Introduction

Under international law, states are not permitted to threaten to use force nor can they use force
against other states. This rule is mentioned under Article 2 (4) of the United Nations Charter and is
regarded as a peremptory norms. This prohibition on use of force is the most important obligation of
the states under international law. States being subject to international law enjoy both rights and
obligations. 1

Relying on general principles of contract law, legal doctrine has long assumed that coercion, if
directed against state itself, invalidates the presented state’s consent to be bound by treaty. Vienna
Convention of the Law of Treaties knows rule on invalidity of treaty, according to thus rule invalidity
may be interpreted in the way, which means nullity of a treaty or its particular provisions because of
the existence or absence of certain circumstances or conditions affecting its legal status. Customary
international law does not provide clear and acceptable rules governing validity or invalidity.

The law on invalidity under Vienna convention may be divided into five main rules:
The general provisions (Article 42, para 1, Article 43 to 45)

• The rules on the ground of the invalidity ( Article 43 through 53)

• The rules on the consequences of invalidity (Article 69 and Article 71)

• The procedural rules proper Article 65 Para 1, 2 and 5, Article 67 and 68

• Provision on the settlement of the dispute

Main attention will get the rule in the ground of the invalidity. In the case of this topic we will
discuss on of the main ground of the invalidity like invalidity of the treaties concluded under
coercion of the state. The rule established in Article 52 of the Vienna Convention is not a mere
statement of principle: international practice confirms that it reflects a customary rule which,
however, does not play a significant role as regards coerced peace treaties. 2

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The rule on Coercion established by Article 52 of the Vienna
Convention
According to Article 52 of the Vienna Convention on the Law of Treaties, treaty is void if its
conclusion has been procured by the threat or use of force in violation of the principle of
international law embodied in the Charter of the United Nations. 3 Invalidity of a treaty may be
impeached only through the application of the present convention. Invalidity of treaties fully reflect
the principle of consent in international law. Although the principle of consent is extremely
important in international law, it is welcome to see limitations to the scope of some of the treaty
provisions to prevent abuse of the rights that they grant. As it was also mentioned possible on of the
most important reasons for invalidity is coercion of a state. According to the VCLT a treaty shall
become invalid if its conclusion has been procured buy the threat or use of the force in violation of
the principles of international law.

Be forehead coercion is the practice of compelling a state or individuals or manipulating them to

behave in an involuntary way by use of threats, or some other form of pressure or force. Art 52
focuses on the legal effects of force on treaties – no matter if bilateral, plurilateral or multilateral
without explicitly touching upon the legal effects force has on unilateral acts. The object and purpose
of Art 52 is twofold: the provision aims at safeguarding the principle of free consent and preventing
the coercing party from extracting contractual advantages from the unlawful use of force. so Art 52
oriented: if unlawful force is applied by a state in order to bring about a specific treaty with another
State, the treaty is void pursuant.4

The notion of coercive measures is very unclear in international law. On an everyday basis, states
independently or via international organizations look for some means of influence over other states.
However, not all means of such an influence are legal under international law. It is also obvious that
no state or international organization will ever confess that its activity goes counter to international
law5 Coercion, threat or use of punitive measures against states, groups, or individuals in order to
force them to undertake or desist from specified actions. In addition to the threat of or limited use of
force (or both), coercion may entail economic sanctions, psychological pressures, and social ostracism.
The use or threat of coercion has been central to international relations and domestic politics.6

In the light of the fact that article 52 does not only protect the victim’s freedom of consent. The rule
is also aimed at ensuring respect for the prohibition on recourse to force in international relations,
which is at the very heart of international law shaped by community interests. According to article
48 state responsibility for internationally wrongful acts, non-injured states are entitled to claim
cessation of breaches of erga omnes obligations, as well as assurances and guarantees of non-
repetition and reparation in the interest of the injured state. On the other hand, the conection that
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article 52 is in itself a norm of jus cogens cannot be accepted: the cases of the Lusaka agreement and
of the Military technical Agreement between Serbia and KFOR do not support this view. It is true
that acts of aggression such as those that lead to coerced peace treaties contravene the peremptory
core of the rule prohibiting the use of force, and entail the consequences envisaged by Article 41
darfted on state responsibility – namely, the obligation to cooperate to bring to an end any serious
breach of peremptory norms, not to recognize in maintaining that situation.

