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Treaties
West Bengal
IIT Kharagpur
Rajiv Gandhi School of Intellectual Property Law
Assistant Professor of Law
Dr. Raju KD
1KDR/IIT KGP/RGSOIPL/-2008
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Objectivey the maintenance of international peace and security,
the development of friendly relations and the
achievement of co-operation among nations,
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Developmentsy International Law Commission draft articles 1966.
yVienna Convention on Law of the Treaties 85 Articles
and an Annex.y Convention entered into force in 1980.
y Source of law codification of existing laws on treaties Namibia case (A.O) ICJ held that
y the rules laid down by the Vienna Convention.Concerning termination of a treaty relationship onaccount of breach may in may respects be consideredas a codification of the existing customary law on the
subject. KDR/IIT KGP/RGSOIPL/-2008 3
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Applicabilityy It does not deal with:
y 1. treaties between states and organizations or between
two organizationsy 2. questions of state succession
y 3. the effect of war on treaties.
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International conventionsyVienna Convention of the Law of the Treaties, 1969
y Entered into force in 1980.
y Deals only with treaties between states Art. 1.
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Definitiony S.2. "treaty" means an international agreement
concluded between States with an intention to create
legal obligations in written form and governed byinternational law, whether embodied in a singleinstrument or in two or more related instruments and
whatever its particular designation;
y
"ratification", "acceptance", "approval" and "accession"mean in each case the international act so namedwhereby a State establishes on the international planeits consent to be bound by a treaty;
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Treatiesy The object of a treaty is to impose binding obligations
on the states who are parties to it.
y Based on the maxim pacta sunt servanday Two or more states establish or seek to establish a
relationship between themselves governed byinternational law.
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Examplesy Heads of sovereign states
y Inter governmental form technical or non-political
agreements.y Ministers of the countries.
y Inter state form drafted expressly or impliedly as anagreement between states.
y Inter departmental agreement.y Political heads of the countries.
y Even a treaty need not be in the form of writing.
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Different formsy 1. Convention
y 2. Protocol
y 3. Agreementy 4. Arrangement
y 5. process-verbal
y 6. statute
y 7. covenant
y 8. Declaration
y 9. exchange of notes.
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Conventionsy Proper formal instrument of a multilateral character.
y Standard formal instruments of a multilateral
character.y Instruments adopted by international organisations
like ILO or ICAO.
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Protocolsy Less formal than a treaty or convention.
yAn instrument subsidiary to convention
yAncillary matters such as the interpretation ofparticular clauses.
yAncillary instrument to a convention.
yA supplementary treaty.
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Agreementy Less formal
y Fewer parties
y Technical or administrative character only.y Signed by representatives of governments.
y Not subject to ratification.
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Process Verbaly Summary of the proceedings and conclusions of a
diplomatic conference.
yMinor alteration to a convention.
y Not subject to ratification.
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Statutey Collection of constituent rules relating to the
functioning of an international institution.
yStatute of the ICJ.
y Collection of rules laid down by internationalagreement.
yAn accessory instrument to a convention setting out
certain regulations to be applied.
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Covenanty Engagements of fundamental importance.
y United Nations Covenant on Civil and Political Rights.
y Covenant on Economic, Social and Cultural Rights,1966.
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DeclarationyJoint declaration, 19 December 1984 between UK and
China on the revision ofHong Kong to Chinese by
1997.yAn informal instrument appended to a treaty or
convention interpreting or explaining the provisions ofthe latter.
y
Minor importance.y Resolution in a diplomatic conference.
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Modus vivendiy Is an instrument recording an international agreement
of a temporary or provisional nature intended to be
replaced by an arrangement of a more permanent anddetailed character.
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Exchange of notesy Informal method.
y Through diplomatic route or military representatives.
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Practices and entry into forcey 1. Accreditation of negotiators
y 2. Negotiations and adoption.
y 3. Authentication, signature and exchange ofinstruments.
y 4. Ratification.
y 5. Accessions and adhesions
y 6. Entry into force
y 7. Registration and publication
y 8. Application and enforcement
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Credentialsy First step to appoint negotiators.
y Power to attend and negotiate with other states.
y Power to sign is not required for negotiations.y The power to negotiate signed by the head of the state
or Minister of Foreign Affairs is known as Full Powersor Pleins Pouvoirs.
y The sending for negotiations with Full Powers A.7.1(b).
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Negotiation and adoptiony Either through discussions in case of bilateral treaties.
y Multilateral diplomatic conferences.
y Different committees were constituted like steeringcommittees and drafting committees.
y The Conference appoints a prominent member asRapporteur.
yA.9(2) vote of two thirds of the states present andvoting.
y Even can be adopted by consensus.
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Authentication, signature and exchange of
instruments
y Once the final draft is agreed upon it will be madepublic for sometime.
y
Signature is effected at a formal closing session.y It should be authenticated by a resolution.
y Heads of the states may sign.
y 1919- Woodrow Wilson Treaty of Versailles.
y 1972 US USSR Anti-ballistic Missile System.
