INTERNATIONAL LAW OF TREATIES

Outline

Introduction

I- The formation of treaties

II- The application of treaties

Conclusion
 Introduction:

N.B.: A general introduction is compulsory

The sources of international law must not be confused with the basis of international law; this, is to be found
in the common consent of the international community. The sources of law, on the other hand, concern the
particular rules which constitute the system, and the processes by which the rules become identifiable as
rules of law. The sources of the rules of law, while therefore distinct from the basis of the law, are nevertheless
necessarily related to the basis of the legal system as a whole.
(from Tim HILLIER: ”Public International Law”, Routledge-Cavendish, 1998, p, 62.
The starting point for any discussion of the sources of international law has been Article 38 of the Statute of
the International Court of Justice.
 Article 38 does not refer to resolutions of the United Nations
 There is no rigid hierarchy of sources in international law
■ The importance of treaties has always been acknowledged .Treaties are increasingly utilized to regulate
relations between international persons and the expansion in the subject-matter of international law is
reflected in the diversity of subject matter regulated by treaty
 Introduction:

■ A treaty is a formally concluded and ratified agreement between actors in the

international community. A treaty may be known as an international agreement. It
expresses the consent of the State. There is no precise nomenclature for international
treaties: ‘treaty’, ‘convention’,‘agreement’ or ‘protocol’ are all interchangeable.
■ The Vienna Convention on the Law of Treaties of 1969 (VCLT) is the main instrument
that regulates treaties. It defines a treaty and relates to how treaties are made,
amended, interpreted, how they operate and are terminated. It does not aim to create
specific substantive rights or obligations for parties – this is left to the specific treaty
( the Vienna Convention on Diplomatic Relations creates rights and obligations for
States in their diplomatic relations).
■ VCLT 1969 only applies to written agreements between states, VCIO 1986 (Vienna Convention on the
Law of Treaties between States and International Organizations or between International
Organizations Vienna, 21 March 1986) deals with written agreements between states and International
Organizations or between International Organizations. Although both Conventions only apply to written
agreements, this should not be taken to mean that agreements not in writing have no effect in
international law – such unwritten agreements will still be regarded as treaties and will be governed by
the customary law on treaties – subject to difficulties of proof of content.
International agreements concluded between States governed by international law:
■ The VCLT relates only to treaties concluded between States who are parties to the VCLT, and for
treaties that entered into force after the VCLT came into force (The VCLT came into force in
1980. But this does not prevent a provision of the VCLT that reflects customary international law
from applying to a treaty even if it does not meet the above requirements).
Types of treaties:
■ Treaties may be bipartite/bilateral or multipartite/multilateral and they may create particular or general
rules of international law.
■ A distinction is often drawn between law-making treaties (traité-lois) and treaty contracts (traité
contracts).
Treaty contracts : agreements between relatively few states, can only create a particular obligation between
the signatories.
Law-making treaties: create obligations which can continue as law, eg an agreement between 90 states to
outlaw the use of torture.
• Heads of States Form:
The characteristics are drafted as agreement between Sovereign or head of the State obligation
expressed them as “High Contracting Parties” not frequently used in present time; reserved for
special cases of conventions Salient Cases: Philippson vs. Imperial Airways Ltd. [1939] AC 332.
Example: Consular Conventions. Inter-Governmental Form: the characteristics are drafted as
agreement between governemnts; no substantial difference from the heads of states form;
employed generally for technical or non-political agreements.
• Inter-State Form :
The characteristics are drafted expressly or impliedly as an agreement between states; signatories
are then referred to as “the parties”; example: The North Atlantic Security Treaty of 1949.
Ministerial Form: the characteristics are negotiated and signed between ministers of the
representatives countries; deals more often than not, bilateral treaties; representatives of the
foreign affairs. Inter-departmental Form: the characteristics are Conducted between
representatives of particular government departments; Example: between representatives of the
respective Customs Administrations of the countries concerned.
What are the mechanics of treaty making and
enforcement?