It is generally recognized in international law that “valid consent by a state to a commission of a

given act by another State precludes the wrongfulness of that act in relation to the former State to the
extent that the act remains within the limits of that consent” 7

Use of force in violation of the UN Charter

Art 52 does not define the term “force but build on the UN Charter general prohibition to use force in
international relations. On the face of it Art 52 appears to refer to all possible rules of inter-State
conduct embodied in the UN Charter, including the principle of non-intervention in matter within
the national jurisdiction of States. The term “force” should be understood in a broad sense. According
to the UN Charter basic understanding is that only military force is prohibited under Article 2(4).
Those who are support this position has given two main reasons. The firs reason is that since United
Nations was formed after the Second World War in response to the grave violence and atrocities, the
force referred to in the provision means the kind of force which was used during the world war,
which was only military force. Psychological or economic pressure does not come within the purview
of Article 2(4) unless coupled with the use or the threat of force. Secondly, refusal of one state to
trade with another was not considered a violation of international law. Evan though only military
force is prohibited under Article 2(4), is has been made clear by the United Nations that economic
aggression is also not acceptable when used to coerce other states. 8

A threat of force is a form of coercion. It is not required under that the international law that a state
must have the capability to deliver its threat, or that a threat is coupled with any concrete demand
before such a threat can be considered unlawful. Threat is unlawful under Article 2(4) and the force
used for threatening would also be illegal when used. An illegal threat can cause only an unlawful
force and vice versa.9 Use of force by one State against another is prohibited but not force used by
state within the territory. The reason for the limitation under this provision can be given as the
principle of sovereignty to guard. No interfare should be allowed with the internal affirs of any state
neither by any other state or by United Nation, and this has been time-honored principle of
international law. 10As per article 2(4) of the Charter of the United Nations: All Members shall
refrain in their international relations from the threat or use of force against the territorial integrity
or political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations. Article 2(4) is the essential ingredient of the UN Charter as it provide a better
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collective security system. 11 Under Article 2(4) of the UN Carter no state can use force in any other
manner inconsistent with the purposes on the United Nations. States sometimes argue that they use
force in-order to protect human right or prevent humanitarian tragedies and this is why it is not
inconsistent with the purposes of the UN is to prevent humanitarian tragedies, using force to prevent
a state from violating its citizens rights or destroying their lives is perfectly inconsistent with Article
2(4). Whether the UN Charter provides for exceptions to the prohibition on the use of force: States
can use of force in self defense (Article 51); United Nations Security Council authorized forces
commonly called collective security for maintaining peace and security; States can use force against
former States (Article 107). Article 107 permits UN member State to attack one of the former enemy
States if the UN member State believed that the former enemy was renewing its policy of aggression.
However, since all former enemy State are now UN members, Article 107 is regarded as a dead
provisions. Article 2(4) of United Nation Charter prohibits unilateral use of force or force not used in
self defense. 12

In Conclusion, it seems that Article 52 of VCLT is tightly connected with UN Charter Article 2(4)
because this article describes the norms of using norms, so using of force usually violates UN Charted,
which means that general regulation of the Article 52 of VCLT is also violated. So treaties concluded
under coercion of the states using power or another treaties can cause Absolut invalidity of the
treaty.

Judicial practice
Some elements of international practice have confirmed, expressly or by implementation, that Article
52does reflect customary international law. As regard judicial practice, in the Fisheries Jurisdiction
cases the International Court of Justice maintained: “ there can be little doubt, as is implied in the
Charter of the United Nations and recognized in Article 52 of the Vienna Convention of the Law of
Treaties, that under contemporary international law an agreement concluded under the threat or use
of force is void”. More recently, the judgment concerning the Territorial an Maritime dispute
(Nicaragua v Colombia), while not addressing the merits of the contention submitted by Nicaragua as
regards the invalidity the 1928 bilateral Treaty concerning Territorial Questions at Issue between
Colombia da Nicaragua on ground of coercion, implicitly confirmed the customary nature of this rule,
which is further upheld by some arbitral tribunals. Coercion was not held to have actually taken
place in the abovementioned cases, but in few instances states and national courts have assessed the
invalidity of treaties on this ground. It should be noted , that coercion sometimes originating from a
state that did not take part to the negotiations, has been invoked mostly as regards situation s in
which the ground of alleged invalidity consisted in the threat of recourse to force, or in any cas
where no military conflicts had taken place. As regards treaties aimed at ending armed conflicts,
claims of in validity on ground of coercion are particularly rare. Nevertheless, in many cases precisely
the status of peace agreements as international legal instruments is doubtful, due to elements such as
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the presence of non state entities among the signatories and the drafting of such agreements in terms
that may not be legally biding or that place them at the crossroad between national and international
law.13

Fisheries case (United Kingdom of Great Britain and Northern Ireland v. Iceland)

The International Court of Justice considered a dispute between Iceland and the United Kingdom
regarding a proposed extension by Iceland of its fisheries jurisdiction. Iceland failed to appear or to
plead its objection in this case.

