LAW 431- PUBLIC INTERNATIONAL LAW

Contents

LAW 431- PUBLIC INTERNATIONAL LAW...............................................................................................1

A treaty as a source of International Law..............................................................................................2

“Law making treaties” vs “Treaty-Contracts”....................................................................................2

What is a treaty?...................................................................................................................................2

Classification of Treaties........................................................................................................................2

LECTURER- MR J. PFUMORODZETREATIES- GROUP 3

Discussion surrounding how a treaty is a source of international law, what a treaty

Is and the effect of a reservation on the operation of a treaty.

The Codification of Customary International Law.................................................................................2

Definition of a Custom:......................................................................................................................2

Sources of Customary International Law...........................................................................................2

State practice must be material.........................................................................................................2

The Negotiation and Ratification of Treaties.........................................................................................2

The negotiation of a treaty................................................................................................................2

What does the ratification of a treaty mean?....................................................................................2

The Distinction between ‘Ratification’ and Accession.......................................................................2

The Exercise of a Reservation on a Treaty.............................................................................................2

The legal effect of reservations.........................................................................................................2

The effect of objections to reservation..............................................................................................2

Withdrawal from a treaty......................................................................................................................2

A treaty as a source of International Law

Article 38 (1) of The statute of the International Court of Justice of 19451 enumerates a list which

has come to be known as the ‘accepted ‘ and ‘ recognised’ sources of international law. Article 38

(1) of the aforementioned Statute provides as follows;

1 The Statute of the International Court of Justice is an integral part of the United Nations Charter, as specified by Chapter XIV of the United Nations Charter.

‘1. The Court, whose function is to decide in accordance with international law such disputes

as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most

highly qualified publicists of the various nations, as subsidiary means for the determination

of rules of law.’

At the time Article 38 of the UN Charter was drafted, the term ‘convention’ denoted any sort of

treaty: bilateral or multilateral, and in the context of Article 38 it still retains this meaning. Since

WWII2, treaties have assumed a clear prominence as the primary source of law-making on the

international plane, especially multilateral treaties.

Even so, international tribunals have clarified customary international law in ways which have

developed the legal principles governing the law applicable to treaties. For example, the

International Court of Justice has contributed significantly in clarifying the general rules for the

interpretation of treaties.3

Furthermore, with the increased focus on relations between States that comes with globalisation,

there has been greater pressure and demand to codify rules obtaining between those States. This

codification has been done mainly through treaties because they are a relatively simple, clear and

quick way of crystallizing existing international rules and developing new ones.

Indeed, it is now commonplace for legal scholars to classify those treaties which lay down universal

(or even fairly general) rules governing international society as 'law-making' or 'normative' treaties’.

The Hague Peace Conferences of 1898 and 1907 are often cited not only as a watershed in the

institutionalisation of international co-operation, but also as the first major international ‘law-

making’ conferences.

The Britannica Micropedia 4 begins the definition of a ‘treaty’ as:

2 World War Two, 1939- 19453 GG Fitzmaurice, The Law and Procedure of the International Court of Justice: Treaty Interpretation and Other Treaty Points, 1951 BYBIL, pp 1-28; cf Article 31 Vienna Convention on the Law of Treaties, ( 1969).4 Britannica Micropedia Ready Reference, volume 11, 15th ed., 1990

‘a contract or other written instrument…..’

The above underscores the fact that the manner in which treaties are negotiated and brought into

force is governed by the intention and consent of the parties thereto. D.J Harris5 argues that treaties

are innately in their inception, a source of obligation as opposed to a source of law. The astute

observations made by the dissenting Judges in the [Reservations to the Genocide Convention

Case]6in connection with Harris’s belief echoed his sentiments when they stated that:

‘the legal basis of these conventions, and the essential thing that brings them into force, is

the common consent of the parties’

Similarly to the terms and conditions which govern the relationship between the parties to a

contract- outlining the respective duties, rights and obligations of the parties thereto- a treaty can be

seen to be of the same tenor. Harris postulates that the only law, that enters into these agreements

is not from the treaty creating them, but emanates from one of the oldest principles of international

law - pacta sunt servanda.7

Pacta sunt servanda is the Latin maxim which, loosely translated means ‘agreements must be kept’.

