Treaties

Meaning and Functions of Treaties

Meaning :
• The expression 'treaty' is used as a generic term to cover a
multitude of international agreements and contractual
engagement between the states.
• Treaties lay down rules binding upon states concerning
new areas into which international law is expanding, or
• Treaties may codify, clarify and supplement the already
existing customary international law on a particular matter.
• The treaty has been the main instrument which the
international community possesses for the purpose of
initiating or developing international co-operation
The objective of a treaty
• to impose binding obligation on the state who are parties
to it.
Why treaties have such binding force?
• it is clear that international law declares that duly made
treaties create binding obligation for the state parties.
• Anzilotti has rested the binding force of a treaty on the
Latin maxim pacta sunt servanda,
• Once a state has bound itself by an agreement in a treaty, it
is not entitled to withdraw from its obligation without the
consent of other state parties.
Definition of Treaty
• “treaty” means 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. (Art 2(a) of
Vienna Convention on Law of Treaty 1969)
According to this definition any document to be treaty should qualify
following conditions;
• Should be an international agreement concluded between the
states
• Should be in a written form
• May be a single document or may be in form of two or more
document. May have any of the particular various designation
 Functions of treaties
• Important source of International Law
Law making treaties are an sources of international law. Since the treaty
is defined as an agreement among the state, the long standing practices
of agreement between two or more states are followed in future by the
same state or other states.
• Source of International Constitutional Law
The multipartite treaties play an important role of making constitutions
of international Organizations such as the Charter of the united nations
which is the outcome of International conference at San Francisco in
1945.
• As instrument for imposing binding obligation
It provides for security because of its binding force which is given to it
by the maxim Pacta Sunta Servanda i.e. basis of the binding force of
international treaty.
 Features of Treaties
Main features of treaties derived from the definition
1. Treaties are written documents which means the
verbal agreements are not liable. Negotiation points
or agreements should be clearly described and signed
by the states/Nations involved.
2. Treaties are regulated by international laws and
regulations and bound states with legal obligations.
3. It might be composed of one or two legal
instruments to describe the terms of agreements in
an clear-cut manner.
 Types of treaties

Law making treaties

• Law making treaties are the treaties which lay down
the rule of universal or general application.
• The rapid growth of law making treaties has clearly
been visualized since the middle of the nineteenth
century.
• One major cause of this rapid expansion of
international legislation is inadequacy of the customs
in meeting the urgent demands of community of
states for the regulation of its common interests.
• The changes have brought the overall
transformation in international life,
particularly in the field of economic and
industrial development.
• The economic and industrial development not
only brought the nations in close intercourse
with each other but also created numbers of
complexities.
• Consequently the treaties of law making
nature came into existence and sometimes
considered superior to the national autonomy
and independence.
• The rapid development in law making treaties
particularly took place before and after the II
world war.
• The international instruments emerged at the time
covered the wide area of international transaction,
such as; Red Cross work, weight and measures, the
protection of industrial property, the protection of
the submarine cables, the suppression of slave
trade, areal navigation, international waterways,
the pacific settlement of international disputes,
international economic and monetary question,
narcotics control, and nationality and
statelessness.
Law making treaties further categorized as;
• Universal: enunciating rules of universal
international law, eg, the United Nations Charter
and other framework conventions those imposing
duty upon the states to enact legislations in order
to implement the principle laid down therein.
• General: laying down general or fairly general
rules. Some multilateral treaties of confirmatory
nature or represent a codification of customary
rules.
Treaty contracts
• Treaty contracts constitute particular law between the
parties or signatories. Such treaties lead also to the
formation of international law through the operation of the
principles governing the development of customary rules.
Such development of customary rules may take place in
three cases;
• Series or recurrence of treaties laying down a rule may
produce a principle of customary international law to the
same effect. Such treaties are thus a step in the process
whereby a rule of international custom emerges.
• It may happen with a treaty originally concluded
between the limited number of parties only that a
rule in it be generalized by subsequent independent
acceptance or imitation.
• In this case, the treaty represents the initial stages in
the process of recurrence of usage by which
customary of international law have evolved.
• A treaty may be of considerable evidentiary value as
to the existence of the rule which has crystallized
into law by an independent process of development.
 Practices as to conclusion of treaty
• Accrediting a person who conduct the negotiation on
behalf of the contracting state
• Negotiation and adoption
• Authentication, signature and exchange of instruments
• Ratification
• Accession and adhesion
• Entry into force
• Registration and publication
• Application and enforcement
 1. Accrediting a person who conduct the negotiation
on behalf of the contracting state
• Appointment of delegate is the first step towards the
conclusion of any treaty. The representative should
properly be accredited and equipped with proper
authority.
• A representative is given the authority to attend and
to participate in the negotiation, as well as to
conclude and sign the final treaty.
• In practice a representative of a state is provided
with a very formal instrument either by the head of
the state or by the Minister of Foreign Affairs
showing his authority in this various regard. This
instruments is called the Full Power or Pleins
• Head of the state, head of the government,
and Ministers of Foreign Affairs, negotiating in
person, do not need full powers, but are
treated as representation their state for the
purpose of performing all acts relating to the
conclusion of a treaty, and the same applies to
the head of the diplomatic mission for the
purpose of adopting treaty between the
sending and receiving state (Art 7)
 2. Negotiation and adoption

