CHAPTER 8CHAPTER 8LAW OF TREATIESLAW OF TREATIESPROFESSORDR. 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 areconducted through treaties.• Various international organizations areestablished by means of treaties.• Disputes between States are brought beforeinternational courts by means of treaties.• The treaty is the most important source ofinternational law.• Therefore, the special importance of treaties ininternational law does not need emphasis.
8.1 The Vienna Convention on the8.1 The Vienna Convention on theLaw of Treaties, 1969Law of Treaties, 1969 [pp. 203-04][pp. 203-04]• The main reference in this area of the lawis the Vienna Convention on the Law ofTreaties, 1969. [VCLT]• Adopted on 23 May 1969 and entered intoforce on 27 January 1980.• It is a combination of codification andprogressive development of internationallaw.
8.2 DEFINITION OF ‘TREATY’8.2 DEFINITION OF ‘TREATY’[pp. 204-213][pp. 204-213]• Schwarzenberger: “a treaty may be defined as aconsensual engagement which subjects ofinternational law have undertaken towards oneanother, with the intent to create legalobligations under international law”.• Oppenheim: International treaties areagreements, of a contractual character, betweenstates, or organisations of states, creating legalrights and obligations between the parties”.
Article 2Article 21. For the purposes of the presentConvention:(a) “treaty” means an internationalagreement concluded between states inwritten form and governed by internationallaw, whether embodied in a singleinstrument or two or more relatedinstruments and whatever its particulardesignation;…
Article 3Article 3The fact that the present Convention doesnot apply to international agreementsconcluded between states and othersubjects of international law or betweensuch other subjects of international law, orto international agreements not in writtenform, shall not effect:(a) the legal force of such agreements;…
The definition of ‘treaty’ under Article 2 of theVienna Convention can be distinguished in tworespects from the traditional definition.(1)It deals only with treaties concluded betweenstates (this is because there is a separateconvention on the law of treaties to whichinternational organisations are parties).(2) The Convention is limited to ‘written treaties’only. However, it is not intended to deny thelegal effect of oral agreements underinternational law.
An analysis of the definition of treatyAn analysis of the definition of treaty The definition in the Vienna Convention isexpressed to be for the purposes of theConvention and is limited to treatiesbetween States.• The following is an examination of theelements of the definition of treaty underVienna convention as supplemented bycustomary international law.
(1)(1) An agreement concluded betweenAn agreement concluded betweenStates: treaty-making capacityStates: treaty-making capacityStates Article 6 of the Convention, which provides thatstates may make treaties, reflects customaryinternational law. Capacity to make treaties is, infact, valuable evidence of statehood. Federal States (Art. 6, para. 2, Draft Articles)“States members of a federal union may possessa capacity to conclude treaties if such capacity isadmitted by the federal constitution and withinthe limits there laid down”.
International Organizations• The Vienna Convention on the Law of Treaties,1969, is limited to treaties to which states areparties. It does not cover treaties to which publicinternational Organizations are parties.• A special convention, the Convention on the Lawof Treaties Between States and InternationalOrganizations or Between InternationalOrganizations, was signed in 1986.
Individuals• Individuals have never been recognised ashaving the capacity to make treaties. Eventransnational corporations (TNCs) have no suchcapacity.• In the Anglo-Iranian Oil Company case, 1952ICJ Rep. 93, the ICJ held that a contractbetween Iran and the Anglo-Iranian OilCompany was not a treaty. “ It is nothing morethan a concessionary contract between agovernment and a foreign company.”
(2) In written form(2) In written form• The Vienna Convention does not apply to oralagreements, although such agreements arevalid under customary international law.• Even though the traditional practice is for theoriginal text of a treaty to be typed or printed,there is no reason why a treaty should not becontained in a telegram, telex, fax message oreven e-mail, or, rather, constituted by anexchange 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 adiplomatic mission or for some purelycommercial transaction).• They are regulated by the local law of one of theparties or by conflict of laws principles.• The notion of an “international agreement” forthe purposes of the law of treaties is confined toone the whole formation and execution of whichis governed by international law.