Article 26 of the Vienna Convention of 1969 reaffirms this principle, and provides that:

‘Every treaty in force is binding upon the parties to it and must be performed by them in good

faith.’

The law in these agreements is that the obligation must be honoured, but that the obligation does

not of itself constitute a law. Whereas a statute is always from its inception, law- a treaty may

eventuate in the promulgation of law(s) but is not in its inception itself, a law.

What then is the status of a treaty, which then becomes incorporated into the national body of

laws? For example, the UN Convention on the Rights of the Child which led to the enactment of the

Children’s Act.8Whilst one half of the group opine that the contents of the treaty are that from

which the law emanates (the source), the other half opine that the treaty remains a reference

material which simply evidences the obligations undertaken by the respective signatories to a treaty.

Both schools of thought are correct to a certain extent, as shall be illustrated by the discussion to

follow.

5 The author of ‘Cases and Materials on International Law’, 3rd ed6 Advisory Oppinion I.C.J.Reports 19517 DJ Harris, Cases and Materials on International Law, 3rd ed. 8 (Cap 28:04)

“Law making treaties” vs “Treaty-Contracts”

For the purposes of this discussion, treaties can be classified into two categories;

I. “law making” treaties- alludes to multilateral treaties that are universal or general in

nature. Treaties of this nature are said to codify the peremptory norms that are already

recognised as international law customs- they essentially repeat what is already recognised

as customary international law; and

II. “treaty-contracts”, which are treaties that are signed between a smaller number States on

certain limited issues. Treaties of this nature, do not codify existing customary international

law, but create new obligations binding upon the member states thereto. The norms created

by such a treaty contract are used to develop the international legal framework, and as such,

under these circumstances can be said to be a source of international law.

In regard to ‘law making treaties Harris9 states: “True, where it reflects (e.g. codifies) existing law,

non-parties may conform to the same rules, but they do so by virtue of general law thus reflected in

the treaty, not by virtue of the treaty itself. In that sense, the treaty may be an instrument in which

the law is conveniently stated, and evidence of what it is…”.For example the four Geneva

Conventions of 1949 or the Convention against the Prevention of Torture and other Cruel,

Inhuman and Degrading Treatment. The Fourth Geneva Convention of 1949, although only a treaty

– and thereby only binds parties to the treaty – is accepted as setting out the international law

relating to the protection of civilians in armed conflict. Similarly, the definition of torture found in

Article 1 of the Torture Convention is by and large reflective of the definition of torture under

international law (and national laws). These treaties although only binding on the State parties,

contain provisions that give guidance and evidence the peremptory rules on what constitutes

international law.

On the other hand, were we to contrast this with a hypothetical agreement, for instance the

Agreement between India and Sri Lanka for the Development of the Coconut and Rubber

Industries. This agreement does not, ab initio, create standards or norms of international law. It

operates as an agreement, or a contract, between India and Sri Lanka in relation to coconut and

rubber. The provisions of this agreement will not bind Pakistan.

What is a treaty?

9 DJ Harris, Cases and Materials on International Law, 3rd ed

Several definitions have been advanced in an attempt to describe and ascribe the characteristics

which dictate ‘what a treaty is’, inter alia:

1. A settlement or agreement arrived at through negotiation which gives rise to binding

obligations between parties who make them. Such settlement/agreement may outline the

rights and responsibilities of the parties as they are agreed upon10; or

2. A formal written agreement between sovereign states or between states and international

organisations11; or

3. A contract or other written instrument binding two or more states under international law.12

A treaty as defined in Article 2 (1) (a) of the Vienna Convention on the Law of Treaties of 196913 is

said to be:

‘an international agreement concluded between states in writing and governed by

international law, whether embodied in a single instrument or in two or more related

instruments and whatever its particular designation…’

