Lecture 4 & 5

The Law of Treaties

LAW 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• Supplementary Reading

1) 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.

2) 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.

VIENNA CONVENTION ON THE LAW OF TREATIES 1969 (VCLT)

• PART I – INTRODUCTION

• Article 1 - Scope of the present Convention

• Article 2 - Use of terms

• Article 3 - International agreements not within the scope of the present Convention

• Article 4 - Non-retroactivity of the present Convention

• Article 5 - Treaties constituting international organizations and treaties adopted within an international organization

• PART II - CONCLUSION AND ENTRY INTO FORCE OF TREATIES

• SECTION 1 - CONCLUSION OF TREATIES

• Article 6 -Capacity of States to conclude treaties

• Article 7 - Full powers

• Article 8 - Subsequent confirmation of an act performed without authorization

• Article 9 - Adoption of the text

• Article 10 - Authentication of the text

• Article 11 - Means of expressing consent to be bound by a treaty

• Article 12 - Consent to be bound by a treaty expressed by signature

• Article 13 - Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty

• Article 14 - Consent to be bound by a treaty expressed by ratification, acceptance or approval

• Article 15 - Consent to be bound by a treaty expressed by accession

• Article 16 - Exchange or deposit of instruments of ratification, acceptance, approval or accession

• Article 17 - Consent to be bound by part of a treaty and choice of differing provisions

• Article 18 - Obligation not to defeat the object and purpose of a treaty prior to its entry into force

• SECTION 2 - RESERVATIONS

• Article 19 - Formulation of reservations

• Article 20 - Acceptance of and objection to reservations

• Article 21 - Legal effects of reservations and of objections to reservations

• Article 22 - Withdrawal of reservations and of objections to reservations

• Article 23 - Procedure regarding reservations

• SECTION 3 - ENTRY INTO FORCE AND PROVISIONAL, APPLICATION OF TREATIES

• Article 24 - Entry into force

• Article 25 - Provisional application

• PART III -OBSERVANCE,APPLICATION AND INTERPRETATION OF TREATIES

• SECTION 1 . OBSERVANCE OF TREATIES

• Article 26 - “Pacta sunt servanda” • Article 27 - Internal law and observance of

treaties

• SECTION 2 - APPLICATION OF TREATIES

• Article 28 - Non-retroactivity of treaties • Article 29 - Territorial scope of treaties • Article 30 - Application of successive treaties

relating to the same subject matter

• SECTION 3 - INTERPRETATION OF TREATIES

• Article 31 - General rule of interpretation

• Article 32 - Supplementary means of interpretation

• Article 33 - Interpretation of treaties authenticated in two or more languages

• SECTION 4 - TREATIES AND THIRD STATES

• Article 34 - General rule regarding third States

• Article 35 - Treaties providing for obligations for third States

• Article 36 - Treaties providing for rights for third States

• Article 37 - Revocation or modification of obligations or rights of third States

• Article 38 - Rules in a treaty becoming binding on third States through international custom

• PART IV - AMENDMENT AND MODIFICATION OF TREATIES

• Article 39 - General rule regarding the amendment of treaties

• Article 40 - Amendment of multilateral treaties

• Article 41 - Agreements to modify multilateral treaties between certain of the parties only

• PART V - INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES

• SECTION 1 - GENERAL PROVISIONS • Article 42 - Validity and continuance in force of treaties

• Article 43 - Obligations imposed by international law independently of a treaty • Article 44 - Separability of treaty provisions • Article 45 - Loss of a right to invoke a ground for invalidating, terminating,

withdrawing from or suspending the operation of a treaty • SECTION 2 - INVALIDITY OF TREATIES • Article 46 - Provisions of internal law regarding competence to conclude treaties • Article 47 - Specific restrictions on authority to express the consent of a State • Article 48 - Error • Article 49 - Fraud

• Article 50 - Corruption of a representative of a State • Article 51 - Coercion of a representative of a State • Article 52 - Coercion of a State by the threat or use of force • Article 53 - Treaties conflicting with a peremptory norm of general international law (“jus

cogens”) • SECTION 3 - TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES • Article 54 - Termination of or withdrawal from a treaty under its provisions or by consent of the

parties • Article 55 - Reduction of the parties to a multilateral treaty below the number necessary for its

entry into force • Article 56 - Denunciation of or withdrawal from a treaty containing no provision regarding

termination, denunciation or withdrawal

• Article 57 - Suspension of the operation of a treaty under its provisions or by consent of the parties

 • Article 58 - Suspension of the operation of a multilateral treaty by agreement between certain of

the parties only • Article 59 - Termination or suspension of the operation of a treaty implied by conclusion of a

later treaty • Article 60 - Termination or suspension of the operation of a treaty as a consequence of its breach • Article 61 - Supervening impossibility of performance • Article 62 - Fundamental change of circumstances • Article 63 - Severance of diplomatic or consular relations • Article 64 - Emergence of a new peremptory norm of general international law (“jus cogens”)

• SECTION 4 - PROCEDURE • Article 65 - Procedure to be followed with respect to invalidity,

termination, withdrawal from or suspension of the operation of a treaty

 • Article 66 - Procedures for judicial settlement, arbitration and

conciliation • Article 67 - Instruments for declaring invalid, terminating,

withdrawing from or suspending the operation of a treaty • Article 68 - Revocation of notifications and instruments provided

for in articles 65 and 67

• SECTION 5 - CONSEQUENCES OF THE INVALIDITY, TERMINATION

• OR SUSPENSION OF THE OPERATION OF A TREATY • Article 69 - Consequences of the invalidity of a treaty • Article 70 - Consequences of the termination of a treaty • Article 71 - Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general

international law • Article 72 - Consequences of the suspension of the operation of a treaty • PART VI - MISCELLANEOUS PROVISIONS • Article 73 - Cases of State succession, State responsibility and outbreak of hostilities • Article 74 - Diplomatic and consular relations and the conclusion of treaties • Article 75 - Case of an aggressor State

• PART VII - DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION • Article 76 - Depositaries of treaties • Article 77 - Functions of depositaries • Article 78 - Notifications and communications • Article 79 - Correction of errors in texts or in certified copies of treaties • Article 80 - Registration and publication of treaties • PART VIII - FINAL PROVISIONS • Article 81 – Signature • Article 82 – Ratification • Article 83 – Accession • Article 84 - Entry into force • Article 85 - Authentic texts

• ANNEX

3) : 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.

4) 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. 

• 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.

• The consent of a State to be bound by a treaty 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.

Examples:

• 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.

5) 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).

• 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”.

6) 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.

7) Observance, Application and 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).

• 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.

8) 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 Montreux Convention providing for the freedom of navigation on the Turkish Straits.

9) 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.

The reasons which may lead to invalidity 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);

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);

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 regognised 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.

10) 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.

• 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.

Supplementary Reading• Chin Lim and Elias Olufemi, “The Role of Treaties in the Contemporary

International Legal Order”, Nordic Journal of International Law, Vol. 66, 1997, pp.1-21.

• Richard D. Kearney and Robert E. Dalton, “The Treaty of Treaties”, American Journal of International Law, Vol. 64, No. 3, June 1970, pp. 495-561.

• S.E. Nahlik, “The Ground of Invalidity and Termination of Treaties”, American Journal of International Law, Vol. 65, No. 4, October 1971, pp. 736-756.

• Jan.Klabbers, The concept of treaty in international law (The Hague: Kluwer, 1996).