law of treaties

CHAPTER 8CHAPTER 8
LAW OF TREATIESLAW OF TREATIES
PROFESSOR
DR. ABDUL GHAFUR HAMID

Introduction: Importance of the law of treatiesIntroduction: Importance of the law of treaties
[Textbook, p. 203][Textbook, p. 203]
• All kinds of inter-State transactions are
conducted through treaties.
• Various international organizations are
established by means of treaties.
• Disputes between States are brought before
international courts by means of treaties.
• The treaty is the most important source of
international law.
• Therefore, the special importance of treaties in
international law does not need emphasis.

8.1 The Vienna Convention on the8.1 The Vienna Convention on the
Law of Treaties, 1969Law of Treaties, 1969 [pp. 203-04][pp. 203-04]
• The main reference in this area of the law
is the Vienna Convention on the Law of
Treaties, 1969. [VCLT]
• Adopted on 23 May 1969 and entered into
force on 27 January 1980.
• It is a combination of codification and
progressive development of international
law.

8.2 DEFINITION OF ‘TREATY’8.2 DEFINITION OF ‘TREATY’
[pp. 204-213][pp. 204-213]
• Schwarzenberger: “a treaty may be defined as a
consensual engagement which subjects of
international law have undertaken towards one
another, with the intent to create legal
obligations under international law”.
• Oppenheim: International treaties are
agreements, of a contractual character, between
states, or organisations of states, creating legal
rights and obligations between the parties”.

Article 2Article 2
1. 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 two or more related
instruments and whatever its particular
designation;…

Article 3Article 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 effect:
(a) the legal force of such agreements;
…

The definition of ‘treaty’ under Article 2 of the
Vienna Convention can be distinguished in two
respects from the traditional definition.
(1)It deals only with treaties concluded between
states (this is because there is a separate
convention on the law of treaties to which
international organisations are parties).
(2) The Convention is limited to ‘written treaties’
only. However, it is not intended to deny the
legal effect of oral agreements under
international law.

An analysis of the definition of treatyAn analysis of the definition of treaty
 The definition in the Vienna Convention is
expressed to be for the purposes of the
Convention and is limited to treaties
between States.
• The following is an examination of the
elements of the definition of treaty under
Vienna convention as supplemented by
customary international law.

(1)(1) An agreement concluded betweenAn agreement concluded between
States: treaty-making capacityStates: treaty-making capacity
States
 Article 6 of the Convention, which provides that
states may make treaties, reflects customary
international law. Capacity to make treaties is, in
fact, valuable evidence of statehood.
 Federal States (Art. 6, para. 2, Draft Articles)
“States members of a federal union may possess
a capacity to conclude treaties if such capacity is
admitted by the federal constitution and within
the limits there laid down”.

International Organizations
• The Vienna Convention on the Law of Treaties,
1969, is limited to treaties to which states are
parties. It does not cover treaties to which public
international Organizations are parties.
• A special convention, the Convention on the Law
of Treaties Between States and International
Organizations or Between International
Organizations, was signed in 1986.

Individuals
• Individuals have never been recognised as
having the capacity to make treaties. Even
transnational corporations (TNCs) have no such
capacity.
• In the Anglo-Iranian Oil Company case, 1952
ICJ Rep. 93, the ICJ held that a contract
between Iran and the Anglo-Iranian Oil
Company was not a treaty. “ It is nothing more
than a concessionary contract between a
government and a foreign company.”

(2) In written form(2) In written form
• The Vienna Convention does not apply to oral
agreements, although such agreements are
valid under customary international law.
• Even though the traditional practice is for the
original text of a treaty to be typed or printed,
there is no reason why a treaty should not be
contained in a telegram, telex, fax message or
even e-mail, or, rather, constituted by an
exchange of such communications.

(3) Governed by international law(3) Governed by international law
• There may be agreements between states (e.g.
agreements for the acquisition of premises for a
diplomatic mission or for some purely
commercial transaction).
• They are regulated by the local law of one of the
parties or by conflict of laws principles.
• The notion of an “international agreement” for
the purposes of the law of treaties is confined to
one the whole formation and execution of which
is governed by international law.

(4) Intention to create legal obligations(4) Intention to create legal obligations
• From practical point of view, the decisive factor
is whether the instrument is intended to create
international legal rights and obligations between
the parties.
• This element of “intention to create legal
obligations under international law” can be found
in the traditional definitions of ‘treaty’ by eminent
writers but it is not expressly mentioned in the
definition of ‘treaty’ by the Vienna Convention.
• The ILC: The element of ‘intention’ is included in
the phrase ‘governed by international law’. [See
also Aegean Sea Continental Shelf case.][p.
209]

(5) Whether embodied in a single(5) Whether embodied in a single
instrument or in two or more relatedinstrument or in two or more related
instrumentsinstruments
• The classic form for a treaty is a single
instrument.
• However, in modern practice treaties are made
in less formal ways, such as “exchanges of
notes” or ‘exchange of letters”.
• An exchange of notes usually consists of an
initial note (by one State) and a reply note (by
the other State). In other words it consists of two
related instruments.
• The above phrase clearly acknowledges the
validity of the increasing use of such exchanges
of notes and letters in modern treaty practice.