Additionally, The Draft Articles on the Law of Treaties between States and International

Organisations mirrors the above definition, substituting ‘states’ to read ‘states and international

organisations’ instead.14The Draft Articles on the Law of Treaties between States and International

Organisations were completed by the International Law Commission in 1982, and essentially follow

the provisions of the Vienna Convention mutatis mutandis. The aforenamed Draft Articles differ from

the Vienna Convention with regard to dispute settlement procedures. This is so because

international organisations cannot be parties to contentious proceedings before the International

Court of Justice. Therefor Draft Article 66 provides for the compulsory arbitration of jus cogens

matters.

According to modern diplomatic usage, the term treaty is restricted to delineate international

agreements of greater significance, whereas those international agreements of lesser or subordinate

importance are referred to as conventions, protocols and arrangements.15

Simpliciter, treaties are concerned with governing the relations between states and international

organisations, which are intended to create binding obligations upon the parties to them. Therefore

10 Ian Brownlie, Principles of Public International Law , 199811 Supra12 Britannica Micropedia Ready Reference, volume 11, 15th ed.,199013 Hereon after referred to as the ‘Vienna Convention’, which entered into force January 1980 and has been ratified by more than 100 countries14 Malcom N Shaw, International Law ,2nd ed., 194615 Britannica Micropedia Ready Reference, volume 11, 15th ed., 1990

the purpose of treaties is to create general norms for the future conduct of the parties in terms of

legal propositions.16

Classification of Treaties

Generally speaking, treaties may be classified into two broad categories- which classification is based

upon the number of states party to the treaty in question:

a) General (Multilateral) treaty – A treaty that has three or more states as signatories

thereto and lays down behavioural rules i.e. The Treaty of Versailles of 1919 17

b) Bilateral treaty –A treaty which embodies an agreement between two states, and is

generally drafted from a contractual standpoint i.e. The Camp David Accords 18

between Egypt and Israel, signed in 1978.

International jurists have classified treaties on a number of various principles. Discussed herein, in

greater detail is an extensive classification of treaties according to their principle object. As a result

of the phenomena of globalisation and the expansion of intercourse between states beyond the

political arena, states and international organisations employ treaties to govern their relations with

their counterparts in an assortment of areas i.e. economic and technical fields.19

1. Political treaties- such as treaties of peace, of alliance, of cession of territory and of

disarmament i.e. The Treaty of Versailles

2. Commercial treaties- these treatises include agreements concerning tariff, consular, and

fishery and navigation agreements i.e. The Geneva General Agreement on Tariffs & Trade

1947

3. Constitutional and administrative treaties-such as conventions establishing and regulating

international unions, organisations and specialized unions

4. Treaties relating to criminal justice- such as those that define international crimes and

provide for the extradition of accused persons i.e. United Nations Convention Against

Corruption 2003

16

17 One of the peace treaties signed at the end of World War One. The Treaty of Versailles signified the end of the state war between Germany and the Allied Powers ( Great Britain, France and Russia)18 A peace treaty that ended thirty years of conflict between the two states, which was witnessed by President J Carter of the United States of America19 Britannica Micropedia Ready Reference, volume 11, 15th ed., 1990

5. Treaties relating to civil justice- such as conventions for the protection of human rights,

trademarks and copyrights, and providing for the execution of foreign judgements i.e. The

International Convention on Civil & Political Rights 1966

6. Treaties codifying international law- commonly referred to as ‘law making treaties’, these

treaties are elaborations of international law i.e. such as procedures for the peaceful

settlement of international disputes, rules for the conduct of war, and definitions of the

rights and duties of states.

The Codification of Customary International Law

(was this not meant to be the codification of customary international law in treaties-it seems out of context? )

Definition of a Custom:

According to Article 38 of the International Court of Justice, the essence of a custom is that it should

constitute ‘evidence of a general practice accepted as law’. Consequently from this statement, one

may deduce that a custom includes certain rules of behaviours which prescribe what it permitted

and what is not i.e. expresses the needs and values of a given society.

