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The Law and Practice as to

International Law Treaties

M Hammad Sarwar Scope CSS Club

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 Law of Treaties

❖ Most important source of international law.

❖ Treaties are explicit and clear & express will of the
parties
❖ Vienna Convention on the Law of Treaties 1969
❖ Came into force on 27 January 1980
❖ Art 1 – VCLT applies to treaties btw states
 Law of Treaties
❖ Definition: Art 2(1) ‘an international agreement
concluded between states in written form and governed
by international law, whether embodied in a single
instrument or in two or more related instruments and
whatever its particular designation’
 Law of Treaties
Four criteria

1. Written agreement
• although it does not apply to agreements not made in writing Art 3 – legal
force of such non-written agreements shall not be affected – application of
rules set forth in convention independently of the convention.

2. Treaty between states

3. Governed by International law

• Certain inter-state agreements can be subject to domestic law e.g. loan
agreements

4. Agreement should create legal obligations

 Law of Treaties
Fundamental principles of the Law of Treaties
1. Principle of free consent
• Art 34 – ‘a treaty does not create either obligations or rights for a third state without its consent’
• Art 36 – rights may creates for a third party, unless it expressly rejects.
2. Principle of Pacta Sunt servanda
• Art 26 – ‘Every treaty in force is binding upon the parties to it and must be performed by them
in good faith’
3. Principle of Good Faith
• General principle of international law
• Australia v France – one of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith.
• Art 26
• Treaty must be negotiated, performed, interpreted (31(1)) & terminated in good faith
 Law of Treaties
Formation of Treaties

1. Negotiation of the Treaty

• Carried out by accredited representatives of the
state
• Art 7
• Person with instrument ‘full powers’
• normal practice of the state
 Law of Treaties
Formation of Treaties

2. Authentication of the Treaty

• Parties agree that the text of the proposed treaty is
correct and authentic and not subject to alteration
• Usual method of authentication is signature
 Law of Treaties
Formation of Treaties
3. Consent to be bound
• Art 11: signature, exchange of instruments constituting treaty,
ratification, acceptance, approval or accession
• Signature: Art 12. signature will signify consent, where treaty
provides that signature shall have effect.
• Ratification: Art 14. Ratification is the formal act whereby one
state declares its acceptance of the terms of the treaty. Art 14 –
ratification for treaties where it is provided in the treaties.
 Law of Treaties
Formation of Treaties
3. Consent to be bound
• Accession: Occurs when a did not participate in the
negotiating process and signing of the relevant treaty,
formally accepts its provisions.
• Art 15.
Entry into force: Art 24 – a treaty enters into force as it may be
provided by treaty or as negotiating states may agree
 Law of Treaties
Formation of Treaties

