OUVRAGE : G. Pascale, S. Tonolo (eds.), The Vienna Convention on the Law of Treaties: The Role of the Treaty on Treaties in Contemporary International Law

Giuseppe PASCALE, Sara TONOLO

A multitude of scholarly writings in many languages concern the Vienna Convention on the Law of Treaties (VCLT). Nevertheless, uncertainties and difficulties can be still identified when trying to understand whether and to what extent the VCLT is still central in international law and if it fits into the current international legal scenario. Such uncertainties and difficulties have resulted in the writing of this book. Hence, the chapters here collected aim at untangling the yarns of some open issues and at filling some gaps in order to ultimately establish whether at present the VCLT continues to have a role in international law. The main perspective is that of public international law. However, some room is reserved to problems stemming from the relationship between the VCLT and EU Law. The VCLT is also observed through the lens of private international law.

TABLE OF CONTENTS

Giuseppe Pascale, Sara Tonolo, The Vienna Convention on the Law of Treaties: An Introduction
1. The Importance of Treaties in the History of International Law, Regardless of the Absence of a Treaty on Treaties before 1969
2. From the Work of the International Law Commission (1949-1966) to the Adoption and Entry into Force of the 1969 Vienna Convention on the Law of Treaties
3. Observations on the Centrality of the Vienna Convention on the Law of Treaties in Contemporary International Law
4. The Vienna Convention on the Law of Treaties and Interactions between Treaties and Soft Law within Today’s Interstate Relations
5. Why This Book? 

PART I
REGULATING THE LIFE OF TREATIES PURSUANT TO THE VIENNA CONVENTION ON THE LAW OF TREATIES:
OPEN ISSUES  

Chapter 1: Claudia Candelmo, The Vienna Convention on the Law of Treaties and the Guide to Practice on Reservations to Treaties

1. The International Law Commission and the Guide to Practice on Reservations to Treaties
2. The Object and Purpose Test: Still a Conundrum?
3. Assessing the Relevance of Acceptance and Objections to Reservations
4. Understanding Reservations to Provisions on Monitoring Mechanisms
5. Dealing with General Reservations
6. Reserving Non-Derogable Provisions
7. The Guide and the Consequences of Invalid Reservations
8. Concluding Remarks

Chapter 2: Roberto Virzo, Article 26 of the Vienna Convention on the Law of Treaties and the Supervision of Periodic State Reports by International Monitoring Bodies

1. Introduction and Scope of the Work
2. Considerations on the Obligation under Article 26 of the Vienna Convention on the Law of Treaties to Perform International Treaties in Good Faith and on the Proliferation of International Committees and Groups of Experts Who Supervise Compliance with Multilateral Treaties
3. Examination of Selected Cases from the Practice of International Committees and Groups of Experts: a) Recommendations of the Committee on the Rights of the Child regarding LGBTI Children’s Rights
4. Continued: b) Recommendations of the Evaluation Teams of the Group of States against Corruption on Confiscation Measures
5. Concluding Remarks

Chapter 3: Elisa Tino, The Unilateral Termination of Provisional Application of Treaties

1. Introduction
2. Unilateral Termination of Provisional Application of Treaties According to Article 25(2) of the Vienna Convention on the Law of Treaties
3. Unilateral Termination of Provisional Application of Treaties in the International Law Commission’s Draft Guide to Provisional Application of Treaties: Guideline no. 9
4. States’ Positions Concerning Draft Guideline no. 9: Applicability v Inapplicability of Provisions in Section 3, Part V, of the Vienna Convention on the Law of Treaties to the Case of Provisional Application of Treaties
5. Further Considerations about the Applicability of Provisions in Section 3, Part V, of the Vienna Convention on the Law of Treaties: Provisionally Applied Treaty v Agreement on the Provisional Application of the Treaty
6. The Application of Rules on Withdrawal from Treaties Depending on the Form the Agreement on Provisional Application Takes
7. Conclusions

