Law of the treaties

18 March 2024 11:33

How is law of the treaty different from treaty law

Article 38 - ICJ - Formal statement on formal sources - it refers to the formal sources of international law and not the
substantive content therein

Treaties in International law - key pillar of PIL - 15800 registered with UN - brings legal certainty

Law of the treaties - body of rules which govern what is a treaty etc…amended, terminated and generally operated
Law of the treaties is not concerned with treaty law except to check for the violations of jus cogens norms

ILC and its Codification for law of the treaties

ILC - first session 1949

Brierly, Hersch Lauterpacht etc. appointed as the Special Rapporteurs - debate went on for 17 years -

VCLT
• the Vienna convention on law of the treaties - 1969
• Accepted 79:1
• 27 January 1980 - came into force - ratified by 35 countries
• Currently 116 states are parties to the VCLT including 26EU member states

The codification -
1969 - VCLT
1978 - VCSS-T
1986 - VCLT between states and IOs or between IOs

Recent codification
• Reservation to treaties
• Effects of armed conflicts on treaties
• Subsequent agreements and subsequent practice in relation to interpretation of the treaties
• Provisional application of treaties

VCLT - the treaty on treaties

Strength - applicable to all, irrespective of subject matter, bilateral and multilateral, any form in which they are
concluded, covers all aspects (birth, life, death)

Flexibolity of the VCLT - key tool for settling issues arising in treaty law
• Principle of IL like - consent, pacta sunt servanda

Application -
Most of the application is for the treaties after the operation of VCLT but VCLT also reflects CIL practices therefore to
some extent also binding on other treaties

Article 3(a), 4, para 8 of Preamble of VCLT - CIL continues to govern the questions not regulated by CIL

VCLT represents - Codification of CIL and its progressive development

Overview:

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Qualifications -
• Written instrument - 2 or more states
• States within the meaning of International law
• Governed by International law
• Intended to create legal obligation - it is implied in the statement - governed by IL (political agreements
excluded)

VCLT does not apply to Oral agreements but does not prejudice the legal effect of the same.

It must be in written form - no specific format

CIL allows non-written however written provides evidentiary value

VCLT - applies only to agreement between states - Article 3 - purposefully ignored to avoid complexities
Agreement must be governed by IL

A treaty becomes binding on obtaining consent in the form of ratification

Conclusion of treaties
1. Negotiation
2. Adoption
3. Authentication
4. Consent to be bound
5. Entry into force

Authority to conclude treaties - Article 46 - provisions of internal law regarding competence to conclude treaties -

The consent cannot be questioned - Unless the violation was manifest and concerned a rule of its internal law of
fundamental importance

A violation is manifest if it would be objectively evident to any state conducting itself in the matter in accordance with
the normal practice in good faith - example - goes against the basic structure

Eastern Greenland case - ICJ rejected Norway's claim that is foreign minister is not competent under nation al law to
give promise

Qatar v. Bahrain - Maritime Delimitation and Territorial Questions case - it was irrelevant that the Bahrain Foreign
Minister claimed to have no constitutional authority to conduce a treaty per se

Easy escape is not provided - high threshold for avoiding a treaty

Who can represent

- Governed by doctrine of full powers
A. 2(c) - full powers means = document emanating from competent authority - consent of the state to be bound by
the treaty

Article 7 - full powers

a. Possessed full powers
b. Appears from the practices of thee state
- Heads of the state, FMs, Heads of Diplomatic missions

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 - Heads of the state, FMs, Heads of Diplomatic missions

What if treaty is concluded by a person not authorised under 7, will the treaty have legal effect?

Article 8 - subsequent confirmation of an act performed without authorisation

If performed by some person other than as under A. 7, it needs express authorisation/ confirmation by the state.

