Law of Treaties - International Law

PUBLIC INTERNATIONAL LAWPUBLIC INTERNATIONAL LAW
(LAW OF TREATIES)(LAW OF TREATIES)
Md. Zakir Hossain
Professor, Faculty of Law
University of Chittagong,
Bangladesh
11/16/15 1

LAW OF TREATIESLAW OF TREATIES
• Introduction
• Codification of the Law of Treaties
• Definition
• Conclusion of Treaties
• Reservations
• Registration and Publication
• Observance, Application and Interpretation of Treaties
• Treaties and Third States
• Invalidity of Treaties
• Termination of Treaties
11/16/15 2

1. Introduction1. Introduction
• Treaties are the principle source of
international rights and obligations.
• Every State is a party to hundreds of treaties,
bilateral and multilateral.
• Treaties regulate practically every aspect of
State behavior in times of peace and in times
of war.
11/16/15 3

2. Codification of the Law of Treaties2. Codification of the Law of Treaties
• The law of treaties has been codified. The Vienna
Convention on the Law of Treaties was signed at
Vienna on 23 May 1969 and entered into force on 27
January 1980 after being ratified by 35 States.
• The Preamble to the 1969 Vienna Convention provides,
however, that “the rules of customary international law
will continue to govern questions not regulated by the
provisions of the present Convention”.
• The 1969 Vienna Convention on the Law of Treaties
applies only to treaties concluded by States. An
additional treaty dealing with treaties concluded
between States and international organizations or
between international organizations was signed in
1986 in Vienna. It has not yet entered into force.
11/16/15 4

TREATYTREATY
• A ‘treaty’ is a formally concluded and ratified agreement between
States.
• The term is used generically to refer to instruments binding at
international law, concluded between international entities
(States or organizations).
• The 1969 Vienna Convention defines a 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.
• Essentialities of Treaties, a treaty must be, a binding instrument,
which means that the contracting parties intended to create legal
rights and duties, concluded by states or international
organizations with treaty-making power, governed by
international law and should be in writing.11/16/15 5

3. Definition3. Definition
• Article 2 p. 1(a) of the VCLT defines “treaty” as
an international agreement concluded between States
in written form,
governed by international law,
whether embodied in a single instrument or in two or more
related instruments and
whatever its particular designation.
This definition was formulated for the purposes of the Vienna
Convention and does not define treaties at large.
Other names commonly used for treaties include:
convention, charter, protocol, memorandum, exchange of
notes, declaration, covenant, agreement, pact etc. The name
given to a treaty may indicate its significance, however, it
does not affect its legal character.
11/16/15 6

Types of TreatyTypes of Treaty
• Bilateral Treaties
They concluded between two states or entities. It may
have two or more parties, for instance the bilateral
treaties between Switzerland and the European Union
(EU) following the Swiss rejection of the European
Economic Area agreement. Each of these treaties has
seventeen parties. But are still bilateral as the parties
are divided into two groups, the Swiss ("on the one
part") and the EU and it’s member states ("on the other
part")
11/16/15 7

Types of Treaty (Cont’d)Types of Treaty (Cont’d)
• Multilateral treaties
A multilateral treaty is concluded among several countries. The
agreement establishes rights and obligations between each party
and every other party. Each party owes the same obligations to
all other parties, except to the extent that they have stated
reservations.
Example: Convention Relating to the Status of Refugees, the United
Nations Convention on the Law of the Sea, the Geneva
Conventions, International Covenant on Civil and Political
Rights (ICCPR) etc.
• Universal Treaties
It is concludes among almost all countries. Ex. UN Charter or CITES
(Convention on International Trade in Endangered Species of
Fauna and Flora) which has almost 160 parties.
11/16/15 8

Contents of a Treaty can be classified into threeContents of a Treaty can be classified into three
categories:categories:
•Law making treaties (traités lois)
They establish general patterns of behavior for the parties
over a certain period of time in certain areas.
•Contractual Treaties (traités-contrats)
regulate some specific co-operation between States, such
as a trans-boundary movement of specific hazardous
waste.
11/16/15 9

CONVENTIONSCONVENTIONS
• It can have both a generic and a specific meaning.
• Art.38 (1) (a) of the Statute of the International Court of
Justice refers to international conventions, whether general
or particular as a source of law. - as a secondary source -
judicial decisions and the teachings of the most highly
qualified publicists. This generic use of the term "convention"
embraces all international agreements, in the same way as
does the generic term treaty.
• Secondary source - judicial decisions and the teachings of the
most highly qualified publicists. This generic use of the term
"convention" embraces all international agreements, in the
same way as does the generic term “treaty”.
11/16/15 10

