Topic 5: Law of Treaties

The UN Charter
Art. 2(7) prevents the United Nations and its organs from intervening in the domestic
jurisdiction of states. It does not say anything about states intervening.
It would be incorrect to say that only states could be parties to treaties in general. The
1969 Vienna Convention only applies to treaties between states (Art. 2(1)(a)), but nonstate entities are perfectly free to enter into treaty arrangementsthey simply will not be
covered under the Vienna Convention (Art. 3).
Where an international organization owes its existence to a treaty, its powers are
determined by that treaty. Hence if the Treaty allows it to penalize delinquents for
breaches, any penalty it decides on in a matter will be valid. Since companies are not
accountable to international law, if the delinquent happens to be a company, the
organization may fine the company delinquent company in a country where it has assets,
and that countrys courts can enforce the judgement.
Apart from the treaty, however, the international organization has no existence and unless
it has been around for a very long time, it is unlikely to have any customary law powers.
If a state is a party to the treaty, it is thereby bound by it at the international level. If the
treaty has a provision allowing other states to bring claims for breaches, then the state
will be liable for any unlawful behaviour attributable to itself.
However the effect of the treaty in domestic law will be hindered if the Treaty has not
been incorporated into the domestic law of thebstate.
Each state has rules regarding the incorporation of treaties. In the UK for instance these
rules are as follows:
- unincorporated treaties are not part of the domestic law of the UK (Ex Parte
Brind),
- they can be referred to for interpretive purposes by a domestic court in order to
interpret domestic law if that law is unclear (since the UK is presumed not to
violate its international obligationsSalomon v. Comm. of Customs & Excise),
- they should not be referred to if the domestic law is clear and the domestic law
must be enforced even in the event of conflict (Salomon v. Comm. of Customs &
Excise, Ex Parte Brind),
- unincorporated treaties cannot restrict a discretionary power (Ex Parte Brind)

Thus unless there is some legal provision in the state that would allow international
organizations to impose penalties on its citizens and organs, the organization will not be
able to do so.
Challenges to the enforceability of a treaty:
1. Supervening Impossibility
There is a requirement for the "permanent disappearance or destruction of an object
indispensable for the performance of the treaty". If the impossibility is temporary the
treaty may only be suspended.
2. Fundamental Change of Circumstances (rebus sic stantibus).
The general rule is that a fundamental change of circumstances is not a ground for
terminating or withdrawing from a treaty. [Thus Article 62(2) sets out specific cases
where it cannot be invoked: (a) where the treaty establishes a boundary, or (b) if the
fundamental change has been produced by the party seeking it use it, by breaching an
obligation under the treaty. Neither of these is relevant here.]
Article 62(1) sets out the two conditions that need to be fulfilled before a fundamental
change of circumstances may be invoked as a ground for terminating or withdrawing
from a treaty:
- where "the existence of those circumstances constituted an essential basis of the
consent of the parties to be bound by the treaty; and"
- where "the effect of the change is radically to transform the extent of obligations
still to be performed under the treaty."
It is the second part that is usually the most difficult to satisfy. For example, this part of
the test would not be satisfied where the obligations to be performed have not changed,
merely a states ability to satisfy them. In the Fisheries Jurisdiction Case (Jurisdiction
Phase,) for example, the change in fishing techniques had little to do with an obligation
to appear before the court.
Where the treaty expressly contemplates the change in question, it may not amount to a
fundamental change of circumstances.
If a fundamental change is found, Article 62(3) allows parties to merely suspend the
operation of a treaty rather than to terminate or withdraw from it. The consequence of
termination, however, would be to preserve pre-existing obligations and merely release
the parties from future compliance: Art. 70. This is unlike invalidity, which tends to
attempt to remove the actions performed under the treaty.
Where a treaty includes a provision expressly contemplating an act, then it might be hard
to say that act would constitute a material breach (i.e., under Art. 60 of the VC).