Adoption and Authentication

• Article 9 - adoption of the text
- Consent of all states except as provided in para 2
- 2/3rd vote unless the same majority decides to alter the rule

• Authentication - procedure of the text, if not, by signature of the HoS, representatives

India - signed UNCLOS - 1982

Ratified - 1995

Model instrument of ratification - acceptance of approval - To be signed by Head of State, Head of Government or
Minister for Foreign Affairs)

Article 24 - A treaty may enter into force

• As decided by the negotiating states
• If not; as soon as consent ot be bound
• If after the treaty - on the date of consent to be bound
• From the time of adoption of the text

BBNJ is going to enter into force upon 60th ratification so the 60th state will have it enter into force on the date of
consent
Example - Paris Agreement - Article 21

Article 18 - even before ratification - the state should ensure that they do not act in order to defeat the object and
purpose of the treaty

Reservations
Becoming a part of the treaty without having to accept all the provisions - [Article 19-23]
Need for reservation - multilateral treaties
• Participate in a treaty some provisions of which the state does not wish to comply with

Article 2(1)(a) - reservation -

• Unilateral act
• Either exclude itself or modify certain legal effects
• At any stage - signing, ratification, acceptance, approval or accession
• The name of the reservation does not matter - content matters
• They must be specific
• Late reservations is not allowed - does not produce any legal effect

Legal effects of reservation - rule of reciprocal effect

1. If state A does not wish to comply with Article X - state BCD will not be bound to respect it as far as state A is
concerned
2. State B,C and D need to respect A. X with respect to each other

Article 21 of VCLT
A reservation established with other party - 19,20 and 23,
Modifies the reserving state - extent of the reservation
Reciprocal effect and relative effect

The question of the legal effect of the treaty has to be analysed from the point of view of each contracting party

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The question of the legal effect of the treaty has to be analysed from the point of view of each contracting party
Same multilateral treaty will not have same effects for each party to the agreement.

Special class of treaties - Reservation Acceptance and objection

Article 20 - Acceptance and Objection to reservations

1. Reservation expressly authorised - does not require subsequent acceptance unless provided in the treaty
2. When reservation is an important consideration for consent - all the states have to consent to the reservation -
rule of unanimity

Acceptance and Objection -

Invalid reservation s - if accepted?
• Incompatible with the treaty
• With its object and purpose

The acceptance of an objectively invalid reservation cannot make it legal.

Only valid reservations should be accepted in order to produce their effect

1. The contracting party should accept the reserving party to not only get the reservation but for them to become a
member as well - A. 20(4)(c) - even if one of the states accept the reservation
2. All the state should not object to the reservation

Time frame for accepting reservation

Article 20(5)
If a state does not raise any objections to the reservation till 1 year it is deemed to accept
If all the other parties - object - the state will not become party at all

If A makes a reservation and B says that they will not enter into the treaty due to the reservation - the treaty will be
applicable between B,C and D but not between A and B and also between A and C, A and D.

Objection -
Reciprocal effect - if a state does not accept the reservation, the reservation or any modification will not apply
between the objecting state and the reserving state
• Simple 21(3) - If state B says - I object your reservation - Let state A reconsider and withdraw its objection -
subtle way of dissenting - no legal effect - no reciprocal effect
• Special - If state B says - I object your reservation and due to this, the treaty cannot come into force

Four situations
Accept, Silent, Special and Simple

20(4)b
The treaty will not change the effect between other parties

Simple objection to valid reservation does not have a legal effect

WITHDRAWAL - Article 22
Reservation can be withdrawn at any point in time

- Formulated in writing and communicated - UN treaty division circulates

- a reservation must be formally confirmed by the reserving states

a. As against the other states - the withdrawal of reservation by party A becomes operative only when the notice of
withdrawal has been received by B,C and D.
b. Withdrawal of objection to a reservation becomes operative when the notice has bene received by the reserving
state.

Procedure of reservation
Formulated in writing and communicated to the concerned state
At the time of signing, any and all reservations must be confirmed by the states

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At the time of signing, any and all reservations must be confirmed by the states

Practice of depository
SG send all depository notifications to states
Receives objections
Does not receive after 12 months

Article 20(3) - when a treaty is a constituent instrument of an IO - unless otherwise provided - the reservation requires
acceptance of the concerned organ of that IO - example: UNGA for UN

Late reservation - cannot be effective unless accepted by the contracting parties expressly - after 12 months, the
objection becomes a mere communication.