(4) Intention to create legal obligations(4) Intention to create legal obligations• From practical point of view, the decisive factoris whether the instrument is intended to createinternational legal rights and obligations betweenthe parties.• This element of “intention to create legalobligations under international law” can be foundin the traditional definitions of ‘treaty’ by eminentwriters but it is not expressly mentioned in thedefinition of ‘treaty’ by the Vienna Convention.• The ILC: The element of ‘intention’ is included inthe phrase ‘governed by international law’. [Seealso Aegean Sea Continental Shelf case.][p.209]
(5) Whether embodied in a single(5) Whether embodied in a singleinstrument or in two or more relatedinstrument or in two or more relatedinstrumentsinstruments• The classic form for a treaty is a singleinstrument.• However, in modern practice treaties are madein less formal ways, such as “exchanges ofnotes” or ‘exchange of letters”.• An exchange of notes usually consists of aninitial note (by one State) and a reply note (bythe other State). In other words it consists of tworelated instruments.• The above phrase clearly acknowledges thevalidity of the increasing use of such exchangesof 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 typesof binding international agreements. In practice,a number of terms are used to indicate aninternational agreement.• The term ‘Treaty’ itself is used to indicate formalagreements relating to peace, alliance, or thecession of territory, extradition, or some otherfundamental matter.
• Convention’ is the term used for a proper formalinstrument of a multilateral character.• A ‘Protocol’ is an instrument which is subsidiaryor ancillary to a convention or is asupplementary treaty• An ‘Exchange of Notes (or of letters)’ is aninformal method, very frequently adopted inrecent years, whereby states reach to certainunderstanding or recognize certain obligationsas binding them.
Memorandum of Understandings (MOUs)Memorandum of Understandings (MOUs)• The use of MOUs is now so widespread in Statepractice that governments may use the MOUsas the more usual form, a treaty being used onlywhen it cannot be avoided.• The main reasons for using MOUs in preferenceto treaties are confidentiality and convenience.As an MOU is not a treaty, there is as a rule nodomestic or international requirement to publishit.
Are MOUs treaties?Are MOUs treaties?• Generally speaking MOUs are not treaties andthey are not legally binding.• An MOU can be a treaty in some cases but itcannot be so in other cases.• Only by studying the terms of the instrument canone determine its genuine status. The decisivefactor is whether there is an intention to createlegal obligations.• The actual practice of States is to indicate theirintention to conclude a treaty by employingterminology such as ‘shall’, ‘agree’, ‘undertake’,and ‘enter into force’.
Oral undertakingsOral undertakings• According to customary international lawwriting is not an essential requirement of atreaty.• An agreement or undertaking made orallybetween two states is as valid as a writtentreaty.
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 andNorway over Eastern Greenland.• During the official conversation between M.Ihlen, Norwegian Foreign Minister, and theDanish Minister accredited to Norway, theDanish Minister suggested that Denmark wouldraise no objection to any claim Norway mightwant to make at the Paris Peace Conference toSpitzbergen if Norway would not oppose theDanish claim at the same conference toGreenland.
Eastern GreenlandEastern Greenland [Cont.][Cont.]• M. Ihlen, in the course of furtherconversations with the Danish Minister,declared that “the Norwegian Governmentwould not make any difficulty concerningthe Danish claim”. [This is known as theIhlen Declaration]• Denmark argued before the ICJ that thisundertaking was binding upon Norway.
Eastern GreenlandEastern Greenland [Cont.][Cont.]• Held: The Court considers it beyond alldisputes that ‘a reply of this nature’ givenby the Minister of Foreign Affairs on behalfof his Government ‘in response to requestby the diplomatic representative of aforeign Power’, in regard to a questionfalling within his province, is binding uponthe country to which the Minister belongs.
8.3 THE CONCLUSION OF8.3 THE CONCLUSION OFTREATIESTREATIES8.3.1 Treaty-making capacityFull powers: Article 71. In virtue of their functions and without having toproduce full powers, the following areconsidered as representing their state:(a) Heads of States, Heads of Governments andMinisters for Foreign Affairs;(b) Heads of diplomatic missions, adopting thetext of a treaty between the accrediting state andthe 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 atreatytreatyThe 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 bythe 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 treatyArticle 11 enumerates the ways in which aState can express its consent:(1) by signature;(2) by exchange of instrumentsconstituting a treaty;(3) by ratification, acceptance orapproval; or(4) by accession.