In 1948, Iceland’s Parliament passed a law directing the Ministry of Fisheries to issue regulations
establishing explicitly bounded conservation zones for fishing. A 4-mile zone was subsequently
drawn in 1952. In 1958 this zone was extended to 12 miles, establishing a new 12-mile fishery limit
around Iceland which was reserved for Icelandic fisherman. The United Kingdom did not accept the
validity of the new regulations, and its fisherman continued to fish inside the 12-mile limit.

After the 1960 Second United Nations Conference on the Law of the Sea, England and Iceland began
a series of negotiations to resolve their differences, and in 1961 reached a settlement in an Exchange
of Notes agreeing to a 12-mile fishery zone around Iceland.

In 1971, Iceland decided to extend its fisheries jurisdiction to a 50-mile zone, and maintained that the
1961 Exchange of Notes was no longer in effect. These actions form the core of this dispute.

The Court held that the 1972 Icelandic Regulations constituted a unilateral extension of the exclusive
fishing rights of Iceland to 50 nautical miles. Iceland could not unilaterally exclude the United
Kingdom from areas between the fishery limits agreed to in the 1961 Exchange of Notes.

The Court decided that Iceland and the United Kingdom had to undertake negotiations in good faith
to find an equitable solution to their differences concerning their respective fishery rights. The parties
were to consider that Iceland was entitled to a preferential share in the distribution of fishing
resources due to the special dependence of its people upon coastal fisheries, as well as the principle
that each state must pay due regard to the interests of the other in the conservation and equitable
exploitation of these resources.14

The court noted two concepts that had been accepted as part of customary law: (1) the idea of a
fishery zone in which each state may claim exclusive fishery jurisdiction independently of its
territorial sea, and that a fishery zone up to a 12-mile limit from the baseline is generally accepted;
and (2) the concept of preferential rights of fishing in adjacent waters in favour of the coastal state
which has special dependence on its coastal fisheries.

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Because some circumstances changed, Iceland (D) claimed that a fishing treaty it had with the United
Kingdom (P) was no longer applicable.

In order that a change of circumstances may give rise to the premise calling for the termination of a
treaty, it is necessary that it has resulted in a radical transformation of the extent of the obligations
still to be performed.

Under Article 2(4) of the United Nation Charter, no State can use force in any other manner
inconsistent with the purposes on the United Nations. States sometimes argue that they use force in-
order to protect human rights or prevent humanitarian tragedies and this is why it is not inconsistent
with the purposes of United Nations. Since one of the main purposes of the United Nations is to
prevent humanitarian tragedies, using force to prevent a State from violating its citizens’ rights or
destroying their lives is perfectly inconsistent with Article 2(4). Since the Charter does not recognize
humanitarian intervention, such action is illegal unless it is authorized by the Security Council. In
other words, humanitarian intervention can become a pretext for meddling in the internal affairs of
other states.15

Iceland’s (D) claim to a 12-mile fisheries limit was recognized by the United Kingdom (P) in 1961 in
return for Iceland’s (D) agreement that any dispute concerning Icelandic fisheries jurisdiction beyond
the 12-mile limit be referred to the International Court of Justice. An application was filed before the
I.C.J. when Iceland (D) proposed to extend its exclusive fisheries jurisdiction from 12 to 50 miles
around its shores in 1972. By postulating that changes in circumstances since the 12-mile limit was
now generally recognized was the ground upon which Iceland (D) stood to argue that the agreement
was no longer valid. Iceland (D) also asserted that there would be a failure of consideration for the
1961 agreement.

In order that a change of circumstances may give rise to a ground for invoking the termination of a
treaty, is it necessary that it has resulted in a radical transformation of the extent of the obligation
still to be performed?

In order that a change of circumstances may give rise to the premise calling for the termination of a
treaty, it is necessary that it has resulted in a radical transformation of the extent of the obligations
still to be performed.
 The change of circumstances alleged by Iceland (D) cannot be said to have transformed radically the
extent of the jurisdictional obligation that was imposed in the 1961 Exchange of Notes.

Discussion. Recourse to the I.C.J. in the event of a dispute was the original agreement between the
parties.  The economy of Iceland (D) is dependent on fishing. The merit of Iceland (D) argument was
not reached by the Court in this case, however, but rather dealt with the jurisdictional issues.

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 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.

