The Law of Treaties

References• Chapter 10, DJ Harris, Cases and

Materials on International Law

• Scott Davidson, The Law of Treaties

• Chapter 16, Malcolm N. Shaw, International Law Fifth Edition

• Chapter 13, Robert M Maclean, Public International law, 18th Edition

• Vienna Convention on the Law of Treaties 1969

• http://www.gthr.net/default html

• http://untreaty.un.org/English/guide.pdf

Course structure• Introduction• Scope of VCLT 1969• Definition of “treaty” and criteria• The making of treaty– Formalities– Reservations– Entry into force

• Validity and applications• Interpretation of treaties• Invalidity, suspension and termination of treaties

Introduction• Treaties are one of the means through which

States deal with each other • A source of law that the ICJ is bound to apply

under Article 38 (1)(a) of ICJ Statute• A precise method of regulating relations and

conduct of states• Knowledge of the law of treaties is essential to

understand how international law works

• Treaties fulfil a broad range of functions and they cover wide variety of subject matter

• Treaties range from:-1.Bilateral treaty through which two states

secure reciprocal rights and obligations2.Multilateral Treaties-comprehensive legal

regime of uncertain durations for particular facet of international relations

The Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties

• A coherent body of rules on the law of treaties begin to evolve starting from the Peace of Westphalia 1648

• The rules include:-a. The competence of various person to conclude

treatiesb. The nature of the acts which the state is boundc. The obligation to perform treaties d. Factors that might vitiate them

• In 1949 the International Law Commission (ILC) included the law of treaties in its list for codification

• The law of treaties has been codified in the Vienna Convention on the Law of Treaties (VCLT) in 1969 which came into force on 27 January 1980

• Agreements between other international persons were not included in VCLT to avoid delay (incorporated in the 1982 VCLT between states and IO’s)

• VCLT regulates treaties concluded between states (Art.1) and in written form(Art.2(1)(a) governed by the International Law.

• VCLT is applicable unless a particular treaty provides otherwise; or unless the parties agree otherwise; or if a different intention otherwise established (residual rule)

The formalities of a treaty

Definition

Art.2 Vienna Convention on the Law of Treaties 1969

“treaty” means an international agreement between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instrument and whatever its particular designation

CriteriaCriteria

It should be intended to create legal obligations

It should be intended to create legal obligations

Written instrument

or instruments

between two or more parties

Written instrument

or instruments

between two or more parties

Parties must be endowed

with international personality

Parties must be endowed

with international personality

It must be governed by international

law

It must be governed by international

law

International Agreement concluded between states in

written form

• Although the VCLT does not apply to international agreements which are not made in writing, Article 3 of VCLT states that the legal force of such non-written agreements shall not be affected.

• A treaty may be described in a multitude of ways (nomenclature) such as convention, protocol, declaration, covenant, charter, pact and agreement. ‘There is no exclusive or systematic use of nomenclature for particular types of transactions’

• The Vienna Convention does not require that a treaty be in any particular form or comprise any particular elements.

• If there is a dispute concerning the status of a document as a treaty, an objective test is used taking into account its actual term and circumstances in which it was made.

• Case: Qatar v Bahrain‘The court does not find it necessary to consider what might have been the intentions of the Foreign Minister of Bahrain or for that matter those of the Foreign Minister of Qatar. The two ministers signed a text recording commitment accepted by their Governments, some of which were to be given an immediate application. Having signed such a text the Foreign Minister of Bahrain is not in the position subsequently to say that he intended to subscribe only to a statement recording political understanding’ and no to an international agreement.

Parties must be endowed with international personality

• Art 6 VCLT provides that ‘Every state possesses capacity to conclude treaties’.

• Commentary by the ILC states that ‘the term state’ in art 6 has the same meaning as in the UN Charter, the statute of court and the Geneva Convention on Diplomatic Relations, i.e it means a State for the purpose of international law’

• States members of a federal union may possess a capacity to conclude treaties if such capacity is admitted by federal constitution and within the limits there laid down’-eg Germany.

• Individuals have never been recognised as having the capacity to make treaties, with states or other international persons

• In Anglo-Iranian Case, ICJ rejected an argument to the effect that a contract between Iran and the Anglo-Iranian Oil Company was a treaty because of the part played by UK Government in its negotiation. The court held that it is a concessionary contract between a government and a foreign cooperation.