(1) Signature(1) Signature• The effect of signature of a treaty depends onwhether or not the treaty is subject to ratification.• If the treaty is subject to ratification, signaturemeans no more than an authentication of itstext.• If the treaty is not subject to ratification, or issilent on this point, the better opinion is that, inthe absence of contrary provision, theinstrument 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-examiningthe whole effect of the treaty upon their interests;May need to prepare public opinion (or sometimes even referendum) for the obligation thestate is about to undertake.(2) According to the constitutional law of manystates, treaties are not valid without some kindof consent on the part of Parliaments. (E.g. USConstitution).
RatificationRatification [Cont.][Cont.]What treaties require ratification?• The more formal the type of instrumentadopted, the more likely is ratification tobe required.
RatificationRatification [Cont.][Cont.]Procedure for ratification:• Instrument of ratification: A document dulysigned by the Heads of States concerned,and/or their Secretaries for Foreign Affairs.• Ratification involves two steps: The first isthe signing and sealing of the instrumentof ratification.
RatificationRatification [Cont.][Cont.]Procedure: The second stepProcedure: The second step• In the case of a bilateral treaty, the exchange ofthe instrument of ratification with thecorresponding instrument produced by the otherparty.• In the case of a multilateral treaty, to deposit allinstruments of ratification in a centralheadquarters such as the Foreign Office of thestate where the treaty was signed.• With regard to treaties concluded under theauspices of the UN, the instruments ofratification are to be deposited with the SG of theUN.
(3) Accession(3) Accession• Accede to: accession• Accession is a traditional method wherebya state which has not signed a treatysubsequently becomes a party to it.• Treaties frequently provide that they shallbe open for signature for a certain period,and that after the expiry of that period theyshall become open for accession.
Effect of a treaty before ratification or beforeEffect of a treaty before ratification or beforeentry into forceentry into force [Article 18][Article 18]A state is obliged to refrain from acts which woulddefeat the object and purpose of a treaty when:(a) it has signed the treaty or exchangedinstruments constituting the treaty subject toratification, acceptance or approval, until it shallhave made its intention clear not to become aparty to the treaty; or(b) it has expressed its consent to be bound bythe treaty, pending the entry into force of thetreaty and provided that such entry into force isnot unduly delayed.
• According to the International Law Commission’scommentary, “that an obligation of ‘good faith’ torefrain from acts calculated to frustrate theobject of the treaty attaches to a State which hassigned a treaty subject to ratification appears tobe generally accepted.”• Certain German Interests in Polish Upper Silesiacase 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 phrasedor named, made by a State, when signing,ratifying, accepting, approving or accedingto a treaty, whereby it purports to excludeor to modify the legal effect of certainprovisions of the treaty in their applicationto that State.”
• Disguised reservations: (“however phrased ornamed”; to look at the substance). It is thesubstance that matters, not the form.• Interpretative declarations: (Purpose – toestablish an interpretation of the treaty which isconsistent with the domestic law of the state). Itwill be an element in the interpretation of thetreaty (if it is not a disguised reservation).If other parties do not make contrary declarationsor indicate their disagreement, they may beregarded 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 specifiedreservations, which do not include thereservation in question, may be made; or(c) in cases not falling under sub-paragraphs(a) and (b), the reservation is incompatiblewith the object and purpose of the treaty.[‘compatibility test’]
Compatibility testCompatibility test : examples:: examples:(a) A reservation to the Convention againstTorture (CAT) which sought to exclude from ittorture of suspected (or even convicted)terrorists would be a clear case ofincompatibility.(b) Guatemala made a reservation that Article27 of the VCLT (non-invocation of internal law)would not apply in respect of the GuatemalanConstitution. As the rule is so fundamental to thelaw of treaties, the reservation clearly failed topass 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 tryingto modify the terms of the treaty.• A reservation can therefore be assimilatedto the refusal of an offer and the making ofa fresh offer. In principle, this fresh offermust obtain the assent of the othercontracting States if it is to be effective.
• Therefore, the traditional view was thatreservations to be effective required theacceptance of all the contracting States.• However, that view, although applicable tobilateral treaties, would not be appropriate,without qualifications, to multilateralconventions.