(6) ‘Whatever its particular designation’(6) ‘Whatever its particular designation’
• ‘Treaty’ is the generic term to embrace all types
of binding international agreements. In practice,
a number of terms are used to indicate an
international agreement.
• The term ‘Treaty’ itself is used to indicate formal
agreements relating to peace, alliance, or the
cession of territory, extradition, or some other
fundamental matter.

• Convention’ is the term used for a proper formal
instrument of a multilateral character.
• A ‘Protocol’ is an instrument which is subsidiary
or ancillary to a convention or is a
supplementary treaty
• An ‘Exchange of Notes (or of letters)’ is an
informal method, very frequently adopted in
recent years, whereby states reach to certain
understanding or recognize certain obligations
as binding them.

Memorandum of Understandings (MOUs)Memorandum of Understandings (MOUs)
• The use of MOUs is now so widespread in State
practice that governments may use the MOUs
as the more usual form, a treaty being used only
when it cannot be avoided.
• The main reasons for using MOUs in preference
to treaties are confidentiality and convenience.
As an MOU is not a treaty, there is as a rule no
domestic or international requirement to publish
it.

Are MOUs treaties?Are MOUs treaties?
• Generally speaking MOUs are not treaties and
they are not legally binding.
• An MOU can be a treaty in some cases but it
cannot be so in other cases.
• Only by studying the terms of the instrument can
one determine its genuine status. The decisive
factor is whether there is an intention to create
legal obligations.
• The actual practice of States is to indicate their
intention to conclude a treaty by employing
terminology such as ‘shall’, ‘agree’, ‘undertake’,
and ‘enter into force’.

Oral undertakingsOral undertakings
• According to customary international law
writing is not an essential requirement of a
treaty.
• An agreement or undertaking made orally
between two states is as valid as a written
treaty.

Legal Status of Eastern GreenlandLegal Status of Eastern Greenland
(Denmark v Norway), (1933) PCIJ Series A/B, No. 53(Denmark v Norway), (1933) PCIJ Series A/B, No. 53
• A territorial dispute between Denmark and
Norway over Eastern Greenland.
• During the official conversation between M.
Ihlen, Norwegian Foreign Minister, and the
Danish Minister accredited to Norway, the
Danish Minister suggested that Denmark would
raise no objection to any claim Norway might
want to make at the Paris Peace Conference to
Spitzbergen if Norway would not oppose the
Danish claim at the same conference to
Greenland.

Eastern GreenlandEastern Greenland [Cont.][Cont.]
• M. Ihlen, in the course of further
conversations with the Danish Minister,
declared that “the Norwegian Government
would not make any difficulty concerning
the Danish claim”. [This is known as the
Ihlen Declaration]
• Denmark argued before the ICJ that this
undertaking was binding upon Norway.

Eastern GreenlandEastern Greenland [Cont.][Cont.]
• Held: The Court considers it beyond all
disputes that ‘a reply of this nature’ given
by the Minister of Foreign Affairs on behalf
of his Government ‘in response to request
by the diplomatic representative of a
foreign Power’, in regard to a question
falling within his province, is binding upon
the country to which the Minister belongs.

8.3 THE CONCLUSION OF8.3 THE CONCLUSION OF
TREATIESTREATIES
8.3.1 Treaty-making capacity
Full powers: Article 7
1. In virtue of their functions and without having to
produce full powers, the following are
considered as representing their state:
(a) Heads of States, Heads of Governments and
Ministers for Foreign Affairs;
(b) Heads of diplomatic missions, adopting the
text of a treaty between the accrediting state and
the state to which they are accredited;…

8.3.2 Steps to be taken in the making of a8.3.2 Steps to be taken in the making of a
treatytreaty
The various steps in the creation of a treaty are:
(1) Negotiation;
(2) Adoption and authentication of the treaty;
(3) The expression of consent to be bound by
the treaty (Signature, Ratification,
Accession, etc.);
(4) Entry into force; and
(5) Registration and publication.

8. 3. 3 Adoption and authentication8. 3. 3 Adoption and authentication
• Negotiation
• Adoption and authentication

8. 3. 4 Consent to be bound by a treaty8. 3. 4 Consent to be bound by a treaty
Article 11 enumerates the ways in which a
State can express its consent:
(1) by signature;
(2) by exchange of instruments
constituting a treaty;
(3) by ratification, acceptance or
approval; or
(4) by accession.