Chapter 4: Diego Mauri, Litigating Treaties by Means of Article 46 of the Vienna Convention on the Law of Treaties

1. Introduction: Theoretical Background of a Debated Provision
2. “Article 46 Arguments” in International Adjudication
3. “Article 46 Arguments” in Domestic Litigation
4. Wrap-Up of the Discussion and Concluding Remarks

Chapter 5: Luigi Sammartino, Comparing Suspension, National Security Exception, and Derogation Clauses in Light of the Vienna Convention on the Law of Treaties

1. Introduction
2. A General Premise to Suspension of Treaties
3. Exception and Derogation Clauses for National Security Reasons
4. Effects of Suspension and Exception/Derogation Clauses: A Comparative Approach
5. Concluding Remarks

Chapter 6: Escaping without an Exit Door? Some Remarks on Article 56 of the Vienna Convention on the Law of Treaties in Light of the Recent Practice (Martina Buscemi)

1. Introduction
2. Leaving the Door Open or Closed? Some Preliminary Remarks on the Inclusion of Withdrawal Clauses in Multilateral Treaties
3. Article 56 of the Vienna Convention on the Law of Treaties and the Issues Left Open
4. A Cursory Insight on Early Practice Subsequent to the Adoption of the Vienna Convention on the Law of Treaties
5. Recent Practice of Withdrawal from Treaties Silent to This Effect
6. Some Final Remarks on the Actual Relevance of Article 56 of the Vienna Convention on the Law of Treaties: Between a ‘Quick Divorce’, Acquiescence, and the Principle of Good Faith

PART II
NEW TRENDS IN TREATY INTERPRETATION
AND THE VIENNA CONVENTION ON THE LAW OF TREATIES

Chapter 7: Fabrizio Marongiu Buonaiuti, The Interpretation of Uniform Law and Private International Law Conventions: What Role for the General Interpretation Rules under the Vienna Convention on the Law of Treaties?

1. The Pursuit of an Autonomous Interpretation of Uniform Law and Private International Law Conventions
2. Special Rules Contained in These Conventions Concerning Their Interpretation and the Filling in of Lacunae Revealed in Their Application
3. The Insufficiency of a Reference to the General Principles Inherent in the Relevant Convention in Respect of Technical or Procedural Issues, and the Subsidiary Solution Consisting of a Reference to the Law Applicable Pursuant to Private International Law Rules
4. Relevance of the General Rules on Treaty Interpretation as Codified under the 1969 Vienna Convention on the Law of Treaties Absent Specific Rules Concerning Interpretation in the Convention Concerned, or for the Purposes of Integrating Such Rules
5. Concluding Remarks

Chapter 8: Gianfranco Gabriele Nucera, The Interpretation of Treaties as Living Instruments

1. Introduction
2. The Living Instrument Theory within Law-Making Treaties
3. The Living Instrument Theory within Operational Treaties
4. Is It Possible to Identify the Main Elements of the Living Instrument Theory?
5. The Outer Space Treaty as a Case Study: Beyond Any Formalistic Approach
6. Conclusions

Chapter 9: Donato Greco, Some Remarks on the Role of Soft Law in Treaty Interpretation: 50 Years after the Adoption of the Vienna Convention on the Law of Treaties

1. Introduction
2. Soft Law and the International Rule of Law: A Love-Hate Relationship
3. The General Rule of Treaty Interpretation under Article 31 of the Vienna Convention on the Law of Treaties
4. Literal Interpretation under Article 31(1) of the Vienna Convention on the Law of Treaties: The Ordinary Meaning
5. Contextual Interpretation under Article 31(1) and (2)(a)(b) of the Vienna Convention on the Law of Treaties: The Context
6. Teleological Interpretation under Article 31(1) of the Vienna Convention on the Law of Treaties: The Object and Purpose
7. Authentic Interpretation under Article 31(3)(a)(b) of the Vienna Convention on the Law of Treaties: Subsequent Agreements and Subsequent Practice
8. Systemic Integration under Article 31(3)(c) of the Vienna Convention on the Law of Treaties
9. Concluding Remarks