If the provision specifies that such behaviour is a "breach" or "illegal", and then sets out
the consequences, then it will likely be a breach of the treaty.
The only way a state can get out of its treaty commitments is by showing that there was
some irregularity in its consent.
Violation of Jus Cogens Rule
Art. 53 of the VC makes any treaty that violates a pre-existing rule of jus cogens void. If
the treaty is found to violate a pre-existing jus cogens rule (i.e., Art. 53), then it will be
void and under Art. 71 the parties will be required to eliminate the consequences of any
act performed in conflict with jus cogens, and to bring their mutual relations into
conformity with the jus cogens rule.
Art. 64 of the VC makes any treaties that offend a newly-emerged rule of jus cogens void
and terminates them. In the Aloeboetoe Case (1994), for example, the Inter-American
Court of Human Rights held that the rule against slavery today has a jus cogens quality.
The termination of the treaty has the following effects:
- it releases the parties from any further obligations to perform the treaty, and
- It does not affect any right, obligation or legal situation created through the prior
execution of the treaty. This only applies to those rights, obligations or legal
situations that do not perpetuate the violation of the rule of jus cogens.

The ICJ
Jurisdiction of the Court
Art. 36(2) of the Statute of the International Court of Justice provides for states to accept
the jurisdiction of the court by either depositing their declarations of acceptance or
submitting to the courts jurisdiction by means of an article in the Agreement itself (i.e.,
specific acceptance through a treaty).
A state may try to avoid jurisdiction so as not to have any claim brought against it, or try
to ensure that the court has jurisdiction so that it can bring a claim against another state.
Avoid Jurisdiction
If an agreement is not registered, the court will not have the ability to rule on the treaty or
related issues. However, in the Nicaragua Case the court showed its cleverness by ruling
on the law without the aid of treaties
This approach of avoiding jurisdiction may be useful if a state has sufficient military and
economic clout to enable it to escape any punitive actions by another state. If that other

state is a large and powerful state, however, the state may wish to use the law to defend
itself.
Ensure Jurisdiction
Even when the court has jurisdiction it may have little to work with in deciding a case
because the Agreement has not been registered with the UN Secretariat. This is a
requirement under Art. 80 of the VC and Art. 102 of the UN Charter. Art. 102 provides
that if you do not register a treaty with the Secretariat it cannot be invoked before an
organ of the UN (including the International Court of Justice, General Assembly and
Security Council). See, e.g., Maritime Delimitation Case.
Notice, however, that the International Court of Justice in the Nicaragua Case spent a
long time discussing Nicaraguas attempted (but never completed) ratification of the
Statute of the PCIJ... Another interesting point is that Art. 66(a) of the VC itself allows
parties that need an interpretation of VC provisions dealing with rules of jus cogens to
bring them before the International Court of Justice. The question might arise, then, as to
whether this provision would obviate the need for registration...
The safest route for a state is to register the Agreement with the Secretariat of the United
Nations.
Other Options
Other (non-judicial) pacific methods of dispute settlement are set out in Art. 33 of the UN
Charter: negotiation, enquiry, mediation (including good offices), conciliation,
arbitration, [] resort to regional agencies or arrangements, or other peaceful means of
their own choice.

There was no international court prior to the Permanent Court of International Justice
(following WWI), so a decision made during this period could not be a PCIJ/ICJ
decision. Regardless, there is no rule of stare decisis at the international level: Art. 59
Statute of the ICJ. The court could therefore only look at such a decision as a subsidiary
means of determination of the law under Art. 38(1)(d).
Full Powers
Art. 2(1)(c): Where an individual is authorised to attend, but only as an observer, the
implication is that the individual is not meant to have the capacity to sign. Nonetheless,
the individual might be said to have full powers because the term as defined under the
VC allows such designation for persons not authorised to consent to a treaty.

Art. 7(2)(a): A high ranking official of a state eg. the Minister of Foreign Affairs may also
be deemed to have full powers.
Consent
Art. 11 allows consent by means of signature, exchange of instruments, ratification,
acceptance, approval, accession, or other means if so agreed.
Art. 12 allows consent to be expressed by signature alone if the treaty so provides.
Where a treaty states that it is to be binding upon "acceptance" the meaning of the term
can be ascertained from the treaty itself (which could define it as meaning almost
anything). Under normal usage it has a specific meaning.
Unilateral Declarations
Invalidation of Consent?
There is a presumption in favour of validity of treaties in the VC: Art. 42.
Subject to Art. 46, Art. 27 of the VC provides that internal law may not be invoked as a
justification for failure to perform a treaty.
Art. 46 provides that if there is some rule in a states constitutional system that would
negate their competence to conclude such a treaty, and the violation of this rule is
"manifest and concerned a rule of internal law of fundamental importance" then that
states consent may be invalidated. This violation must be "objectively evident to any
State in accordance with normal practice and in good faith."
Art. 47 provides that a restriction on the representative may be invoked as a ground for
invalidating consent if the other states were notified about this restriction prior to the
expression of consent.
Art. 65 of the VC: even if a state is able to raise issues regarding the invalidity of its
consent to the treaty, it cannot immediately and automatically escape its provisions.
Rather, it must notify the other parties and either gain their approval or settle the issue
under various procedures
Art. 69: if the consent is shown to be invalid, the treaty will be void as between that state
and all other parties.

