PUBLIC INTERNATIOAL

LAW-I
The Law of Treaties
Contents
• Significance
• Definition and scope
• Signature
• Ratification
• Accession
• Authority to conclude Treaty
• Nomenclature of Treaties
• Nature of Treaty
• Intention to create legal relation
• Registration of Treaty
• Termination of Treaty
Introduction/Significance
• Treaties are paramount sources of International Law
• The Law of treaties is codified in the 1969 Vienna Convention on the law of
treaties and 1986 Vienna Convention between States and International
Organizations.
• It is the most precise and most definite source of international law.
• Treaties are the evidence of consent amongst states
• Through treaties a state give a part of its sovereignty to the scope of that
convention.
• States look into treaty as a perpetual commitment. E.g giving transit rights to
the citizens of other states would have social, political, economic and legal
effects upon the states.
• A treaty in principle is a public document because it binds an individual
within a state.
Kinds of Treaties
• Multilateral Treaties
• When more than two states enter into an agreement or a treaty it is
called a multilateral treaty
• Bilateral Treaties
• Also known as contractual treaties. It is an agreement between
authorized representative of two states and has immediate
implementation.
Parts of treaty
• Preamble: It gives Background objectives and justification of entering
into treaty
• Substantive Provisions: It provides the rights and obligations of
ratifying states.
• Procedural or Operational Provisions
• Dispute Resolving Provision
Parts of treaty
• The treaty on the Non-Proliferation of Nuclear Weapons (NPT)
• Substantive Articles
• Article 1
• Each Nuclear weapon State Party to the treaty undertakes not to
transfer to any recipient whatsoever nuclear weapons or other nuclear
explosive devices directly or indirectly; and not in anyway assist,
encourage or induce any non-nuclear weapon State to manufacture or
otherwise acquire nuclear weapons or other nuclear explosive devices,
or control over such weapons or explosive devices.
Parts of treaty
• Substantive Article
• Article-II
• Each non nuclear-weapon state party to the treaty undertakes not to
receive the transfer from any transferor whatsoever of nuclear
weapons or other nuclear explosive devices or of control over such
weapons or explosive devices directly or indirectly; not to
manufacture or otherwise acquire weapons or other nuclear explosive
devices; and not to seek or receive any assistance in the manufacture
of nuclear weapons or other nuclear explosive devices.
Procedural Article
• Article 3
• Each Non-nuclear weapon state party to the treaty undertakes to accept safeguards ,
as set forth in an agreement to be negotiated and concluded with the International
Atomic Energy Agency (IAEA) in accordance with the same Statute of International
Atomic Energy Agency and the Agency’s safeguard system. For the exclusive
purpose of verification of the fulfilment of its obligations assume under this treaty
with a view to preventing diversion of nuclear energy from peaceful uses to nuclear
weapons or other nuclear explosive devices. Procedures for the safeguards required
by this article shall be followed with respect to source or special fissionable material
whether it is being produced, processed or used in any principle nuclear facility or is
outside any such facility. The safeguards required by this article shall be applied to
all source or fissionable material in all peaceful nuclear activities with in the territory
of such state, under its jurisdiction, or carried out under its control anywhere.
Nomenclature of Treaties
• Convention
• Treaty
• Agreement
• Protocol
• Declaration
• It will remain a treaty according to Vienna Convention on the
Interpretation of treaty.
Definition and scope
• Treaty: “ 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.”
• Key elements
• 1) An international agreement,
• 2) Concluded between states
• 3) In written form and
• 4) Governed by International Law.
• An international agreement between a state and a foreign company cannot be
considered a treaty: United Kingdom v Iran (1952) ICJ Rep 93 ( The Anglo
Iranian oil company case).
Formation of treaty
• Formation of treaty involves following steps
• Assigning of representatives
• Negotiations
• Signature
• Ratification
• Accession
• Enforcement
• Registration and Publication
• Transformation into municiple law
Signature
• Signature is a period whereby a state makes a commitment to an
international community that it will consider to be bound by the treaty
• Signature constitutes a preliminary endorsement of the Convention or
Protocol. Signing the instrument does not create a binding legal
obligation, but does demonstrate the State’s intent to examine the
treaty domestically and consider ratifying it. While signing does not
commit a State to ratification, it does oblige the State to refrain from
acts that would defeat or undermine the treaty’s objective and purpose.
Ratification/ Accession
• Ratification or accession signifies an agreement to be legally bound by
the terms of the Convention. Though accession has the same legal
effect as ratification, the procedures differ. In the case of ratification,
the State first signs and then ratifies the treaty. The procedure for
accession has only one step – it is not preceded by an act of signature.
• Exception: where in a natural person the title to the territory of state
and representation of country is combined then there is no ratification
is required; The moment of signature become the moment of
ratification.