• Negotiation concerning the treaties are

conducted by the representative in both
bilateral and multilateral treaties.
• In both cases delegates remain in touch with
their governments, they have with them
preliminary instruction which are not
communicated to the other parties, and at
any stage they consult their government and
if necessary, obtain fresh instruction.
• As a matter of general practice before appending their
signature to the final text of the treaty, delegates do
obtain fresh instruction to sign the instrument whether
with or without reservation.
• The adoption of the text of a treaty takes place by the
consent of all the States participating in its drawing up.
The adoption of the text of a treaty at an international
conference takes place by the vote of two thirds of the
States present and voting, unless by the same majority
they shall decide to apply a different rule. (Art 9 Para. 1
&2)
3. Authentication, signature and exchange of
instruments

treaty it is ready for signature when final draft agreed by

the parties
The treaty may be made public for certain period before
signature
The act of signature is most formal matter even in a case of
bilateral treaty
signature is appended by the representative on behalf of
their head of the state or government at the closing session
in case of multilateral conventions
• Signing of treaty is necessary for the authentication
of a treaty. The text of treaty is authenticated by
such procedure as laid down in the treaty itself or
as is agreed by the negotiating state, or in absence
of such agreed procedure, by signature, signature
and referendum, initialing or by incorporation in
the final Act of some conference.
• The text of an instrument may be authenticated
also by the resolution an international organization
• It Is important that the signature should be
made by each of the delegates at the same time
and place, and in the presence of each other.
• Sometimes not merely the delegates but a
head of the states will sign the treaty. It
happened in 1919 when US President Woodrow
Wilson signed the Treaty of Versailles and Nixon
signed the US-USSR Treaty on the Limitation of
Anti-Ballistic Missile System in 1972.
• ILO Conventions adopted by International
Labour Conference usually are not signed by
the delegates but are simply authenticated by
the signature of the President of the
conference and the Director General of ILO.
• One common practice is there to keep the
international convention open for the
signature for certain period in order to obtain
more signatures from the state parties.
 4. Ratification