The mechanics deal with the formation of the treaty (I) on

the one hand and with the application of the treaty (II) on
the other.
I- Formation of treaties
(I removed this part right after the problematic because this is one of the mechanics of
procedures in treaty-making )

A- Conclusion and entry into force of treaties

1- Accrediting of negotiators
Once a state has decided to create a treaty, it is necessary to appoint representatives to
conduct the negotiations. It is necessary that such representatives should be fully
accredited and given sufficient authority to conduct negotiations, and conclude and sign
the final treaty. As a general rule such authority is contained in a formal document known
as ‘Full Powers’ or often ‘Pleins Pouvoirs’. Full Powers can be dispensed with if practice
between the negotiating states shows an intention to consider them as read and a
gradual reduction in the use of Full Powers by states can be identified in the recent
conduct of international relations.
Formation of treaties

2- Negotiation and adoption

Negotiations concerning a treaty are conducted either through “pourparlers” in the case
of bilateral treaties or at a diplomatic conference in the case of multilateral treaties. The
negotiators will maintain contact with their governments and usually, before actually
signing a treaty, they will obtain a new set of instructions indicating the manner of
signature. The procedure at diplomatic conferences runs to a standard pattern with the
appointment of committees and rapporteurs to manage the conference as efficiently as
possible.

3- Authentication, signature and exchange

When the text of the treaty has been agreed upon and adopted, the treaty is ready for signing.
Signing the treaty, which is usually a formal occasion, serves to authenticate the text. Signing is,
therefore, essential to the validity of the treaty unless other methods of authentication have been
agreed.
Formation of treaties
4- Effect of signature
The effect of signature depends upon whether the treaty is subject to ratification, acceptance or
approval. If this is the case, then the signature means no more than that the delegates have
agreed a text and have referred it to their governments for approval and ratification.

5- Ratification
Ratification is the approval by the head of state or government of the signature to the treaty.
Article 2 of the VCT 1969 defines ratification as the international act whereby a state establishes
on the international plane its consent to be bound by a treaty. Ratification does not have
retroactive effect, so states are only bound from the date of ratification, not the date of signature.
Formation of treaties

6- Accessions and adhesions

When a state has not signed a treaty it can only accede or adhere to it. Accession
indicates that a state is to become a party to the whole treaty, whereas adhesion only
involves acceptance of part of a treaty. Strictly speaking states can only accede or
adhere to a treaty with the consent of all the existing parties. In practice, the consent of
existing parties to accession is often implied.

7- Entry into force

When a treaty is to enter into force depends upon its provisions, or upon what the
parties may otherwise have agreed. Treaties may be operative on signature, or on
ratification. Multilateral treaties usually provide for entry into force only after the deposit
of a specific number of ratifications, for example, Article 19 of the International
Convention on the Elimination of all Forms of Racial Discrimination 1986 provides:
“This Convention shall enter into force on the thirtieth day after the date of the deposit
with the Secretary General of the United Nations of the twenty-seventh instrument of
ratification or instrument of accession”.
Formation of treaties

8- Registration and publication

Article 102 of the United Nations Charter provides that all treaties entered into by
members of the United Nations shall ‘as soon as possible’ be registered with the
Secretariat of the United Nations and be published by it. A similar provision was laid
down in Article 18 of the League of Nations Covenant. Failure to so register and publish
the treaty will mean that the treaty cannot be invoked in any UN organ.
 Formation of treaties

B- The legal force of treaties

It can frequently happen that a state, while wishing to become a party to a treaty, considers that it can
do so only if it can exclude or modify one or more particular provisions contained in the treaty.
Reservation, Declaration”, Understanding (R.D.U.):

Unless expressly forbidden by the treaty at issue, a party may choose to “reserve” a portion of
the treaty. This means that a portion of the treaty does not apply to the “reserving” party. A party
may also “understand” or “declare” that a portion of a treaty means a particular thing.

