The Law of Treaties [1]
A treaty is a written international
agreement concluded between States or other persons of International Law and
governed by International Law, whether embodied in a single instrument or in
two or more related instruments and whatever its particular designation.[2] In English, the term ‘treaty” is used as a
generic term embracing all kinds of international agreements in written
form. In addition to the term “treaty”,
many other terms are used, such as “accord”, “act”, “arrangement”, “charter”,
“covenant”, “convention”, “declaration”, “general act”, “pact”, “protocol”,
“statute”, as well as the term “agreement” itself. Whatever the appellation of the agreement, it
does not affect its validity under International Law.[3]
Treaties can be traced back as far as the
early-recorded history of Mankind.
Evidence for their existence has been found throughout the history.
Treaties have been the major legal instruments for regulating relations between
States. States concluded treaties in
every conceivable subject. Ten of
thousands treaties have been registered with the United Nations since
1946. Until 1980, treaties had been
governed by international customary law.
In 1969, the Vienna Convention on the Law of Treaties was signed,
codifying and developing existing customary rules; it came into force in 1980.
The 1969 Vienna Convention on the Law of
Treaties defines “treaty” as “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.”[4] It further provides that it “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”.[5] These provisions exclude agreements between
states which are governed by other than International Law, agreements between
States and international organizations or between international organizations,
and oral agreements. The reason for the
exclusion of these types of international agreements is to avoid complication
and complexity if they are included in a single convention with written
agreements between States, since the rules governing them differ in certain
aspects from the rules governing written agreements between States. A special convention applicable to
agreements between states and international organizations, or between international
organizations, namely “the Convention on the Law of Treaties between States and
International Organizations or between International Organizations”, was signed
in 1986.[6] However, this Convention has not yet entered
into force.
The following sections are devoted to the
rules applicable to the written agreements between States as provided by the
1969 Vienna Convention on the Law of Treaties.
However, the rules provided by this Convention are not inclusive; other
rules existed under customary international law continue to govern questions
not regulated by the Convention.
Section 1: Conclusion
of Treaties
Treaties may be concluded by States in any
manner they wish. There are no
obligatory prescribed forms or procedures to be followed. Negotiating, formulating, signing and
adopting a treaty are subject to the intention and consent of the contracting
States. However, the 1969 Convention on the Law of Treaties provides general
rules applicable to the conclusion of treaties, rules regarding the capacity
and the competent persons to conclude treaties, the adoption and authentication
of the text of treaties, and the adoption of treaties.
A. The
Capacity to Conclude Treaties [7]
Under the Convention, every
State possesses capacity to conclude treaties.
Since States are represented by persons, the Convention provides rules
to ensure that persons representing States have the power to adopt or
authenticate the text of a treaty, or to express the consent of the State bound
by a treaty. Such persons must produce
what is known as “full powers”. “Full
powers” refers to the document issued by the competent authority of the
concerned State certifying that the persons represent it. This requirement is necessary to ensure the
States parties to the treaty that they are dealing with the competent
persons. However, there are certain
persons who need not to produce the “full powers”. These persons are:
(1) Heads of States, heads of
governments and the ministers for foreign affairs, for the purpose of
performing all acts related to the conclusion of a treaty;
(2) Heads of diplomatic missions, for the purpose
of adopting the text of a treaty between their States;
(3) Representatives accredited by States to an
international conference or to international organization or one of its organs,
for the purpose of adopting the text of a treaty in that conference,
organization or organ.
B. Adoption
and Authentication of the Text of Treaties [8]
Once a draft of a treaty has
been agreed upon by the competent persons, several stages need to be followed
before it becomes legally binding.
First, the text of the treaty has to be adopted. The adoption of the text of a treaty implies
that the form and content of the text of the proposed treaty are settled. It takes place by the consent of all the
States participating in its drawing up, except the adoption at an international
conference, which takes place by the vote of two-third of the States present
and voting, unless by the same majority they decide to apply a different
rule. The adoption of the text of a
treaty does not mean that the participating States have expressed consent to be
bound by the treaty, or that the treaty has been adopted.
Second, the text of a treaty has to be
authenticated. Authentication is a
procedural step whereby the text of the treaty is established as correct and
genuine, and not subject to alteration.
It is necessary to enable the States parties to the treaty to know
definitively its content so that there will be no confusion as to its exact
terms. The authentication of the text of
a treaty takes place according to the procedure provided in the text or agreed
upon by the States participating in its drawing up. Failing such procedure, authentication may
take place by the signature, signature ad referendum or initiating by
the representatives of the participating States.