PART III
CURRENT PROBLEMS ON CONSISTENCY AMONG TREATIES
AND THE VIENNA CONVENTION ON THE LAW OF TREATIES

Chapter 10: Francesca Tammone, Testing the Memorandum of Understanding between Italy and Sudan against Anti-Trafficking Treaties: Issues of Incompatibility in Light of the Vienna Convention on the Law of Treaties

1. Introduction
2. The Memorandum of Understanding in the Context of the Outsourcing Migration Management
3. Qualifying the Memorandum of Understanding between Italy and Sudan as a Treaty: A Pre-Condition
4. The Migration-Human Trafficking Nexus and the Relevant International Sources
5. The Incompatibility of the Memorandum between Italy and Sudan with Treaties against Human Trafficking
6. Managing Incompatibility in Light of the Vienna Convention on the Law of Treaties
7. Conclusions

Chapter 11: Giuliana Lampo, The Relationship between Intra-EU Investment Arbitration under the Energy Charter Treaty and the Lisbon Treaty in Light of Article 41 of the Vienna Convention on the Law of Treaties

1. Introduction
2. The Applicability of EU Concerns on Investor-State Dispute Settlement Mechanisms to the Energy Charter Treaty
3. The Relationship between Article 30 and Article 41 of the Vienna Convention on the Law of Treaties
4. The Requirements of Article 41 of the Vienna Convention on the Law of Treaties
5. Concluding Remarks

Chapter 12: Azzurra Muccione, The Vienna Convention on the Law of Treaties and the Compatibility between International Trade Agreements and Treaties on the Protection of Human Rights or the Environment

1. Introduction
2. Cases and Hypothesis of Conflicts between Trade Agreements and Treaties on the Protection of Human Rights or the Environment
3. The Issue of Incompatibility between Trade Agreements and Other Treaties in the Light of the Vienna Convention on the Law of Treaties
4. The Existence of Exception Clauses in Trade Agreements as Elements Supporting the Compatibility
5. The Relevance of Other Treaties in the Interpretation of Trade Agreements
6. The extrema ratio: Treaties Amendments and Negotiations
7. The Recent Practice to Include Obligations on the Protection of Human Rights and the Environment in Trade Agreements: Is This a New Frontier in Terms of Compatibility?

Chapter 13: Ilaria Aquironi, The Proliferation of Uniform Private International Law Regimes and the Issue of their Coordination in Light of the Vienna Convention on the Law of Treaties

1. Introductory Remarks
2. The Recent Contribution of the Hague Conference to the Development of Uniform Private International Law Regimes
3. The Plurality of Actors Involved in the Adoption of Uniform Private International Law Regimes
4. The Proliferation of Uniform Private International Law Regimes: Reasons and Needs
5. Strategies and Techniques Aiming at Ensuring Coordination among Uniform Private International Law Regimes
6. Conclusion

PART IV
CONTEMPORARY PERSPECTIVES ON THE VIENNA CONVENTION
ON THE LAW OF TREATIES BEYOND TREATIES

Chapter 14: Gabriele Asta, The Application of the Vienna Convention on the Law of Treaties to Unilateral Declarations of Acceptance of the Jurisdiction of International Courts and Tribunals

1. Introductory Remarks. Beyond the Theoretical Applicability of the Law of Treaties to Unilateral Declarations of Acceptance of the Jurisdiction of International
Courts and Tribunals: Shifting the Focus on Its Current Application
2. Preliminary Observations on the Possibility to Consider the International Courts’ Case Law in a Unitary Way
3. The Uneven Application of the Law of Treaties and of the 1969 Vienna Convention to the Withdrawal of Unilateral Declarations
4. The – Almost – Full Application to the Interpretation of Unilateral Declarations of the Method Codified in the Relevant Provisions of the 1969 Vienna Convention
5. The Regime Concerning the Admissibility of the Reservations Contained in Unilateral Declaration and the Law of Treaties
6. Concluding Observations. Difficulties in Systematising the Heterogeneous Modes of Application of the Law of Treaties