• As a specific term -in the last century the term
"convention" was regularly employed for bilateral
agreements, now generally used for formal multilateral
treaties with a broad number of parties.
• Usually the instruments negotiated under the auspices of
an international organization are entitled conventions (e.g.
Convention on Biological Diversity of 1992, United Nations
Convention on the Law of the Sea of 1982, Vienna
Convention on the Law of Treaties of 1969) or by an organ
of an international organization (e.g. the 1951 ILO
Convention concerning Equal Remuneration for Men and
Women Workers for Work of Equal Value, adopted by the
International Labour Conference or the 1989 Convention
on the Rights of the Child, adopted by the General
Assembly of the UN).11/16/15 11

PROTOCOLSPROTOCOLS
• The term protocol is used for agreements less formal
than those entitled "treaty" or convention.
• A Protocol of Signature is an instrument subsidiary to a
treaty, and drawn up by the same parties. Such a
Protocol deals with ancillary matters such as the
interpretation of particular clauses of the treaty, those
formal clauses not inserted in the treaty, or the
regulation of technical matters. Ratification of the
treaty will normally ipso facto involve ratification of
such a Protocol.
11/16/15 12

PROTOCOLS (Cont’d)PROTOCOLS (Cont’d)
• A Protocol to amend is an instrument that contains
provisions that amend one or various former treaties,
such as the Protocol of 1946 amending the
Agreements, Conventions and Protocols on Narcotic
Drugs.
• A Protocol as a supplementary treaty is an instrument
which contains supplementary provisions to a
previous treaty, e.g. the 1967 Protocol relating to the
Status of Refugees to the 1951 Convention relating to
the Status of Refugees.
11/16/15 13

• An Optional Protocol to a Treaty is an instrument that
establishes additional rights and obligations to a treaty. It
is usually adopted on the same day, but is of independent
character and subject to independent ratification. The
Optional Protocol to the International Covenant on Civil
and Political Rights of 1966 is a well-known example.
• A Protocol based on a Framework Treaty is an instrument
with specific substantive obligations that implements the
general objectives of a previous framework or umbrella
convention. Such protocols ensure a more simplified and
accelerated treaty-making process and have been used
particularly in the field of international environmental law.
An example is the 1987 Montreal Protocol on Substances
that Deplete the Ozone Layer adopted on the basis of
Arts.2 and 8 of the 1985 Vienna Convention for the
Protection of the Ozone Layer.
11/16/15 14

MODUS VIVENDIMODUS VIVENDI
• Modus means mode, way. Vivendi means of living. Together, way of
living, implies an accommodation between disputing parties to allow
life to go on. It usually describes informal and temporary
arrangements in political affairs. For example, where two sides reach
a modus vivendi regarding disputed territories, despite political,
historical or cultural incompatibilities, an accommodation of their
respective differences is established for the sake of contingency.
• Diplomatically it is an instrument recording an international
agreement of temporary or provisional nature intended to be
replaced by an arrangement of a more permanent and detailed
character. It is usually made in an informal way, and never requires
ratification.
• Ex. After Kuwait became independent in 1961, Iraq claimed that it
remained Iraq's territory. However, after a British intervention, they
backed down and formally recognised Kuwait's independence,
establishing a modus vivendi.
11/16/15 15

DECLARATIONSDECLARATIONS
• The term "declaration" is used for various international instruments.
However, declarations are not always legally binding. The term is often
deliberately chosen to indicate that the parties do not intend to create
binding obligations but merely want to declare certain aspirations. (Rio
Declarations 1992)
• Declarations can however also be treaties in the generic sense intended
to be binding at international law. It is therefore necessary to establish
in each individual case whether the parties intended to create binding
obligations.
• Some instruments entitled "declarations" were not originally intended
to have binding force, but their provisions may have reflected customary
international law or may have gained binding character as customary
law at a later stage. Such was the case with the 1948 Universal
Declaration of Human Rights.
• An interpretative declaration is an instrument that is annexed to a treaty
with the goal of interpreting or explaining the provisions of the latter.11/16/15 16

DECLARATIONS (Cont’d)DECLARATIONS (Cont’d)
• A series of unilateral declarations can constitute binding
agreements. A typical example are declarations under
the Optional Clause of the Statute of the International
Court of Justice that create legal bonds between the
declarants, although not directly addressed to each
other. Another example is the unilateral Declaration on
the Suez Canal and the arrangements for its operation
issued by Egypt in 1957 which was considered to be an
engagement of an international character.
• A declaration can be a treaty in the proper sense. A
significant example is the Joint Declaration between the
United Kingdom and China on the Question of Hong Kong
of 1984.11/16/15 17