C. The
Adoption of Treaties
A treaty has to be adopted
by the participating States to become binding upon them. States adopt a treaty by giving their consent
to it. The consent of the States parties
to a treaty is an essential factor because States are bound only by their
consent. The consent may be expressed by
signature, exchange of instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any other means if so agreed.[9]
(1) Consent by signature [10]
A State may be regarded as
consented to a treaty by signature when the treaty provides that signature
shall have that effect, when it is established that the negotiating States were
agreed that signature should have that effect, or when the intention of the
State to give that effect to the signature appears from the full powers of its
representatives or was expressed during the negotiation. Signing the treaty means officially affixing
the names of the representatives of the contracting States.
The act of signature is
usually a formal event. Often in
important treaties, heads of States formally affix their signatures in a
ceremony. Usually in multilateral conventions, the representatives of the
participating States sign the treaties during a special closing session held
for that reason.
(2) Consent by exchange of
instruments constituting a treaty [11]
A State may be regarded as
consented to a treaty by an exchange of instruments constituting a treaty when
the treaty provides that the exchange of such instrument has that effect, or
when it is established that the States were agreed that the exchange of the
instrument should have that effect.
Nowadays, often each State signs an instrument constituting a treaty and
sends it to the other State (or States) for its signature.
(3) Consent by ratification, acceptance or approval
[12]
The signing of the treaty by
the representative of a State is either a means of expressing the final consent
of the State to be bound by the treaty, or an expression of provisional consent
subject to ratification, acceptance or approval. The effect of signature depends upon the
terms of the treaty, the agreement of the negotiating States or their
intention. If the treaty is subject to
ratification (acceptance or approval), then it does not become binding until it
is ratified by competent authority of contracting State, namely the head of the
State. Ratification by the competent
authority of the contracting State is a step well established historically to
ensure that the representative of the State did not exceed his powers or
instructions with regard to the conclusion of the treaty. It allows a State to examine the provisions
of a treaty before undertaking formal obligations. Moreover, it enables a State, in the period
between signature and ratification, to pass the required legislation or to
obtain the required approval. The
question of how a state ratifies treaties is a matter for its internal law
alone. The rules related to ratification
vary from State to State.
The consent of a state to be
bound by a treaty is expressed by ratification (acceptance or approval) when
the treaty provides for such consent to be expressed by means of ratification,
when it is established that the negotiating states were agreed that
ratification should be required, when the representatives of the State has
signed the treaty subject to ratification, or when the intention of the States
to sign the treaty subject to ratification appears from the full powers of its
representative or was expressed during the negotiation.
Ratification occurs when
instruments of ratification are exchanged between the contracting States, or
are deposited with the depositary. In
the [13]case
of multilateral treaty, it usually provides that the instruments of
ratification should be deposited with the State or the international organization
that is appointed by the treaty to act as the depositary.
(4) Consent
by accession
In addition to signature and
ratification, a State may become a party bound by a treaty by accession. Accession is a formal acceptance of a treaty
by a State which did not participate in negotiating and signing it. It is possible if the treaty provides that
consent to it may be expressed by accession, if it is established that the
negotiating States were agreed that consent may be expressed by accession, or
if all the States parties to the treaty have subsequently agreed that consent
may be expressed by accession. Accession
has the same effects as signature and ratification combined. It is the practice in the modern times that
certain treaties remain open for accession by particular States for some
periods.
D. Reservation
to a Treaty [14]
It is well established in the practice of States that
a State has a capacity, when becoming a party to a treaty, to accept most of
the provisions of a treaty or to object, for whatever reasons, to particular provisions
of a treaty. This capacity is reiterated by the Vienna Convention on the Law of
Treaties which states that a State may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a reservation unless the
reservation is either prohibited by the treaty or incompatible with its object
and purpose, or the treaty permits only specified reservations. A reservation is defined by this Convention as
“a unilateral statement, however phrased or named, by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to
exclude or modify the legal effects of certain provisions of the treaty in
their application to that State”.[15]
The effect of a reservation
depends on whether it is accepted or rejected by the other parties to a treaty,
and this matter differs whether a treaty is bilateral or multilateral one. A reservation to a bilateral treaty presents
no problem since it constitutes a counteroffer which may reopen the negotiation
between the two parties concerning the terms of the treaty; and unless the
reservation is accepted by the other party, no treaty will be concluded. However, a reservation to a multilateral
treaty causes a problem because it may be accepted by some parties and rejected
by others. In such a case, the Convention on the Law of Treaties
provides that a reservation expressly authorized by a treaty does not require
any subsequent acceptance by the other contracting States unless the treaty so
provides, and that when it appears from the limited number of the negotiating
States and the object and purpose of a treaty that the application of the
treaty in its entirety between all the parties is an essential condition of the
consent of each one to be bound by the treaty, a reservation requires
acceptance by all the parties.
The Convention requires that
a reservation, an express acceptance of a reservation and an objection to a
treaty be formulated in writing and communicated to the contracting States and
other States entitled to become parties to the treaty. However, an acceptance of a reservation by a
State may be implied if it has raised no objection to the reservation by the
end of a period of twelve months after it was notified of the reservation or by
the date on which it expressed its consent to be bound by the treaty, whichever
is later. An objection by another
contracting State to a reservation does not preclude the entry into force of
the treaty as between the objecting and reserving States, unless a contrary
intention is definitely expressed by the objecting State.