(1) Signature(1) Signature
• The effect of signature of a treaty depends on
whether or not the treaty is subject to ratification.
• If the treaty is subject to ratification, signature
means no more than an authentication of its
text.
• If the treaty is not subject to ratification, or is
silent on this point, the better opinion is that, in
the absence of contrary provision, the
instrument is binding on signature.

(2) Ratification(2) Ratification
• Ratification: ‘final confirmation’.
Why ratification is required? Two reasons:
(1) A state requires an opportunity of re-examining
the whole effect of the treaty upon their interests;
May need to prepare public opinion (or some
times even referendum) for the obligation the
state is about to undertake.
(2) According to the constitutional law of many
states, treaties are not valid without some kind
of consent on the part of Parliaments. (E.g. US
Constitution).

RatificationRatification [Cont.][Cont.]
What treaties require ratification?
• The more formal the type of instrument
adopted, the more likely is ratification to
be required.

Procedure for ratification:
• Instrument of ratification: A document duly
signed by the Heads of States concerned,
and/or their Secretaries for Foreign Affairs.
• Ratification involves two steps: The first is
the signing and sealing of the instrument
of ratification.

Procedure: The second stepProcedure: The second step
• In the case of a bilateral treaty, the exchange of
the instrument of ratification with the
corresponding instrument produced by the other
party.
• In the case of a multilateral treaty, to deposit all
instruments of ratification in a central
headquarters such as the Foreign Office of the
state where the treaty was signed.
• With regard to treaties concluded under the
auspices of the UN, the instruments of
ratification are to be deposited with the SG of the
UN.

(3) Accession(3) Accession
• Accede to: accession
• Accession is a traditional method whereby
a state which has not signed a treaty
subsequently becomes a party to it.
• Treaties frequently provide that they shall
be open for signature for a certain period,
and that after the expiry of that period they
shall become open for accession.

Effect of a treaty before ratification or beforeEffect of a treaty before ratification or before
entry into forceentry into force [Article 18][Article 18]
A state is obliged to refrain from acts which would
defeat the object and purpose of a treaty when:
(a) it has signed the treaty or exchanged
instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall
have made its intention clear not to become a
party to the treaty; or
(b) it has expressed its consent to be bound by
the treaty, pending the entry into force of the
treaty and provided that such entry into force is
not unduly delayed.

• According to the International Law Commission’s
commentary, “that an obligation of ‘good faith’ to
refrain from acts calculated to frustrate the
object of the treaty attaches to a State which has
signed a treaty subject to ratification appears to
be generally accepted.”
• Certain German Interests in Polish Upper Silesia
case PCIJ (1926) Series A, No. 7, p. 30.

8.3.5 Reservations8.3.5 Reservations
• Definition - Article 2(1)(d) of the VCLT:
“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.”

• Disguised reservations: (“however phrased or
named”; to look at the substance). It is the
substance that matters, not the form.
• Interpretative declarations: (Purpose – to
establish an interpretation of the treaty which is
consistent with the domestic law of the state). It
will be an element in the interpretation of the
treaty (if it is not a disguised reservation).
If other parties do not make contrary declarations
or indicate their disagreement, they may be
regarded as having tacitly accepted it.

When reservations can be madeWhen reservations can be made
[[Article 19Article 19]]
A State may formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified
reservations, which do not include the
reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs
(a) and (b), the reservation is incompatible
with the object and purpose of the treaty.
[‘compatibility test’]

Compatibility testCompatibility test : examples:: examples:
(a) A reservation to the Convention against
Torture (CAT) which sought to exclude from it
torture of suspected (or even convicted)
terrorists would be a clear case of
incompatibility.
(b) Guatemala made a reservation that Article
27 of the VCLT (non-invocation of internal law)
would not apply in respect of the Guatemalan
Constitution. As the rule is so fundamental to the
law of treaties, the reservation clearly failed to
pass the compatibility test.

Effects of reservations on participation in a treatyEffects of reservations on participation in a treaty
• By making a reservation, a State is trying
to modify the terms of the treaty.
• A reservation can therefore be assimilated
to the refusal of an offer and the making of
a fresh offer. In principle, this fresh offer
must obtain the assent of the other
contracting States if it is to be effective.

• Therefore, the traditional view was that
reservations to be effective required the
acceptance of all the contracting States.
• However, that view, although applicable to
bilateral treaties, would not be appropriate,
without qualifications, to multilateral
conventions.