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Open for signaturey Common practice to open the convention for signature
by certain states.
y
Generally this period does not exceed 9 months.yAfter expiry of the date no signature
y Signature, without reservation
y Signature subject to later acceptance
yAcceptance simpliciter.
y Signature subject to reservation.
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Exchange of instrumentsy Exchange by representatives.
y Result: parties becomes bound by the treaty Vienna
convention Art. 13.
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Ratificationy Signed treaty will be send to respective governments
for approval.
y
Ratification is the approval by the head of the state.yA. 2(1)(b) - 'ratification', 'acceptance', 'approval' and
'accession' mean in each case the international act sonamed whereby a State establishes on the
international plane its consent to be bound by a treaty;
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Object of ratificationy Opportunity to re-examine the instrument before
undertaking any obligations.
y
Enable the state to pass any domestic legislation orparliament approval in between signature andratification.
y In international law there is neither a legal nor a moral
duty to ratify a treaty.y Obligation not to defeat the object and purpose of a
treaty - A.18 of the Convention.
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S.18y A State is obliged to refrain from acts which would defeat
the object and purpose of a treaty when:
y (a) it has signed the treaty or has exchanged instrumentsconstituting the treaty subject to ratification, acceptanceor approval, until it shall have made its intention clear notto become a party to the treaty; or
y (b) it has expressed its consent to be bound by the treaty,
pending the entry into force of the treaty and provided thatsuch entry into force is not unduly delayed.
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Exchange or deposit of ratificationsyAfter exchange it should be deposited or exchanged
between the parties.
y
Notice of ratification is necessary.y Bilateral treaties exchange
y Multilateral deposit with authorised authority
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Accessions and adhesionsyA state not signed the treaty can accede or adhere to it.
yAccede full treaty without any reservation.
yAdhere acceptance of part of a treaty.yAccession after prescribed ratifications.
y Same form as of ratifications accessions.
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Entry into force, RegistrationyAccording to the provisions of the treaty A.24.
y Deposit of prescribed number of ratifications.
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A.102 of UNChartery 1. Every treaty and every international agreement
entered into by any Member of the United Nations
after the present Charter comes into force shall as soonas possible be registered with the Secretariat andpublished by it.
y 2. No party to any such treaty or internationalagreement which has not been registered inaccordance with the provisions of paragraph 1 of this
Article may invoke that treaty or agreement before anyorgan of the United Nations.
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Registrationy It means that, non registered treaties cannot be
challenged in ICJ.
y
The treaty will be published by the UNTreaty Series
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Application and enforcementy Incorporation in the municipal law of state parties.
y Provisional application provisions.
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A.253 of the Constitution ofIndia
y Notwithstanding anything in the foregoingprovisions of this Chapter, Parliament has power to
make any law for the whole or any part of theterritory of India for implementing any treaty,agreement or convention with any other country orcountries or any decision made at any
international conference, association or otherbody.
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Reservationy Certain provisions of the treaty do not bind it, or apply
with modifications. This can be effected by:
1. Express provision in the treaty itself2. By agreement between the contracting states;
3. By a reservation duly made
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Ratificationsy S.2(1) (d) 'reservation' means a unilateral statement,
however phrased or named, made by a State, whensigning, ratifying, accepting, approving or acceding toa treaty, whereby it purports to exclude or to modifythe legal effect of certain provisions of the treaty intheir application to that State;
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Reservationy 17(1): Without prejudice to articles 19 to 23, the consent
of a State to be bound by part of a treaty is effectiveonly if the treaty so permits or the other contractingStates so agree.
y 2. The consent of a State to be bound by a treaty whichpermits a choice between differing provisions iseffective only if it is made clear to which of theprovisions the consent relates.
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Sovereigntyy Reservation as an incident of sovereignty and perfect
equality of states.
y
It applies to relations with other parties.yAssent of other states party to the treaty are necessary.
y Reservations are made as a Protocol of Signature.
yA.23 - Objections to the reservation must be in writing
and communicated to other members.
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Effect of reservationy If the reservation is incompatible with the convention,
it may legitimately consider that the reserving state isnot a party thereto.
y If a state is not ratified a treaty dont have the right toobject to a reservation.
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ICJ advisory opiniony Reservations to Genocide Convention, ICJ Reports
(1951), 15.
y
a state which has madea reservation which has beenobjected to by one or more of the parties to theConvention but not by others, can be regarded asbeing a party to the Convention if the reservation iscompatible with the object and purpose of theconvention.
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Amendment of treatiesyAltering the provisions of treaties by revision,
amendment, and modification.
y
A.39 amended by agreement of the parties.
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Invalidity of treatiesy 1. treaty making incapacity
yA.46 representative exceeded their treaty making
power.yA.47 if the restriction and power of the
representative is not notified to other members prior,no invalidity.
y2. Error ground for invalidity error of fact orsituation.
y Not error of law.
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Invalidityy 3. A.49 - fraud fraudulent conduct of negotiating
state.
y
No precedentsyA. 50 - Procured through corruption of its
representative.
yA. 51-52 coercion coercion of representative.
y Use of force in violation of the principles of international law.
y Conflict with norms of Jus Cogens
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Thank you
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