Sources of Customary International Law

Hence, in international law, the existence of customary rules can be deducied from the practice and

behaviour of states. Evidence of what a state does can be obtained from numerous sources. One

must note that a state is not a living entity, but rather consists of governmental departments which

often interact in the international field, and therefore one must examine such material sources.

The international Law Commission (herein after referred to as ‘the ILC’) has expressed that ‘records

of the cumulative practice of international organisation may be regarded as evidence of customary

international law with reference to states, relations to the organisations’.20

One must note that the ‘opinio juris’ or belief that a state activity is legally obligatory is the factor

which turns the usage into custom and renders it part of the rules on international law. In other

words, states will behave a certain way because they are convinced it is binding upon them to do so.

20 Yearbook of the ILC 1950 volume 2 , pages 368-372

The permanent Court of International Justice expressed this point of view when it dealt with the

[Lotus case]. In that particular case, there was a collision on the high seas between the Lotus , a

French ship and the Baz- Kourty, a Turkish ship. Several people upon the latter drowned and Turkey

alleged negligence on the part of the French officer of the watch. The French officer was arrested on

reaching Istanbul on a charge of manslaughter. The issue at hand was whether Turkey had the

jurisdiction to try him. The French maintained that there existed a rule of customary international

law that they as the flag state of the accused, it had exclusive jurisdiction, and that the flag state of

the victim was barred from trying him. This view was justified by the fact that there were no

previous criminal prosecutions by such states in similar situations and hence, there was tacit consent

in the practice which therefore became a legal custom.

The court rejected this and held that ‘only if such abstention were based on the states being

conscious of a duty to abstain, would it be possible to speak of an international custom’.21 Thus the

essential ingredient of obligation was lacking and the practice remained practice and nothing more.

State practice must be material

There are certain points in limine which must be focused on i.e.

a) The duration;

b) Consistency;

c) Repetition; and

d) Generality of a particular practice by states;

The basic rule as regards continuity and repetition was laid down in the [Asylum Case], 22in which

the court declared that a customary rule must be ‘in accordance with a constant and uniform usage

practiced by the states in question’.23In the [Anglo-Norwegian Fisheries Case]24, the ICJ emphasised

the view that some degree of uniformity amongst state practices was essential before a custom

could come into existence.

21 PCIJ Series A. no. 10 1927 at page 2822 ICJ Reports 1950 p26623 Ibid pp 276-27724 ICJ Reports 1951 pages 116,131 and 138

The Negotiation and Ratification of Treaties

The negotiation of a treaty

Normally treaties are negotiated between plenipotentiaries (envoys, delegates, and the like) of the

respective governments involved in a particular undertaking. These plenipotentiaries are persons

vested by their governments with ‘full power’ to conclude the treaty within the scope of their

instructions. In creating a treaty, the author(s) need not employ any particular form.25 Generally a

treaty most often takes the form of a contract but it may take other forms such as:

A Joint Declaration i.e US & China Joint Statement of 201226

An Exchange of Notes i.e The Rush- Bagot Agreement of 181727

Although a treaty is often likened to a contract, the signatures appended thereto by the

plenipotentiaries of the respective governments involved, are today presumed to be subject to

ratification- unless explicitly waived. For instance, Article 6 (2) of the American Constitution

provides that all treaties made under the authority of the United States shall be the supreme law of

the land. Therefore treaties entered into by the United States of America form part of their domestic

law; once the treaty is concluded it becomes binding upon the United States (no legislative Act is

required for the binding effect of these treaties to become operative). A treaty of this nature is

known as a ‘Self executing treaties’.

What does the ratification of a treaty mean?

The Chambers Concise Dictionary defines the term ‘ratify’ as:

‘The confirmation or adoption of an act that has already been performed.’