• The International Court of Justice in its advisory
opinion on Reservations to the Genocide
Convention, introduces ‘compatibility’ test. A
reservation may be made unless the treaty
prohibits it or it is incompatible with the object
and purpose of the treaty.
• Articles 19, 20 and 21 of the Vienna Convention
are generally in line with the conclusions
reached by the World Court.

Article 20Article 20
Acceptance and objections to reservationsAcceptance and objections to reservations
1. A reservation expressly authorised by a treaty
does not require any subsequent acceptance by the
other contracting States ….
2. 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.
3. ….

4. In cases not falling under the preceding paragraphs:
(a) acceptance by another contracting State of a
reservation constitutes the reserving State a party to
the treaty in relation to that other State;
(b) 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;
(c) ….

5. … a reservation is considered to have
been accepted by a state if it shall have
raised no objection to the reservation by
the end of a period of 12 months after it
was notified of the reservation…

Three options for the other statesThree options for the other states
• Acceptance (expressly or impliedly).
• Mere objection
• Objection with a condition that the treaty
shall not enter into force between the
reserving and objecting State.

A simple exampleA simple example
There are three states: A, b, and C.There are three states: A, b, and C.
• State A made a reservation to a treaty. State B
raised no objection. States C objected and at
the same time stated expressly that it precluded
the treaty entering into force between it and
State A.
• State A may be a party to the treaty in relation to
State B, but not in relation to State C.
• There is no doubt that State B and State C are
mutually bound by the treaty after its entry into
force.

Legal effects of reservations and of objections toLegal effects of reservations and of objections to
reservationsreservations [[Article 21Article 21]]
1. A reservation established with regard to another
party (established here means “not prohibited and not
objected to by other party”)…:
(a) modifies for the reserving state in its relations with
that other party (non-objecting state) the provisions of
the treaty to which the reservation relates to the extent
of the reservation.
(b) modifies those provisions to the same extent for
that other party in its relations with reserving state.
[Reservation is effective between reserving and non-
objecting State.]

[Art. 21(1): Principle of reciprocity][Art. 21(1): Principle of reciprocity]
• An example of the operation of the principle of
‘reciprocity’ in Art. 21(1) is found in the facts of the Libyan
People’s Bureau Incident (1984) (UK v Libya).
• Libya made a reservation to the VCDR permitting it to
open a diplomatic bag if it had strong doubts as to the
legitimacy of its contents. UK did not object to that
reservation.
• In accordance with Art. 21(1)(b), the obligation in the
VCDR not to open another State’s diplomatic bag was
modified to the extent of the reservation and would not
have been prevented the UK opening the Libyan bag.
• Thus the Foreign Affairs Committee was advised that the
UK could respond by opening the Libyan diplomatic bags
if it had strong doubts as to their contents.

Art. 21Art. 21 [Cont.][Cont.]
2. The reservation does not modify the provisions
of the treaty for the other parties (Among those states
apart from the reserving state) to the treaty inter se.
(Among themselves, they have to follow all the
provisions of the treaty as if there is no reservation).
3. When a state objecting to a reservation has not
opposed the entry into force of the treaty between itself
and the reserving state, the provisions to which the
reservation relates do not apply as between the two
states to the extent of the reservation.
An explanation to the application of Art. 21(3) can be found
in an arbitral award.

English ChannelEnglish Channel ArbitrationArbitration(1984) (UK v France)(1984) (UK v France)
• France had made reservations to Art. 6 of the 1958
Continental Shelf Convention: to prevent the UK from
invoking the provisions of Art. 6 except on the basis of
conditions stated in the reservations.
• UK objected to these reservations.
• The award: “The combined effect of the French
reservations and their rejection by the UK is neither to
render Art. 6 inapplicable in toto, as France contends,
nor to render it applicable in toto, as the UK contends. It
is to render the Article inapplicable as between the two
countries to the extent, but only to the extent, of the
reservations.”
• [French reservation: “France will not accept that any
boundary of the continental shelf determined by
application of the principle of equidistance shall be
invoked against it: -- if it extends beyond the 200-metre
isobath.”]
[It seems that the reservation is effective and the
provision (Art. 6) is applicable subject to the

(6) Entry into force(6) Entry into force
• A treaty often provides that it shall enter into
force when it has been ratified or acceded to by
a specific number of states.
• E.g, the Vienna Convention on the Law of
Treaties, 1969, provides for its entry into force
“on the 30th
day following the date of the deposit
of the 35th instrument of ratification or
accession’.
• The United Nations Convention on the Law of
the Sea, 1982, entered into force one year after
the 60th
ratification, namely on November 16,
1994.

8.4 APPLICATION OF TREATIES8.4 APPLICATION OF TREATIES
Binding force of treaties
Pacta sunt servanda (Article 26)
Every treaty in force is binding upon the parties
to it and must be performed in good faith.
Treaty versus municipal law (Article 27)
A party may not invoke the provisions of its
internal law as justification for its failure to
perform a treaty. This rule is without prejudice to
Article 46.

