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CHAPTER 8CHAPTER 8
LAW OF TREATIESLAW OF TREATIES
PROFESSOR
DR. ABDUL GHAFUR HAMID
Introduction: Importance of the law of treatiesIntroduction: Importance of the law of treaties [Textbook, p. 203][Textbook, p. 203]
• All kinds of inter-State transactions are conducted through treaties.
• Various international organizations are established by means of treaties.
• Disputes between States are brought before international courts by means of treaties.
• The treaty is the most important source of international law.
• Therefore, the special importance of treaties in international law does not need emphasis.
8.1 The Vienna Convention on the 8.1 The Vienna Convention on the Law of Treaties, 1969Law of Treaties, 1969 [pp. 203-04][pp. 203-04]
• The main reference in this area of the law is the Vienna Convention on the Law of Treaties, 1969. [VCLT]
• Adopted on 23 May 1969 and entered into force on 27 January 1980.
• It is a combination of codification and progressive development of international law.
8.2 DEFINITION OF ‘TREATY’8.2 DEFINITION OF ‘TREATY’[pp. 204-213][pp. 204-213]
• Schwarzenberger: “a treaty may be defined as a consensual engagement which subjects of international law have undertaken towards one another, with the intent to create legal obligations under international law”.
• Oppenheim: International treaties are agreements, of a contractual character, between states, or organisations of states, creating legal rights and obligations between the parties”.
Article 2Article 2
1. For the purposes of the present Convention:
(a) “treaty” means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or two or more related instruments and whatever its particular designation;…
Article 3Article 3
The fact that the present Convention does not apply to international agreements concluded between states and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not effect:
(a) the legal force of such agreements; …
The definition of ‘treaty’ under Article 2 of the Vienna Convention can be distinguished in two respects from the traditional definition.
(1)It deals only with treaties concluded between states (this is because there is a separate convention on the law of treaties to which international organisations are parties).
(2) The Convention is limited to ‘written treaties’ only. However, it is not intended to deny the legal effect of oral agreements under international law.
An analysis of the definition of treatyAn analysis of the definition of treaty
The definition in the Vienna Convention is expressed to be for the purposes of the Convention and is limited to treaties between States.
• The following is an examination of the elements of the definition of treaty under Vienna convention as supplemented by customary international law.
(1)(1) An agreement concluded between An agreement concluded between States: treaty-making capacityStates: treaty-making capacity
States Article 6 of the Convention, which provides that
states may make treaties, reflects customary international law. Capacity to make treaties is, in fact, valuable evidence of statehood.
Federal States (Art. 6, para. 2, Draft Articles) “States members of a federal union may possess
a capacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits there laid down”.
International Organizations • The Vienna Convention on the Law of Treaties,
1969, is limited to treaties to which states are parties. It does not cover treaties to which public international Organizations are parties.
• A special convention, the Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, was signed in 1986.
Individuals • Individuals have never been recognised as
having the capacity to make treaties. Even transnational corporations (TNCs) have no such capacity.
• In the Anglo-Iranian Oil Company case, 1952 ICJ Rep. 93, the ICJ held that a contract between Iran and the Anglo-Iranian Oil Company was not a treaty. “ It is nothing more than a concessionary contract between a government and a foreign company.”
(2) In written form(2) In written form
• The Vienna Convention does not apply to oral agreements, although such agreements are valid under customary international law.
• Even though the traditional practice is for the original text of a treaty to be typed or printed, there is no reason why a treaty should not be contained in a telegram, telex, fax message or even e-mail, or, rather, constituted by an exchange of such communications.
(3) Governed by international law(3) Governed by international law
• There may be agreements between states (e.g. agreements for the acquisition of premises for a diplomatic mission or for some purely commercial transaction).
• They are regulated by the local law of one of the parties or by conflict of laws principles.
• The notion of an “international agreement” for the purposes of the law of treaties is confined to one the whole formation and execution of which is governed by international law.
(4) Intention to create legal obligations(4) Intention to create legal obligations
• From practical point of view, the decisive factor is whether the instrument is intended to create international legal rights and obligations between the parties.
• This element of “intention to create legal obligations under international law” can be found in the traditional definitions of ‘treaty’ by eminent writers but it is not expressly mentioned in the definition of ‘treaty’ by the Vienna Convention.
