38 The Validity of treaties: defect of consent

Summary

This video explores the competence of states and international organizations in expressing consent to treaties under international law. It examines how domestic laws and internal regulations cannot justify a state's failure to honor international obligations, with one key exception related to violations of internal rules about competence to conclude treaties. Through the Cameroon versus Nigeria case, the video illustrates that for a violation of constitutional rules to invalidate a state's consent, it must be manifest and made known to the other party. The principle emphasizes the importance of consistency in international law and the accountability of states in treaty agreements.

Takeaways

• 😀 A treaty results from the exchange of consent between the contracting parties, and this consent must be properly given.
• 😀 Consent must be expressed by a competent organ of the state or international organization for it to be valid.
• 😀 The competence to express consent is regulated by both the domestic law of the state and the internal rules of the international organization.
• 😀 States cannot use their domestic law as an excuse to avoid their international law obligations, as stated in Article 27 of the Vienna Convention.
• 😀 International law is based on the common will of states, while domestic law stems from a state's unilateral will.
• 😀 Allowing states to use domestic law to justify ignoring international obligations would undermine the foundation of international law.
• 😀 The one exception to this rule is Article 46, paragraph 1 of the Vienna Convention, where states may invoke internal law in specific cases involving competence to conclude treaties.
• 😀 For the exception in Article 46 to apply, the violation of internal law must be manifest, concern a rule of fundamental importance, and relate specifically to the competence to conclude treaties.
• 😀 The violation must be manifest to the point where it is objectively evident to any state acting in good faith, according to Article 46, paragraph 2 of the Vienna Convention.
• 😀 In the Cameroon vs. Nigeria case, the violation of Nigeria’s internal rule regarding treaty competence was not considered manifest because Cameroon was not properly informed about the specific constitutional changes in Nigeria.

Q & A

What is the significance of consent in the context of international treaties?

Consent is a fundamental element in international treaties, as it reflects the agreement between the Contracting parties. For consent to be valid, it must be properly expressed by a competent organ of the state or organization involved.

What is the main focus of the video?

The video primarily focuses on the competence of states and organizations to express consent to treaties, specifically addressing the legal provisions under international law, with a follow-up video planned to cover the issue of genuine and informed consent.

What are the two key requirements for consent to be properly expressed according to the script?

The two key requirements for proper consent expression are: (1) it must be expressed by a competent organ authorized to do so, and (2) the organ must give genuine and informed consent.

What does Article 27 of the Vienna Convention state?

Article 27 of the Vienna Convention asserts that a party cannot invoke its internal law as a justification for failing to perform a treaty. This is a core principle in international law, ensuring that states cannot disregard their international obligations due to domestic law provisions.

Why is it important for international law to prohibit the use of domestic law to avoid treaty obligations?

If states were allowed to invoke domestic law to avoid international obligations, it would undermine the very structure of international law, making it ineffective and allowing states to disregard commitments at will.

What is the exception to the principle that domestic law cannot be used to avoid international obligations?

The exception is found in Article 46 of the Vienna Convention, where a state may invoke internal law to avoid its consent to a treaty if the violation of the law regarding the competence to conclude treaties is manifest and concerns a rule of fundamental importance.

What are the three conditions for a state to invoke its internal law to avoid treaty commitments?

The three conditions are: (1) the internal law must relate to the competence to conclude treaties, (2) the provision must be of fundamental importance, and (3) the violation must be manifest, meaning it is obvious to any state acting in good faith.

What does 'manifest violation' mean in the context of international law?

A 'manifest violation' refers to a violation that is so obvious that any state following normal practice and good faith would recognize it. In other words, the violation must be clear and apparent to all parties involved.

How did the Cameroon versus Nigeria case relate to the application of Article 46 of the Vienna Convention?

In the Cameroon versus Nigeria case, the court ruled that Nigeria could not claim its consent was invalid due to a violation of internal law regarding the competence to conclude treaties. This was because Nigeria did not properly inform Cameroon of its constitutional changes, and Cameroon was not obligated to be aware of these changes.

What lesson can be drawn from the Cameroon versus Nigeria case regarding the violation of internal law?

The key lesson is that for a violation of domestic law to be considered 'manifest,' it must be communicated to the other party. A state cannot use an unpublicized internal law violation to escape its international obligations under the Vienna Convention.