Treaties of this nature are known as ‘Non- Self executing treaties’, as they require the promulgation

of legislation /statute so as to become specifically incorporated into the national juris corpus.28 The

legal position of treaties in Botswana is illustrated in the landmark case of [Unity Dow v Attorney

General]29 wherein Judge Aguda had occasion to state that treaties require legislation to become

25 Britannica Micropedia Ready Reference, volume 11, 15th ed., 199026 The Joint Declaration, inter alia, reaffirmed the two states intention to enhance communication and cooperation on major international security, jointly tackle global challenges and addressed major regional issues27 Entered between Great Britain and the United States for the mutual disarmament on the Great Lakes 28 DD Ntanda Nsereko, Constitutional Law in Botswana, 200429 1994 (6) BCLR 1

part of national law. Similarly, this position was confirmed in the case of [Good v Attorney

General]30, the The International Convention on Civil and Political Rights (also commonly referred

to as the ICCPR) was declared by the court to be only of persuasive value and not a directive, as it

had not been ratified so as to become part of Botswana’s domestic law. Section 24 of the

Interpretation Act31 provides that such international conventions and treaties as far as they have not

been incorporated into domestic law, those undertakings may be used as an aid to construction of

the Constitution and of statutes.

According to DD Nsereko32, the rationale for the practice of ratifying and thereby incorporating

international treaties into the domestic legal framework is that the unlike the practice obtaining in

other states (South Africa, Germany and Namibia) our Parliament is neither consulted nor involved

in the negotiation of treaties .The conclusion of treaties with foreign states is an Executive act- with

the President acting alone. If such treaties were to automatically become laws and thus enforceable

by our judicial machinery, without the input and intervention of Parliament, this would amount to a

usurpation of legislative powers by the President without the sanction of the Constitution.

Therefore, treaties that create rights and obligations for persons in Botswana, or whose

enforcement influence the operation of existing law, require our legislature (Parliament) to

promulgate specific Acts incorporating the treaty in question into the national body of laws. For

example, the Vienna Convention on Diplomatic Relations of 1961 was incorporated into our

national body of law, when Parliament enacted the Diplomatic Immunities and Privileges Act.33

The Distinction between ‘Ratification’ and Accession

An outstanding feature of treaties as a source of law is the weight attached to the intention of the

parties. In manifesting this intention, parties may ratify or accede to a treaty34. ‘Accession’ occurs

when a state which did not sign a treaty, already signed by other states, formally accepts its

provisions. Whereas ‘ratification’, was originally associated with the formal act done by a state to

make a treaty binding upon itself. Ratification as a whole involves two distinct procedural acts viz;

I. The act of the appropriate organ of the state

II. The international procedure which brings a treaty into force by means of formal exchange

30 2005 (2) BLR 337 (CA)31 (Cap 01:04)32 Constitutional Law in Botswana, 2nd ed , 200433 (Cap. 39:01)34 Ian Brownlee, Principles of Public International Law, pages 582-583

(feel this should be explained- exchange of letters?)

It should be noted that, there is a common feature between ratification and accession; being that,

both acts can be governed by a provision contained in a treaty. The legal effect of accession is to

render the acceding state a party to an instrument or treaty, as in the case of a convention approved

by the UN General Assembly and proposed for accession by member states.35 The prevailing

presumption was that treaties in principle require ratification; however the International Law

Commission36 changed its view and now makes reference to Article 14 of the Vienna Convention

which regulates the matter having strict regard to the intention of the parties.

The Exercise of a Reservation on a Treaty

Article 2(1) (d) of the Vienna Convention defines a ‘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 modify the

legal effect of certain provisions of the treaty in their application to that state.’

In short, where a state is satisfied with the bulk of a treaty, but is opposed to certain provisions, it

may refuse to be bound by such provisions and consent to be bound by the’ non-offending’ portions

of the agreement. The rights and obligations arising from treaties of this nature are binding, as

reservations do not operate to nullify a treaty in its entirety.37

The legal regime pertaining to reservations has been codified in Articles 19 – 23 of the Vienna

Convention.