• The International Court of Justice in its advisoryopinion on Reservations to the GenocideConvention, introduces ‘compatibility’ test. Areservation may be made unless the treatyprohibits it or it is incompatible with the objectand purpose of the treaty.• Articles 19, 20 and 21 of the Vienna Conventionare generally in line with the conclusionsreached by the World Court.
Article 20Article 20Acceptance and objections to reservationsAcceptance and objections to reservations1. A reservation expressly authorised by a treatydoes not require any subsequent acceptance by theother contracting States ….2. When it appears from the limited number of thenegotiating States and the object and purpose of a treatythat the application of the treaty in its entirety between allthe parties is an essential condition of the consent ofeach one to be bound by the treaty, a reservationrequires acceptance by all the parties.3. ….
4. In cases not falling under the preceding paragraphs:(a) acceptance by another contracting State of areservation constitutes the reserving State a party tothe treaty in relation to that other State;(b) an objection by another contracting State to areservation does not preclude the entry into force ofthe treaty as between the objecting and reservingStates unless a contrary intention is definitelyexpressed by the objecting State;(c) ….
5. … a reservation is considered to havebeen accepted by a state if it shall haveraised no objection to the reservation bythe end of a period of 12 months after itwas 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 treatyshall not enter into force between thereserving and objecting State.
A simple exampleA simple exampleThere are three states: A, b, and C.There are three states: A, b, and C.• State A made a reservation to a treaty. State Braised no objection. States C objected and atthe same time stated expressly that it precludedthe treaty entering into force between it andState A.• State A may be a party to the treaty in relation toState B, but not in relation to State C.• There is no doubt that State B and State C aremutually bound by the treaty after its entry intoforce.
Legal effects of reservations and of objections toLegal effects of reservations and of objections toreservationsreservations [[Article 21Article 21]]1. A reservation established with regard to anotherparty (established here means “not prohibited and notobjected to by other party”)…:(a) modifies for the reserving state in its relations withthat other party (non-objecting state) the provisions ofthe treaty to which the reservation relates to the extentof the reservation.(b) modifies those provisions to the same extent forthat 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 LibyanPeople’s Bureau Incident (1984) (UK v Libya).• Libya made a reservation to the VCDR permitting it toopen a diplomatic bag if it had strong doubts as to thelegitimacy of its contents. UK did not object to thatreservation.• In accordance with Art. 21(1)(b), the obligation in theVCDR not to open another State’s diplomatic bag wasmodified to the extent of the reservation and would nothave been prevented the UK opening the Libyan bag.• Thus the Foreign Affairs Committee was advised that theUK could respond by opening the Libyan diplomatic bagsif it had strong doubts as to their contents.
Art. 21Art. 21 [Cont.][Cont.]2. The reservation does not modify the provisionsof the treaty for the other parties (Among those statesapart from the reserving state) to the treaty inter se.(Among themselves, they have to follow all theprovisions of the treaty as if there is no reservation).3. When a state objecting to a reservation has notopposed the entry into force of the treaty between itselfand the reserving state, the provisions to which thereservation relates do not apply as between the twostates to the extent of the reservation.An explanation to the application of Art. 21(3) can be foundin an arbitral award.
English ChannelEnglish Channel ArbitrationArbitration(1984) (UK v France)(1984) (UK v France)• France had made reservations to Art. 6 of the 1958Continental Shelf Convention: to prevent the UK frominvoking the provisions of Art. 6 except on the basis ofconditions stated in the reservations.• UK objected to these reservations.• The award: “The combined effect of the Frenchreservations and their rejection by the UK is neither torender Art. 6 inapplicable in toto, as France contends,nor to render it applicable in toto, as the UK contends. Itis to render the Article inapplicable as between the twocountries to the extent, but only to the extent, of thereservations.”• [French reservation: “France will not accept that anyboundary of the continental shelf determined byapplication of the principle of equidistance shall beinvoked against it: -- if it extends beyond the 200-metreisobath.”][It seems that the reservation is effective and theprovision (Art. 6) is applicable subject to the
(6) Entry into force(6) Entry into force• A treaty often provides that it shall enter intoforce when it has been ratified or acceded to bya specific number of states.• E.g, the Vienna Convention on the Law ofTreaties, 1969, provides for its entry into force“on the 30thday following the date of the depositof the 35th instrument of ratification oraccession’.• The United Nations Convention on the Law ofthe Sea, 1982, entered into force one year afterthe 60thratification, namely on November 16,1994.
