VCLT of their good faith observance of the treaty they committed to, they must rec- ognise the authority of the supervisory body to this treaty, such as the Human Rights Committee (HRC), supervising the International Covenant on Civil and Political Rights (ICCPR). In light of this Committee’s function, its deci- sions have acquired legal authority.56 The ICJ has indeed acknowledged the role of treaty bodies made up of inde- pendent experts interpreting and applying the provisions of the treaty. It rec- ognised, for instance, the extraterritorial application of the International Covenant on Civil and Political Rights by reference to the case law of the supervisory body to this treaty.57 State parties to the Optional Protocol have voluntarily accepted the right of individual complaint of everyone under their jurisdiction claiming to be a xxx- xxx of acts or omissions by the state, upon exhaustion of domestic remedies. Such an individual complaint procedure, as recognised by the State, must indeed serve a function. Despite the misguiding name (“Views”) given to its decisions at the time, in practice they concern judicial decisions determining a legal conflict, by a competent and independent body of experts.58 Considering the Committee’s Views as mere exhortatory remarks would deprive the right of individual complaint of any meaning. Instead, a state party must comply in good faith with its obligations under the Optional Protocol and under the ICCPR itself and respect the Committee’s decisions. Indeed, the practice of the HRC indicates that it considers states legally bound to respect and imple- ment its Views.59 The obligation of good faith compliance with this procedure
VCLT. 67 The principle of systemic integration refers to “any relevant rules of international law applicable in the relations between the parties” as an element that must be taken into account together with the context when interpreting a treaty provision. A presumption exists of consistency of the text to be interpreted with general international law, unless this would undermine the object and purpose of the system. The aim of increasing coherence in the law is particularly relevant when dealing with public interest rules, to the extent that coherence enhances legitimacy and effectiveness. The following refers to principles dealing with the question what rules to apply in light of the underlying aim of achieving coherence. This includes tak- ing into account other relevant (case) law; applying by approximation impor- tant rules that cannot be applied in full; applying treaties in light of new situations and new legal developments. In addition, this section deals with the relevance of methods of treaty interpretation and with the importance of the overall narrative. Boisson de Chazournes and Kuijper have referred to the principles of sub- sidiarity68 and complementarity that are applied in order to ensure coherence, as well as to legal techniques, such as that of the national margin of apprecia- tion or that of formal equivalence.69 Moreover, international treaties should cross-reference and adjudicators should take into account other applicable law. This has been referred to as the principle of “soutien mutuel” (mutual supportiveness).70 It is to be noted that the supervisory bodies to UN human rights treaties, in particular the Human Rights Committee, have come to be included in the inevitable international judicial cross-referencing, and sometimes indeed in an international judicial dialogue.71 Their authority with regard to the 67 See generally Xxxxx Xxxxxx (chapter 7). 68 While the legal principle of subsidiarity is predominant in the ECHR system, the idea, or even the underlying principle, of subsidiarity appears to be more universal and underlies, for instance, the rule on exhaustion of domestic remedies. On a related note, subsidiarity serves as an important legal and political yardstick in the exercise of (non-exclusive) competences in the European Union; cf. article 5 (3) TEU. 69 Boisson de Xxxxxxxxxx and Kuijper (chapter 5). 70 Xxxxxxxx Xxxxxxx xx Xxxxxxxxxx and Xxxxxx Xxxxx Xxxxxxx, ‘A Propos de Principe du Soutien Mutuel – Les relations entre le Pro...
VCLT. ‘Unless […] the parties otherwise agree, the termination of a treaty […] (b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.’ Hence, the parties to an investment treaty arguably have the power to remove the sunset clause –and thus the rights that investors would normally enjoy after the termination of the BIT– if they so agree. However, the peculiarity of investment treaties is that the beneficiaries (or even holders of the rights) are individuals, not states. A removal of the sunset clause would deprive their investment of international protection on which they may have relied when making the investment. Accordingly, last November an arbitral tribunal dealing with an intra-EU investment dispute held that while the state parties ‘remain the masters of their treaty, their control is limited by the general principles of legal certainty and res inter alios acta, aliis nec nocet nec prodest’ (a thing done between others does not harm or benefit others). This was said to be reflected in the sunset clause ‘[a provision which] shows that, even where the Contracting Parties terminate the treaty on mutual consent, they acknowledge that long-term interests of investors who have invested in the host State in reliance on the treaty guarantees must be respected. This is the purpose served by the 20-year sunset provision’ (Magyar Farming v. Hungary, paras. 222-223, emphasis added). Such a reasoning seems to immunise a sunset clause from changes. Conversely, in another intra-EU investment dispute a tribunal seems to have accepted the possibility of removing the sunset clause of a BIT holding that: ‘As is undisputed, neither Hungary nor France has made any attempt to renegotiate, modify, or shorten the relevant “survival” period.
VCLT developments after their conclusion. The shift in the policy of the EU to use informal agreements will briefly be accounted for. Since the thesis will explore the possibility to annul the agreements both from an international law and EU law point of view these perspectives will be investigated separately but in close connection with each other. The same goes for the two different informal readmission agreements with the exception of Chapter 3 which only concern the Statement. The thesis will be divided in to four main sections, three dedicated to answering the sub-research questions and in the end the main research questions will be answered based on the investigations of the three sub-questions. The first research question concerns the determination of the parties to the Statement. In a case brought to the General Court of the European Union (hereinafter the “General Court”) regarding an annulment of the Statement the court concluded that the Statement is not an act attributable to any EU institution but to all the Member States. Because of this judgment it is necessary to investigate who is a party to the Statement, this will be done in Chapter 3. This investigation is crucial because if the EU is not a party to the Statement the annulment procedure under EU law will not be accessible. If an instrument is not considered legal or having legal effects, it will not be applicable in any court under EU or international law. Therefore, Chapter 4 will focus on establishing the legal nature of the Statement and the Declaration. After the parties to the informal readmission agreements and the legal nature has been established the possibilities for annulment will be explored. In Chapter 5 the process of annulment under EU law will be explored and in Chapter 6 the same question will be answered but from an international law perspective. At last the main research questions will be answered in Chapter 7 and the difficulties posed by the informality of the agreements will be analyzed. The examination in this chapter will be based on the outcome of the research of the three sub-questions.
VCLT other cruel, inhuman or degrading treatment or punishment.205 The principle of non- refoulment is recognized in international human rights law as a fundamental component of the prohibition of torture.206 Non-refoulment is the prohibition of direct and indirect forced removal of refugees or asylum seekers to a territory where they risk being subjected to human rights violations on account of their race, nationality or religion.207 The Statement and the Declaration have both been criticized for violating the prohibition of non-refoulment and therefore the attention in this section will be on the possibility to annul the informal agreements because they violate this principle.
VCLT agreements can actualize general principles of international law and thus create binding obligations. 211 One example is the principle of legitimate expectations which could, depending on the intention of the state and the specific circumstances in the case, create binding obligations on the parties.212