Non-retroactivity of treaties (Article 28)
Unless a different intention appears from the
treaty or is otherwise established, its provisions
do not bind a party 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 respect to that party.

Application of successive treaties on the sameApplication of successive treaties on the same
subject mattersubject matter (Article 30)(Article 30)
• 1. Subject to Article 103 of the Charter of the U
N, the rights and obligations of States parties to
successive treaties … shall be determined in
accordance with the following paragraphs….
• 3. When all the parties to the earlier treaty are
parties also to the later treaty … the earlier
treaty applies only to the extent that its
provisions are compatible with those of the later
treaty.
• [If parties are identical: Lex posterior derogat
legi priori applies.]

• 4. [If parties are not identical: Art. 30 (4)
applies. It is actually based on the rule
pacta tertiis nec nocent nec prosunt.
Therefore, 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 govern their rights and
obligations. Art. 30 (4)(b)]

• Art. 30 deals with hierarchy among treaties.
• Art. 103 of the Charter: “In the event of a conflict
between the obligations of the Members of the
UN under the present Charter and their
obligations under any other international
agreements, the obligations under the present
Charter shall prevail.”
• Art. 103 is known as “clause paramount”.
Obligations under the UN Charter have primacy
over obligations under any other treaty.

Lockerbie caseLockerbie case (provisional measures)(provisional measures)
1992 ICJ Rep., 3, 114.1992 ICJ Rep., 3, 114.
• The Court refused to grant provisional measures
to Libya because by virtue of Art. 103, Libya’s
obligation under the Charter (i.e., SC Resolution
748 requiring Libya to surrender the two
suspects) prevailed over its obligation under the
Montreal Convention (i.e., Libya can either
extradite or prosecute the two suspects).
• See also Application of the Genocide
Convention case. (Art. 103 does not apply to a
rule of jus cogens)

Treaties and third StatesTreaties and third States
Article 34
 A treaty does not create either obligations or
rights for a third state without its consent.
 The general rule in Article 34, which is known by
the maxim pacta tertiis nec nocent nec prosunt,
undoubtedly reflects customary international law.
 Art. 35 (obligations for third states – must
expressly accept in writing).
 Art. 36 (rights for third states – consent can be
presumed).

8.5 INTERPRETATION OF8.5 INTERPRETATION OF
TREATIESTREATIES
According to Fitzmaurice, there are three
traditional schools of treaty interpretation:
(1) “Textual school”– interpretation in accordance
with the ordinary meaning of the words of the
treaty;
(2) “Intention school” – interpretation in
accordance with the intention of the parties;
(3) “Teleological school” – interpretation in
accordance with the aims and purposes of the
treaty.

General Rule of InterpretationGeneral Rule of Interpretation
[Article 31[Article 31]]
1. 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. …
2. The context…shall comprise…text, preamble
and annexes.
3. There shall be taken into account, together
with the context..
(a) any subsequent agreement;
(b) any subsequent practice.

Three integrated principles in Art. 31(1):Three integrated principles in Art. 31(1):
(1) Interpreted in good faith;
(2) In accordance with the ordinary meaning to be
given to the terms of the treaty in their context;
(3) In the light of its object and purpose.
• Object and purpose is more for the purpose of
confirming an interpretation.
• Although Art. 31(1) contains both the “textual”
and “teleological” approaches, it gives
precedence to “textual”.

Textual interpretationTextual interpretation is the prevailingis the prevailing
approachapproach..
• The general rule primarily adopts the textual
approach.
• The ILC: the textual approach is the established
rule of customary international law.
• The jurisprudence of the ICJ also demonstrates
that the textual interpretation is regarded by it as
established law. See, e.g.:
- Admissions to the UN case;
- Competence of the GA case;
- Interpretation of Peace Treaties case.

The importance of subsequent practiceThe importance of subsequent practice
• The way in which the treaty is actually applied by
the parties is a good indication of what they
understand it to mean.
• E.g. Interpretation of Art. 27(3) of the Charter:
Nine votes including concurring votes of the
permanent members;
• According to the practice of the members,
“concurring” means “not objecting” (See, e.g.
abstention form voting).

Principle of effectivenessPrinciple of effectiveness
• The parties are assumed to intend the
provisions of a treaty to have certain meaning,
and not to be meaningless; ut res magis valeat
quam pereat (it is better for a thing to have effect
than to be made void).
• When a treaty is open to two interpretations, one
of which does and the other does not enable the
treaty to be effectively implemented, the former
interpretation should be adopted.
• Principle of effectiveness does not allow an
interpretation going beyond what the text of the
treaty justifies.