8.4 APPLICATION OF TREATIES8.4 APPLICATION OF TREATIESBinding force of treatiesPacta sunt servanda (Article 26)Every treaty in force is binding upon the partiesto it and must be performed in good faith.Treaty versus municipal law (Article 27)A party may not invoke the provisions of itsinternal law as justification for its failure toperform a treaty. This rule is without prejudice toArticle 46.
Non-retroactivity of treaties (Article 28)Unless a different intention appears from thetreaty or is otherwise established, its provisionsdo not bind a party in relation to any act or factwhich took place or any situation which ceasedto exist before the date of the entry into force ofthe treaty with respect to that party.
Application of successive treaties on the sameApplication of successive treaties on the samesubject mattersubject matter (Article 30)(Article 30)• 1. Subject to Article 103 of the Charter of the UN, the rights and obligations of States parties tosuccessive treaties … shall be determined inaccordance with the following paragraphs….• 3. When all the parties to the earlier treaty areparties also to the later treaty … the earliertreaty applies only to the extent that itsprovisions are compatible with those of the latertreaty.• [If parties are identical: Lex posterior derogatlegi priori applies.]
• 4. [If parties are not identical: Art. 30 (4)applies. It is actually based on the rulepacta tertiis nec nocent nec prosunt.Therefore, as between a State party toboth treaties and a State party to only oneof the treaties, the treaty to which bothStates are parties govern their rights andobligations. Art. 30 (4)(b)]
• Art. 30 deals with hierarchy among treaties.• Art. 103 of the Charter: “In the event of a conflictbetween the obligations of the Members of theUN under the present Charter and theirobligations under any other internationalagreements, the obligations under the presentCharter shall prevail.”• Art. 103 is known as “clause paramount”.Obligations under the UN Charter have primacyover 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 measuresto Libya because by virtue of Art. 103, Libya’sobligation under the Charter (i.e., SC Resolution748 requiring Libya to surrender the twosuspects) prevailed over its obligation under theMontreal Convention (i.e., Libya can eitherextradite or prosecute the two suspects).• See also Application of the GenocideConvention case. (Art. 103 does not apply to arule of jus cogens)
Treaties and third StatesTreaties and third StatesArticle 34 A treaty does not create either obligations orrights for a third state without its consent. The general rule in Article 34, which is known bythe maxim pacta tertiis nec nocent nec prosunt,undoubtedly reflects customary international law. Art. 35 (obligations for third states – mustexpressly accept in writing). Art. 36 (rights for third states – consent can bepresumed).
8.5 INTERPRETATION OF8.5 INTERPRETATION OFTREATIESTREATIESAccording to Fitzmaurice, there are threetraditional schools of treaty interpretation:(1) “Textual school”– interpretation in accordancewith the ordinary meaning of the words of thetreaty;(2) “Intention school” – interpretation inaccordance with the intention of the parties;(3) “Teleological school” – interpretation inaccordance with the aims and purposes of thetreaty.
General Rule of InterpretationGeneral Rule of Interpretation[Article 31[Article 31]]1. A treaty shall be interpreted in good faith inaccordance with the ordinary meaning to begiven to the terms of the treaty in their contextand in the light of its object and purpose. …2. The context…shall comprise…text, preambleand annexes.3. There shall be taken into account, togetherwith 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 begiven 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 ofconfirming an interpretation.• Although Art. 31(1) contains both the “textual”and “teleological” approaches, it givesprecedence to “textual”.