Governed by International lawILC Fourth Special Rapporteur stated in his first report (1962):‘The commission felt in 1959 that the element of subjection to international law is so essential a part of an international that it should be expressly mentioned in the definition. There maybe agreements between states such as agreements for acquisition of premises for diplomatic missions or for some purely commercial transaction that are regulated by the local law of one of the parties or private law system to resolve the conflict…….

• For example, during the period 1966-1968 Denmark entered into series of loan agreements between states which stipulate that ‘the agreement and all rights and obligations shall be governed by Danish law’

Intention to create legal relationship• The element is implicitly present in the phrase

‘governed by international law’.• There are some international acts that may assume

the form of international agreements but which were never intended to create legal obligations (soft law)

• States may reach an agreement as to political intent without making it legally enforceable. For example, The Final Act of the Helsinski Conference on Security and Cooperation in Europe was stated to be ‘not eligible for registration under Article 102 of the UN Charter. It was understood that the Act would not have any binding effect in law.

Case: Oil Platforms (Preliminary Objections)‘although the treaty is legally binding, a particular provision in it may be drafted in terms so general that by itself it is not capable of generating legal rights and obligations…….there shall be firm and ensuring peace and sincere friendship did not generate legal rights and obligations……….

Unilateral acts• Acts and conduct by governments although not

intended to formulate agreements may nevertheless results in legal effect.Case: Legal Status of Eastern Greenland Case: Denmark v Norway (1933)‘The Court Considers it beyond all dispute that a reply of this nature given by the Minister of Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs’

• In the Nuclear Test Cases, the ICJ held that unilateral statements of states can have binding effect if the intention that they be legally binding is clear; that there is clear evidence regarding the circumstances in which they are made; and that the question is approached with due caution.

• The criteria for such obligation are:-a. The intention of the State making the declaration

that it should be bound according to its termsb. That the undertaking be given publicly. “No

subsequent acceptance of the declaration, nor even any reply or reaction from other States is required for the declaration to take effect’.

The application of Article 2 of VCLT

• South Africa (preliminary Objections) cases‘the Mandate for South West Africa was an international agreement having the character of a treaty’

• Qatar v Bahrain‘ The Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up’

Vienna Convention on the law of Treaties (Scope of the Convention)

• Art.1-4: Definition• Art.-6-17: Conclusion and entry into force of

treaties• Art.18: Obligation not to defeat the object and

purpose of a treaty prior to its entry into force• Art 19-23: Reservations• Art. 26: Pacta Sunt servanda• Art 27: Prohibition against the use of domestic

legislation• Art. 28: Application of treaties

• Art. 31-33: Treaties interpretation• Art. 36: Treaties and third party• Art. 61: Supervening impossibility of

performance• Art. 46-53: Invalidity of treaties• Art. 62: Fundamental Change of circumstances• Art. 64: Emergence of Jus cogens• Art. 71: Consequences of the invalidity of a

treaty which conflicts with peremptory norms of international law

The making of treaties

Formalities

• Can be concluded in any manner by the parties• Depend upon the intention of the states

concerned• The power to make treaties depends upon each

country’s municipal regulations, eg. In UK, the treaty making power is within the prerogative of the Crown. In US, the President is vested with the power to make treaties with the advice and consent of Senate and concurrence of 2/3 of the Senators

• Art. 7 of VCLT provides that persons representing states must have ‘full power’ (document certifying status from competent state authorities) to conclude treaties

• Certain people such as heads of state and government, foreign ministers, heads of diplomatic missions, and accredited representatives do not need to produce full powers by virtue of their positions and functions

• Art. 8 of VCLT provides that ‘any act relating to the making of a treaty by a person not authorized will be without legal effect unless the state confirms the act afterwards

• In 1951 a convention concerning the naming of cheeses, a delegate signed on behalf of Sweden and Norway. However, only Norway authorized him to sign. Both states later ratified the convention and entered into effect.