Interpretation of Peace Treaties caseInterpretation of Peace Treaties case
[1950 ICJ, 221] Text book p. 235[1950 ICJ, 221] Text book p. 235
• The peace treaties between the Allied Powers,
on the one hand, and Bulgaria, Hungary and
Romania, on the other, provided for
commissions to hear disputes concerning the
treaty.
• The commissions were to consist of three
members. The two parties to the dispute were to
appoint a member each; the parties were then to
agree upon a third. If they could not agree, the
third member was to be appointed by the
Secretary-General of the United Nations.

[Cont.][Cont.]
• Disputes arose over the human rights
guarantees in the treaties. Bulgaria, Hungary
and Romania refused to appoint members to the
commissions.
• The Allied powers wanted to establish the
Commissions with only two members: one
appointed by them and the other appointed by
the SG of the UN.
• The question was brought before the ICJ.
• Held: It was not lawful to establish Commissions
with only two members.

[Cont.][Cont.]
• The world Court in this case refused to
apply the principle of effectiveness in such
a way as to override the clear meaning of
the text (i.e. textual interpretation).
• The duty of the court is to interpret the
treaty, not to revise it.

Supplementary means of interpretationSupplementary means of interpretation
[[Article 32]Article 32]
Recourse may be had to supplementary means
of interpretation, including the preparatory work
of the treaty and the circumstances of its
conclusion, in order to confirm the meaning
resulting from the application of Article 31, or to
determine the meaning when the interpretation
according to Article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or
unreasonable.

Travaux preparatoiresTravaux preparatoires
[[Preparatory work]Preparatory work]
• It generally means the record of the drafting of a
treaty.
• It includes records of negotiations between the
states that participate in the drafting and,
records of the work of independent bodies of
experts, such as the ILC.
Admission of a State to the United Nations, (1948)
ICJ Rep 57
“There is no occasion to resort to preparatory work
if the text of a convention is sufficiently clear in
itself”.

8.6 INVALIDITY OF TREATIES8.6 INVALIDITY OF TREATIES
• Will discuss only five important grounds of
invalidity:
(1) Violation of internal law on competence
to conclude treaties;
(2) Error;
(3) Corruption;
(4) Coercion of a State; and
(5) Conflict with jus cogens.

(1) Violation of internal law on competence to(1) Violation of internal law on competence to
conclude treatiesconclude treaties (Article 46)(Article 46)
• Article 46 allows a State, by way of exception, to
invoke violation of internal law as invalidating its
consent, only when:
(i) the internal law relates to competence to
conclude treaties;
(ii)it concerns a rule of fundamental importance;
and
(iii) the violation is so ‘manifest’ that the other party
(or parties) must be deemed to have been
aware of it.
[E.g. the State organs and representatives may
have exceeded their powers in concluding such

(2) Error(2) Error ((Article 48)Article 48)
1. A state may invoke an error in a treaty
as invalidating its consent to be bound by
the treaty if the error …formed an
essential basis of its consent to be bound
by the treaty.
2. Paragraph 1 shall not apply if the state
in question contributed by its own conduct
to the error….

Temple of Preah VihearTemple of Preah Vihear casecase
1962 ICJ Rep. 6.1962 ICJ Rep. 6.
• In 1904,The boundary between Cambodia and
Thailand in the area of Preah Vihear was
determined by a treaty The treaty stated that it
was to follow the watershed line and provided for
the details to be worked out by a Mixed
Commission.
• A map was prepared by the Commission. This
clearly placed the Temple in Cambodia.
Cambodia relied upon the map. Thailand argued
that the map embodied a material error because
it did not follow the watershed line as required by
the treaty.

Temple of Preah VihearTemple of Preah Vihear casecase [Cont.][Cont.]
• The Court rejected Thailand’s argument
and stated:
“It is an established rule of law that the
plea of error cannot be allowed as an
element vitiating consent if the party
advancing it contributed by its own
conduct to the error, or could have
avoided it….”

(3) Corruption of a representative of a State(3) Corruption of a representative of a State
[Art. 50][Art. 50]
If the expression of a State's consent to be
bound by a treaty has been procured
through the corruption of its representative
directly or indirectly by another negotiating
State, the State may invoke such
corruption as invalidating its consent to be
bound by the treaty.

(4) Coercion of a State(4) Coercion of a State
Article 52
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.
Article 52 clearly refers to Art. 2(4) of the UN
Charter which prohibits the threat or use of force
against territorial integrity or political
independence of State.