Textual interpretationTextual interpretation is the prevailingis the prevailingapproachapproach..• The general rule primarily adopts the textualapproach.• The ILC: the textual approach is the establishedrule of customary international law.• The jurisprudence of the ICJ also demonstratesthat the textual interpretation is regarded by it asestablished 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 bythe parties is a good indication of what theyunderstand it to mean.• E.g. Interpretation of Art. 27(3) of the Charter:Nine votes including concurring votes of thepermanent 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 theprovisions of a treaty to have certain meaning,and not to be meaningless; ut res magis valeatquam pereat (it is better for a thing to have effectthan to be made void).• When a treaty is open to two interpretations, oneof which does and the other does not enable thetreaty to be effectively implemented, the formerinterpretation should be adopted.• Principle of effectiveness does not allow aninterpretation going beyond what the text of thetreaty 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 andRomania, on the other, provided forcommissions to hear disputes concerning thetreaty.• The commissions were to consist of threemembers. The two parties to the dispute were toappoint a member each; the parties were then toagree upon a third. If they could not agree, thethird member was to be appointed by theSecretary-General of the United Nations.
Interpretation of Peace Treaties caseInterpretation of Peace Treaties case[Cont.][Cont.]• Disputes arose over the human rightsguarantees in the treaties. Bulgaria, Hungaryand Romania refused to appoint members to thecommissions.• The Allied powers wanted to establish theCommissions with only two members: oneappointed by them and the other appointed bythe SG of the UN.• The question was brought before the ICJ.• Held: It was not lawful to establish Commissionswith only two members.
Interpretation of Peace Treaties caseInterpretation of Peace Treaties case[Cont.][Cont.]• The world Court in this case refused toapply the principle of effectiveness in sucha way as to override the clear meaning ofthe text (i.e. textual interpretation).• The duty of the court is to interpret thetreaty, not to revise it.
Supplementary means of interpretationSupplementary means of interpretation[[Article 32]Article 32]Recourse may be had to supplementary meansof interpretation, including the preparatory workof the treaty and the circumstances of itsconclusion, in order to confirm the meaningresulting from the application of Article 31, or todetermine the meaning when the interpretationaccording to Article 31:(a) leaves the meaning ambiguous or obscure; or(b) leads to a result which is manifestly absurd orunreasonable.
Travaux preparatoiresTravaux preparatoires[[Preparatory work]Preparatory work]• It generally means the record of the drafting of atreaty.• It includes records of negotiations between thestates that participate in the drafting and,records of the work of independent bodies ofexperts, such as the ILC.Admission of a State to the United Nations, (1948)ICJ Rep 57“There is no occasion to resort to preparatory workif the text of a convention is sufficiently clear initself”.
8.6 INVALIDITY OF TREATIES8.6 INVALIDITY OF TREATIES• Will discuss only five important grounds ofinvalidity:(1) Violation of internal law on competenceto 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 toconclude treatiesconclude treaties (Article 46)(Article 46)• Article 46 allows a State, by way of exception, toinvoke violation of internal law as invalidating itsconsent, only when:(i) the internal law relates to competence toconclude 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 beenaware of it.[E.g. the State organs and representatives mayhave exceeded their powers in concluding such
(2) Error(2) Error ((Article 48)Article 48)1. A state may invoke an error in a treatyas invalidating its consent to be bound bythe treaty if the error …formed anessential basis of its consent to be boundby the treaty.2. Paragraph 1 shall not apply if the statein question contributed by its own conductto the error….
Temple of Preah VihearTemple of Preah Vihear casecase1962 ICJ Rep. 6.1962 ICJ Rep. 6.• In 1904,The boundary between Cambodia andThailand in the area of Preah Vihear wasdetermined by a treaty The treaty stated that itwas to follow the watershed line and provided forthe details to be worked out by a MixedCommission.• A map was prepared by the Commission. Thisclearly placed the Temple in Cambodia.Cambodia relied upon the map. Thailand arguedthat the map embodied a material error becauseit did not follow the watershed line as required bythe treaty.
Temple of Preah VihearTemple of Preah Vihear casecase [Cont.][Cont.]• The Court rejected Thailand’s argumentand stated:“It is an established rule of law that theplea of error cannot be allowed as anelement vitiating consent if the partyadvancing it contributed by its ownconduct to the error, or could haveavoided 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 States consent to bebound by a treaty has been procuredthrough the corruption of its representativedirectly or indirectly by another negotiatingState, the State may invoke suchcorruption as invalidating its consent to bebound by the treaty.