Consent• Art 9 provides that adoption in international

conference takes place by the vote of 2/3 of the states present and voting, unless a different rule applied. Other than that, adoption will take place upon the consent of all states involved

• Art 11:-consent by signature (art 12), exchange of instruments constituting a treaty (art 13), ratification (art 14), acceptance, approval or accession(art 15 & 16) or by any other means

• Consent by signature (art 12 VCLT)-where the convention is subject to acceptance, approval or ratification, signature only mean that representatives agreed to the text of the treaty. Art. 18 VCLT stipulates that state must refrain from acts that would defeat the object and purpose of the treaty until its intention with regard has been cleared.

• Consent by ratification (art 14)- ratification by the competent authorities of the state to ensure that the representative did not exceed his power or instructions.

• Consent by accession (art 15)- a state becomes a party to a treaty it has not signed either because the treaty provides that signature is limited to certain states, and it is not such state, or because a particular deadline for signature has passed

Reservations to treaties• Definition- Article 2 VCLT

‘ a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, where it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’.

• By excluding certain provisions, states may agree to be bound by treaty which otherwise they might reject entirely (multilateral treaties)

• The effect of reservation is to exclude the treaty provision to which the reservation has been made from the terms of the treaty in force between the parties.

• Reservations must be distinguish from other statements that are intended to have legal effect of a reservation such as political statements or interpretative declarations.

• Political statements or interpretative declarations does not have any binding consequences to the treaty.

• Case: Belilos v Switzerland‘ in order to establish the legal character of such declaration, one must look behind the title given to it and seek to determine the substantive content’

• Case: Anglo-French Continental Shelf case‘although reservation contained elements of interpretation, it also constituted a specific condition imposed by France on its acceptance..It had the purpose of seeking to exclude or modify the provisions of the treaty and thus constituted reservation.’

• The statement will have to be interpreted in good faith in accordance to the meaning of the terms and context of the treaty and intention of the party.

• The classical doctrine of reservations provides that a state wishing to make reservation needs to get consent from all parties to the treaty.

• However, the court in the case of Reservation to the Genocide Convention did not accept this restrictive approach.

• First question‘A State which has made and maintained a reservation which has been objected to by one or more parties to the Convention but not by others can be regarded as a party to the Convention if the reservation is compatible with the object and purpose of the treaty

• 2nd Question‘a) if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of he Convention, it can consider that the reserving state is not a party to the Convention.

b) a party accepts the reservation as being compatible with the object and purpose of the Convention, it can consider that the reserving State is a party to the Convention

• Question 3‘a) an objection to a reservation made by a signatory state which has not yet ratified the Convention, can have the legal effect only upon ratificationb)an objection to a reservation by a state which has not sign or accede is without legal effect.

• Codification of the ICJ’s opinion in the Reservations to the Genocide Convention Case (Art. 19-21 VCLT)

• Art. 19-if a treaty is silent regarding reservations, a state is entitled to make reservation that is not incompatible with the object and purpose of the treaty

• Reservations may be made when signing, ratifying, accepting, approving or acceding to a treaty, but they cannot be made where the reservation is prohibited by the treaty, where only specified reservations may be made, or where the reservation is incompatible with the object and purpose of the treaty (Art 19)

• Art 20(2) VCLT- it appears from the limited number of the negotiating states and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty

• Art 20(4)- the general rule to the treaties not within art 20(2) and not constituent instruments of international organizations:

a) acceptance by another state of a reservation constitutes the reserving state a party to the treaty in relation to that other state if or when the treaty is in force for those statesb) an objection by another contracting state to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving state unless a contrary intention is definitely expressed by the objecting states

c) an act expressing a state’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting state has accepted the reservation

• Art 21 VCLT-the effect of reservation• A reservation established with regard to

another party modifies, for the reserving state in its relation with the other party, the provisions of the treaty to which the reservation relates, to the extent of reservation

• Eg. The Libyan reservation to the 1961 Vienna Convention on Diplomatic Relations with regard to diplomatic bag (principle of reciprocity).

• Art 21 (3) VCLT- where a state objects to a reservation, but not to the entry into force of the treaty between itself and the reserving state, then ‘the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation

• Case: Anglo-French Continental Shelf

‘the combined effect of the French Reservations and their rejection by UK is neither to render article 6 inapplicable in toto, as the French Republic contends, nor to render it applicable in toto, as the UK contends. It is to render the article inapplicable as between the two countries’

Issue:-who has the authority to determine whether the reservation is permissible or not/ whether the reservation incompatible with the purpose and object of the treaty?