• The ILC: The element of ‘intention’ is included in the phrase ‘governed by international law’. [See also Aegean Sea Continental Shelf case.][p. 209]
(5) Whether embodied in a single (5) Whether embodied in a single instrument or in two or more related instrument or in two or more related
instrumentsinstruments• The classic form for a treaty is a single instrument.• However, in modern practice treaties are made in
less formal ways, such as “exchanges of notes” or ‘exchange of letters”.
• An exchange of notes usually consists of an initial note (by one State) and a reply note (by the other State). In other words it consists of two related instruments.
• The above phrase clearly acknowledges the validity of the increasing use of such exchanges of notes and letters in modern treaty practice.
(6) ‘Whatever its particular designation’(6) ‘Whatever its particular designation’
• ‘Treaty’ is the generic term to embrace all types of binding international agreements. In practice, a number of terms are used to indicate an international agreement.
• The term ‘Treaty’ itself is used to indicate formal agreements relating to peace, alliance, or the cession of territory, extradition, or some other fundamental matter.
• Convention’ is the term used for a proper formal instrument of a multilateral character.
• A ‘Protocol’ is an instrument which is subsidiary or ancillary to a convention or is a supplementary treaty
• An ‘Exchange of Notes (or of letters)’ is an informal method, very frequently adopted in recent years, whereby states reach to certain understanding or recognize certain obligations as binding them.
Memorandum of Understandings (MOUs)Memorandum of Understandings (MOUs)
• The use of MOUs is now so widespread in State practice that governments may use the MOUs as the more usual form, a treaty being used only when it cannot be avoided.
• The main reasons for using MOUs in preference to treaties are confidentiality and convenience. As an MOU is not a treaty, there is as a rule no domestic or international requirement to publish it.
Are MOUs treaties?Are MOUs treaties?
• Generally speaking MOUs are not treaties and they are not legally binding.
• An MOU can be a treaty in some cases but it cannot be so in other cases.
• Only by studying the terms of the instrument can one determine its genuine status. The decisive factor is whether there is an intention to create legal obligations.
• The actual practice of States is to indicate their intention to conclude a treaty by employing terminology such as ‘shall’, ‘agree’, ‘undertake’, and ‘enter into force’.
Oral undertakingsOral undertakings
• According to customary international law writing is not an essential requirement of a treaty.
• An agreement or undertaking made orally between two states is as valid as a written treaty.
Legal Status of Eastern GreenlandLegal Status of Eastern Greenland(Denmark v Norway), (1933) PCIJ Series A/B, No. 53(Denmark v Norway), (1933) PCIJ Series A/B, No. 53
• A territorial dispute between Denmark and Norway over Eastern Greenland.
• During the official conversation between M. Ihlen, Norwegian Foreign Minister, and the Danish Minister accredited to Norway, the Danish Minister suggested that Denmark would raise no objection to any claim Norway might want to make at the Paris Peace Conference to Spitzbergen if Norway would not oppose the Danish claim at the same conference to Greenland.
Eastern GreenlandEastern Greenland [Cont.][Cont.]
• M. Ihlen, in the course of further conversations with the Danish Minister, declared that “the Norwegian Government would not make any difficulty concerning the Danish claim”. [This is known as the Ihlen Declaration]
• Denmark argued before the ICJ that this undertaking was binding upon Norway.
Eastern GreenlandEastern Greenland [Cont.][Cont.]
• Held: The Court considers it beyond all disputes that ‘a reply of this nature’ given by the Minister of Foreign Affairs on behalf of his Government ‘in response to 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.
8.3 THE CONCLUSION OF8.3 THE CONCLUSION OFTREATIESTREATIES
8.3.1 Treaty-making capacity Full powers: Article 71. In virtue of their functions and without having to
produce full powers, the following are considered as representing their state:
(a) Heads of States, Heads of Governments and Ministers for Foreign Affairs;
(b) Heads of diplomatic missions, adopting the text of a treaty between the accrediting state and the state to which they are accredited;…
8.3.2 Steps to be taken in the making of a 8.3.2 Steps to be taken in the making of a treatytreaty
The various steps in the creation of a treaty are:
(1) Negotiation;
(2) Adoption and authentication of the treaty;
(3) The expression of consent to be bound by
the treaty (Signature, Ratification,
Accession, etc.);
(4) Entry into force; and
(5) Registration and publication.