Unless the treaty provides
otherwise, a reservation or an objection to a reservation may be withdrawn at
any time. In case of the withdrawal of a
reservation the consent of a State which has accepted the reservation is not
required for its withdrawal. It is
required that the withdrawal of a reservation or of an objection to a
reservation be formulated in writing.
Unless the treaty provides otherwise, or it is agreed otherwise, the
withdrawal of a reservation or of an objection to a reservation becomes
operative only when notice of it has been received by the concerned State.
A
reservation established with regard to another party modifies for the reserving
State in its relations with that other party the provisions of the treaty to
which the reservation relates to the extent of the reservation, and modifies
those provisions to the same extent for that other party in its relations with
the reserving State. However, the
reservation does not modify the provisions of the treaty for the other parties
to the treaty inter se, i.e. in their relations with each other.
Section 2: Entry
into Force, Registration and Depositary of
Treaties
The Convention provides
rules applicable to the entry into force of treaties as well as rules
applicable to registration and depositary of treaties.
A. Entry
into Force of Treaties [16]
According to the Vienna
Convention on the Law of Treaties, a treaty enters into force in such a manner
and upon such date as it may provide or as the negotiating States may
agree. In the absence of any such
provisions or agreement, a treaty enters into force as soon as consent to be
bound by that treaty has been established for all the negotiating States. When the consent of a State to be bound by a
treaty is established on a date after the treaty has come into force, the
treaty enters into force for that State on that date, unless the treaty
provides otherwise.
Normally, treaties specify
that they will enter into force upon a certain fixed date or after a determined
period following the last ratification.
Multilateral treaties, usually, provide for entry into force upon
ratification by a specified number of States.
However, even when the minimum required number of ratifications is
reached, the treaty enters into force only between those States that have ratified
it; it does not enter into force for other States until they have also ratified
it. The Vienna Convention on the Law of
Treaties, for example, provides that it will come into force on the thirtieth
day following the date of deposit of the thirty-fifth instrument of
ratification or accession.[17] Moreover, it provides that for each State
ratifying or acceding to the Convention after the deposit of the thirty-fifth
instrument of ratification or accession, the Convention shall enter into force
on the thirtieth day after deposit by such State of its instrument of
ratification or accession.
Nevertheless, a treaty or a
part of it may be applied provisionally pending its entry into force if the
treaty itself so provides, or the negotiating States have in some other manner
so agreed. But, unless the treaty
provides otherwise or the negotiating States have agreed otherwise, the
provisional application of a treaty or a part of it with respect to a State
shall be terminated if that State notifies the other States between which the
treaty is being applied provisionally of its intention not to become a party to
the treaty.
After the entry of a treaty
into force, the Vienna Convention requires that the treaty to be transmitted to
the Secretariat of the United Nations for registration or filling and
recording, as the case may be, and for publication. This requirement follows
the one provided for by the Charter of the United Nations. Article 102 of the Charter provides that
every treaty and every international agreement entered into by any Member of
the United Nations must, as soon as possible, be registered with the
Secretariat and published by it. Under
this article, non-registered treaty or agreement remains valid but the parties
to it may not invoke it before any organ of the United Nations, including the
International Court of Justice. This
requirement is intended to prevent States from entering into secret treaties
and in general to ensure publicity for treaties.
Treaties, nowadays, are registered
with the Secretariat of the United Nations which then publishes them in the
United Nations Treaty Series (UNTS). The
UNTS provides a useful source of reference for the conclusion and contents of
treaties.
In addition, the Vienna
Convention on the Law of Treaties requires the designation of depositary of a
treaty. This designation may be made by
the negotiating States, either in the treaty itself or in some other manner. The depositary may be one State or more
States, an international organization or the chief administrative officer of
the organization. The depositary has
functions of considerable importance relating to: keeping custody of the
original text of the treaty, any instruments, notifications and communications
related to the treaty; giving certified copies of the treaty and transmitting
them to the concerned States; receiving any signatures, instruments,
notifications and communications related to the treaty; and informing the
States parties to the treaty about the entry into force of the treaty. Notably,
the United Nations Secretariat plays a significant role as depositary of
multilateral treaties.
Section 3: Observance
and Application of Treaties
Once treaties enter into
force, they must be observed and applied by the parties. Observance and application of treaties are
subject to certain established principles and rules.
The Latin principle “Pacta
Sunt Servanda”, which means that treaties shall be observed, is the
fundamental principle of the customary law of treaties and the very foundation
of International Law. This principle is
included in the Preamble and Article 26 of the 1969 Vienna Convention on the
Law of Treaties, which states that “[e]very treaty in force is binding upon the
parties to it and must be performed by them in good faith.” Another long-standing principle of customary
international law included in Article 27 of the Convention is that “[a] party
may not invoke the provisions of its internal law as justification for its
failure to perform a treaty.”