(4) Coercion of a State(4) Coercion of a StateArticle 52A treaty is void if its conclusion has beenprocured by the threat or use of force in violationof the principles of international law embodied inthe Charter of the United Nations.Article 52 clearly refers to Art. 2(4) of the UNCharter which prohibits the threat or use of forceagainst territorial integrity or politicalindependence 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 ofNotes took place when the British Navy hadbeen using force to oppose the 12-mile fisherylimit of Iceland and that they were void ab initio.• The Court rejected the argument because therewas no concrete evidence of use of force andstated: “The 1961 Exchange of Notes werefreely negotiated by the interested parties on thebasis of perfect equality and freedom of decisionon both sides. …”
(5) Conflict with(5) Conflict with Jus CogensJus CogensSince states are sovereign, there is no sovereignpolitical authority above the States. To enableinter-State relations, States voluntarily surrendera certain portion of their sovereignty and that isinternational law.Therefore international Law is consensual innature. Its existence depends entirely onconsent of States. Rules of international law arenormally voluntary rules: “jus dispositivum”. Theycan at any time be amended or abolished byconsent of States, i.e., by entering into newtreaties.
Jus CogensJus Cogens [Cont.][Cont.]• However, a new concept crystallized in the late1960s, i.e., the concept of “jus cogens”.• Many States have come to accept that there arecertain rules of general international law whichare so important for the existence of theinternational community that they areperemptory norms from which no derogation ispermitted; they are jus cogens (compellinglaw)as opposed to jus dispositivum (voluntarylaw).• States can not contract out of them.
Article 53Article 53A treaty is void, if, at the time of itsconclusion, it conflicts with a peremptory norm ofgeneral international law.For the purposes of the present Convention,a peremptory norm of general international lawis a norm accepted and recognized by theinternational community of States as a whole asa norm from which no derogation is permittedand which can by modified only by a subsequentnorm of general international law having thesame character.
Definition ofDefinition of jus cogensjus cogens• “A norm accepted and recognized by theinternational community as a whole”• Chairman of the Drafting Committee’sinterpretation:All States less “a very small number of States”.[The establishment of a jus cogens may not beaffected if one state in isolation refuses toaccept the peremptory character of it, or if thatState is supported by a very small number ofStates.]
Identifying rules having the character ofIdentifying rules having the character of jus cogensjus cogens- Many rules have been suggested as candidatesfor jus cogens. However, at present only a fewpass the test.- The ICJ in the Nicaragua case quoted withapproval the statement by the ILC:“The law of the Charter concerning the prohibitionof the use of force in itself constitutes aconspicuous example of a rule having thecharacter of jus cogens.”
Least controversial norms having the character ofLeast controversial norms having the character ofjus 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 internationalhumanitarian law.
(6) Consequences of invalidity(6) Consequences of invalidity• The main difference between the two groups ofgrounds for invalidity:• The relative grounds (violation of internal law ontreaty-making, error, corruption) invalidate onlythe 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 abinitio.
• However, the legal consequences will dependon whether the treaty is bilateral or multilateral.• In the case of bilateral treaties, the legal effect ofestablishing a relative ground is the same asthat of establishing absolute invalidity: the treatyfalls.• In the case of multilateral treaties, however,establishing an absolute ground means that thetreaty is null and void and without legal effect,whereas establishing a relative ground does notaffect the validity of the treaty as a whole asbetween the other remaining parties.
8. 7 TERMINATION OF THE8. 7 TERMINATION OF THEOPERATION 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 aparty may take place:(1) in conformity with the provisions of the treaty;or(2) at any time by consent of all the parties afterconsultation with other parties”.• In practice, the majority of modern treatiescontain provisions for termination or withdrawal.• Sometimes: “The treaty shall come to an endautomatically after a certain time”.• Other treaties merely give each party an option towithdraw, usually after giving a certain period of
External groundsExternal groundsThere are three external grounds:(1) Material breach (Art. 60);(2) Supervening impossibility ofperformance (Art. 61); and(3) Fundamental change ofcircumstances(Art. 62).
(1) Material Breach(1) Material BreachArt. 60Art. 60• The general rule is that a right to terminate doesnot 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 notsanctioned by the present Convention; or(b) the violation of a provision essential to theaccomplishment of the object and purpose ofthe treaty.