Becoming Binding

There are two ways that a treaty might become binding or a binding obligation might
arise (related to the treaty, if not under it).
Signature + Art. 18 Object and Purpose Rule
VC Art. 18 rules that states have an obligation not to defeat the object and purpose of a
treaty prior to its entry into force, or prior to that state making it clear that it does not
intend to be a party to the treaty. (Note that this is also a rule of customary international
law)
Later Adoption of Actions
Art. 8 of the VC allows a state to adopt a representatives actions even if s/he had no full
powers or did but was unable to consent on behalf of her state.

Formation of Customary Rule

There are two elements that need to be satisfied for a rule of customary international law
to emerge: practice and opinio juris.
Practice
The following are considered in assessing evidence of state practice:
- duration of the practice (which need not be long, but if not must be uniform
no time immemorial rule),
- its uniformity (consistency, repetition, etc.), and
- its generality (how many states have engaged in it?).
There are cases where lack of uniformity of practice has prevented the finding of a
customary rule include:
Eg. 1 Asylum Case (must be constant and uniform);
Eg.2 Nuclear Weapons Case (UNGA); Anglo-Norwegian Fisheries Case and
the North Sea Continental Shelf Cases (both extensive and virtually
uniform).
Notice, however, that the Nicaragua Case said that absolutely rigorous conformity in
state practice is not necessary.
In considering the generality of a practice, it is important to take account of the number
of states, the status of the states (most powerful?) and the relationship of the states to the
practice (most concerned?)
The lack of any behaviour tells us little about the formation of a customary rule. This has
more to do with the question of opinio juris

Opinio Juris
The requirement of opinio juris sive necessitatis can be loosely translated as "a belief in
(or claim as to) the legally permissible or obligatory nature of the conduct in question, or
of its necessity." [Mendelson, 66 BYIL 177, at 195]
Opinio juris is most important to help us determine the meaning of a practiceor lack
thereof.
Thus, in the Lotus Case the fact that some states had refrained from prosecuting persons
in the position of the French captain was not enough to prove belief that such abstention
was required by law (opinio juris).
In the Filartiga v. Pena-Irala Case evidence of states engaging in torture did not make
such behaviour legal because there was no opinio juris accompanying such practice. The
Nicaragua Case also tells us that if a state behaves in a certain way but says that this does
not violate the rule or is an exception to the rule, the behaviour will not be taken to
disprove the existence of the rule.
Treaty-Created Rule
In the North Sea Continental Shelf Cases the ICJ sets out the rules by which a treaty
provision can become part of customary international law. The test was:
a) Is the article fundamentally norm-creating (i.e., does it seem to establish a general
rule of law)?
b) What is the level of participation in the treaty, and does this include those states
specially affected?
c) What is the duration and level of uniformity of the practice?
Notice that even treaties that not yet in force have been capable of generating custom: the
1982 Law of the Sea Convention.
Note that it is possible for a state though not bound by a treaty to be liable for defeating
its the object and purpose before it has made the world aware that it does not intend to be
a party.

International Court of Justice Claim: Law of Treaties

In order for the ICJ to hear a case involving a treaty both ICJ has to have jurisdiction to
hear the case (i.e. both parties must have accepted its jurisdiction) and both states must be
parties to the 1969 Vienna Convention on the Law of Treaties (VC).