• Unless the particular treaty otherwise provides, whether a reservation is impermissible is determine by the states parties themselves.

• Restrictions to the Death Penalty caseo Guatemala made a reservation to the guarantee of

the right to life in the American Convention on Human Rights 1969. It did not accept the prohibition of the death penalty for crime related to political offences. Issues arise as to whether this reservation was impermissible as being contrary to the objective and purpose of the Convention.

o The American Court of Human Rights stated:‘Art 27 of the convention allows states parties to suspend in time of war, public danger, or other emergency that threatens their independence or security provided that they do not suspend or derogate from certain basic rights such as the right to life guaranteed under Article 4. Thus, a reservation which was designed to enable a State to suspend any of the non-derogable rights must be deemed to be incompatible with the object and purpose of the Convention and not permitted’

• Reservations are deemed to have been accepted by states that raised no objections at the end of 12 months period after notification of the reservation or by the date on which the consent to be bound by the treaty was expressed

• Reservations, acceptance of it and objections to, must be in writing and communicated to the contracting states

Reservation to human rights treaties• The UN Human Rights Committee in its General Comment

24/52 of 2 November 1994 emphasized that the provisions in the ICCPR represented customary international law could not be the subject of reservations. Reservations to non-derogable provisions not falling in this category, states had a heavy onus to justify such reservations. The effect of an unacceptable reservation would be that the provision operated in full with regard to the party that made the reservation and not that the Covenant would not be in force at all.

• The Committee regarded itself as the only body able to determine whether a reservation was or was not compatible with the object and purpose of the Covenant.

• The International law Commission adopted the Preliminary Conclusions on Reservations to Normative Multilateral Treaties including Human Rights Treaties in 1997

• Reaffirmed the applicability of VCLT provisions on reservations to all treaties including the human rights treaties

• Accepted that the human rights monitoring bodies were competent to comment and recommend the admissibility of reservations

• However, emphasized that the reserving state has the responsibility of taking action in the event of inadmissibility and such state could modify or withdraw the reservation or withdraw from the treaty

Entry into force• Depend on the decision of the negotiating

states• In the absence of any agreement, a treaty

enter into force as soon as consent to be bound by the treaty has been established for all the negotiating states (Art 24 VCLT).

• Some treaties specify that they will come into effect upon a certain date or after a determined period following the last ratification

• Eg. VCLT provides that it came into effect 30 days after the deposit of the 35th ratification

Applications• Art 28 VCLT-a treaty will not operate retroactively, it

will not bind a party as regards any facts or situations prior to that state acceptance of the treaty unless a different intention appear.

• Art 29 VCLT-a treaty is binding upon each party in respect of its entire territory

• Art 34 VCLT-a treaty does not create either obligations or rights for a third states without its consent. (Art 35 VCLT) an obligation may arise for a third state from a term of treaty if the third state expressly accepts that obligation in writing

Interpretation of treaties

• The purpose of interpretation is to discover the intentions of the parties as expressed in the text‘the purpose of interpreting a treaty is to establish the meaning of the text which the parties must be taken to have intended it to bear in relation to the circumstances with reference to which the question of interpretation has arisen’

Methods of interpreting

a treaty

Methods of interpreting

a treaty

The intentions

of the parties

The intentions

of the parties

Teleological school

Teleological school

Objective or textual

approach

Objective or textual

approach

Objective or textual approach

• Gives precedence to the text of the treaty• emphasis on the actual words of the treaty• What did the parties say?

The intentions of the parties

• Concerned with giving effect to the actual or presumed intentions of the parties

• ‘real will’ of the states

Teleological school

• To ascertain the object and purpose of the treaty and to give effect to this

• Inquire into the objects and purposes of the treaty taken as a whole

• To ascertain the original aims of the parties in concluding the treaty by referring to the entire course of negotiations and the circumstances of its conclusion.

• Art. 31 VCLT‘ A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’

• Art 31 (2):- interpretation would include looking at preamble and annexes, agreement and instrument made in connexion with the conclusion of the treaty

• Art 31 (3) VCLT:-Interpretation would take into account any subsequent agreement relating to the treaty, any subsequent practice in the application of the treaty, applicable rules of international law.