8. 3. 3 Adoption and authentication8. 3. 3 Adoption and authentication
• Negotiation
• Adoption and authentication
8. 3. 4 Consent to be bound by a treaty8. 3. 4 Consent to be bound by a treaty
Article 11 enumerates the ways in which a State can express its consent:
(1) by signature; (2) by exchange of instruments constituting a treaty; (3) by ratification, acceptance or approval; or (4) by accession.
(1) Signature(1) Signature
• The effect of signature of a treaty depends on whether or not the treaty is subject to ratification.
• If the treaty is subject to ratification, signature means no more than an authentication of its text.
• If the treaty is not subject to ratification, or is silent on this point, the better opinion is that, in the absence of contrary provision, the instrument is binding on signature.
(2) Ratification(2) Ratification
• Ratification: ‘final confirmation’. Why ratification is required? Two reasons: (1) A state requires an opportunity of re-examining
the whole effect of the treaty upon their interests; May need to prepare public opinion (or some times even referendum) for the obligation the state is about to undertake.
(2) According to the constitutional law of many states, treaties are not valid without some kind of consent on the part of Parliaments. (E.g. US Constitution).
RatificationRatification [Cont.][Cont.]
What treaties require ratification?
• The more formal the type of instrument adopted, the more likely is ratification to be required.
RatificationRatification [Cont.][Cont.]
Procedure for ratification:
• Instrument of ratification: A document duly signed by the Heads of States concerned, and/or their Secretaries for Foreign Affairs.
• Ratification involves two steps: The first is the signing and sealing of the instrument of ratification.
RatificationRatification [Cont.][Cont.]Procedure: The second stepProcedure: The second step
• In the case of a bilateral treaty, the exchange of the instrument of ratification with the corresponding instrument produced by the other party.
• In the case of a multilateral treaty, to deposit all instruments of ratification in a central headquarters such as the Foreign Office of the state where the treaty was signed.
• With regard to treaties concluded under the auspices of the UN, the instruments of ratification are to be deposited with the SG of the UN.
(3) Accession(3) Accession
• Accede to: accession• Accession is a traditional method whereby
a state which has not signed a treaty subsequently becomes a party to it.
• Treaties frequently provide that they shall be open for signature for a certain period, and that after the expiry of that period they shall become open for accession.
Effect of a treaty before ratification or before Effect of a treaty before ratification or before
entry into forceentry into force [Article 18][Article 18]
A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
• According to the International Law Commission’s commentary, “that an obligation of ‘good faith’ to refrain from acts calculated to frustrate the object of the treaty attaches to a State which has signed a treaty subject to ratification appears to be generally accepted.”
• Certain German Interests in Polish Upper Silesia case PCIJ (1926) Series A, No. 7, p. 30.
8.3.5 Reservations8.3.5 Reservations
• Definition - Article 2(1)(d) of the VCLT:
“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.”
• Disguised reservations: (“however phrased or named”; to look at the substance). It is the substance that matters, not the form.
• Interpretative declarations: (Purpose – to establish an interpretation of the treaty which is consistent with the domestic law of the state). It will be an element in the interpretation of the treaty (if it is not a disguised reservation).
If other parties do not make contrary declarations or indicate their disagreement, they may be regarded as having tacitly accepted it.
When reservations can be madeWhen reservations can be made [[Article 19Article 19]]
A State may 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. [‘compatibility test’]
Compatibility testCompatibility test : examples: : examples:
(a) A reservation to the Convention against Torture (CAT) which sought to exclude from it torture of suspected (or even convicted) terrorists would be a clear case of incompatibility.
(b) Guatemala made a reservation that Article 27 of the VCLT (non-invocation of internal law) would not apply in respect of the Guatemalan Constitution. As the rule is so fundamental to the law of treaties, the reservation clearly failed to pass the compatibility test.
Effects of reservations on participation in a treaty Effects of reservations on participation in a treaty
• By making a reservation, a State is trying to modify the terms of the treaty.
• A reservation can therefore be assimilated to the refusal of an offer and the making of a fresh offer. In principle, this fresh offer must obtain the assent of the other contracting States if it is to be effective.
• Therefore, the traditional view was that reservations to be effective required the acceptance of all the contracting States.
• However, that view, although applicable to bilateral treaties, would not be appropriate, without qualifications, to multilateral conventions.