AGREEMENTSAGREEMENTS
• The term "agreement" can have a generic and a specific meaning. It also
has acquired a special meaning in the law of regional economic
integration.
• The 1969 Vienna Convention on the Law of Treaties employs the term
"international agreement" in its broadest sense.
• Art. 3 states that it should not be in written form, such oral agreements
may be rare, they can have the same binding force as treaties,
depending on the intention of the parties. An example of an oral
agreement might be a promise made by the Minister of Foreign Affairs
of one State to his counterpart of another State.
• Specific meaning - less formal and deal with a narrower range of subject-
matter than "treaties“. It is employed especially for instruments of a
technical or administrative character, which are signed by the
representatives of government departments, but are not subject to
ratification. Typical agreements deal with matters of economic, cultural,
scientific and technical cooperation.
11/16/15 18

AGREEMENTS (Cont’d)AGREEMENTS (Cont’d)
• Agreements also frequently deal with financial matters, such as avoidance of
double taxation, investment guarantees or financial assistance. The UN and
other international organizations regularly conclude agreements with the host
country to an international conference or to a session of a representative organ
of the Organization (Commodities Agreement)
• Agreements in Regional integration Schemes - Instruments that are concluded
within the framework of the constitutional treaty or by the organs of the
regional organization are usually referred to as "agreements", in order to
distinguish them from the constitutional treaty. For example, whereas the
Treaty of Rome of 1957 serves as a quasi-constitution of the European
Community, treaties concluded by the EC with other nations are usually
designated as agreements.
• The Latin American Integration Association (LAIA) was established by the Treaty
of Montevideo of 1980, but the sub regional instruments entered into under its
framework are called agreements.
11/16/15 19

CHARTERSCHARTERS
• The term "charter" is used for particularly formal and
solemn instruments, such as the constituent treaty of an
international organization. The term itself has an
emotive content that goes back to the Magna Carta of
1215. Well-known recent examples are the Charter of
the United Nations of 1945 and the Charter of the
Organization of American States of 1952.
11/16/15 20

MEMORANDA OF UNDERSTANDING (MOU)MEMORANDA OF UNDERSTANDING (MOU)
• A memorandum of understanding is an international
instrument of a less formal kind. It often sets out
operational arrangements under a framework
international agreement. It is also used for the
regulation of technical or detailed matters. It is typically
in the form of a single instrument and does not require
ratification. They are entered into either by States or
International Organizations. The United Nations usually
concludes memoranda of understanding with Member
States in order to organize its peacekeeping operations
or to arrange UN Conferences. The United Nations also
concludes memoranda of understanding on cooperation
with other international organizations.
11/16/15 21

RESOLUTIONSRESOLUTIONS
• A resolution is a written motion adopted by a deliberative body. The substance
of the resolution can be anything that can normally be proposed as a motion.
For long or important motions, though, it is often better to have them written
out so that discussion is easier or so that it can be distributed outside of the
body after its adoption.
• Non Binding Resolutions - refers to measures that do not become laws. This is
used to differentiate those measures from a bill, which is also a resolution in the
technical sense. The resolution is often used to express the body's approval or
disapproval of something which they cannot otherwise vote on, due to the
matter being handled by another jurisdiction, or being protected by
a constitution. An example would be a resolution of support for a
nation's troops in battle, which carries no legal weight, but is adopted for moral
support.
• Substantive or Procedural – They apply to essential legal principles and rules of
right, analogous to substantive law, in contrast to procedural resolutions, which
deal with the methods and means by which substantive items are made and
administered.
11/16/15 22

• Example: UNGAR ( United Nations General Assembly
Resolutions) - United Nations Atomic Energy
Commission (UNAEC) "to deal with the problems
raised by the discovery of atomic energy and related
issues, Deplored Moroccan occupation of Western
Sahara and urged to terminate it.
• UNSCR (United Nations Security Council Resolutions)
11/16/15 23

RELEVANCE IN INTERNATIONAL LAW ANDRELEVANCE IN INTERNATIONAL LAW AND
INTERNATIONAL RELATIONSINTERNATIONAL RELATIONS
• In the modern international law, the significance
of 'international treaty' to create international rules is
highly increased.
• It was often said that the international law failed to have
desired impact for its absence of 'enforcement‘
mechanism. Creation of international institutions or
mechanisms through international instruments to
enforce international law. The Rome Statute, Statute of ICJ
and similar documents of several temporary or transitional
tribunals have provided the international law with 'firmly
grounded institutions or mechanisms' to enforce rules of it.
11/16/15 24