Article 19 of the Vienna Convention provides that reservations may be made when signing,

ratifying, accepting, approving or acceding to a treaty, but they cannot be made where:

a) the reservation is prohibited by the treaty; or

b) where the treaty provides that only specified reservations may be made and these do not

include the reservation in question; or

c) where the reservation is not compatible with the object and purpose of the treaty.

35 Mcnair, Law of Treaties pages 153-15536 International Law Court Draft, Article 1 (1)(d) 37 Armed Activity on the Territory of Congo case I.C.J 2005

The general rule was that reservations could only be made with the consent of all the other states

party to the agreement. In instances where the exercise of a reservation is permissible, the

traditional rule requiring acceptance by all parties will apply.38 If no objection is made to a

reservation by the parties to a treaty, it is assumed all the parties thereto accede to the

reservation.39

If consent to the exercise of a reservation was withheld, the state dissatisfied with the agreement

could nevertheless still become a party to the treaty- minus the reservation, or be excluded from the

treaty as a whole. This restrictive approach to reservations was not accepted by the International

Court of Justice in the [Reservations to the Genocide Convention Case].40 In the aforementioned

case, a number of states had made reservations to the 1948 Genocide Convention- which contained

no clause permitting such reservations- and subsequently a number of objections were made to the

on the matter, the International Court of Justice stated that:

‘a state which has made a reservation which has been objected to one or more of the parties

to the Convention but not by others, can be regarded as being party to the Convention if the

reservation is compatible with the object and purpose of the Convention’.

In essence the court in this held that a state or parties of states to a convention can still have a valid

Convention/Treaty though there is a reservation clause as long as the reservation is not against the

purpose of the convention. That is, though other states to a convention may object to the

reservation, that alone does cannot be the sole reason to invalidate the convention. For the

convention to be rendered invalid, the reservation purported, must be contrary to the purpose of

the whole convention.

The legal effect of reservations

According to Article 21 (1) of the Vienna Convention of 1969, the effect of a reservation established

with regard to another party is provided as follows:

a) modifies for the reserving State in its relations with that other party the provisions of the

treaty to which the reservation relates to the extent of the reservation; and

38 As illustrated by Article 20(4) of the Vienna Convention, which outlines the general rules to be followed with regard to treaties not within Article 20(2) and not constituent instruments of international organisations.39 Yugoslavia and Spain 28. ILM 1149 (1999)40 Advisory Oppinion I.C.J.Reports 1951

b) modifies those provisions to the se extent for that other party in its relations with the

reserving State.

An illustration of the above was provided by the Libyan Reservation to the 1961 Vienna Convention

on Diplomatic Relations, which concerned the immunity of diplomats having their bags and/or

belongings searched. Libya was permitted to search the bag of the diplomat in question, with the

consent of the state of whose bag it was and insist that it be returned to the state of origin. As the

United Kingdom did not object to the reservation, it could have similarly treated the baggage of

Libyan diplomats in the same manner.

The effect of objections to reservation

Article 21(3) of the Vienna Convention of 1969 provides as follows:

‘When 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 relations do not

apply as between the two states to the extent of the reservation.’

The provision above was applied by the Arbitration Tribunal in the [Anglo French Continental Shelf

case].41In the aforementioned case, the court enunciated the principle that an objection to a

reservation does not render a treaty wholly inoperative but merely serves to render the provisions

of the treaty relating to the reservation inapplicable between the reserving state and the objecting

state. But these same provisions relating to the reservation may be applicable to the objecting state

and some other state which does not make a reservation to the provisions. It was noted that the

combined effect of the French Reservation and their rejection by the United Kingdom neither

rendered Article 6 of the Geneva Convention on the Continental Shelf of 1958, inapplicable in its

entirety- as the French Republic contended- nor rendered it inapplicable in toto, as the United

Kingdom primarily contented. The effect of the objection to the reservations was limited to

rendering Article 6 of the aforenamed Convention inapplicable as between the two countries to the

extent of the reservation. (require facts of the issue at hand, this paragraph is FAR TOO WORDY)

Withdrawal from a treaty

(require citation to footnote this portion of the write up)

41 (1977) 54 ILR 6

Traditionally, treaties (as obligations in international law) are viewed as being consensual in nature;

consequently, many of them expressly allow a state to withdraw as long as it follows certain

procedures of notification. Therefore, treaties are not necessarily permanently binding upon the

signatory parties.