ILC study on reservations 2011

Reservations in bilateral treaties - example: UK US Supplementary Extradition Treaty 1985

Senate approved on certain amendments - informed by US to UK - they confirmed and the instrument of ratification
was exchanged.

Article 2 CAT - no exceptional circumstances whatsoever; whether a state of war, threat of war, internal political
instability or any other public emergency may be invoked as a justification of torture,
No excuse of order from superior

• reservation by Chile
If the officer does it after the insistence form superior it would be valid 2(3) of the treaty - The reservation was held to
be invalid - against the object and purpose of the treaty

Reaction of different states to the reservation made by Italy

- Italy - not valid as they are incompatible with the object and purpose of the treaty - simple objection
- Denmark - simple objection same ground
- Luxembourg - simple objection same ground

- Czecoslovakia - the obligation in the treaty is unexceptional - special

- France - simple objection same ground
- Sweden - simple objection same ground
- Spain - simple objection same ground

(Continental Shelf Arbitration [France v United Kingdom])

Take into account the content and not the title of the statement to decide whether it is a reservation or not

Types of reservations
• ratione materiae, modifying the substance of the treaty obligations;
• ratione temporis, modifying the temporal range of the treaty obligations;
• ratione loci, modifying the geographical application of the treaty

VCLT does not deal with succession of reservations and objections - dealt in succession conventions

The jurisdiction of ICJ - Article 36 para 2 of the ICJ Charter

Optional clauses - recognising the compulsory jurisdiction of ICJ
Para 4 - it must be deposited with the Sec-Gen of UN

Purpose:
a. Interpretation
b. Any question of IL
c. Existence of fact - breach of IL
d. Nature and extent of reparations

Unilateral declarations - jurisdictional link upon consensus

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Unilateral declarations - jurisdictional link upon consensus
"at any time"
• Reservations may be made to the optional clauses and for the jurisdiction of the court - 2 optional clauses must
meet

Scope of legal obligations

Fundamental Rule: S.1 - Observance of the treaty
S. 26 - Pact Sunt Servanda - good faith; binding upon the parties
S. 27 - Internal law and observance of the treaty - cannot invoke internal law as an excuse for non -performance of
the treaty - Belgium v. Senegal (2002)

Failure leads to International responsibility (Interpretation of Peace Treaties Case 1950, Danube Dam Case)

Reparations
Satisfaction
Compensation

Treaty interpretation
Article 31 -33 reflects CIL

Sasikili/ Sedulu Island (Botswana v. Namibia)

Schools of interpretation - mainly 3

1. Ordinary/ Plain meaning/ Textual interpretation

2. Subjective Interpretation - interpretation and intention of the parties may change with time
3. Teleological Interpretation - Objective purposes - common intention and objective purpose may have a different
outcome - judicial interpretation rather than a contractual interpretation

Difference between 31 and 32

General rule of Interpretation of treaty - article 31

• In good faith
• In accordance with the ordinary meaning to be given to the terms of the treaty
• In their context (text, preamble, annexes etc.)
• In light of the object and purpose
• Subsequent practice and agreement
• Relevant rules of International Law

Article 32 - Supplementary rules of interpretation

• Includes - preparatory works, circumstances at the conclusion
• To be used only when the general rules could not suffice

Preference given to the ordinary meaning of the text

➢ Maritime and Territorial Disputes - (qatar v. bahrain )

Doha minutes did have an ordinary meaning in light of its context - supplementary rules of Int. were rejected

Practice of different International courts differs on the subject of preference of interpretation methods for treaties
Example - ICJ gives preference to Textual and Subjective Interpretation + historical

• 1950 - Competence of the GA for admission of a state to the UN AO - natural and ordinary meaning
• PCA in Eritrea - circumstantial