According to these two
principles, the parties to a treaty are under a duty to observe the treaty in
good faith, and a duty not to invoke its internal law as justification for
failure to perform the treaty.
B. Application
of Treaties
Under the Vienna Convention
on the Law of Treaties, the application of treaties is subject to the following
rules:
(1) Non-Retroactivity
of Treaties [20]
The Vienna Convention
provides that the provisions of a treaty, unless a different intention appears
from the treaty or is otherwise established, do not bind a party to it in
relation to any act or fact which took place or any situation which ceased to
exist before the date of the entry into force of the treaty with regard to that
party. The general rule here is that a
treaty does not operate retroactively; any fact, action or situation must be
assessed in the light of the rules of law that are contemporary with it, not of
the provisions of the subsequent treaty, unless a contrary agreement so
provides.
(2) Territorial
Scope of Treaties [21]
The Vienna Convention
provides that unless a different intention appears from the treaty or is
otherwise established, a treaty is binding upon each party in respect to its
entire territory. This is a general
rule, but it is possible for a State to stipulate that the treaty will apply
only to part of its territory.
(3)Application of Successive Treaties Related to the
Same Subject Matter [22]
Sometimes, it happens that a
party to a treaty subsequently enters into another treaty related to the same
subject matter, and that the provisions of the two treaties are inconsistent;
or it happens that the other party or parties to the second treaty may or may
not also be parties to the first treaty.
These situations raise certain problems which need to be resolved. Article 30 of the Vienna Convention lays down
the rules which constitute the general guide to be followed in resolving such
problems. It is still possible, however,
for the parties themselves to resolve the raised problems by their mutual
agreement.
Under Article 30, the rights
and obligations of States parties to successive treaties related to the same
subject-matter shall be determined in accordance with the following rules:
a.
When a treaty specifies that it is subject to, or that it is not to be
considered as incompatible with, an earlier or later treaty, the provisions of
that other treaty prevail.
b.
When all the parties to the earlier treaty are parties also to the
later treaty but the earlier treaty is not terminated or suspended in
operation, the earlier treaty applies only to the extent that its provisions
are compatible with those of the later treaty.
c.
When the parties to the later treaty do not include all the parties to
the earlier one:
i.
as between States parties to both treaties, the earlier treaty applies
only to the extent that its provisions are compatible with those of the later
treaty;
ii.
as between a State party to both treaties and a State party to only one
of the treaties, the treaty to which both States are parties governs their
mutual rights and obligations.
In case of treaties
concerning the same subject-matter and having incompatible provisions, the
presumption is that the later treaty prevails over the earlier treaty. A treaty may provide expressly that it is to
prevail over subsequent incompatible treaties; this is the case of Article 103
of the Charter of the United Nations which stipulates that “[i]n the event of a
conflict between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail.” Furthermore, a particular treaty prevails
over other treaties if it includes peremptory norms of general international
law (jus cogens), i.e. norms accepted and recognized by the
international community of States as a whole as norms from which no derogation
is permitted and which can be modified only by subsequent norms of general
international law having the same character.
(4) Treaties
and Third States
The Latin
principle “pacta tertiis nec nocent nec prosunt”, which means that a
treaty creates neither right nor obligation for third States (not parties to
the treaty) without their consent, is a general principle which constitutes
part of the customary international law.[24] The reasons for this principle can be found
in the fundamental principles of the sovereignty and independence of States,
which contemplate that States must consent to rules before they can be bound by
them. This principle is codified in
article 34 of the 1969 Vienna Convention on the Law of Treaties as a general
rule corollary of the principle of consent and of the sovereignty and
independence of States. However, this
Convention states certain exceptions to this general rule.
First, the
Convention provides that an obligation may arise for a third State from a
provision of a treaty if the parties to the treaty intend the provisions of the
treaty to be the means of establishing the obligation, and the third State
expressly accepts that obligation in writing.
In such a case, the obligation may be revoked or modified only with the
consent of the parties to the treaty and of the third States, unless it is
established that they have agreed otherwise.
Second, the
Convention provides that a right may arise for a third State from the provision
of a treaty if the parties to the treaty intend the provision to accord that
right either to the third State, or to a group of States to which it belongs,
or to all States, and the third State assents thereto, unless the treaty
provides otherwise. In such a case, the
right may not be revoked or modified by the parties to the treaty if it is
established that the right has not been intended to be revoked or modified
without the consent of the third State.
In exercising such a right the third State is required to comply with
the conditions for its exercise provided for in the treaty or established in
conformity with the treaty. Third, the
Convention provides that a rule of a treaty may become binding upon a third
State if it becomes a part of customary international law.