Breach of a bilateral treatyBreach of a bilateral treaty• In a bilateral treaty, such a material breachenables the injured party to terminate orsuspend the treaty at its discretion. Art. 60 (1).• The injured party’s right to terminate or suspenda treaty is one of the main sanctions for breachof a treaty, but it is not the only one.• There is nothing to prevent the injured Stateclaiming compensation instead of, or in additionto, exercising its right under the Convention.
Breach of a multilateral treatyBreach of a multilateral treaty• The problem is more complicated if the treaty ismultilateral.• It is obvious that breach by a State party cannotentitle the injured party to denounce the treaty,because that would not be fair to other parties.• Art. 60 (2): Therefore, a material breach of amultilateral treaty enables all the parties byunanimous decision to terminate the treatyaltogether or to terminate it for the defaultingState only.• Art. 60(2): Likewise, a single State, which isspecially affected by a material breach, maysuspend the treaty between itself and thedefaulting 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 terminatethe relevant treaty because of a prior breach oftreaty by Czechoslovakia (for whose actionsSlovakia was now responsible).• The Court held that: “It is only material breach ofthe treaty itself, by a State party to that treaty,which entitles the other party to rely on it as aground for terminating the treaty.• According to the facts, the Court found thatHungary could not rely on a material breach byCzechoslovakia because Czechoslovakia’salleged breach did not amount to a breach butwas a legitimate response (countermeasure) toHungary’s earlier breaches.
(2) Supervening Impossibility of Performance(2) Supervening Impossibility of PerformanceArt. 61Art. 61• Article 61 of the Vienna Convention limitsthis ground to the ‘permanentdisappearance or destruction of an objectindispensable for the execution of thetreaty’.• It cannot be invoked by a party that wasitself instrumental in causing thesecircumstances to come about by thebreach of its treaty obligations.
Gabcikovo-Nagymaros ProjectGabcikovo-Nagymaros Project casecase• Hungary and Czechoslovakia concluded a treaty in 1977to facilitate the construction of dams on the DanubeRiver.• Hungary later suspended works, arguing that to establisha joint economic investment as required by the treaty wasinconsistent with environmental considerations.• Czechoslovakia carried out certain unilateral measures inresponse to Hungary’s failure to perform the treaty.• Hungary then claimed the right to terminate the treaty onthe basis inter alia of Article 61 (impossibility ofperformance), stating that the essential object of thetreaty was the joint economic investment which hadceased to exist.• The Court stated that since Hungary did not carry outmost of the works for which it was responsible, theimpossibility resulted from Hungary’s own breach of anobligation 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 thisdoctrine.• Stability of treaty relations is so importantand a balance must be struck.• According to modern international law, therule ‘fundamental change ofcircumstances’ applies only in the mostexceptional circumstances; otherwise itcould be used as an excuse to evade allsorts of inconvenient treaty obligations.
• Article 62 of the Vienna Convention confines the rulewithin very narrow limits.• Art. 62 (1): A fundamental change of circumstances -not foreseen by the parties; the existence of thosecircumstances must constitute an essential basis of theconsent to be bound; the effect of the change is radicallyto transform the extent of the obligation still to beperformed under the treaty.• Art. 62 (2):(1) It may not be invoked in relation to a treatyestablishing a ‘boundary’; and(2)as with Article 61, a State may not invoke article 62 ifthe change was caused by a breach of its owninternational obligations, either under the treaty inquestion 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 UnitedKingdom and Iceland provided that either party couldrefer a dispute concerning Iceland’s extension of itsfishing zone to the ICJ.• The UK relied on the exchange of notes and submittedthe dispute to the Court. Iceland sought to have thattreaty terminated by reason of, among others, afundamental change of circumstances affecting fisheriesand fishing techniques.• The Court held that the alleged changes could not affectthe only provision in the agreement with which the Courtwas concerned, namely, providing for submission ofdisputes to the Court.
• The Court stated “in order that a change ofcircumstances may give rise to a ground for invoking thetermination of a treaty it is also necessary that it shouldhave resulted in a radical transformation of the extent ofthe obligations still to be performed. The change musthave increased the burden of the obligations to beexecuted to the extent of rendering the performancesomething essentially different from that originallyundertaken.”• The Court did not regard that condition as satisfied.