Authority to Conclude Treaty
• VCLT Art 7 and 8 concern the making of treaty
• Heads of state
• Heads of government
• Minister for Foreign Affairs
• Heads of Diplomatic Mission
• Representatives of International Organization
Registration of Treaty
• Article 102 of the UN Charter provides:
• Every treaty and every international agreement entered into by any
member of the UN after the present charter comes into force shall as
soon as possible be registered with the secretariat and published by it.
• No party to any such treaty or international agreement which has not
been registered in accordance with the provisions of the paragraph 1 of
this Article may invoke that treaty or agreement before any organ of
the UN.
Nature of Treaty
• Crucial to the constitution or conclusion of a treaty parties must intent
to create legal relations between themselves, and to be bound by it.
• A mere declaration of intentions even in written form would not
amount to a treaty.
• While a treaty must be in written form there is no requirement as to
the length, format or shape of treaty.
Formation of Treaty
• Vienna Convention:
• Article 2 (1)(d) - For the purposes of the present Convention: (a) “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;
• Article 3 - The fact that the present Convention does not apply to international
agreements concluded between States and other subjects of international law or
between such other subjects of international law, or to international agreements not in
written form, shall not affect: 3 (a) the legal force of such agreements; (b) the
application to them of any of the rules set forth in the present Convention to which
they would be subject under international law independently of the Convention; (c)
the application of the Convention to the relations of States as between themselves
under international agreements to which other subjects of international law are also
parties.
The Nature of Treaty
• Crucial to the constitution or conclusion of a treaty parties must intent
to create legal relations between themselves, and to be bound by it.
• A mere declaration of intentions even in written form would not
amount to a treaty.
• While a treaty must be in written form there is no requirement as to
the length, format or shape of treaty.
• The intention to create legal obligation can be determined with the
help of following case laws
Case: Maritime Delimitations and Territorial
Questions between Qatar and Bahrain (ICJ 1994)
• Both states referred dispute to the Saudi King for resolution
• Minutes of meeting between representatives from both states made mention
of referring the dispute to the ICJ in case the issue continues to remain
unresolved.
• Representative of both states signed these minutes of the meeting
• ISSUE: Whether the exchange of letters and minutes of meetings between
officials of Bahrain and Qatar were international agreements with binding
force sufficient to constitute consent to the jurisdiction of the International
Court of Justice and admissibility of Qatar's claims.
• ICJ held them to be binding agreements investing it with the jurisdiction to
adjudicate between both states
Case: Maritime Delimitations and Territorial
Questions between Qatar and Bahrain (ICJ 1994)
Minutes:
(1) to reaffirm what was agreed previously between the two parties;
(2) to continue the good offices of the Custodian of the Two Holy Mosques,
King Fahd Ben Abdul Aziz, between the two countries till the month of
Shawwal, 141 1 H. corresponding to May of the next year 1991. After the
end of this period, the parties may submit the matter to the International
Court of Justice in accordance with the Bahraini formula, which has been
accepted by Qatar, and the proceedings arising therefrom. Saudi Arabia's good
offices will continue during the submission of the matter to arbitration;
(3) should a brotherly solution acceptable to the two parties be reached, the
case will be withdrawn from arbitration."
Case: Maritime Delimitations and Territorial
Questions between Qatar and Bahrain (ICJ 1994)
Para 27 of the ICJ judgment:
“The Court does not find it necessary to consider what might have been
the intentions of the Foreign Minister of Bahrain or, for that matter,
those of the Foreign Minister of Qatar. The two Ministers signed a text
recording commitments accepted by their Governments, some of which
were to be given immediate application. Having signed such a text, the
Foreign Minister of Bahrain is not in a position subsequently to Say that
he intended to subscribe only to a "statement recording a political
understanding", and not to an international agreement. “
Case Law: The legal status of Eastern
Greenland Case ICJ Denmark v Norway
• Background:
• Competing claims to sovereignty over eastern Greenland
• Norway’s attempt to occupy territories in E. Greenland contested by Denmark
• Evidence of Denmark’s claim to E. Greenland? Occupation and exercise of
sovereignty over eastern Greenland by Denmark
• Ihlen Declaration – further supported Denmark’s claim ("...the plans of the
Royal [Danish] Government respecting Danish sovereignty over the whole of
Greenland...would be met with no difficulties on the part of Norway.“)
• ICJ held Norway bound by the foreign minister’s statement
• Norway held to be under an obligation to refrain from contesting Denmark’s
Claim
Termination and suspension of Treaty
• As a rule, the VCLT imposes an obligation on treaty parties to perform
their obligations under the treaty in good faith (Article 26). This
follows the principle of pacta sunt servanda agreement which are
legally binding must be performed.
• But the VCLT recognizes instances when a treaty may be validly
terminated:
• Termination by treaty provisions and consent; denunciation
• Material breach
• Termination by supervening events
• Fundamental change of circumstances (rebus sic stantibus)