An example
of a treaty imposes obligation upon non-party State is the 1815 agreement
concerning the neutralization of Switzerland Denmark and Switzerland , and the 1888 Constantinople
Convention which contains provisions guaranteeing freedom of passage for ships
through the Suez Canal .
Section 4: Interpretation
of Treaties [25]
Interpretation of treaties is the most
frequent focus of disputes arising with regard to treaties. Because language is not a perfect means for
expressing legal rules, ambiguities and uncertainties in treaty-texts are
common phenomena. Thus interpretation of
treaties has been a major task in International Law. Obviously the parties to a treaty have
competence to interpret a treaty, but other entities may perform such a
task. The treaty itself may confer
competence on an ad hoc tribunal, an international organ, or the
International Court of Justice (ICJ).
The Charter of the United Nations is interpreted by the organs of the
United Nations, which may request advisory opinions from the ICJ.
Interpretation of treaties is a rational
process of clarifying and elucidating the meaning of unclear and ambiguous
treaty provisions. Its purpose is to
ascertain in good faith the intention of the parties. It is governed by numerous principles and
rules developed by international tribunals, publicists, organs of international
organizations and diplomatic practice.
Though, there is no coherent and mandatory system of rules of treaty
interpretation in International Law.
The 1969 Vienna Convention on the Law of
Treaties, however, lays down certain fundamental rules and guidelines for
treaty interpretation. It contains
specific provisions concerning general rules of treaty interpretation,
supplementary means of interpretation, and interpretation of treaties
authenticated in two or more languages.[26]
A. General Rules of Treaty Interpretation [27]
The first general rule for treaty
interpretation provided by the Vienna Convention is that “[a] treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object and
purpose.”[28] This rule is the textual approach of treaty
interpretation.
The context of a treaty for the purpose of
interpretation comprises, in addition to its text, including its preamble and
annexes, any agreement and instrument related to it and made in connection with
its conclusion. Together with the
context of a treaty, should be taken into account any subsequent agreement
between the parties regarding the interpretation of the treaty or the
application of its provisions, any subsequent practice in the application of
the treaty which establishes the agreement of the parties regarding its
interpretation, and any relevant rules of International Law applicable in
relations between the parties.
The second general rule for treaty
interpretation provided by the Convention is that “[a] special meaning shall be
given to a term if it is established that the parties so intended.”[29] This is the “intention of the parties”
approach of treaty interpretation.
However, there are other established
approaches of treaty interpretation not provided for in the Vienna Convention
on the Law of Treaties. Among these
approaches is “the principle of effectiveness” which involves the
interpretation of the terms of a treaty in a way that will render the treaty
most effective and useful. This
principle is of particular importance in the interpretation of multilateral
treaties establishing international organizations.
B. Supplementary Means of
Interpretation [30]
The Vienna Convention provides that
“[r]ecourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion”,[31]
when the meaning resulting from the application of the above general rules
needs to be confirmed, or when the interpretation according to the said general
rules leaves the meaning ambiguous or obscure, or leads to a manifestly absurd
or unreasonable result.
C. Interpretation of Treaties
Authenticated in Two or More Languages [32]
In
case of a treaty authenticated in two or more languages, as often happens with
multilateral treaties, the Vienna Convention provides that when a comparison of
the authentic texts discloses a difference of meaning which the application of
the provided general rules and supplementary means of interpretation does not
remove, “the meaning which best reconciles the texts, having regard to the
object and purpose of the treaty, shall be adopted.”[33] Nevertheless, the Convention provides that
the treaty may provide or the parties may agree that, in such a case, a
particular text shall prevail.
Section 5: Amendment
and Modification of Treaties
Although amendment and modification of
treaties are two processes share a common aim which is an alteration or
revision of a treaty, they are two separate processes accomplished by different
manners and subject to different rules and conditions. Amendment relates to a formal alteration or
revision of certain treaty provisions or the treaty as a whole, affecting all
the parties to that treaty. Modification
relates to an alteration or revision of certain treaty provisions as between
particular parties only. Thus the 1969
Vienna Convention on the Law of Treaties deals with these two processes in
separate articles.
A. Amendment of Treaties [34]
The Vienna Convention refers to three
manners to accomplish amendments to treaties.
The first manner is that a treaty may be amended by agreement between
the parties. In such a manner, the rules
described by the Vienna Convention which are related to the conclusion and
entry into force of a treaty will be applied.
The second manner is that a treaty may be
amended in accordance with the procedure laid down in the treaty itself. Multilateral treaties, particularly those
establishing international organizations, normally provide detailed procedure
for amendments. The Charter of the
United Nations, for example, lays down in Articles 108 and 109 the procedure
for its amendments and revision. Under
these Articles such amendments or revision shall take effect when adopted and
ratified by two-thirds of the members of the United Nations, including all the
permanent members of the Security Council.