• The International Court of Justice in its advisory opinion on Reservations to the Genocide Convention, introduces ‘compatibility’ test. A reservation may be made unless the treaty prohibits it or it is incompatible with the object and purpose of the treaty.
• Articles 19, 20 and 21 of the Vienna Convention are generally in line with the conclusions reached by the World Court.
Article 20Article 20Acceptance and objections to reservationsAcceptance and objections to reservations
1. A reservation expressly authorised by a treaty does not require any subsequent acceptance by the other contracting States ….
2. When 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, a reservation requires acceptance by all the parties.
3. ….
4. In cases not falling under the preceding paragraphs:
(a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State;
(b) 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 States unless a contrary intention is definitely expressed by the objecting State;
(c) ….
5. … a reservation is considered to have been accepted by a state if it shall have raised no objection to the reservation by the end of a period of 12 months after it was notified of the reservation…
Three options for the other statesThree options for the other states
• Acceptance (expressly or impliedly).
• Mere objection
• Objection with a condition that the treaty shall not enter into force between the reserving and objecting State.
A simple exampleA simple exampleThere are three states: A, b, and C.There are three states: A, b, and C.
• State A made a reservation to a treaty. State B raised no objection. States C objected and at the same time stated expressly that it precluded the treaty entering into force between it and State A.
• State A may be a party to the treaty in relation to State B, but not in relation to State C.
• There is no doubt that State B and State C are mutually bound by the treaty after its entry into force.
Legal effects of reservations and of objections to Legal effects of reservations and of objections to reservationsreservations [ [Article 21Article 21]]
1. A reservation established with regard to another party (established here means “not prohibited and not objected to by other party”)…:
(a) modifies for the reserving state in its relations with that other party (non-objecting state) the provisions of the treaty to which the reservation relates to the extent of the reservation.
(b) modifies those provisions to the same extent for that other party in its relations with reserving state.
[Reservation is effective between reserving and non-objecting State.]
[Art. 21(1): Principle of reciprocity][Art. 21(1): Principle of reciprocity]
• An example of the operation of the principle of ‘reciprocity’ in Art. 21(1) is found in the facts of the Libyan People’s Bureau Incident (1984) (UK v Libya).
• Libya made a reservation to the VCDR permitting it to open a diplomatic bag if it had strong doubts as to the legitimacy of its contents. UK did not object to that reservation.
• In accordance with Art. 21(1)(b), the obligation in the VCDR not to open another State’s diplomatic bag was modified to the extent of the reservation and would not have been prevented the UK opening the Libyan bag.
• Thus the Foreign Affairs Committee was advised that the UK could respond by opening the Libyan diplomatic bags if it had strong doubts as to their contents.
Art. 21 Art. 21 [Cont.][Cont.]
2. The reservation does not modify the provisions of the treaty for the other parties (Among those states
apart from the reserving state) to the treaty inter se. (Among themselves, they have to follow all the provisions of the treaty as if there is no reservation).
3. When a state objecting to a reservation has not opposed the entry into force of the treaty between itself
and the reserving state, the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation.
An explanation to the application of Art. 21(3) can be found in an arbitral award.
English ChannelEnglish Channel ArbitrationArbitration(1984) (UK v France)(1984) (UK v France)
• France had made reservations to Art. 6 of the 1958 Continental Shelf Convention: to prevent the UK from invoking the provisions of Art. 6 except on the basis of conditions stated in the reservations.
• UK objected to these reservations.• The award: “The combined effect of the French
reservations and their rejection by the UK is neither to render Art. 6 inapplicable in toto, as France contends, nor to render it applicable in toto, as the UK contends. It is to render the Article inapplicable as between the two countries to the extent, but only to the extent, of the reservations.”
• [French reservation: “France will not accept that any boundary of the continental shelf determined by application of the principle of equidistance shall be invoked against it: -- if it extends beyond the 200-metre isobath.”][It seems that the reservation is effective and the provision (Art. 6) is applicable subject to the reservation.]
(6) Entry into force(6) Entry into force
• A treaty often provides that it shall enter into force when it has been ratified or acceded to by a specific number of states.
• E.g, the Vienna Convention on the Law of Treaties, 1969, provides for its entry into force “on the 30th day following the date of the deposit of the 35th instrument of ratification or accession’.
• The United Nations Convention on the Law of the Sea, 1982, entered into force one year after the 60th ratification, namely on November 16, 1994.