(Automatic) Incorporation/Transformation
Until a treaty has been brought into force in domestic law (through transformation or
automatic incorporation), the state will be bound to apply its normal method for bringing
treaty laws into domestic law (again, transformation or automatic incorporation). Only
after the Covenant has been brought into force in domestic law will all future treaties be
automatically incorporated (i.e., similar to the UK and its European Communities Act,
1972 (UK)). The ironic result is that unless the state allows automatic incorporation of
treaties already, it will breach the Covenant the moment it ratifies itbecause the state
will have to transform the Covenant in order to bring it into force in domestic law (thus
breaching the clear wording of Art. 6, which requires the Covenant itself to be
automatically incorporated).
Treaty Implications
If state are parties to an agreement, this means that they have done everything necessary
to be bound at the international level. Formalities regarding full powers, signature,
ratification, etc., are now irrelevantas these states have already finished such actions.
The only final action that might be needed is for the treaty to come into force for all
parties
If a treaty is binding upon you and in force, then you are bound by it at the international
level. Incorporation or transformation only affects the ability of domestic courts to use a
treaty. States can bring claims against you at the international level for breach, regardless
of transformation.
Material Breach
Art. 60 of the Vienna Convention on the Law of Treaties provides that either (1) an
unlawful repudiation or (2) a "violation of a provision essential to the object and purpose
of the treaty" will amount to a material breach.
If a state materially breaches a treaty, then upon a determination by the ICJ, the other
parties may be authorised to suspend their treaty obligations with respect to that state
delinquent states (Art. 72), or even terminate the treaty with respect to them or with
respect to all parties (Art. 70). Termination of treaties allows rights and obligations
created under the treaties to continue (unlike invalidity, which in most cases will require
states to return things to their earlier status).
Treaty Defences
1. The treaty was not valid. A treaty made be invalid if not properly formed or if a
state did not fully consent to it.
2. If the treaty is not yet in force then no state will be able to bring a claim for its
breach. A state would therefore be well advised to do something about any
constitutional impasses before the treaties come into force.
However, a state may be liable under the Vienna Convention in any event. States
may bring claims against it for violation of Art. 18 of the VC, the provision that

requires states to refrain from actions against the object and purpose of the treaty
before it has come into force or before they have ratified it.
3. A state may argue that a treaty is invalid because for incompatibility with
domestic law. (Art. 46)
However, Art. 27 of the VC provides that a state cannot invoke incompatibility
with an internal law as an excuse for failure to perform a treaty.
Nonetheless, Art. 27 is subject to Art. 46. Art. 46 invalidates the consent of a state to be
bound by a treaty that violates a provision of its internal law regarding competence to
conclude treaties. Art. 46 only allows a state to invalidate such consent if the violation of
the internal law was manifest (obvious), and the rule was one of "fundamental
importance."
The applicability of the Bill of Rights in the US to treaties, and the requirement for
transformation in the UK, are both be well known and likely thought to be of
fundamental importance.
If the consent of a state to a treaty is invalidated, then it is allowed to consider the treaty
as being void (i.e., no legal effect): Art. 69 VC.
Treaty
Applicability of Vienna Convention?
Since the question involves a treaty the first issue is whether this is a treaty covered by
the Vienna Convention on the Law of Treaties, 1969 (VC).
Art. 1 applies to treaties between States
Art. 2(1)(a) defines "treaty" as:
"treaty means an [1] international agreement [2] concluded between States in [3] written
form and [4] governed by international law, whether [5] embodied in a single instrument
or in two or more related instruments and [6] whatever its particular designation."
Art. 4 the Vienna Convention is not retroactive but this treaty appears to have been
made at present
Art. 5 applies to treaties that are constituent instruments of international organisations
(if Counter Terrorism Unit is international organisation)
Answer: Vienna Convention is applicable. If the states are parties to it they are bound:
Art. 26 (pacta sunt servanda). In any event, most Convention provisions are now
considered to represent customary international law and therefore the states will be bound
by the custom even if not parties to the Convention.
Legality?

