaultquot procedures set forth in the Vienna Convention on the Law of Treaties apply 9 See Part C and notes 34 supra JURI 5750 International Environmental Inw Page 7 Treaty Questions E Encouraging Membership in the Regime Carrots and Sticks Treaties may encourage countries to join through a variety of means One way to encourage membership is to recognize the special circumstancesneeds of various groups of states Another way to encourage participation is to offer benefits eg financial assistance to participants Still another is to sanction those who remain outside the treaty Question 13 Does the treaty contain differentiated norms for different categories of countries If so what categories of countries are recognized and what are the criteria if any for making these differentiations How does differentiation affect the effectiveness of the treaty Question 14 Does the treaty offer benefits to participants If so what types of benefits Question 15 Does the treaty impose sanctions on nonparties If so what types of sanctions F Promoting Achievement of the T reaty39s Objectives Implementation and Enforcement Treaty implementation depends primarily on domestic action by the treaty parties But various international mechanisms may be used to promote national implementation Some provisions keep treaty implementation under collective review or call for lture international work on particular issues Other provisions directly address possible noncompliance by parties Still others provide mechanisms for the settlement of disputes concerning interpretation of the treaty Question 16 To what degree does the treaty specify exactly what parties must do to implement their obligations and to what degree does give countries exibility in achieving the treaty s objectives Question 1 7 Apart from dispute resolution and sanctions which are addressed in Questions 18 and 19 below does the treaty establish any other international mechanisms to promote achievement of its objectives and full implementation of its provisions If so what are these mechanisms and how do they work Question 18 If one party is concerned that another party is not complying with the treaty what recourse does the treaty provide How can disputes between parties be resolved Question 19 How are violations of the treaty punished if at all


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