Fisheries Jurisdiction (Jurisdiction)Fisheries Jurisdiction (Jurisdiction) casecase
(U K v Iceland), 1973 ICJ Rep. 14(U K v Iceland), 1973 ICJ Rep. 14
• Iceland argued that the 1961 Exchanges of
Notes took place when the British Navy had
been using force to oppose the 12-mile fishery
limit of Iceland and that they were void ab initio.
• The Court rejected the argument because there
was no concrete evidence of use of force and
stated: “The 1961 Exchange of Notes were
freely negotiated by the interested parties on the
basis of perfect equality and freedom of decision
on both sides. …”

(5) Conflict with(5) Conflict with Jus CogensJus Cogens
Since states are sovereign, there is no sovereign
political authority above the States. To enable
inter-State relations, States voluntarily surrender
a certain portion of their sovereignty and that is
international law.
Therefore international Law is consensual in
nature. Its existence depends entirely on
consent of States. Rules of international law are
normally voluntary rules: “jus dispositivum”. They
can at any time be amended or abolished by
consent of States, i.e., by entering into new
treaties.

Jus CogensJus Cogens [Cont.][Cont.]
• However, a new concept crystallized in the late
1960s, i.e., the concept of “jus cogens”.
• Many States have come to accept that there are
certain rules of general international law which
are so important for the existence of the
international community that they are
peremptory norms from which no derogation is
permitted; they are jus cogens (compelling
law)as opposed to jus dispositivum (voluntary
law).
• States can not contract out of them.

Article 53Article 53
A treaty is void, if, at the time of its
conclusion, it conflicts with a peremptory norm of
general international law.
For the purposes of the present Convention,
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 by modified only by a subsequent
norm of general international law having the
same character.

Definition ofDefinition of jus cogensjus cogens
• “A norm accepted and recognized by the
international community as a whole”
• Chairman of the Drafting Committee’s
interpretation:
All States less “a very small number of States”.
[The establishment of a jus cogens may not be
affected if one state in isolation refuses to
accept the peremptory character of it, or if that
State is supported by a very small number of
States.]

Identifying rules having the character ofIdentifying rules having the character of jus cogensjus cogens
- Many rules have been suggested as candidates
for jus cogens. However, at present only a few
pass the test.
- The ICJ in the Nicaragua case quoted with
approval the statement by the ILC:
“The law of the Charter concerning the prohibition
of the use of force in itself constitutes a
conspicuous example of a rule having the
character of jus cogens.”

Least controversial norms having the character ofLeast controversial norms having the character of
jus cogensjus cogens are:are:
• The prohibition of the use of force;
• The prohibition of genocide;
• The prohibition of piracy and slave-trading;
• The principle of self-determination;
• The principle of racial discrimination;
• The prohibition against torture;
• Universally recognised principles of international
humanitarian law.

(6) Consequences of invalidity(6) Consequences of invalidity
• The main difference between the two groups of
grounds for invalidity:
• The relative grounds (violation of internal law on
treaty-making, error, corruption) invalidate only
the consent of a State to be bound by the treaty.
• The absolute grounds (coercion and jus cogens)
invalidate the treaty itself and render it void ab
initio.

• However, the legal consequences will depend
on whether the treaty is bilateral or multilateral.
• In the case of bilateral treaties, the legal effect of
establishing a relative ground is the same as
that of establishing absolute invalidity: the treaty
falls.
• In the case of multilateral treaties, however,
establishing an absolute ground means that the
treaty is null and void and without legal effect,
whereas establishing a relative ground does not
affect the validity of the treaty as a whole as
between the other remaining parties.

8. 7 TERMINATION OF THE8. 7 TERMINATION OF THE
OPERATION OF TREATIESOPERATION OF TREATIES
• Internal and external grounds for termination
• Internal ground: The general rule in Article 54:
“the termination of a treaty or the withdrawal of a
party may take place:
(1) in conformity with the provisions of the treaty;
or
(2) at any time by consent of all the parties after
consultation with other parties”.
• In practice, the majority of modern treaties
contain provisions for termination or withdrawal.
• Sometimes: “The treaty shall come to an end
automatically after a certain time”.
• Other treaties merely give each party an option to
withdraw, usually after giving a certain period of

External groundsExternal grounds
There are three external grounds:
(1) Material breach (Art. 60);
(2) Supervening impossibility of
performance (Art. 61); and
(3) Fundamental change of
circumstances
(Art. 62).

(1) Material Breach(1) Material Breach
Art. 60Art. 60
• The general rule is that a right to terminate does
not arise unless the breach is a material (that is,
serious) one.
• Article 60(3) defines a ‘material breach’ as
(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 and purpose of
the treaty.

Breach of a bilateral treatyBreach of a bilateral treaty
• In a bilateral treaty, such a material breach
enables the injured party to terminate or
suspend the treaty at its discretion. Art. 60 (1).
• The injured party’s right to terminate or suspend
a treaty is one of the main sanctions for breach
of a treaty, but it is not the only one.
• There is nothing to prevent the injured State
claiming compensation instead of, or in addition
to, exercising its right under the Convention.

