PRINCIPLES OF INTERNATIONAL

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 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.

Generally speaking, one can say that customary international law is rather blurred in this
regard.

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.
Hence, every State can accede to the Vienna Convention (open treaty), but only the
signatory States of the Convention on the Regulation of the Navigation on the Danube
River from 1948 could originally ratify this (restricted) treaty: hence the accessions of
Austria and Germany had to be approved by the original States Parties in 1960 and 1999,
respectively, by way of supplementary agreements with these two countries.

The Vienna Convention which consists of 85 articles, eight parts and an annex includes
and materializes five fundamental legal principles.

Free consent and good faith (bona fide in Latin) are the leading principles which ought to
be always followed by States in the course of their relations with one another.

The other major principles which also emanate from the Roman Law tradition apply in
particular

- either to the conclusion of treaties:

- pacta sunt servanda (a treaty is binding upon the parties)

- or to the interpretation or application of treaties:

- omnia conventio intelligitur rebus sic stantibus
(viz. the clausula rebus sic stantibus according to which a
fundamental change of circumstances jeopardizes the validity
of treaties)
- favor contractus (it is better to seek the maintenance rather
than the termination of a treaty)

These five principles will be subject to closer scrutiny on this website and the application
of the two major principles (free consent and good faith) will be the object of a separate
chapter. Of course, the delimitation between these principles can be vague, but eventually
they are mutually supportive of each other.
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
between 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.

Another important principle which can be deducted from the free

consent rule is expressed by the latin phrase lex posterior derogat legi
priori. According to this rule, a later treaty prevails over an earlier one when two treaties
exist which relate to the same subject-matter (Article 30 para. 3). This principle will be
dealt with in the context of treaty amendments.

It is understood that by giving its consent, a State binds itself in respect of its entire
territory and not retroactively, unless a different
intention is established (Articles 28 and 29).
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).

Of course, being a subjective element of behaviour, presence or absence of good faith can
be difficult to prove. In the last analysis, good or bad faith can only be found in the minds
of individuals, in particular of those who happen to have an influence on the conduct of
foreign policy and, more specifically, of those whose task it is to negotiate and implement
international conventions (see Articles 26, 31 (1) and 62 (2)(b)).