8.4 APPLICATION OF TREATIES8.4 APPLICATION OF TREATIES
Binding force of treaties Pacta sunt servanda (Article 26)
Every treaty in force is binding upon the parties to it and must be performed in good faith.
Treaty versus municipal law (Article 27) A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.
Non-retroactivity of treaties (Article 28)
Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.
Application of successive treaties on the same Application of successive treaties on the same
subject mattersubject matter (Article 30)(Article 30)
• 1. Subject to Article 103 of the Charter of the U N, the rights and obligations of States parties to successive treaties … shall be determined in accordance with the following paragraphs….
• 3. When all the parties to the earlier treaty are parties also to the later treaty … the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.
• [If parties are identical: Lex posterior derogat legi priori applies.]
• 4. [If parties are not identical: Art. 30 (4) applies. It is actually based on the rule pacta tertiis nec nocent nec prosunt. Therefore, as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties govern their rights and obligations. Art. 30 (4)(b)]
• Art. 30 deals with hierarchy among treaties.• Art. 103 of the Charter: “In the event of a conflict
between the obligations of the Members of the UN under the present Charter and their obligations under any other international agreements, the obligations under the present Charter shall prevail.”
• Art. 103 is known as “clause paramount”. Obligations under the UN Charter have primacy over obligations under any other treaty.
Lockerbie case Lockerbie case (provisional measures)(provisional measures) 1992 ICJ Rep., 3, 114. 1992 ICJ Rep., 3, 114.
• The Court refused to grant provisional measures to Libya because by virtue of Art. 103, Libya’s obligation under the Charter (i.e., SC Resolution 748 requiring Libya to surrender the two suspects) prevailed over its obligation under the Montreal Convention (i.e., Libya can either extradite or prosecute the two suspects).
• See also Application of the Genocide Convention case. (Art. 103 does not apply to a rule of jus cogens)
Treaties and third StatesTreaties and third States
Article 34 A treaty does not create either obligations or
rights for a third state without its consent. The general rule in Article 34, which is known by
the maxim pacta tertiis nec nocent nec prosunt, undoubtedly reflects customary international law.
Art. 35 (obligations for third states – must expressly accept in writing).
Art. 36 (rights for third states – consent can be presumed).
8.5 INTERPRETATION OF8.5 INTERPRETATION OFTREATIESTREATIES
According to Fitzmaurice, there are three traditional schools of treaty interpretation:
(1) “Textual school”– interpretation in accordance with the ordinary meaning of the words of the treaty;
(2) “Intention school” – interpretation in accordance with the intention of the parties;
(3) “Teleological school” – interpretation in accordance with the aims and purposes of the treaty.
General Rule of InterpretationGeneral Rule of Interpretation[Article 31[Article 31]]
1. 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. …
2. The context…shall comprise…text, preamble and annexes.
3. There shall be taken into account, together with the context..
(a) any subsequent agreement; (b) any subsequent practice.
Three integrated principles in Art. 31(1):Three integrated principles in Art. 31(1):
(1) Interpreted in good faith; (2) In accordance with the ordinary meaning to be
given to the terms of the treaty in their context; (3) In the light of its object and purpose.• Object and purpose is more for the purpose of
confirming an interpretation.• Although Art. 31(1) contains both the “textual”
and “teleological” approaches, it gives precedence to “textual”.
Textual interpretationTextual interpretation is the prevailing is the prevailing approachapproach..
• The general rule primarily adopts the textual approach.
• The ILC: the textual approach is the established rule of customary international law.
• The jurisprudence of the ICJ also demonstrates that the textual interpretation is regarded by it as established law. See, e.g.:
- Admissions to the UN case; - Competence of the GA case; - Interpretation of Peace Treaties case.
The importance of subsequent practiceThe importance of subsequent practice
• The way in which the treaty is actually applied by the parties is a good indication of what they understand it to mean.
• E.g. Interpretation of Art. 27(3) of the Charter: Nine votes including concurring votes of the permanent members;
• According to the practice of the members, “concurring” means “not objecting” (See, e.g. abstention form voting).
Principle of effectivenessPrinciple of effectiveness
• The parties are assumed to intend the provisions of a treaty to have certain meaning, and not to be meaningless; ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void).
• When a treaty is open to two interpretations, one of which does and the other does not enable the treaty to be effectively implemented, the former interpretation should be adopted.