• Enlarging and institutionalizing the 'universality' of
human rights is one of the most important
achievements made by international treaties following
1945. While prior to the II World War, the Geneva
Conventions played crucial role in formulating
humanitarian laws to restrain the war, the
proliferation of international human rights law
significantly emerged in the context of UN Charter and
UDHR.
11/16/15 25

• While treaties create obligation for the parties,
the moral perspective they generate for community of States
and people as well is tremendous. The enforcement of treaty is
thus backed by the 'legal as well as moral sanction.
• Modern day international law is backed by international treaties
which mostly reflects the benefits of societal interests. For
example many newly emerging countries rely on international
treaties to establish their fundamental laws. Vienna Convention,
UN Charter etc.
• VCLT (Vienna Convention on International Law of Treaties), 1969
• Treaties affect the Foreign Policies of its signatories internally or
externally.
Example: NPT (Non Proliferation of Nuclear Weapons Treaty) Here
there would be a difference in the foreign policies of the
signatories and the non signatories to this treaty. National interest
is the defining factor.
11/16/15 26

• Increased interaction of States.
• In addition it can be useful to formulate intra- national policies. Ex.
benefits of environmental policy are uncertain, a country which
participates in negotiating an environmental treaty, or which supports
strong environmental action, thereby provides information to another
country that such action can be worthwhile.
• Facilitation of International economy. Ex. treaties can increase exports of
countries, more productive, attracting private and foreign investment.
Ex. The Asia-Pacific Economic Cooperation (APEC) was established in 1989
in response to the growing interdependence among Asia-Pacific economies.
APEC has since become the primary regional vehicle for promoting open
trade and economic cooperation among its 18 member economies,
COMESA (Common Market for Eastern and Southern Africa) was created in
1994 to encourage cooperation between nations in Eastern and Southern
Africa. Its primary concern is the creation of a large economic and trading
unit etc.
• International law has furnished a way for countries to do certain acts
under a claim of right, a way which is logically impossible to do legally in
absence of a treaty. Ex. Intervention of countries or International
organizations for a dispute settlement.
11/16/15 27

4. Conclusion of Treaties4. Conclusion of Treaties
• The process of concluding a treaty may vary
depending on its subject matter and the number of
parties involved (bilateral treaties, multilateral
treaties).
• Every State possesses capacity to conclude treaties.
11/16/15 28

• In the process of concluding international treaties States
act through their representatives. State representatives
have to produce full powers.
• “Full powers” means a document emanating from the
competent authority of a State designating a person or
persons to represent the State for negotiating, adopting
or authenticating the text of a treaty, for expressing the
consent of the State to be bound by a treaty, or for
accomplishing any other act with respect to a treaty.
• Heads of State, Heads of Government and Ministers for
Foreign Affairs, by virtue of their functions, can perform
all acts relating to the conclusion of a treaty without
having to produce full powers (Article 7).
• The process of the conclusion of treaties consists of
several stages including: negotiations, adoption of the
text of a treaty, authentication of the text of a treaty and
expressing consent to be bound by a treaty.
11/16/15 29

The consent of a State to be bound by a treatyThe consent of a State to be bound by a treaty
may be expressed by:may be expressed by:
Signature (Article 12);
Exchange of instruments constituting a treaty (Article
13);
Ratification, acceptance or approval (Article 14);
Accession (Article 15)
•The final stage of the process of the conclusion of treaties
is entry into force.
•Treaties enter into force in such manner and upon such
date as is provided by the treaty itself or as it is agreed by
the parties.
11/16/15 30

ExamplesExamples
• The 1969 Vienna Convention on the Law of Treaties
entered into force on the thirtieth day following the
submission of the thirty-fifth instrument of
ratification.
• The 1982 United Nations Convention on the Law of
the Sea entered into force 12 months after the date
of deposit of the sixtieth instrument of ratification or
accession.
11/16/15 31

5. Reservations5. Reservations
• A State may, while signing, ratifying, accepting,
approving or acceding to a treaty, formulate a
reservation.
• Reservation means a unilateral statement, however
phrased or named, made by a State by which it
intends to exclude or to modify the legal effect of
certain provisions of the treaty in their application to
that State (Article 2).
11/16/15 32