Nicaragua v Columbia (Territorial questions and Maritime Deliminationa)

The case at issue was filed by the Republic of Nicaragua on 6 December 2001 at the Registry of the
International Court of Justice . It involves a long-standing dispute in connection with the territorial
sovereignty over several islands belonging to the archipelago of San Andrés and Providencia
(hereinafter: San Andrés archipelago) in the western Caribbean Sea, which had been in possession of
the Republic of Colombia since the nineteenth century. In her application, Nicaragua has asked the
Court to clarify legal uncertainties which allegedly exist . First, the Court was requested to adjudge
that Nicaragua has sovereignty over the San Andrés archipelago and all appurtenant islands and keys,
including the islands of Roncador, Serrana, Quitasueño, and Serranilla, insofar as they are assumed to
be capable of appropriation. Second, Nicaragua has asked, based on her alleged title to this territory,
to determine the course of the single maritime boundary between the areas of the Continental Shelf
and Exclusive Economic Zone appertaining respectively to Nicaragua and Colombia, in accordance
with equitable principles and relevant circumstances recognized by international law. While not
being officially part of her application to the Court, Nicaragua has also reserved her right to claim
compensation for elements of unjust enrichment resulting from Colombian possession of the San
Andrés archipelago and maritime spaces east of the and meridian in the absence of a lawful title. This
further relates to Nicaragua’s alleged right to claim compensation for Colombia’s interference with
fishing vessels of Nicaraguan nationality or vessels licensed by Nicaragua. 16

The Barcenas-Esguerra Treaty

Colombia has always held the view that her sovereignty over the San Andrés archipelago is validly
based on international law, i.e. not only by virtue of having been in possession of the islands for
almost two hundred years, but also because of the Barcenas-Esguerra Treaty of 1928. By that treaty,
Nicaragua abandoned her territorial claims to the San Andrés archipelago vis-à-vis Colombia, albeit
in exchange for the recognition of Nicaraguan sovereignty over the Mosquito Coast and two adjacent
islands, Great and Little Corn Island, which previously were claimed by Colombia24. This would
seem to correspond with Colombia’s submission that all islands and keys in question, if not already

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considered to be an integral part of her territory under the rules of international customary law, have
ultimately become a part of Colombia through the Barcenas-Esguerra Treaty. As a consequence, all
claims made by Nicaragua with respect to sovereignty could be rejected by Colombia on this ground.

In contrast to Colombia’s assertion, Nicaragua holds the opinion that the Barcenas-Esguerra Treaty
lacks legal validity and consequently cannot provide the basis of a Colombian title with respect to the
San Andrés archipelago. This claim rests mainly on allegations that the treaty was signed under
pressure from the United States, which is said to have been in control of Nicaragua at that time.
Additionally, Nicaragua claims having lacked authorization to act, for the treaty had been signed by
Dr. Don José B á r c e n a s M e n e s e s , then Under-Secretary for Foreign Affairs. The 1969 Vienna
Convention on the Law of the Treaties (hereinafter: Vienna Convention) is not directly applicable, as
according to Article 4 it applies only to treaties concluded after its entry into force on 27 January
1980. It is, however, generally agreed that most parts of the Vienna Convention merely express rules
which existed under customary international law or are recognized as general principles of
international law. Therefore, it is understood that pursuant to Article 28 of the Vienna Convention
any such rule can be invoked without reference to the present convention, provided it was previously
part of customary international law27. Consequently, the source of the binding force of rules for
nonparties is custom, not treaty law28. According to Article 38 of the Statute of the International
Court of Justice, the Court can take account of international custom as evidence of a general practice
accepted as law and as such it can establish binding obligations for states. 17

In accordance with the provisions of Article 51 of the Vienna Convention, the notion that coercion
directed against the representative of a state may be invoked in order to invalidate its consent to be
bound by a treaty goes directly back to customary international law29. The same applies for the
invalidity of a treaty due to an illegal threat or use of force, which is lex lata in international law30.
As a result, coercion, whether exercised against a state’s representative by threat or use of force,
would indeed leave a treaty void. Nicaragua’s claims that it was forced into the Barcenas-Esguerra
Treaty is mainly backed by the fact that United States forces landed in Nicaragua in May 1926 to
protect the interests of the United States and to mediate in the ongoing civil war31. Between 1926
and early 1933 they came and went intermittently. Yet, it is doubtful whether this alone may be seen
as proof that the governments during the civil war years were acting under pressure from the United
States.

Even if so, this would raise the question whether the Barcenas-Esguerra Treaty itself was actually
signed under coercion. It further remains unclear why the United States would have had reason to
force the Nicaraguan government into said treaty. Moreover, it should not be ignored that at the time
of both the signing and the ratification of the treaty a truce between the government under the
newly elected liberal president, General José María M o n c a d a , and the rebels remained in
effect32. It is obvious that the onus to prove that any form of coercion was used in this specific case is
clearly on the party who claims the invalidity of a provision or the treaty itself. As Nicaragua has not
come forward with any convincing evidence whatsoever that it was indeed forced into the Barcenas-

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Esguerra Treaty by the United States, it can as a result not invoke any principle in customary
international law that would render the Barcenas-Esguerra Treaty void.18

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