• Principle of effectiveness does not allow an interpretation going beyond what the text of the treaty justifies.
Interpretation of Peace Treaties caseInterpretation of Peace Treaties case [1950 ICJ, 221] Text book p. 235[1950 ICJ, 221] Text book p. 235
• The peace treaties between the Allied Powers, on the one hand, and Bulgaria, Hungary and Romania, on the other, provided for commissions to hear disputes concerning the treaty.
• The commissions were to consist of three members. The two parties to the dispute were to appoint a member each; the parties were then to agree upon a third. If they could not agree, the third member was to be appointed by the Secretary-General of the United Nations.
Interpretation of Peace Treaties caseInterpretation of Peace Treaties case[Cont.][Cont.]
• Disputes arose over the human rights guarantees in the treaties. Bulgaria, Hungary and Romania refused to appoint members to the commissions.
• The Allied powers wanted to establish the Commissions with only two members: one appointed by them and the other appointed by the SG of the UN.
• The question was brought before the ICJ. • Held: It was not lawful to establish Commissions
with only two members.
Interpretation of Peace Treaties caseInterpretation of Peace Treaties case[Cont.][Cont.]
• The world Court in this case refused to apply the principle of effectiveness in such a way as to override the clear meaning of the text (i.e. textual interpretation).
• The duty of the court is to interpret the treaty, not to revise it.
Supplementary means of interpretationSupplementary means of interpretation [[Article 32]Article 32]
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31:
(a) leaves the meaning ambiguous or obscure; or(b) leads to a result which is manifestly absurd or
unreasonable.
Travaux preparatoiresTravaux preparatoires
[ [Preparatory work]Preparatory work]
• It generally means the record of the drafting of a treaty.
• It includes records of negotiations between the states that participate in the drafting and, records of the work of independent bodies of experts, such as the ILC.
Admission of a State to the United Nations, (1948) ICJ Rep 57
“There is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself”.
8.6 INVALIDITY OF TREATIES8.6 INVALIDITY OF TREATIES
• Will discuss only five important grounds of invalidity:
(1) Violation of internal law on competence
to conclude treaties;
(2) Error;
(3) Corruption;
(4) Coercion of a State; and
(5) Conflict with jus cogens.
(1) Violation of internal law on competence to (1) Violation of internal law on competence to conclude treatiesconclude treaties (Article 46) (Article 46)
• Article 46 allows a State, by way of exception, to invoke violation of internal law as invalidating its consent, only when:
(i) the internal law relates to competence to conclude treaties;
(ii)it concerns a rule of fundamental importance; and(iii) the violation is so ‘manifest’ that the other party (or
parties) must be deemed to have been aware of it. [E.g. the State organs and representatives may have
exceeded their powers in concluding such a treaty.]
(2) Error (2) Error ( (Article 48) Article 48)
1. A state may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error …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….
Temple of Preah VihearTemple of Preah Vihear casecase 1962 ICJ Rep. 6.1962 ICJ Rep. 6.
• In 1904,The boundary between Cambodia and Thailand in the area of Preah Vihear was determined by a treaty The treaty stated that it was to follow the watershed line and provided for the details to be worked out by a Mixed Commission.
• A map was prepared by the Commission. This clearly placed the Temple in Cambodia. Cambodia relied upon the map. Thailand argued that the map embodied a material error because it did not follow the watershed line as required by the treaty.
Temple of Preah VihearTemple of Preah Vihear case case [Cont.][Cont.]
• The Court rejected Thailand’s argument and stated:
“It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error, or could have avoided it….”
(3) Corruption of a representative of a State(3) Corruption of a representative of a State [Art. 50][Art. 50]
If the expression of a State's 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.
(4) Coercion of a State (4) Coercion of a State
Article 52 A treaty is void if its conclusion has been
procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.
Article 52 clearly refers to Art. 2(4) of the UN
Charter which prohibits the threat or use of force against territorial integrity or political independence of State.
Fisheries Jurisdiction (Jurisdiction)Fisheries Jurisdiction (Jurisdiction) case case (U K v Iceland), 1973 ICJ Rep. 14(U K v Iceland), 1973 ICJ Rep. 14
• Iceland argued that the 1961 Exchanges of Notes took place when the British Navy had been using force to oppose the 12-mile fishery limit of Iceland and that they were void ab initio.