• Art 102 Un Charter – all treaties are to be registered

with UN Secretariat
• Qatar v Bahrain (ICJ): unregistered treaty remains
legally binding between the parties.
 Law of Treaties
Treaties and reservations
• Art 2(1)(d) ...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 modify the legal effect of certain provisions
of the treaty in their application to that State.
• Applicable to multilateral treaties
 Law of Treaties
Treaties and reservations
• Art 19: reservation invalid, if:
• Prohibited by the treaty
• Treaty only provides for specific reservations
• Reservation is incompatible with the object and
purpose of the treaty
 Law of Treaties
Treaties and reservations
• Art 20 – reservation expressly provided by treaty does not require
acceptance by any other state.
• Art 21 – reservation modifies for the reserving state the provisions
of the treaty to which the reservation relates to the extent of
reservation – it also modifies those same provisions to the same
extent for other parties in their relations with the reserving state.
• Genocide convention case: a state could be party to the treaty
even if its reservation had not been accepted by all other parties.
 Law of Treaties
Treaties and reservations
• Interpretative declaration: made by a state to clarify its
understanding of the meaning or scope of certain provisions of
treaty
• Conditional interpretative declaration: made by a state in order
to indicate that it does not consent to be bound by the treaty
unless a specific interpretation is given to some of its provisions
• Reservation and interpretative declarations provide flexibility
in international law.
 Law of Treaties
Treaties and reservations
Criticism of VCLT reservation
• What if a reservations is incompatible with the object and purpose of the convention?
• ICJ (Reservations to the Convention on the Prevention and Punishment of the Crime
of Genocide ): reserving state cannot be regarded as party to treaty
• Totally invalid position is not supported by international practice
• Position is unclear
• VCLT provisions are inappropriate for human rights treaties
• To allow reservations to human rights treaties would be tantamount to reducing the
standard of protection of human rights which is already very low
• Role of monitoring bodies
 Law of Treaties
Interpretation of Treaties
• Article 31 (general rules on interpretation)
• Treaty shall be interpreted in good faith in accordance with the ordinary
meaning of the terms of the treaty in their context and in the light of its object
and purpose.
• Preamble and annex also relevant
• Any other agreement or instrument btw parties relating to the treaty
• If parties intended any special meanings to be given to any term these too will
be applied.Any subsequent agreement between the parties
• Any subsequent agreement between the parties
• Any subsequent practice
 Law of Treaties
Namibia Advisory Opinion (1971)
Legal issue: how treaty interpretation can be modified by subsequent practice
Facts
❖ South Africa was responsible for Namibia under the Mandate system (granted in 1920
by League of Nations)
❖ Its Mandate was revoked and it was instructed to withdraw from Namibia.
❖ SC Res. 276 (1970) reaffirmed this position. SC Res. requested an Advisory Opinion on
the consequences of South Africa’s continued occupation.
❖ South Africa argued that the ICJ had no jurisdiction to consider the request because two
UNSC permanent members abstained from voting for the resolution.
❖ Article 27(3) UN Charter provides: UNSC decisions ‘shall be made by an affirmative
vote of nine members including the concurring votes of the permanent members . . .
 Law of Treaties
Namibia Advisory Opinion (1971)
Legal issue: how treaty interpretation can be modified by subsequent practice
Held
❖ ICJ observed that a subsequent practice had evolved that had been ‘consistently and
uniformly’ followed which allowed permanent members to abstain from voting without
such conduct constituting a bar to the adoption of a resolution. Article 27(3) was
interpreted in the light of subsequent practice as permitted by Article 31(3)(b) VCLT.
Analysis:
❖ VCLT’s recognition of the influence of subsequent agreements/practices on treaty
interpretation demonstrates the evolutionary nature of international law. Article 31
VCLT reinforces the idea that specific developments should be interpreted in ways that
are consistent with the background rules of international law.
 Law of Treaties
Interpretation of Treaties
• Article 32 (supplementary means of interpretation)
• Travaux preparatoires – preparatory works.
• Circumstances of conclusion.
• In order to confirm the meaning resulting from the application of art
31, or to determine the meaning when the interpretation according to
art 31:
• (a) leaves the meaning ambiguous or obscure; or
• (b) leads to a result which is manifestly absurd or unreasonable
 Law of Treaties
Interpretation of Treaties
• Literal/Textual interpretation
• Words should be given their natural and ordinary
meaning
• Natural and ordinary meaning should be
unambiguous
• It must not lead to absurd result
 Law of Treaties
Interpretation of Treaties
• Teleological interpretation
• Objective and purpose of the treaty
• Inferred from parties intention
• The teleological interpretation allows necessary flexibility
with the consequence that the relevant treaty can be
interpreted in a ‘dynamic’ sense; i.e. the interpretation can
keep up with and adapt to changing social, political,
technological and other circumstances
 Law of Treaties
Interpretation of Treaties
• Principle of effectiveness
• It is better for a thing to have effect than to be made
void
• Treaty should be interpreted to ensure maximum
effectiveness in achieving its object and purpose
• Art 31 – preference to plain meaning in the light of
objective and purpose
 Law of Treaties - Suspension

