Submitted to: Sir Imran Asghar

Submitted By: Waqas Saeed

Roll No: B-21730 (Section A)
Subject: International Law
Topic: Treaties

University of South Asia

Introduction:
International treaty law as codified by Vienna Convention on the Law of Treaties of 1969 is open for
considerations of justice too (Preambular para. 4 and 5 and Article 44 (3)). Moreover, the concept of "jus
cogens" seems also to be an angle of incidence for natural law ideas. Since, on the basis of their
sovereignty and therefore independence, the equality of all States constitutes the theoretical
foundation of international relations and although public international law, by definition, does not
belong to civil law, international legal debates are often reminiscent of the discussions known in the
latter area, in particular in the context of the law of contracts. However, the analogy with the law of
contract ends where measures are taken on the basis of Chapter VII of the Charter of the United
Nations. Although they are foreseen in an international treaty - in particular by Article 25 of the Charter -
these measures deserve to be highlighted because of the legal obligations they impose to the whole
world, their political significance and the remarkable development they have undergone since the Gulf
War of 1991. The measures taken by the Security Council and which are expressly based on Chapter VII
of the Charter encompass not only military as well as economic sanctions against certain States
(Ethiopia, Eritrea, Iraq, Yugoslavia, Sierra Leone etc.) - or insurgents (Angola's UNITA, see resolution
1173/1998 of 12 June 1998) or even political parties in government (the Afghan faction of the Taliban,
see res. 1267/1999 of 15 October 1999).

The present publication, for its part, is devoted to the international law of treaties as codified in the
Vienna Convention. The principles of this convention as well as their application constitute its main
subject-matter.

Principles of Treaty Law:

Although it is possible to conclude international conventions orally, almost all of them are concluded in
written form. Orginally, the international treaty rules were either part of customary international law or
belonged to the general principles of law; today the rules governing international treaties which are
concluded between States in written form are codified. The codification governing this legal area is the
Vienna Convention on the Law of Treaties (Vienna Convention) of 1969 which has entered into force on
27 January 1980. Although the Vienna Convention is not applicable to treaties concluded before its entry
into force (Article 4) it is de facto applied to those too, since it incorporates - at least to a large extent -
customary rules which 8 were already applicable before this date. Moreover, the Vienna Convention
applies only in the absence of other applicable agreements and is therefore of subsidiary character. A
Vienna Convention on the Law of Treaties between States and International Organizations or between
International Organizations dating from 1986 has reproduced the provisions of the Vienna Convention. It
reflects to a large extent international customary law, too; however, it has not yet entered into force.

Finally, a Vienna Convention on Succession of States in respect of Treaties, concluded in 1978, entered
into force in 1996, but since it has been ratified by 15 States only, it cannot be considered as a source of
universal international law. Furthermore, it has hardly had any impact on state practice, the noteworthy
exception being that practice widely follows the rule according to which a successor State can establish
its status as party of a multilateral treaty to which its predecessor State already belonged through a
declaration of succession. Basically, two types of treaties are two be distinguished: - bilateral treaties
which are concluded between two States only and - multilateral treaties concluded between at least
three States; the treaties which have attracted the largest numbers of parties are called universal.
Amongst multilateral treaties, one can distinguish between "open" and "restricted" treaties. Whereas
every State can become a party to the "open" ones, access to the latter category of treaties is excluded
for those States which do not belong to the original States Parties, unless an agreement to the contrary
has been entered into.

These five principles will be subject to closer scrutiny and the application of the two major principles
(free consent and good faith) will be the object of a separate chapter.

1. Free consent:
This international principle is embodied in preambular para. 3 of the Vienna Convention. First of all, it is
the corollary of the prohibition of the threat and use of force contained in the Charter of the United
Nations (Article 2 (4)) which legitimates such behaviour only in specific circumstances. The severance or
absence of diplomatic (or consular) relations be- 1 0 tween two or more States does not prevent the
conclusion of treaties between those States (Article 74). According to the principle of free consent,
international agreements are binding upon the parties and solely upon themselves. These parties cannot
create either obligations or rights for third States without their consent (rule of pacta tertiis nec nocent
nec prosunt - Article 34). The only explicit exception to this rule appears in Article 22 (1) which is an
expression of the favor contractus principle and concerns the withdrawal of reservations.

2) Good faith:
As well as free consent, good faith is of fundamental importance for the conduct of international
relations in general and is therefore recognized as an international principle according to the very terms
of the Vienna Convention (Preambular para. 3). If a State do not behave in good faith, peace and
international security, the supreme goals of the Charter of the United Nations might eventualy be put in
jeopardy. In a resolution from July 2001, the International Whaling Commission (IWC) which is
constituted by more than 40 member countries declared that "good faith requires fairness,
reasonableness, integrity and honesty in international behaviour". An abuse of right is contrary to the
principle of good faith (see Article 300 of the United Nations Convention on the Law of the Sea).