Since the Treaty requires states to engage in torture it violates the customary international
rule prohibiting torture (as confirmed in the Filartiga v. Pena-Irala Case). Treaties are
allowed to modify customary international rules as between parties.
However torture may represent a rule of jus cogens character, one that cannot be
derogated from under international law. The Filartiga v. Pena-Irala Case did not specify
that the rule against torture was one of a jus cogens character. If it is, however, the Treaty
as a whole is void: Art. 53 Vienna Convention. Consequences:
Art. 69 treaties that are invalidated for violating a pre-existing jus cogens rule are void
and have no legal force.
Art. 71(1) parties are also obligated to (a) eliminate the consequences of their violation
of the jus cogens rule as well as (b) must bring their mutual relations into conformity with
the jus cogens rule.
Note: if the rule against torture becomes one of jus cogens (unlikely to happen in the
short time frame of this fact pattern if not one already), then the applicable provisions are
Arts. 64, 70 and 71(2).
Answer: if Treaty violates jus cogens then the treaty will be void and of no effect and the
claims of State D will be unenforceable.
Jus cogens
The difficulty, however, is that there is no authoritative list of the rules which may
represent jus cogens norms. All states appear to accept the existence of a category of rules
having jus cogens character, but there is great disagreement over which rules fall within
that category.
Art. 53 defines "jus cogens" rules/peremptory rules of international law as follows:
a peremptory norm of general international law is a norm accepted and recognised by the
international community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international
law having the same character.
Although there is no definitive list of the kinds of rules that might have a peremptory
quality, and the International Law Commission specifically avoided providing official
examples when considering the topic, one might include rules against:
genocide,
the use of force and acts of aggression (as held in the Nicaragua case),
slavery and the slave trade [Aloeboetoe Case],
racial discrimination and apartheid,
piracy, and
crimes against humanity
as well as the positive rules in favour of:

self-determination and
human rights.
Regarding the question of the level of proof of acceptance in order for a rule of jus
cogens to emerge (i.e., what requirements of practice and opinion juris), Akehurst has
argued that there are in fact two tests:
acceptance as a rule of lawall States in the world must accept the rule as binding under
general international law (unanimity)
acceptance as a rule of law having the character of jus cogensan overwhelming
majority of States must regard it as jus cogens.
Answer: interestingly, the rule against torture is not expressly included in the above list or
in any of the cases that have been assigned to you so far and so answers could go either
way.
Reservation
Reservation or Interpretative Declaration?
The first question is whether State Ds statement is a reservation or merely an
interpretative declaration.
Art. 2(1)(d) of the Vienna Convention defines the term "reservation" as:
"a unilateral statement, however phrased or named, made by a state, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or
to modify the legal effect of certain provisions of the treaty in their application to that
state."
This Vienna Convention definition therefore catches a statement by looking at its effect in
order to determine whether it is a reservation. The case of Belios v. Switzerland applied
this test, holding that "[i]n order to establish the legal character of such a declaration, one
must look behind the title given to it and seek to determine the substantive content."
Answer: applying this test the effect of Ds statement is to exclude or modify the legal
effect of certain provisions and therefore it is a reservation.
Legality?
Art. 19 if the Vienna Convention provides:
A State may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or

(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible
with the object and purpose of the treaty.
Reservations are specifically allowed in the Treaty (Art. 19(a)), and there is no mention
of particular acceptable types of reservations (Art. 19(b) + Belios Case). However this
reservation may be incompatible with the object and purpose of the treaty (Art. 19(c)). If
so, it will not be a valid reservation.

Art. 60 material breach there must have been either a repudiation of the Treaty or the
violation of a provision essential for the accomplishment of its object and purpose.
Neither applies.
Art. 61 supervening impossibility there has been no "permanent disappearance or
destruction" of anything vital to the object and purpose of the Treaty.
Art. 62 fundamental change of circumstances the fundamental change must not have
been foreseen and the circumstances must have constituted an essential basis for consent
and the change must "radically transform the extent of obligations still to be
performed under the treaty." These conditions have not been satisfied.
Question 3: Subjects & Recognition + International Law & Municipal Law

Breach of Treaty: Relation of International Law and Municipal Law

Question 4: Application and Function (Dispute Settlement) + Treaties
Treaty, Under Vienna Convention?
The 1969 Vienna Convention on the Law of Treaties (VC), Arts. 1 & 2 require that a
treaty be in written form between states.
Possible Grounds for Invalidity
For parties to the Vienna Convention, treaties can be invalidated or terminated only under
the provisions of the treaty or the rules of the Vienna Convention itself (Art. 42).
Three possible grounds for invalidation are: consent by error, fraud or corruption.
Error (Art. 48)
1. A State may invoke an error in a treaty as invalidating its consent to be bound by the
treaty if the error relates to a fact or situation which was assumed by that State to exist at
the time when the treaty was concluded and formed an essential basis of its consent to be
bound by the treaty.