• ratification is the approval of the head of the state

or the government of the signature appended to
the treaty by the duly appointed delegates.
Ratification is defined in Art 2 of the Vienna
Convention on Law of Treaty as “the international
act…. Whereby a state establishes on the
international plane its consent to be bound by the
treaty.”
• Once ratification was so necessary that without
it a treaty should be deemed ineffective.
• But now ratification is less important as large of
the international treaties have no provision for
ratification.
• Ratification is purely a matter of intention of
the parties whether a treaty does or does not
require ratification as the condition of its
binding operation
Grounds of ratification
• States are entitled to have an opportunity of
re-examining and reviewing instruments
signed by their delegates before undertaking
the treaty obligation
• By reason of its sovereignty, a state is entitled
to withdraw from participation in any treaty
should it so desire
• Treaty often call for the amendment or
adjustment of municipal law. the period
between the signature and ratification, state
can pass necessary legislation and obtain
parliamentary approval for ratification.
• as to the democratic principle, the
government should consult public opinion
either in parliament or elsewhere as to
whether particular treaty should be confirmed
 Conditions of ratification
Art 14 of the Vienna Convention on Law of Treaty
provides that, the ratification is necessary if,
• The treaty expressly provides; or
• the negotiating states otherwise agree that
ratification is necessary
• Treaty has been signed subject to ratification
• An intention to sign subject to ratification appears
from the full powers or was expressed during
negotiation
 5. Accession and Acceptance

When a state has not signed a treaty it can only

accede or adhere to it.
Present practice is that a non-signatory state may
accede or adhere even before the treaty enters
into force.
In Art 2 of thee Vienna Convention the term
“accession” has been used in the same sense as
to the ratification
but some writers make distinction between
accession and adhesion
• Accession involves being party to the whole treaty by full
and entire acceptance of all its provisions precluding
reservation to any clause, whereas adhesion my be an
acceptance of part only of the treaty.
• Accession involves participation in the treaty in the same
status as the original signatories, where as adhesion
connotes merely approval of the principle of the treaty.
• The term “accession” has also been applied to acceptance
by a state to a treaty or convention after the prescribed
number of ratification for its entry into force have been
deposited.
 6. Entry into force

• Entry into force depends upon its provision or upon

what the contracting states have otherwise agreed
• Many treaties become operative on the date of
signature but where ratification, acceptance or
approval is necessary, the general rule is that the
treaty concerned comes into force only after the
exchange, or deposit of ratification, acceptance, or
approvals by all signatories
• Multilateral treaties usually come into force after
prescribe numbers of ratification (six to thirty five)
 7. Registration and publication

Art 102 of UN Charter

1.Every treaty and every international agreement entered
into by any Member of the United Nations after the
present Charter come into force shall as soon as
possible be registered with the Secretariat and
published by it
2.No party to any such treaty or international agreement
which has not been registered in accordance with the
provision of paragraph 1 of this Article may invoke that
treaty or agreement before any organ of the United
Nations.
The objectives of Art 102
• to prevent the practices of secret agreements
between states
• to make it possible for the people of
democratic states to repudiate such treaties
when publicly disclosed
 8. Application and enforcement

• Final stage of treaty making process

• Incorporation of the treaty provisions in the
municipal law provisions
• Necessary administrative, supervisory and
monitoring agencies are created
 Reservation
• “Reservation” means 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
exclude or to modify the legal effect of certain
provisions of the treaty in their application to
that State; ( Vienna Convention on Law of
Treaties 1969, Art 2.1.d)
• Reservation is a process by which a state
signs, ratifies, or consents otherwise to be
bound by a treaty in such a manner that
certain provision of the treaty do not bind or
apply to it subject to ratification.
• State incase of incapability of bearing the
treaty obligation put reservation to make the
treaty provision non-binding
• A state can make the treaty provision non-
binding if, 1) if there is a express provision in the
treaty itself, 2) by agreement between the
contracting state, 3) by reservation duly made.
• Reservations are only allowed when provision
allows so. Reservations should be compatible
with the objective and purpose of the treaty.
(compatibility test)
• Effect of reservation: if the reservation is
compatible with the object and purpose of the
convention and duly made, it may legitimately
considered that the reserving state is not the
party to the convention
• State entitled to object to reservation: state
which has not acceded or ratified the
convention can’t validly object to reservation.
 Invalidity of the Treaty