• Art 31 (4) VCLT: special meaning• Art 32 VCLT: Supplementary means of

interpretation- preparatory work of the treaty, circumstances of its conclusion.

• Art. 31 and 32 of VCLT give precedence to the textual or literal approach to interpretation but do not exclude other forms of interpretation

• Possible recourse to teleological approach• The usage of supplementary materials to

avoid a meaning that is ambiguous, manifestly absurd or unreasonable.

Invalidity of treaties

Relative grounds

•Art 46-50

•Render a treaty voidable at the instance of an affected state

Relative grounds

•Art 46-50

•Render a treaty voidable at the instance of an affected state

Absolute grounds

•Art 51-53

•Treaty is rendered void ab initio and without legal effect

• Art 46-the failure to comply with internal law regarding competence to conclude a treaty. This may only be a ground for invalidating consent to be bound if that failure was ‘manifest’-objectively evident to any state conducting itself in the matter in accordance with normal practice and good faithCameroon v Nigeria‘limitation of his capacity would not be manifest unless publicised……there is no obligations for states to keep themselves informed of legislative and constitutional developments in other states’

• Art. 47-the representatives purporting to conclude a treaty were acting beyond the scope of their instructions

• Art 48-error as vitiating ground. A state may only invoke error in a treaty if it relates to facts that formed an essential basis of its consentTemple case‘plea of error cannot be allowed as a vitiating consent if the party advancing it contributed by its conduct or error, or could have avoided it….the qualifications of persons who saw Annex 1 map on Siamese side would made it difficult for Thailand to plead error

• Art 49 & 50-fraud and corruption

• Art 51-coercion of a representativee. pressure exerted on the President of Yugoslavia to sign treaty with German in 1939 to establish German Protectorate over Bohemia andMoravia.

• Art 52-coercion of a state1973 Fisheries Jurisdiction Case‘there can be little doubt as implied in the Charter of the UN and recognised in Art. 52 VCLt, that under contemporary international law an agreement concluded under the threat or use of force is void’

• Art.53-conflict with norms of jus cogens, (international public policy), consequences can be found in art 71 VCLT

Termination of Treaties

Termination of Treaties

Material breach-Art 60 VCLT Material breach-Art 60 VCLT

Supervening impossibility of performance-Article 61 VCLT

Supervening impossibility of performance-Article 61 VCLT

Fundamental Change of circumstances-Article 62 VCLT

Fundamental Change of circumstances-Article 62 VCLT

Material breach• May occur when (Art 60 (3) VCLT) :o there is repudiation of a treaty that is not

sanctioned by the Convention o there is violation of a provision essential to

the accomplishment of the object and purpose of the treaty

• Namibia (Advisory Opinion) 1971• Rainbow Warrior (Arbitration (New Zealand v

France) 1990

Gabčĺkovo-Nagymaros Case 1977

“only material breach of the treaty itself by state party to it which entitles the other party to rely on it for grounds of termination”

Supervening impossibility of performance

• The permanent disappearance or the destruction of an object indispensable for the execution of a treaty rendering the performance of a treaty impossible

• Example:a)The submergence of an islandb)The drying up of a riverc) Destruction of a dam by an earthquake• Gabčĺkovo-Nagymaros Case 1977

Fundamental Change of circumstances• The change is of circumstances existing at the time of

the conclusion of the treaty;• The change is “fundamental”;• The change was not foreseen by the parties (when

they conclude the treaty)• The existence of the circumstances constituted an

essential basis of the consent of the parties to be bound by the treaties

• The effect of the change was to radically to transform the extent of the obligations still to be performed under the treaty

• Cannot be invoked if the treaty establishes boundary and the result of a breach by a party (invoking it)

Fisheries Jurisdiction Case (Jurisdiction) 1974

“In order that a change of circumstances may give rise to aground for invoking the termination of a treaty it is also necessary that it should have resulted in a radical transformation of the extent of the obligations still to be performed. The change must have increased the burden of the obligations to be executed rendering the performance something essentially different from that originally undertaken”

Gabčĺkovo-Nagymaros Case 1977

A fundamental change of circumstances: a)must have been unforeseen;b) must have constituted an essential basis of

the consent of the parties to be bound by the treaties

c) Applied only in exceptional cases