The third manner is that a treaty may be
amended in accordance with the basic rules of procedure described by the Vienna
Convention. The Vienna Convention
specifies that any proposed amendment must to be notified to all contracting
States. All contracting States shall
have the right to participate in the decision as to the action to be taken in
regard to such proposal, and in the negotiation and conclusion of any agreement
for the amendment of the treaty. Every
State entitled to become a party to the treaty is also entitled to become a
party to the treaty as amended. The
amendment will not bind any State already a party to the original treaty which
is not a party to the amending agreement.
Any State which becomes a party to the treaty after the entry into force
of the amending agreement, unless it intends otherwise, is considered as a
party to the treaty as amended in relation to parties bound by the amending
agreement, and as a party to the unamended treaty in relation to any party to
the treaty not bound by the amending agreement.
B. Modification of Treaties
[35]
The Vienna Convention provides that two or
more of the parties to a multilateral treaty may conclude an agreement to
modify the treaty as between themselves alone if one of two conditions is
fulfilled. The first condition, if “the
possibility of such a modification is provided for by the treaty.”[36] The second condition, if “the modification in
question is not prohibited by the treaty” and provided it “does not affect the
enjoyment by the other parties of their rights under the treaty or the
performance of their obligation, and “does not relate to a provision,
derogation from which is incompatible with the effective execution of the
object and purposes of the treaty as a whole.”[37] The Vienna Convention requires, however, that
unless in the first mentioned case or if the treaty provides otherwise, the
parties in question must notify the other parties of their intention to
conclude the agreement and of the modification to the treaty.
Section
6: Termination and Suspension of the
Operation of
Treaties
Despite the general rule that “[e]very treaty in force is binding upon
the parties to it and must be performed by them in good faith,”[38]
the Vienna Convention provides that a treaty may be terminated, denounced,
withdrawn from or suspended. The Convention
provides that the termination of a treaty, its denunciation, the withdrawal of
a party or the suspension of its operation “may take place only as a result of
the application of the provisions of the treaty or of the present Convention.”[39] The applicable rules to such instances,
provided by the Convention are as such:
A. Termination of a Treaty
[40]
Termination of a treaty means the end of
the operation of a treaty, resulting in depriving all the parties of all the
rights, and in releasing them from performing further obligations, under the
treaty. Under the Vienna Convention
termination of a treaty or the withdrawal of a party may take place either in
conformity with the provisions of the treaty, or at any time by consent of all
the parties after consultation with the other contracting States. Actually, most of the modern treaties contain
provisions for their termination or for the withdrawal of a party. A treaty may provide that it shall come to
an end automatically after a certain time, or at the occurrence of a particular
event. A treaty may give a party a right
to withdraw from it after giving a certain period of notice.
Where a treaty does not contain any
provision regarding its termination and does not provide for denunciation or
withdrawal, it will not be subject to the denunciation or withdrawal, unless it
is established that the parties intended to admit such a possibility, or such a
right is implied by the nature of the treaty.
In such cases, however, a party must give at least twelve months’ notice
of its intention to denounce or withdraw from the treaty.
The Convention specifies the reasons for
terminating a treaty. First, a treaty
may be terminated by the conclusion of a later treaty related to the same
subject-matter, if it appears that the matter is to be governed by that treaty
or the provisions of the later treaty are so far incompatible with those of the
earlier one that the two treaties are not capable of being applied at the same
time. Second, a treaty may be terminated
as a consequence of its breach. A
material breach of a treaty which consists in either a repudiation of the
treaty not permitted by the Vienna Convention or the violation of a provision
essential to the accomplishment of the object or purpose of the treaty entitles
the other parties to terminate the treaty.
Third, a treaty may be terminated by the impossibility of performance
resulting from the permanent disappearance or destruction of an object
indispensable for the execution of the treaty.
Forth, a treaty may be terminated when a fundamental change of
circumstances occurs with regard to those existing at the time of the
conclusion of that treaty. Fifth, a
treaty may be terminated by reason of the severance of diplomatic or consular
relations between parties to the treaty.
However, such event does not affect the legal relations established
between the parties except in so far as the existence of diplomatic or consular
relations is indispensable for the application of the treaty. Finally, if a new peremptory norm of general
international law emerges, any existing treaty which is in conflict with that
norm terminates.
As regard the consequences of termination
of a treaty, the Convention provides that unless the treaty provides otherwise
or the parties agree otherwise, the termination of a treaty releases the
parties from any further obligation to perform the treaty; however, it does not
affect any right, obligation or legal situation of the parties created through
the execution of the treaty prior to its termination.