The legal force of an international instrument is weakened by R.D.U.’s made in the stage of
ratification.
One of the reservations to I.C.C.P.R. precises that the U.S. considers itself bound by Article 7 to the
extension that “cruel, inhuman or degrading treatment or punishment” means the cruel and unusual
treatment or punishment prohibited by the fifth, eighth and/or fourteenth amendment to the constitution of
the U.S. .
An example of an understanding to the I.C.C.P.R. as well reads as follows: “the U.S. understands distinction
based upon race, color, sex, language, religion, political or other opinion, national or social origin, property,
birth or any other status as those terms are used in Article 2 paragraph 1 and Article 26 to be permitted
when such distinctions are at minimum rationally related to a legitimate governmental objective.”
Finally, the U.S. declares that Article 1 through Article 27 of the covenant are non self-executing. Therefore,
to be implemented in the U.S. legal system, Congress will have to adopt implementation legislation.
 Objections: When states make an objection to a reservation stating that it failed the legality
test, there are three possible results according to legal commentators:

 The state which made the reservation is not bound by the treaty anymore. In other
words, the state is no longer a party to this treaty.
 The state which made the reservation is bound by the treaty including the parts on
which it made the reservation.
 The state which made the reservation is bound by the treaty, but not by the part on
which it made the reservation.
Perhaps the most famous and controversial reservations are those taken by the United
States when it signed the Convention on the Prevention and Punishment of the Crime
of Genocide in 1986. The reservations taken were:
(1) That before any dispute to which the United States is a party may be submitted to the
jurisdiction of the International Court of Justice under this article, the specific consent of the
United States is required in each case.
(2) That nothing in the Convention requires or authorizes legislation or other action by the
United States of America prohibited by the Constitution of the United States as interpreted
by the United States.
■ In its General Comment No. 24, the Human Rights Committee argued in 1994
that the provisions of the Vienna Convention cannot be applied to human rights
treaties because:
■ Human rights treaties do not regulate the relations between states, but
guarantee the rights of individuals vis-a-vis the state. States should therefore
not be allowed to rule on the validity of reservations, but the treaty bodies.
■ All human rights are closely interrelated. Reservations to individual rights would
impact the structure of the treaty, and unhinge its objectives.
 A reservation enables a state to accept a multilateral treaty as a whole by
giving it the possibility not to apply certain provisions with which it does not want to
comply as long as this reservation is compatible with the object and the purpose of
the treaty.
Amendments: [Art.40, Vienna Convention of the Law of Treaties 1969] The term
"amendment" refers to the formal alteration of treaty provisions affecting all the parties to the
particular agreement.

Protocols: In international law and international relations, a protocol is generally a treaty or

international agreement that supplements a previous treaty or international agreement.

Example: the United Nations Framework Convention on Climate Change (UNFCCC)

established a framework for the development of binding greenhouse gas emission limits,
while the Kyoto Protocol contained the specific provisions and regulations later agreed upon.
 2. Ending treaty obligations:

Withdrawal:

It has been held that it is not possible to withdraw from the International Covenant on Civil and
Political Rights. When North Korea declared its intention to do this the Secretary-General of the
United Nations, acting as registrar, said that original signatories of the ICCPR had not
overlooked the possibility of explicitly providing for withdrawal, but rather had deliberately
intended not to provide for it. Consequently, withdrawal was not possible.

If a state party's withdrawal is successful, its obligations under that treaty are considered
terminated, and withdrawal by one party from a bilateral treaty of course terminates the treaty.
When a state withdraws from a multi-lateral treaty, that treaty will still otherwise remain in force
among the other parties.
Suspension and termination:

 A treaty breach can suspend or terminate treaty relations. It depends on how the other parties
regard the breach and how they resolve to respond to it. Sometimes treaties will provide for the
seriousness of a breach to be determined by a tribunal or other independent arbiter.

 Treaties sometimes include provisions for self-termination, meaning that the treaty is
automatically terminated if certain defined conditions are met.