Grounds of Invalidity:
Treaty making incapacity:
The delegates unless be duly authorized to
participate or conclude and sign the treaty,
state is not bound by the treaty obligation. To
represent the state a person either has to
produce full powers, or considered by the state
practice. (Art 7(1)
 Even in absence of full power Head of the state, Head of
the government, Ministers for Foreign Affairs and head
of the diplomatic mission are considered duly
representing the respective states ( Art 7(2)
Error: A state may invoke an error in a treaty as
invalidating its consent to be bound by the treaty if error
relates to fact or situation which was assumed by the
state to exist at the time of concluding of a treaty and
formed an essential basis of its consent to be bound by
the treaty. (Art 48)
• Corruption of representatives: if the
expression of state’s consent to be bound by
the treaty has been procured through the
corruption of it’s representative directly or
indirectly by another negotiating state, the
state may invoke such corruption as
invalidating of its consent to be bound by the
treaty. (Art 50)
Fraud: if a state has been induced to conclude a
treaty by the fraudulent conduct of another
negotiating state, the state may invoke the fraud as
invalidating its consent to be bound by a treaty. (Art
49)
Coercion of a state representative: the expression of
a state’s consent to be bound by a treaty which has
been procured by the coercion of its representative
through acts or threats directed against him shall
be without any legal effect. (Art 51)
Conflict with norms of jus cogens: A treaty is void if,
at the time of its conclusion, it conflicts with the
peremptory norms of general international law. a
peremptory norm of general international law is a
norm accepted and recognized by the
international community of states as a whole as a
norm from which no derogation is permitted and
which can be modified only by a subsequent
norm of the general international law having the
same character.
Unequal treaties: Soviet writers have
propounded the doctrine of “unequal
treaties.” unequal treaties are such treaties
which are imposed by force, and which
unequal in character. Unequal are those which
do not fulfill this elementary requirement.
Equal treaties are the treaties concluded on
the basis of the equality of the parties.
 Termination of Treaty

• Duty to fulfill treaty obligation.

• Art 26 of Vienna Convention, rule pacta sunt servanda
a fundamental principle of the law of treaties.
• According to Art 26 “every treaty in force is binding
upon the parties to it and must be performed by them
in good faith.”
• Release from treaty obligation is not optional. But
when a treaty is terminated state parties automatically
are released from the treaty obligation.
 Ground for the termination of the treaty

1. Termination of treaties by operation of Law:

a. extinction of either to a bilateral treaty
1. Any of the party of bilateral treaty if destroyed
entire subject matter of the treaty may discharge
the instrument.
2. Outbreak of hostilities
treaty may cease to operate upon outbreak of
war between the parties. Treaties may be
suspended in some circumstances rather than the
termination.
• Justice Cardozo says, position of the treaty
upon outbreak of war is the unsettled question
of law. Vienna Convention contains no
provision dealing with the consequences of war
upon treaties. Old practice was that the treaties
were annulled with outbreak of war but in
modern practice some treaty are considered
annulled, some are considered remaining in
force, and some are considered suspended.
• Two test are found in this regard
Subjective test of intention: did the signatories of the
treaty intend that it should remain binding on the
outbreak of war?
Objective test of intention: is the execution of the treaty
incompatible with the conduct of war?
Applying these tests position of treaties in war could be
summed up as follows;
1. Treaties maintaining the common political action or
good relations( treaties of Alliance) are abrogated
2 Treaties of cession, boundaries treaties remain unaffected
and continue in force
3. Treaties relating to the conduct of hostilities remain binding
4. Multilateral conventions of law making nature relating to
health, drugs, protection of industrial property, are not
annulled and remain in force
5. If some treaty contains the provision regarding the
suspension of state obligation at the outbreak of war such
treaties are suspended
6. Extradition treaties having no express provision of intention
otherwise remain suspended
Material breach (Art 60)
A material breach of a treaty, for the purposes of
this article, consists in:
• (a) a repudiation of the treaty not sanctioned
by the present Convention; or
• (b) the violation of a provision essential to the
accomplishment of the object or purpose of
the treaty.
Impossibility of performance
• permanent disappearance or destruction of an object
indispensable for the execution of the treaty
• If the impossibility is temporary, it may be invoked only as
a ground for suspending the operation of the treaty.
• Impossibility of performance may not be invoked by a
party as a ground for terminating, withdrawing from or
suspending the operation of a treaty if the impossibility is
the result of a breach by that party either of an obligation
under the treaty or of any other international obligation
owed to any other party to the treaty.
Clausula Ribus Sic Standibus (Fundamental changes in
circumstances) treaties may be discharged as a result of
doctrine of ribus sic standibus. According to this doctrine a
fundamental changes in state of facts existed at time of
concluding of a treaty may be invoked as the ground of
terminating of treaty, or withdrawing from it. Clasula ribus
sic standibus means treaty obligation subsists only so long
as the essential circumstances remain unchanged.
Conflict with the peremptory norms of general international
law: treaty at time of its conclusion if conflicts with the
peremptory norm of international law may be invalid.
2. Termination of treaties by act or acts of parties:
• Termination and with drawl may take place in
conformity with the provision of treaty or at any time by
the consent of all parties after consultation inter se (Art
54)
• A treaty will also be considered if all parties to it
conclude a subsequent treaty relating to the same
subject matter and parties to it intend the subject
matter be governed by latest treaty or the provision of
the two documents are so incompatible that they can’t
be applied at the same time.
3. Suspension of operation of treaties:
The operation of treaty may be suspended in regard to
either all parties or particular party.
a) In conformity of the treaty provision
b) A any time by the consent of all parties after
consultation (Art 57)
c) Through the conclusion of subsequent treaty if this
be the intention of the parties (Art 59)
 Interpretation of treaty