• Formulating reservations is permitted unless the
reservation is prohibited by the treaty or is
incompatible with the object and purpose of the
Treaty.
• Other States may accept or object to reservations.
• Article 309 of the 1982 Convention on the Law of the
Sea provides that “No reservations or exceptions
may be made to this Convention unless expressly
permitted by the articles of this Convention”.
11/16/15 33

6. Registration and Publication6. Registration and Publication
• Treaties concluded by the Member States of the United
Nations have to be registered with the Secretariat of the
United Nations.
• Article 102 of the Charter of the United Nations provides
that
“Every treaty and every international agreement entered
into by any Member of the United Nations after the
present Charter comes into force shall as soon as possible
be registered with the secretariat and published by it”.
• All treaties registered are published in the United Nations
Treaty Series (http://www.un.org) and translated into
world languages, if necessary.
• There are more than 30 000 treaties registered and
published since 1945.
11/16/15 34

7. Observance, Application7. Observance, Application
and Interpretation of Treatiesand Interpretation of Treaties
• Every treaty in force is binding upon the parties to it
and must be performed by them in good faith (pacta
sunt servanda - Article 26).
• In principle, a treaty is binding upon each party in
respect of its entire territory (Article 29).
• There are, however, treaties which application is
localized (e.g. treaties establishing servitudes,
navigation rights on international rivers or canals)
11/16/15 35

• The general rule of interpretation of treaties is that
treaties 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 (Article 31).
• To confirm the meaning of a treaty, recourse may be
made to supplementary means of interpretation such as
the preparatory work of the treaty and the
circumstances of its conclusion.
• Interpretation of treaties authenticated in two or more
languages may pose special difficulties. The text of such
treaty is equally authoritative in each language.
11/16/15 36

8. Treaties and Third States8. Treaties and Third States
• In principle, a treaty does not create either obligations
or rights for a State which is not a party to that treaty
(Article 34).
• In exceptional circumstances, a treaty may provide for
obligation for third States if they expressly accept that
obligation in writing (Article 35).
• A treaty may also provide for rights for the third State, a
group of States or to all States if the third States assent
thereto. Their assent may be presumed (Article 36).
• An example of a treaty providing for rights for all States
is 1936 Monteux Convention providing for the freedom
of navigation on the Turkish Straits.
11/16/15 37

9. Invalidity of Treaties9. Invalidity of Treaties
• The validity of a treaty or the consent to be bound by
a treaty may be impeached.
• Invalidity eradicates legal effects of the treaty.
11/16/15 38

The reasons which may lead toThe reasons which may lead to
invalidity of treaties includeinvalidity of treaties include
1. A manifest non-compliance with municipal law of
fundamental importance, regarding competence to
conclude treaties (Article 46);
2. Omission of restrictions of authority of a State
representative, if the restriction was notified to the
other negotiating States (Article 47);
3. Error, if related to the fact or situation which was
assumed by a State to exist at the time when the treaty
was concluded and formed an essential basis of its
consent to be bound by the treaty (Article 48);
4. Fraudulent conduct of another negotiating State
(Article 49);
11/16/15 39

5. corruption of a representative of a State (Article 50).
6. A treaty is automatically invalid (null and void) if: the
expression of a State’s consent to be bound by a treaty
has been procured by the coercion of its
representative through acts or threats directed against
him (Article 51);
7. 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);
11/16/15 40

8. at the time of its conclusion, it conflicts with a
peremptory norm (jus cogens) of general international
law (Article 53).
A peremptory norm of general international law is a
norm accepted and recognized by the international
community of States as a whole as a norm from which
no derogation is permitted and which can be modified
only by a subsequent norm of general international
law having the same character.
11/16/15 41

10. Termination of Treaties10. Termination of Treaties
• The termination of a treaty (or the withdrawal from
a treaty) may take place in conformity with its
provisions or by the consent of all the parties to that
treaty (Article 54).
• Also, a treaty terminates if all the parties to it
conclude a new treaty relating to the same subject
matter.
11/16/15 42

A treaty may also be terminated:
1.As a consequence of its material breach by one of the
parties (Article 60);
2.Because of the supervening impossibility of performance
resulting from the permanent disappearance or destruction
of an object indispensable for the execution of the treaty
(Article 61);
3.In case of a fundamental change of circumstances existing
at the time of the conclusion of the treaty, provided the
existence of those circumstances constituted an essential
basis of the consent of the parties to be bound by the treaty
and the effect of the change is to radically transform their
remaining obligations.
However, the fundamental change of circumstances cannot
be invoked to terminate a treaty establishing a boundary or
if the fundamental change is the result of a breach of an
obligation.
11/16/15 43

Law of Treaties - International Law

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