Breach of a multilateral treatyBreach of a multilateral treaty
• The problem is more complicated if the treaty is
multilateral.
• It is obvious that breach by a State party cannot
entitle the injured party to denounce the treaty,
because that would not be fair to other parties.
• Art. 60 (2): Therefore, a material breach of a
multilateral treaty enables all the parties by
unanimous decision to terminate the treaty
altogether or to terminate it for the defaulting
State only.
• Art. 60(2): Likewise, a single State, which is
specially affected by a material breach, may
suspend the treaty between itself and the
defaulting State.

Gabcikovo NagymarosGabcikovo Nagymaros Project caseProject case
(Hungary/Slovakia), (1997) ICJ Rep 7(Hungary/Slovakia), (1997) ICJ Rep 7
• Hungary argued that it was entitled to terminate
the relevant treaty because of a prior breach of
treaty by Czechoslovakia (for whose actions
Slovakia was now responsible).
• The Court held that: “It is only material breach of
the treaty itself, by a State party to that treaty,
which entitles the other party to rely on it as a
ground for terminating the treaty.
• According to the facts, the Court found that
Hungary could not rely on a material breach by
Czechoslovakia because Czechoslovakia’s
alleged breach did not amount to a breach but
was a legitimate response (countermeasure) to
Hungary’s earlier breaches.

(2) Supervening Impossibility of Performance(2) Supervening Impossibility of Performance
Art. 61Art. 61
• Article 61 of the Vienna Convention limits
this ground to the ‘permanent
disappearance or destruction of an object
indispensable for the execution of the
treaty’.
• It cannot be invoked by a party that was
itself instrumental in causing these
circumstances to come about by the
breach of its treaty obligations.

Gabcikovo-Nagymaros ProjectGabcikovo-Nagymaros Project casecase
• Hungary and Czechoslovakia concluded a treaty in 1977
to facilitate the construction of dams on the Danube
River.
• Hungary later suspended works, arguing that to establish
a joint economic investment as required by the treaty was
inconsistent with environmental considerations.
• Czechoslovakia carried out certain unilateral measures in
response to Hungary’s failure to perform the treaty.
• Hungary then claimed the right to terminate the treaty on
the basis inter alia of Article 61 (impossibility of
performance), stating that the essential object of the
treaty was the joint economic investment which had
ceased to exist.
• The Court stated that since Hungary did not carry out
most of the works for which it was responsible, the
impossibility resulted from Hungary’s own breach of an
obligation flowing from the treaty.
• Referring to Article 61(2) of the Vienna Convention, it was

Fundamental Change of CircumstancesFundamental Change of Circumstances
((rebus sic stantibusrebus sic stantibus) Art. 62) Art. 62
• It is better to be cautious in referring to this
doctrine.
• Stability of treaty relations is so important
and a balance must be struck.
• According to modern international law, the
rule ‘fundamental change of
circumstances’ applies only in the most
exceptional circumstances; otherwise it
could be used as an excuse to evade all
sorts of inconvenient treaty obligations.

• Article 62 of the Vienna Convention confines the rule
within very narrow limits.
• Art. 62 (1): A fundamental change of circumstances -
not foreseen by the parties; the existence of those
circumstances must constitute an essential basis of the
consent to be bound; the effect of the change is radically
to transform the extent of the obligation still to be
performed under the treaty.
• Art. 62 (2):
(1) It may not be invoked in relation to a treaty
establishing a ‘boundary’; and
(2)as with Article 61, a State may not invoke article 62 if
the change was caused by a breach of its own
international obligations, either under the treaty in
question or any other international agreement.

Fisheries Jurisdiction caseFisheries Jurisdiction case (Jurisdiction)(Jurisdiction)
(1974) ICJ Rep. 3(1974) ICJ Rep. 3
• The 1961 exchange of notes between the United
Kingdom and Iceland provided that either party could
refer a dispute concerning Iceland’s extension of its
fishing zone to the ICJ.
• The UK relied on the exchange of notes and submitted
the dispute to the Court. Iceland sought to have that
treaty terminated by reason of, among others, a
fundamental change of circumstances affecting fisheries
and fishing techniques.
• The Court held that the alleged changes could not affect
the only provision in the agreement with which the Court
was concerned, namely, providing for submission of
disputes to the Court.

• The Court stated “in order that a change of
circumstances may give rise to a ground for invoking the
termination of a treaty it is also necessary that it should
have resulted in a radical transformation of the extent of
the obligations still to be performed. The change must
have increased the burden of the obligations to be
executed to the extent of rendering the performance
something essentially different from that originally
undertaken.”
• The Court did not regard that condition as satisfied.

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