Chapter 15: Laura Di Gianfrancesco, The Applicability of Articles 31 and 32 of the Vienna Convention on the Law of Treaties to Security Council Resolutions

1. Introduction
2. The Interpretation of Security Council Resolutions in the Case Law of the International Court of Justice
3. Scholars’ Position on the Interpretation of Security Council Resolutions
4. The Use of the Vienna Convention Method in the Al Bashir Case before the International Criminal Court
5. Some Reflections on the Suitability of the Vienna Convention Method for the Interpretation of Security Council Resolutions 463
6. Concluding Remarks 469

PART V
RECENT INTERACTIONS BETWEEN EUROPEAN UNION LAW
AND THE VIENNA CONVENTION ON THE LAW OF TREATIES

Chapter 16: Stefano Saluzzo, The Court of Justice of the European Union and the Relevance of the Vienna Convention on the Law of Treaties to International Agreements Concluded with Third Countries

1. Introduction
2. The Applicability of the Vienna Convention on the Law of Treaties to International Agreements Stipulated by the European Union
3. Uses and Misuses of the Rules of Interpretation Enshrined in the Vienna Convention on the Law of Treaties
4. Avoiding Issues on the Law of Treaties
5. Contributing to the… ‘Development of International Law’
6. Conclusive remarks

Chapter 17: Nicole Lazzerini, Monica Parodi, The Relationship between the EU Charter of Fundamental Rights and Other Human Rights Treaties Binding on the EU Member State

1. Introduction
2. The Relevance of Human Rights Treaties in the Case Law of the Court of Justice before the Legal Upgrading of the EU Charter of Fundamental Rights
3. The Provisions of the EU Charter of Fundamental Rights Drawing Inspiration from Human Rights Treaties
4. The Role of the European Convention on Human Rights and of the Strasbourg Case Law in the Interpretation of the EU Charter of Fundamental Rights
5. The Relevance of Human Rights Treaties Other Than the European Convention on Human Rights
6. The Use of the EU Charter of Fundamental Rights in the Interpretation of the European Convention on Human Rights by the Strasbourg Court
7. Concluding Remarks

Chapter 18: Roberto Cisotta, The EU Ancillary Treaties, the Vienna Convention on the Law of Treaties, and the Institutional Transformation of the EU Legal Order

1. Background and Preliminary Points
2. The EU Ancillary Treaties in the Context of the Economic and Monetary Union
3. EU Founding and Ancillary Treaties and Their Relations in the Ambit of the Legal Framework of the Euro Area
4. An Unfinished Project: The Integration of the EU Ancillary Treaties Serving the Functioning of the Economic and Monetary Union into the EU Legal Order
5. Concluding Remarks: Paradoxes, Constitutional Guardians, Risky Ambiguities in the Framing of the Recovery Plan and the Difficult Way Ahead

Chapter 19: Giovanni Zaccaroni, The Economic and Monetary Union, International Law, and the Vienna Convention on the Law of Treaties

1. Introduction
2. The Euro and the Vienna Convention on the Law of Treaties
3. The Eurogroup
4. The Greek Loan Facility, the European Financial Stability Facility and the European Financial Stabilization Mechanism
5. The European Stability Mechanism
6. Amending the European Stability Mechanism Treaty
7. Conclusion

Table of Authors

Giuseppe PASCALE, Sara TONOLO (eds.), The Vienna Convention on the Law of Treaties: The Role of the Treaty on Treaties in Contemporary International Law, Naples, Edizioni Scientifiche Italiane, 2022 (576 pp.)