B. Suspension of the
Operation of a Treaty [41]
Suspension of the operation of a treaty
means the making of a treaty temporary inoperative in regard to either all or a
particular party. Under the Vienna
Convention, suspension of the operation of a treaty, like termination, may take
place either according to the provisions of the treaty or at any time by
consent of all the parties. Two or more
parties to a multilateral treaty may conclude an agreement to suspend the
operation of provisions of the treaty, temporary and as between themselves
alone if “the possibility of such a suspension is provided for by the
treaty,” or “the suspension in question
is not prohibited by the treaty” and provided it “does not affect the enjoyment
by the other parties of their rights under the treaty or the performance of
their obligation,” and “is not incompatible with the object and purposes of the
treaty.[42] However, unless the treaty provides
otherwise, the parties in question must notify the other parties of their
intention to conclude the agreement and of those provisions of the treaty the
operation of which they intend to suspend. Treaties sometimes provide for the
possibility of suspension of the entire treaty or some of its provisions in
particular circumstances.
Under the Convention, a treaty may be
suspended by the following circumstances:
1) the conclusion of a later treaty related to the same subject matter,
if it appears from the later treaty or otherwise established that such was the
intention of the parties; 2) a material breach of a treaty which consists in
either a repudiation of the treaty not permitted by the Vienna Convention or
the violation of a provision essential to the accomplishment of the object or
purpose of the treaty; 3) the temporary impossibility of performing a treaty;
or 4) a fundamental change of circumstances occurs with regard to those
existing at the time of the conclusion of that treaty.
Suspension of the operation of a treaty
releases the parties from any further obligation to perform the treaty during
the period of suspension; however, it does not affect any right, obligation or
legal situation of the parties created through the execution of the treaty
prior to its suspension.
Section 7: Invalidity
of Treaties
Invalidity of a treaty means nullity of a
treaty or its particular provisions because of the existence or absence of
certain circumstances or conditions affecting its legal status. Customary international law does not provide
clear and acceptable rules governing validity or invalidity of treaties. The 1969 Vienna Convention on the Law of
Treaties, however, provides some general rules on this matter. This Convention describes rules governing
invalidity of treaties in general, grounds for invalidity of treaties, and
consequences of the invalidity of treaties.
The Vienna Convention on the Law of
Treaties provides that “[t]he validity of a treaty or the consent of a State to
be bound by a treaty may be impeached only through the application of the
present Convention.”[44] Under the Convention, a ground for
invalidating (as well as for terminating, withdrawal from or suspending the
operation of a treaty) may be invoked only with respect to the whole treaty,
except where the ground relates solely to particular clauses which are
separable and unessential, or relates to a material breach of a treaty by one
of the parties. A State cannot invoke a
ground for invalidating (as well as for terminating, withdrawal from or
suspending the operation of a treaty) if, after becoming aware of the fact, it
expressly agreed that the treaty is valid or remains in force, or it, by reason
of its conduct, may be considered as having acquiesced in the validity of the
treaty or in its continuance in force or in operation.
B. Grounds for Invalidating Treaties
The Vienna Convention specifies the
following grounds for invalidating treaties:
1)
Manifest violation of a provision of fundamental importance of State’s
internal law regarding competence to conclude treaties:[45] A violation is manifest “if it would be
objectively evident to any State conducting itself in the matter in accordance
with normal practice and in good faith.”[46]
2)
Lack of the State’s representative appropriate full powers.[47]
3)
Excess of authority by the representative:[48] Such an excess will be a ground to invalidate
a treaty if the specific restriction imposed by the State upon its
representative to express its consent to be bound by the treaty was notified to
the other negotiating States prior to his expressing such consent.
4)
Error:[49] A State may invoke an error in a treaty as
invalidating its consent to be bound by the treaty if the error relates to a
fact or situation mistakenly assumed by that State to exist at the time when
the treaty was concluded, and that fact or situation forms an essential basis
of its consent to be bound by the treaty.
If the State in question contributed by its own conduct to the error or
if it was put on notice of a possible error, it is not allowed to invoke such
an error as a ground for invalidating its consent. An error relating only to the wording of the
text of a treaty does not affect its validity.
5)
Fraud:[50] A State may invoke the fraud as invalidating
its consent to be bound by the treaty if it has been induced to conclude that
treaty by the fraudulent conduct of another negotiating State.
6)
Corruption of a representative of a State:[51] A State may invoke the corruption of its
representative as invalidating its consent to be bound by the treaty if the
expression of its consent has been procured through the corruption of its
representative directly or indirectly by another negotiating State.
7)
Coercion of a representative of a State:[52] Acts or threats directed personally against a
representative of a State as an individual in order to procure the expression
of a State’s consent to be bound by a treaty render such expression of consent
without any legal effect.
8)
Coercion of a State by the threat or use of force:[53] A treaty is void if its conclusion has been
procured by the threat or use of force in violation of the principles of
International Law embodied in the Charter of the United Nations.
9)
Conflict of the treaty with an existing and emerging peremptory norm of
general International Law (Jus Cogens):[54] A treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general International
Law. If a new peremptory norm of general
International Law emerges, any existing treaty conflicting with that norm
becomes void and terminated.