• Article 72 – contracting parties are relieved from

carrying out the obligations for the time being. Treaty
remains valid.
• Article 59 – treaty may be suspended according to the
provisions of the treaty or through consent of the state
parties
 Law of Treaties - Termination
Termination in accordance with the terms of the treaty
❖ 54 (a) – termination only in conformity with the treaty
❖ treaty may be for specific period or specific purpose
❖ treaty may allow withdrawal at any time
 Law of Treaties - Termination
Termination by agreement
❖ 54(b) – treaty may be termination at any time by the
consent of the parties
❖ 56 – right of withdrawal may be implied in certain
treaties – if not specifically provided (e.g. alliance
treaties commercial treaties)
 Law of Treaties - Termination
Implied Termination
❖ 59 – if all the parties to it conclude a later treaty relating
to the same Subject matter and it appear from the later
treaty that parties intend that matter to be governed by
the later treaty
Termination of a treaty which is in conflict with a jus cogens
❖ 64 – if a new rule of jus cogens emerge – any existing
treaty which is in conflict with that norm becomes void
and terminates.
 Law of Treaties - Termination
Non-consensual grounds of termination:
❖ Material breach
❖ Supervening impossibility of performance
❖ Fundamental change of circumstances (rebus sic
stantibus)
 Law of Treaties - Termination
Material breach
❖ Art 60: ‘a repudiation not sanctioned by the present
convention’ or ‘the violation of a provision essential to
the accomplishment of the object or purpose of the
treaty’
❖ Where one party in material breach – other parties are
entitled to suspend treaty in whole or in part btw
themselves and the other party.
 Law of Treaties - Termination
Gabcikovo-Nagymaros Case (Danube Dam Case) (1997)
Facts
❖ 1977, Hungary and Czechoslovakia entered into a treaty which was concerned with the construction of a
dam.
❖ 1989, Hungary abandoned work on the project. Czechoslovakia continued construction work.
❖ May 1992, Hungary notified Czechoslovakia that it was terminating the treaty. It claimed that
Czechoslovakia’s unilateral construction activities constituted a material breach.
❖ October 1992, Czechoslovakia diverted the river’s waters into a bypass canal. The diversion caused
substantial environmental harm.
Legal principle
❖ The ICJ decided that Hungary could not invoke a material breach in May 1992 as no breach had
occurred at that time. Hungary had not acted in good faith in abandoning its construction work.
❖ However, the ICJ held that Czechoslovakia was in material breach (although this only happened in
October 1992 when it diverted the river’s waters).
 Law of Treaties - Termination
Supervening impossibility of performance
❖ Art 61 – right to terminate where there is impossibility of
performance resulting from the permanent disappearance or
destruction of an object indispensable for the execution of the
treaty.
❖ Danube Dam case: any supervening impossibility of
performance must concern the destruction of something
indispensable for the performance of the treaty obligations.
❖ Not allowed if – impossibility is the result of a breach by the
party wishing to terminate.
 Law of Treaties - Termination
Fundamental change of circumstances (rebus sic stantibus)
❖ Art 62 - It may only be invoked if existence of those
circumstances constituted an essential basis of the consent of the
parties to be bound and the effect is that it radically transforms
the extent of obligations still to be performed under the treaty.
❖ Change of circumstances must not be the result of the action of
the party that contends to be released from obligations.
❖ Danube Dam case: change in circumstances must have been
unforeseen at the time of conclusion of treaty. It must have been
considered as an essential basis of the consent of the parties.
 Law of Treaties - Termination
Fisheries Jurisdiction Case (1973)
❖ UK initiated ICJ proceedings in response to Iceland’s decision to extend its exclusive
fisheries jurisdiction in violation of a 1961 bilateral treaty.
❖ The treaty permitted either party to refer such a dispute to the ICJ.
❖ However, Iceland claimed that the court had no jurisdiction and that the treaty was no
longer binding upon it because there had been a fundamental change of circumstances
since the treaty was concluded as the 12-mile rule was now generally accepted.
❖ Legal principle
❖ The ICJ decided that there was no fundamental change of circumstances on the facts.
In its view, in order to invoke Article 62 successfully, the change: ‘must have increased
the burden of the obligations to be executed to the extent rendering performance
something essentially different from that originally undertaken’.