2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to
the error or if the circumstances were such as to put that State on notice of a possible
error.
3. An error relating only to the wording of the text of a treaty does not affect its validity;
article 79 then applies.
Fraud (Art. 49)
If a State has been induced to conclude a treaty by the fraudulent conduct of another
negotiating State, the State may invoke the fraud as invalidating its consent to be bound
by the treaty.
Corruption of a representative of a state (Art. 50)
If the expression of a States consent to be bound by a treaty has been procured through
the corruption of its representative directly or indirectly by another negotiating State, the
State may invoke such corruption as invalidating its consent to be bound by the treaty. ]
Possible Grounds for Termination
1. Material Breach (Art. 60)
2. Supervening Impossibility (Art. 61)
3. Fundamental Change of Circumstances (rebus sic stantibus, Art. 62).
1. A fundamental change of circumstances which has occurred with regard
to those existing at the time of the conclusion of a treaty, and which was
not foreseen by the parties, may not be invoked as a ground for
terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of
the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty. [Emphasis added]
Ability to Withdraw (Art. 56)
Denunciation of or withdrawal from a treaty containing no provision regarding
termination, denunciation or withdrawal:
1. A treaty which contains no provision regarding its termination and which does not
provide for denunciation or withdrawal is not subject to denunciation or withdrawal
unless:
(a) it is established that the parties intended to admit the possibility of denunciation or
withdrawal; or
(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.
2. A party shall give not less than twelve months notice of its intention to denounce or
withdraw from a treaty under paragraph 1.

Even if arguments could be made that withdrawal is a right available to each sovereign
state under customary international law (probably the case), nevertheless even under such
a customary right there would likely be a notice period.
Reservation (Art. 2(1)(d))
Art. 2(1)(d) of the Vienna Convention defines the term "reservation" as:
"a unilateral statement, however phrased or named, made by a state, when
signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of the treaty
in their application to that state."
Reciprocity
The next question is whether Seering Leon can use this reservation on the basis of the
principle of reciprocity. This principle arises because states are not deemed to be
susceptible to the jurisdiction of international tribunals without their express consent
(sovereignty of states). This position is implicitly supported by Art. 36(1) of the Statute of
the International Court of Justice.
The rules in this area are as follows:
Norwegian Loans Case (France v. Norway) Norway was allowed to use the terms of
Frances declaration so as to exclude the jurisdiction of the Court.
Interhandel Case (Switzerland v. US) the US was not allowed to impose the terms of its
declaration on Switzerland so as to exclude the Courts jurisdiction.
Self-Judging Reservations
Both of the above cases involved states whose declarations contained self-judging clauses
(self-judging reservations).
The legality of such declarations has been challenged as a result of Art. 36(6) of the
Statute of the International Court of Justice which provides that the International Court
of Justice is to have the competence to decide whether it has jurisdiction.
Illegality self-judging reservations must be illegal because they allow a state to be the
only one capable of determining whether a dispute is a matter of national jurisdiction,
thus effectively precluding the Court from exercising one of the fundamental roles of any
Court of law: deciding when it has jurisdiction to hear a case.
This ICJ provision is reproduced in Art. 36(6) of the Treaty in our fact pattern. Since
Burning Fasils declaration is self-judging, the same arguments apply.
There are two possible options for a court when faced with a declaration containing a
clause which is illegal (because self-judging):
Judge Lauterpachts approach (Norwegian Loans Case) - striking out the entire
declaration, since the reservation is essential to the states acceptance of jurisdiction [Cf.
Harris, 1012];

Judge Klaestads approach (Interhandel Case) striking out the bad part of the
reservation, on the assumption that the overwhelming intention of the state is to submit to
the Courts jurisdiction (thus striking out the clause would uphold this intention).
Note: these two approaches parallel the Vienna Conventions laws regarding separability
of treaty provisions (Art. 44). The Art. 44 test is stricter than Lauterpachts approach, as
seen in Art. 44(3):
Article 44: Separability of treaty provisions
1. A right of a party, provided for in a treaty or arising under article 56, to denounce,
withdraw from or suspend the operation of the treaty may be exercised only with respect
to the whole treaty unless the treaty otherwise provides or the parties otherwise agree.

3. If the ground relates solely to particular clauses, it may be invoked only with respect to
those clauses where:
(a) the said clauses are separable from the remainder of the treaty with regard to their
application;
(b) it appears from the treaty or is otherwise established that acceptance of those clauses
was not an essential basis of the consent of the other party or parties to be bound by the
treaty as a whole; and
(c) continued performance of the remainder of the treaty would not be unjust.