• The Court rejected the argument because there was no concrete evidence of use of force and stated: “The 1961 Exchange of Notes were freely negotiated by the interested parties on the basis of perfect equality and freedom of decision on both sides. …”
(5) Conflict with (5) Conflict with Jus CogensJus Cogens
Since states are sovereign, there is no sovereign political authority above the States. To enable inter-State relations, States voluntarily surrender a certain portion of their sovereignty and that is international law.
Therefore international Law is consensual in nature. Its existence depends entirely on consent of States. Rules of international law are normally voluntary rules: “jus dispositivum”. They can at any time be amended or abolished by consent of States, i.e., by entering into new treaties.
Jus CogensJus Cogens [Cont.][Cont.]
• However, a new concept crystallized in the late 1960s, i.e., the concept of “jus cogens”.
• Many States have come to accept that there are certain rules of general international law which are so important for the existence of the international community that they are peremptory norms from which no derogation is permitted; they are jus cogens (compelling law)as opposed to jus dispositivum (voluntary law).
• States can not contract out of them.
Article 53Article 53
A treaty is void, if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.
For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can by modified only by a subsequent norm of general international law having the same character.
Definition of Definition of jus cogensjus cogens
• “A norm accepted and recognized by the international community as a whole”
• Chairman of the Drafting Committee’s interpretation:
All States less “a very small number of States”. [The establishment of a jus cogens may not be
affected if one state in isolation refuses to accept the peremptory character of it, or if that State is supported by a very small number of States.]
Identifying rules having the character of Identifying rules having the character of jus cogensjus cogens
- Many rules have been suggested as candidates for jus cogens. However, at present only a few pass the test.
- The ICJ in the Nicaragua case quoted with approval the statement by the ILC:
“The law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule having the character of jus cogens.”
Least controversial norms having the character of Least controversial norms having the character of jus cogensjus cogens are: are:
• The prohibition of the use of force;• The prohibition of genocide;• The prohibition of piracy and slave-trading;• The principle of self-determination;• The principle of racial discrimination;• The prohibition against torture;• Universally recognised principles of international
humanitarian law.
(6) Consequences of invalidity(6) Consequences of invalidity
• The main difference between the two groups of grounds for invalidity:
• The relative grounds (violation of internal law on treaty-making, error, corruption) invalidate only the consent of a State to be bound by the treaty.
• The absolute grounds (coercion and jus cogens) invalidate the treaty itself and render it void ab initio.
• However, the legal consequences will depend on whether the treaty is bilateral or multilateral.
• In the case of bilateral treaties, the legal effect of establishing a relative ground is the same as that of establishing absolute invalidity: the treaty falls.
• In the case of multilateral treaties, however, establishing an absolute ground means that the treaty is null and void and without legal effect, whereas establishing a relative ground does not affect the validity of the treaty as a whole as between the other remaining parties.
8. 7 TERMINATION OF THE8. 7 TERMINATION OF THE OPERATION OF TREATIES OPERATION OF TREATIES
• Internal and external grounds for termination• Internal ground: The general rule in Article 54: “the
termination of a treaty or the withdrawal of a party may take place:
(1) in conformity with the provisions of the treaty; or (2) at any time by consent of all the parties after
consultation with other parties”.• In practice, the majority of modern treaties contain
provisions for termination or withdrawal. • Sometimes: “The treaty shall come to an end
automatically after a certain time”. • Other treaties merely give each party an option to
withdraw, usually after giving a certain period of notice.
External groundsExternal grounds
There are three external grounds: (1) Material breach (Art. 60); (2) Supervening impossibility of performance (Art. 61); and (3) Fundamental change of circumstances (Art. 62).
(1) Material Breach(1) Material BreachArt. 60 Art. 60
• The general rule is that a right to terminate does not arise unless the breach is a material (that is, serious) one.
• Article 60(3) defines a ‘material breach’ as
(a) a repudiation of the treaty not
sanctioned by the present Convention; or
(b) the violation of a provision essential to the
accomplishment of the object and purpose of
the treaty.
Breach of a bilateral treatyBreach of a bilateral treaty
• In a bilateral treaty, such a material breach enables the injured party to terminate or suspend the treaty at its discretion. Art. 60 (1).
• The injured party’s right to terminate or suspend a treaty is one of the main sanctions for breach of a treaty, but it is not the only one.
• There is nothing to prevent the injured State claiming compensation instead of, or in addition to, exercising its right under the Convention.