3) Pacta sunt servanda:

Apart from the fact that it is listed together with good faith among the universally recognized principles
(preambular para. 3), this rule is also enshrined in Article 26: "Every treaty in force is binding upon the
parties to it and must be performed by them in good faith." In Paul Reuter's words, this principle can be
translated by the following formula: treaties "are what the authors wanted them to be and only what
they wanted them to be and because they wanted them to be the way they are". A party is not
authorized to invoke the provisions of its internal law as justification for its failure to perform a treaty
(Article 27). Generally speaking, this solid legal link is nor even weakened in the case severance of
diplomatic relations between the parties to a given treaty (Article 63). The only limit to the "pacta sunt
servanda" rule is to be found in the notion of "peremptory norm of general international law"

4) The rebus sic stantibus clause

According to this principle (understood in a broad sense), extraordinary circumstances can lead to the
termination of a treaty. These circumstances can consist either in a material breach of a given treaty by
one of the States Parties (Article 60), in a permanent disappearance of an object indispensable for the
execution of the treaty (Article 61) or in a fundamental change of circumstances (Article 62, clausula
rebus sic stantibus understood in a narrow sense). A fundamental change of circumstances can also
occur in the case of the outbreak of hostilities between the States Parties (see Article 73). However, this
fact cannot be invoked as a ground for terminating a treaty, if it has been concluded with regard to the
possible outbreak of an armed conflict as in the case of the Geneva Conventions of 12 August 1949 (so-
called Red Cross-conventions) or the Hague Conventions of 1899 and 1907. The International Law
Commission (ILC) has elaborated draft articles on Effects of armed conflicts on treaty.

5) Favor contractus
This principle expresses the preference of international treaty law for the maintenance and the
conclusion of treaties over expiry for reasons of form. Hence, unless the treaty otherwise provides, a
multilateral treaty does not terminate by reason only of he fact that the number of the parties falls
below the number necessary for its entry into force (Article 55). The Vienna Convention also sanctions
the prohibition to denounce a treaty or to withdraw from it, if it does not foresee itself these forms of
termination. This applies, of course, unless the parties did not wish, be it by tacit understanding, a
different solution (see Article 56). Likewise, in order to uphold the validity of treaties, Article 68 allows
parties to revoke at any time before they take effect notifications or instruments designed to lead to
invalidity, even this is done only in relationship to one single other party.

III) Application of Treaty Principles:

(free consent & good faith) 1) with regard to the conclusion of treaties a) The expression of free consent
the Vienna Convention which governs agreements concluded in written form between States, confirms
in its Article 6 that every State possesses capacity to conclude treaties. The will of a State finds its
expression through persons who are authorized to do so or who are considered to be state
representatives. Since international treaty law in its entirety is subject to the free consent principle. it is
quite logical that the Vienna Convention offers a broad choice of possibilities to express consent (Article
11), i.e. - signature, - exchange of instruments constituting a treaty (in the case of bilateral treaties this
often happens through the exchange of notes), - ratification, - acceptance, - approval, - accession or - by
any other means if so agreed.

A typical clause of entry into force can be found in Article 84 of the Vienna Convention itself which
reads:

"1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the
thirty-fifth instrument of ratification or accession.

2. For each State ratifying or acceding to the Convention after the deposit of the thirty-fifth instrument
of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by
such State of its instrument of ratification or accession."

Pacta tertiis nec nocent nec prosunt

A treaty binds the parties and only the parties; it does not create obligations for a third State without its
consent (Article 34), since sovereignty implies that there is no agreement without free consent. "Third
State" means a State which not a party to a given treaty (Article 2 (1)(h)). The acceptance of an
obligation by a third State must be expressed both expressly and in writing (Article 35), in order to avoid
doubts as to the extent of the obligation which had been previously defined by others. A consent which
as been expressed in such a way can be qualfies as quasi-contractual. Hence, it is only logical that the
obligation can only be revoked or modified with the consent of all parties to the treaty as well as of the
third State, unless it is established that they had otherwise agreed (Article 37(1)).

Designation of treaties:
As it appears from the definition of Article 2 (1)(a) of the Vienna Convention, the legally binding nature
of a treaty is not affected by its particular designation. In order to be legally binding, the parties must
have had the intention to be bound legally and not "only" through a political commitment. Nevertheless,
the designation of a particular agreement indicates the political importance the parties attach to it,
though it cannot be considered as conclusive evidence. With regard to bilateral agreements, the term
"Treaty" suggests that the agreement so designated is considered to be of great importance. Friendship
treaties, although outdated in many cases today, are an example thereof. The nowadays most utilized
designation seems to be "Agreement". It is utilized so often that it is impossible to conclude from there
which political value it has for the parties. The term "memorandum of agreement" is widespread, too.

With regard to the termination of treaties:

a) By consensus In the same way as States can conclude treaties, they can also terminate them by
mutual consent. Their consent can be expressed either in the treaty itself which they had originally
concluded (expiry date, denunciation clause) or thereafter (article 54), in particular through the
conclusion of a later treaty aiming at achieving this very purpose (Article 59, explicit termination), or
through the conclusion of a treaty relating to the same subject-matter (see Article 30 (3), implicit
termination). The same rules apply for the termination as well as for the suspension of treaties (Article
57 and 59 (2)). With regard to multilateral treaties, the Vienna Convention authorizes two or more
parties to suspend the operation of treaty provisions - temporarily and - as between themselves alone.

Conclusion:
As far as international law treaties are the contract between the two or more states for the common
motives and further more for the common intentions. These are based on trade, disputes and many
more which are recognized by the international law under the umbrella of UN.