Article 33 - Interpretation of the treaties authenticated in two or more languages - in case of dispute - the text which
gives a meaning closest to the object and purpose of the text is to be considered

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Amendment and Modification of the treaties
A. 39 - 41 Part IV of VCLT

Article 39 - General rule regarding the amendment of treaty - may be amended at any time by an agreement b/w the
parties

Amendment will apply - the original text will not

Article 40 - it shall be considered that a new member is a party to the amended treaty and if any other party is not
bound by the amended treaty but the original one then in respect to that party, a member of the original treaty.
A. 2 or more parties

A. 40 - failing an expression to the contrary - will be considered to be a party to the amended treaty
- Party autonomy principle - the number of countries that need to accept the amended treaty in order to apply the
above principle can be provided in the treaty itself

A 41 - Modification procedure
- Agreements to modify multilateral treaties between certain of the parties only
- 2 or more parties
- Possibility of modification shall be provided in the treaty itself
- The modification should not be prohibited In the treaty itself
- It does not affect the enjoyment of other parties
- Does not relate to a provision derogation of which compromises on the object and purpose of the treaty

Amendment procedure -
• Notification to all the parties
• Right of participation
• Adopted
• Ratification

Treaties and third parties

34 - 38
General rule - applies only between the contracting parties; principle of consent, sovereignty and independence
pact tertiis nocent nec prosunt - (agreements harm nor benefit third parties)

Conferment of right on the 3rd party

35 - obligations - only if the third party accepts that obligation in writing
36 - rights - eg. Freedom of passage rights in a canal; assent to be presumed in the absence of contrary - the states
enjoying rights shall also subscribe to the conditions
37 - revocation - consent of parties to the treaty as well as of the third party is required
- If it is provided so in the treaty, the right cannot be revoked without the consent of the third party

38 - General rule of CIL - exception to article 35

• May reflect pre-existing CIL
• Crystallise the provisions into a new CIL

Grounds of invalidity
42(1) - provides that the treaty to be presumed as valid other than the following:
- Burden of proof on the party invoking invalidity

46 - breach of internal provisions - competence

47 - restriction on consent
48 - error in essential fact/ situation for the treaty - temple of preah vihar case - cannot invoke this article if you were a
contributory to that error
49 - fraud
50 - corruption of state representative
51 - coercion of state representative - void = without a legal effect
52 - coercion against state - void

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52 - coercion against state - void
53 - conflict with jus cogens - void
64 - emergence of a new preemptory norm of General International Law

➢ 65 - 72 - procedure for above

Under VCLT treaty may be suspended under 6 grounds

• All contracting parties agree
• Treaty specifically provides
• 2 or more agree to suspend the operation temporarily - provided it is allowed
• When another party commits material breach (60)
• Impossibility (61)
• Fundamental change in circumstances (62)
• 2 treaties on the same subject matter between same parties (59)

Additionally the treaty can be terminated when -

- Express provision
- All contracting parties agree (54 and 56)
- violation of newly emerged jus cogens (64);

Termination by the other party's conduct

S. 60, impossibility of performance (61), fundamental change in circumstances (62);

3 provisions for CIL

➢ Material breach - repudiation of the treaty in a manner contrary to VCLT; against the object and purpose

Absolute and relative grounds of invalidity -

• Article 8, 51-53 - null and void
• Article 46-50 - a state may invoke voidability
Evidence of this in CIL is doubtful

Termination and Suspension

Suspended - valid but operation suspended
Conditions:
• All contracting parties agree
• 2 parties agree and this is allowed in the treaty

Termination - treaty no longer in force

Breach of treaty and not the breach of other International laws

Breach of other International law cannot justify the breach of treaty by the other state

Article 61 - supervening impossibility

Hardship is not equal to impossibility of performance

Article 62 - During WWI - FCC - certain essential criteria of the treaty had changed since the entry - it radically alters the
extent of obligation - FCC doctrine to be applied
• The change must have been unforeseen by the parties at the time of its entry

Danube Dame case

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