Agencies of interpretation
• Treaties may be interpreted by
• International court of justice
• Regional Courts
• International technical organs (International
Labour Office)
• Various organs of United Nations
• Executive Directors and Board of Governors of
IMF
 Instruments of interpretation

• In case any doubt about the any clause, or

Articles diplomatic conferences usually adopt
the instruments of interpretation of such as;
Protocol, Process-verbal, or Final Act.
• These instruments are annexed to main
convention and provide for detail
interpretation or explanation of doubtful
provision.
 Multilingual Treaties

• Treaties may be drafted in two or more

languages. ILO Treaties and Various Multilateral
Conventions are often concluded in two language
English and French. UN treaties are available in
five language, English, French, Russian, Chinese
and Spanish (Art 53, Vienna Convention on
Diplomatic Relations 1961) and all texts are
equally authentic. UN Charter was drawn up in
five language and all texts are equally authentic.
(Art111)
Vienna Convention (Art 33) on Law of treaty Provides;
a) All texts are equally authentic if the treaty is
drafted in several language unless there treaty
provides of the parties agree for particular text to
be authentic
b) Terms of treaties are presumed to have same
meaning in each text
c) Construction is to be given which best reconciles
the texts having regard to the object and purpose
of the treaty.
 General principles of Interpretation

1. Grammatical interpretation and intention of parties

• Words and phrases be constructed plain and natural meaning
unless it result in an absurdity or would go clearly beyond the
intention of the parties
2. Object and context of treaty
• In case of doubt in any words or phrase of a treaty construction
should be made according to the object and context of the
treaty (Art 31)
3. Reasonableness and consistency:
• treaty should be given an interpretation as it gives the
reasonable and consistent meaning to different portion of the
treaty
4.The principle of Effectiveness:
• The principle was mostly preferred by PCIJ. The principle
requires that treaty should be interpreted that it would
be most effective and useful. This principle is of particular
importance in the interpretation of multilateral
conventions.
5. Recourse to Extrinsic materials:
• Interpreting agencies are normally limited to the context
of the treaty. But in order to obtain a proper and clear
meaning following things are to be taken into
consideration
a) Past history and historical usage relevant to the treaty
b) Preparatory works such as; preliminary drafts, records of
conference discussion, draft amendments ( Art 32)
c) Interpretive Protocols, Resolutions, and Committee
Reports, setting out agreed interpretation.
d) Subsequent agreement between the parties regarding the
interpretation of the treaty or application of its provision
e) Subsequent conduct of the state parties as evidencing the
intention of the parties and their conception of the treaty.
f) Other treaties in pari materia, in case of doubt.