It is worth noting, however, that where withdrawal is contrary to the original intent of the parties, or

to the nature of the treaty, withdrawal will be prohibited. A good example in this regard would be

human rights treaties. Because of the importance of the obligations thereto, Human rights treaties

are generally interpreted to exclude the possibility of withdrawal.

The ramifications of state’s withdrawal from a treaty are basically that its obligations under that

treaty are considered terminated. When a state withdraws from a multi-lateral treaty, that treaty

will still otherwise remain in force between the other parties, whereas withdrawal by one party from

a bilateral treaty of course terminates the treaty. See generally Article 70 of the Vienna Convention.

Under Part V of the Vienna Convention, Article 42(2) provides generally that

‘the termination of a treaty, its denunciation or the withdrawal of a party, may take place

only as a result of the application of the provisions of the treaty or the Convention (Vienna)…’

However Article 43 of the same provides that withdrawal, termination or denunciation of a treaty

‘shall not in any way impair the duty of a state to fulfil any obligation embodies in the treaty

to which it would be subject under international law independently of the treaty’.

Parties to a treaty may also, by mutual consent, terminate their treaty obligations as provided under

Article 54(b) of the Vienna Convention.

A multiplicity of factors may also terminate the treaty obligation, to name just a few:

a) Supervening impossibility of performance- Article 61(1) of the Vienna Convention provides,

inter alia, that :

‘ a party may invoke the impossibility of performing a treaty as a ground for

terminating or withdrawing from it if the impossibility results from the permanent

disappearance or destruction of an object indispensable for the execution of the

treaty…’

Situations envisaged in this regard include submergence of an island, the drying up of a river

etc. Additionally, war conditions may lead to termination of treaties on grounds of

impossibility.

b) Material Breach- material breach by one party entitles the other party/parties to a treaty to

invoke the breach as the ground of termination. Article 60 of the Vienna Convention

provides:

‘(1) material breach of a bilateral treaty by one of the parties entitles the other to

invoke the breach as a ground for terminating the treaty….

(2) material breach of a multilateral treaty by one of the parties entitles:

(a) the other parties by unanimous agreement to suspend the operation of

the treaty in whole or in part’

Article 60 (3) of the Vienna Convention gives insight as to what would constitute a material breach:

‘(a) repudiation of the treaty not sanctioned by the Convention, or

(b) violation of a provision essential to the accomplishment of the object or purpose of the

treaty’

A State may by its own conduct prejudice its right to terminate a treaty on the ground of material

breach.42

(c) New peremptory norm- a treaty becomes void if it conflicts with a peremptory norm of general

international law (jus cogens) established after the treaty comes into force.

Article 64 of the Vienna Convention provides that the emergence of a new peremptory norm of

general international law invalidates and terminates any existing treaty which is in conflict with that

norm. This, it must be noted, does not have retroactive effects on the validity of a treaty.

Procedure

Article 65 of the Vienna Convention stipulates at sub-article 1, the procedure to be followed with

respect to , inter alia, withdrawal from the operation of a treaty. It provides that:

‘…a party which…invokes….a ground for impeaching the validity of a treaty…..thereby

withdrawing from it …must notify the other parties of its claim. The notification shall indicate

the measure proposed to be taken with respect to the treaty and the reasons therefor.’

42 See generally the Gabcikovo- Nagymoros Project ( Hungary & Slovakia)

GROUP 3 MEMBERS:

Boikaego Mogae 200903181

Nokuthula Mhlanga 200901313

Tshepiso Ramoepi 200901321

Kudzani Koketso 200900290

Lerato Phiri 200804669

Tsholofelo Tsholofelo 200800061

Ruth Mulenga 200950124

Richard Monyatsi 200901332