 Some treaties are intended by the parties to be only temporarily binding and are set to expire
on a given date.
 Other treaties may self-terminate if the treaty is meant to exist only under certain conditions.
■ The Governments of the French Republic, the Union of Soviet Socialist
Republics, the United Kingdom of Great Britain and Northern Ireland and the
United States of America agreed on the suspension of the Treaty on the Final
Settlement with respect to Germany (Moscow, 12 September 1990 ) through the
Declaration of suspending the Operation of Quadripartite Rights and
Responsibilities New York (1 October 1990)
 II- Application of treaties
A- The observance of treaties
The doctrine of pacta sunt servanda, the rule that treaties are binding on the parties and must be
performed in good faith, is a fundamental principle of international law. The rule is included in the VCT
1969 by Article 26 which provides that ‘every treaty in force is binding on the parties to it and must be
performed in good faith’.

B- Non-retroactivity
Article 28 of the VCT 1969 reflects the customary rule of non-retroactivity of treaties. The provisions of a
treaty do not bind a party in relation to any act or fact which took place or any situation which ceased to
exist before the treaty entered into force for that state, unless a different intention appears from the
treaty or is otherwise established.

■ NB: For the application of a treaty you must also look at:
Amendment and modification of a treaty and Treaty interpretation,
Application of treaties

C- Validity of treaties
Part V of the VCLT which deals with invalidity, termination and suspension represents
more a ‘progressive development’ of the law than simple codification.
Invalid treaties:

Ultra vires treaties:

- A party's consent to a treaty is invalid if it had been given by an agent or body without power to do so under that state's
domestic laws.
- Consent is also invalid if it is given by a representative who ignored restrictions he is subject to by his sovereign during the
negotiations, if the other parties to the treaty were notified of those restrictions prior to his signing.
- According to the preamble in The Law of Treaties, treaties are a source of international law. If an act or lack thereof is
condemned under international law, the act will not assume international legality even if approved by internal law. This means
that in case of a conflict with domestic law, international law will always prevail.
Misunderstanding, fraud, corruption, coercion:
- A state's consent may be invalidated if there was an erroneous understanding of a
fact or situation at the time of conclusion, which formed the "essential basis" of the
state's consent
- Consent will also be invalidated if it was induced by the fraudulent conduct of
another party, or by the direct or indirect "corruption" of its representative by
another party to the treaty.
- Coercion of either a representative, or the state itself through the threat or use of
force, if used to obtain the consent of that state to a treaty, will invalidate that
consent.
Contrary to peremptory norms (jus cogens):

A treaty is null and void if it is in violation of a peremptory norm of international law.

These norms, unlike other principles of customary law, are recognized as permitting
no violations and so cannot be altered through treaty obligations. These are limited
to such universally accepted prohibitions as those against the aggressive use of
force, genocide and other crimes against humanity, piracy, hostilities directed at
civilian population, racial discrimination and apartheid, slavery and torture, meaning
that no state can legally assume an obligation to commit or permit such acts.
 III-Conclusion:

Today, treaties are an essential vehicle for organizing international cooperation and
coordination. In both quantitative and qualitative terms, they are the primary source
for international legal commitments and, indeed, international law generally.
States, IOs and other subjects of international law have concluded tens of
thousands of treaties; some 64,000 treaties have been registered with the UN
alone.
From a qualitative perspective, treaties dictate the content of every field of
international law, from trade to the environment, from human rights to aviation. They
now occupy, in whole or in part, most areas of international relations and quite a few
areas of domestic regulation as well.
• Bibliography:

 Hollis, Duncan. The Oxford Guide to Treaties

 Aust, Anthony. Modern Treaty Law and Practice.
 Vinopal, Kelly. Researching Public International Law.
 Abu Gessisa, Nawal. “Some Aspects of the Law of Treaties with Emphasis on
Reservations and Invalidity.”
 R Helfer, Laurence. Terminating Treaties,
 www.Wikepedia.com
 www.treaties.un.org
 www.institut-fuer-menschenrechte.de