C. Consequences of Invalidity
of Treaties [55]
The consequences of invalidity of treaties
vary according to the nature of the ground of invalidity. The Vienna Convention makes a distinction
between void and voidable treaties. In cases of lack of full powers, coercion
of a representative, coercion of a State and conflict with an existing and
emerging of peremptory norm of general international law, the treaty is void,
which means that the expression of consent of the State to be bound by the
treaty is without any legal effect from the beginning (ab initio). In cases of violation of the internal law of
the State, excess authority by the representative, error, fraud, and corruption
of the representative, the treaty is probably voidable rather than void; the
treaty is valid until the State claims that it is invalid. The State may invoke the ground to invalidate
the treaty. However, this right may be
lost for the following reasons: (a) if after becoming aware of the fact, the
concerned State expressly agreed that the treaty is valid or remains in force
or it, by reason of its conduct, may be considered as having acquiesced in the
validity of the treaty or in its continuance in force or in operation; or (b)
if the concerned State contributed by its own conduct to the error or was put
on notice of a possible error.
The Convention provides that an invalid
treaty is void and without any legal effect.
If acts have nevertheless been performed in reliance on such a treaty,
each party may require any other party to establish as far as possible in their
mutual relations the position that would have existed if the acts had not been
performed. Acts performed in good faith
before the invalidity was invoked are not rendered unlawful by reason only of
invalidity of the treaty.
Section 8: Procedures
to be Followed with Respect to
Invalidity, Termination, Withdrawal from, or
Suspension of the Operation of a Treaty [56]
The Vienna Convention
provides that a party invoking a ground to invalidate a treaty, terminate it,
withdraw from it or suspend its operation, must notify, in writing, the other
parties of its claim and give them time to make objections before it takes any
action. If after the expiry of a period
which shall not be less than three months from the receipt of the notification,
no objection has been raised by any party, the party making the notification
may carry out the measures it has proposed.
If, however, objection has been raised by any party, the parties must
seek a solution through the peaceful means indicated in Article 33 of the
Charter of the United Nations.
If no solution is reached
within twelve months, the dispute is to be submitted to a special conciliation
commission set up under an annex to the Convention or, in cases of dispute
involving peremptory norms of general International Law to be submitted to the
International Court of Justice (ICJ).
[1] See generally A.D. McNair, The Law
of Treaties, Oxford (1961); A. Aust, Modern
Treaty Law and Practice, Cambridge (2000); Shaw, chapter 16; Brownlie, chapter
27; Malanczuk, chapter 9; and the 1969 Vienna Convention on the Law of
Treaties, U.N. Doc. A/CONF.39/27.
[2] The 1969 Vienna on the Law of Treaties art.
1(a).
[3] Bledsoe & Boczek, pp. 271-2.
[4] The 1969 Convention on the Law of Treaties
art. 1(a).
[5] Id. art. 3.
[6] Text in 25 I.L.M. (1986) 543.
[7] Id. arts. 2(c), 6 & 7.
[8] Id.
arts. 9 & 10.
[9] Id. art. 11.
[10] Id.
art. 12.
[11] Id.
art. 13.
[12] Id.
art. 14.
[13] Id.
art. 15.
[14] Id.
arts. 2(d) & 19-23.
[15] Id.
art. 2(d).
[16] Id.
arts. 24 & 25.
[17] Id.
art. 84.
[18] Id.
arts. 76, 77 & 80.
[19] Id.
arts. 26 & 27.
[20] Id.
art. 28.
[21] Id.
art. 29.
[22] Id.
art. 30.
[23] Id.
arts. 34-38.
[24] See Bledsoe
& Boczek, pp. 259-60.
[25] See
generally Brownlie, pp. 602-7; Shaw, pp.838-44
[26] The
1969 Vienna Convention on the Law of Treaties arts. 31-33.
[27] Id.
art. 31.
[28] Id.
art. 31(1).
[29] Id.
art. 31(4).
[30] Id.
art. 32.
[31] Id.
[32] Id.
art. 33.
[33] Id.
art. 33(4).
[34] Id.
arts. 39 & 40.
[35] Id.
art. 41.
[36] Id.
art. 41(10)(a).
[37] Id.
art. 41(1)(b).
[38] Id.
art. 26.
[39] Id.
art. 42(2).
[40] Id.
arts. 54-56 & 59-64.
[41] Id.
arts. 42, 57-61.
[42] Id.
art. 58.
[43] Id.
arts. 42, 45 & 46.
[44] Id.
art. 42(1).
[45] Id.
art. 46.
[46] Id.
art. 46(2).
[47] See
id. art. 8.
[48] Id.
art. 47.
[49] Id.
art. 48.
[50] Id.
art. 49.
[51] Id.
art. 50.
[52] Id.
art. 51.
[53] Id.
art. 52
[54] Id.
art. 53.
[55] Id.
art. 69-72.
[56] Id.
arts. 65-68.