Breach of a multilateral treatyBreach of a multilateral treaty• The problem is more complicated if the treaty is
multilateral. • It is obvious that breach by a State party cannot
entitle the injured party to denounce the treaty, because that would not be fair to other parties.
• Art. 60 (2): Therefore, a material breach of a multilateral treaty enables all the parties by unanimous decision to terminate the treaty altogether or to terminate it for the defaulting State only.
• Art. 60(2): Likewise, a single State, which is specially affected by a material breach, may suspend the treaty between itself and the defaulting State.
Gabcikovo NagymarosGabcikovo Nagymaros Project case Project case (Hungary/Slovakia), (1997) ICJ Rep 7 (Hungary/Slovakia), (1997) ICJ Rep 7
• Hungary argued that it was entitled to terminate the relevant treaty because of a prior breach of treaty by Czechoslovakia (for whose actions Slovakia was now responsible).
• The Court held that: “It is only material breach of the treaty itself, by a State party to that treaty, which entitles the other party to rely on it as a ground for terminating the treaty.
• According to the facts, the Court found that Hungary could not rely on a material breach by Czechoslovakia because Czechoslovakia’s alleged breach did not amount to a breach but was a legitimate response (countermeasure) to Hungary’s earlier breaches.
(2) Supervening Impossibility of Performance(2) Supervening Impossibility of Performance Art. 61 Art. 61
• Article 61 of the Vienna Convention limits this ground to the ‘permanent disappearance or destruction of an object indispensable for the execution of the treaty’.
• It cannot be invoked by a party that was itself instrumental in causing these circumstances to come about by the breach of its treaty obligations.
Gabcikovo-Nagymaros Project Gabcikovo-Nagymaros Project casecase
• Hungary and Czechoslovakia concluded a treaty in 1977 to facilitate the construction of dams on the Danube River.
• Hungary later suspended works, arguing that to establish a joint economic investment as required by the treaty was inconsistent with environmental considerations.
• Czechoslovakia carried out certain unilateral measures in response to Hungary’s failure to perform the treaty.
• Hungary then claimed the right to terminate the treaty on the basis inter alia of Article 61 (impossibility of performance), stating that the essential object of the treaty was the joint economic investment which had ceased to exist.
• The Court stated that since Hungary did not carry out most of the works for which it was responsible, the impossibility resulted from Hungary’s own breach of an obligation flowing from the treaty.
• Referring to Article 61(2) of the Vienna Convention, it was held that the termination was invalid.
Fundamental Change of Circumstances Fundamental Change of Circumstances ( (rebus sic stantibusrebus sic stantibus) Art. 62) Art. 62
• It is better to be cautious in referring to this doctrine.
• Stability of treaty relations is so important and a balance must be struck.
• According to modern international law, the rule ‘fundamental change of circumstances’ applies only in the most exceptional circumstances; otherwise it could be used as an excuse to evade all sorts of inconvenient treaty obligations.
• Article 62 of the Vienna Convention confines the rule within very narrow limits.
• Art. 62 (1): A fundamental change of circumstances - not foreseen by the parties; the existence of those circumstances must constitute an essential basis of the consent to be bound; the effect of the change is radically to transform the extent of the obligation still to be performed under the treaty.
• Art. 62 (2): (1) It may not be invoked in relation to a treaty
establishing a ‘boundary’; and (2)as with Article 61, a State may not invoke article 62 if
the change was caused by a breach of its own international obligations, either under the treaty in question or any other international agreement.
Fisheries Jurisdiction case Fisheries Jurisdiction case (Jurisdiction)(Jurisdiction) (1974) ICJ Rep. 3 (1974) ICJ Rep. 3
• The 1961 exchange of notes between the United Kingdom and Iceland provided that either party could refer a dispute concerning Iceland’s extension of its fishing zone to the ICJ.
• The UK relied on the exchange of notes and submitted the dispute to the Court. Iceland sought to have that treaty terminated by reason of, among others, a fundamental change of circumstances affecting fisheries and fishing techniques.
• The Court held that the alleged changes could not affect the only provision in the agreement with which the Court was concerned, namely, providing for submission of disputes to the Court.
• The Court stated “in order that a change of circumstances may give rise to a ground 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 to the extent of rendering the performance something essentially different from that originally undertaken.”
• The Court did not regard that condition as satisfied.
