The Law of Treaties (Public International Law)

   THE LAW OF TREATIES

                                                                                                                                              -Yogesh Jain

Definition of Treaties

Formal written agreement.

Between actors of international law, that is the states.

Treaty is self-executing.

 Does not create cause of action in favor of private person against contracting States.

An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments and whatever its particular designation.

Even oral agreement can be binding, however, only written agreements that are come under the provisions of the Vienna Convention

1969 Vienna Convention on the Law of Treaties

• Governs treaties between states.

• Entered into force in January 1980

• Preamble.8 parts, 85 articles.

• Non sovereign states can also conclude treaties.That is, colonies trust territory. Protectorate vessel state can also be part of a treaty. 

• Vienna Convention on the Law of Treaties (1969)

–Foundational: 20 years in the making

• Defines “treaty” as “an international agreement concluded between States in written form and governed by international law, whether embodies in a single instrument or in two or more related instruments and whatever its particular designation […]”

• Scope: Only applies to treaties between states.

• Not between states and international organizations or between international organizations. International organizations are able to make treaties however, as subjects of international law. Those treaties are just covered by another convention that looks almost exactly like the Vienna Convention.

• Scope: Only applies to written treaties.

• Most provisions are now generally viewed as reflecting customary international law, and are thus binding on non-parties.

Various names of Treaties

Convention Used for formal, multilateral-treaty open for participation by international community as a whole.

Charter Formal and solemn instruments such as the constituent treaty of an international organization

Protocol Less formal than a treaty or constitution, guidelines or set of rules which supplements a treaty.

Declaration Not always legally binding, reflects customary international law.

Memorandum of understanding v. Agreement Set of operational agreements.

Modus Vivendi Informal instruments which record an international agreement of a temporary in nature

Pacts

Characteristics to make it binding:

1. Commitment was very specific

2. There was a clear intent to be bound

SS Wimbledon case. ICJ UK.France.Japan.Italy.Poland Versus Germany

• An English ship chartered by a French company was stopped in a canal by Germany. German authorities stated that they were neutral in war (russo polish war) and hence could not allow.The passage of the ship. 

• But Germany signed the Treaty of Versailles article 380 treaty of Versailles was to be followed by Germany which provides for free and open access to the vessels of commerce and of war of all nations at peace with Germany on terms of entire equality.

• Held by icj , that canal ceased to be in German control by the virtue of Treaty of Versailles, and hence Germany had definite duty to allow the passage of the ship. 

• Treaty surpasses. 

Functions of Treaties

a. Sources of international law

b. Charter of international organizations

c. Used to transfer territory, regulate commercial relations,  settle disputes,  protect human rights,  guarantee investments.

▪ Create norms which are basis of international law

▪ Foster collaboration (universal and regional in scope)

▪ Create shared expectations and contractual agreement

Different Kinds of Treaties

Multilateral Treaties	Open to all states of the world; Create the norms. which is the basis for a general rule of law? Can either be Codification Treaties or ―Law Making Treaties, or both
Treaties that create. Collaborative Mechanism	Operate through the organs of the different states. 1. Universal scope 2. Regional
Bilateral Treaties	In the nature of contractual agreements which create shared expectations such as trade agreements of various forms; ―Contract Treaties‖

The Making of Treaties

1 Appointment of representatives by the contracting states.

2. Negotiations and adoptions. Generally when there are two countries involved. And then the consent of both of them will be there, but if there are a large number of. Countries involved in it's a multilateral treaty then pulls her majority is considered. 

3. Signatures. Which signifies the ascent of the representatives that they have. Agreed to the treaty. Signature does not mean that the Treaty has the binding force in all cases, as each and every country has its own procedure by the way of which they bring into force treaties or accept the treaties or.Incorporate them into their municipal law. For example, if you US it's automatically enforced, but in case of UK they have to incorporate. The treaty into their Municipal law. 

4.Ratification. Uk

5. Accession or adhesion If a number of countries have signed the Treaty in, some other countries also want to .Be part of the Treaty, then they. Enter into those treaties by the way of accession.

7. Notification given by one state to another 

6. entry into force. Can either be on the signature state or the ratification state. It is specifically depends upon the country or the Treaty. 

7. registration or publication Registration and publication of a treaty as such is not necessary. But it becomes vital, if you want it to be enforced/invokes by UN organs, for it has to be registered and published by the UN Secretary general. 

Ratification

• Article 2(1)(B). ratification is an international act whereby the state establishes on the international plane its consent to be bound by a treaty.

• The rights and obligation of treaties are applicable from the date of ratification and not the date of signatures.

• The state must avoid doing anything which defeats the object of the treaty between the period of signing and ratification.

• Ratification of treaties does not have retrospective effect.

• Rectification is an internal matter governed by internal rules.

• In India, ratification is done by the President on the advice of the Central Cabinet of Ministers.

States are neither bound to ratify a treaty nor give an explanation about it.

• The UN Charter gives the Security Council power to exert pressure against a state for ratification of a treaty which is related to maintenance of international peace and security.

Reservations—

• Accepting a treaty, but with exclusions or modification in certain parts of utilities called accepting a treaty with reservations.

• Reservations are allowed or prohibited by the Treaty itself.

• If a treaty is silent about reservations, then reservations can be made as long as it is not against the object and the purpose of the Treaty.

• If a state objects to reservation made by another state, then the Treaty would not operate between the objecting state and the state which made the reservation. 

1. Negotiation –

•  head of state through authorized representatives

•  An instrument which records the proceedings of a diplomatic  conference and reproduction of the treaties, conventions, recommendations

• Deliberation of the terms and conditions of contents, offer and counter-offer

2. Power to negotiate

3. Authentication of texT—signing of the document; so that states will know the contents & avoid misunderstanding

4. Consent to be bound:

a. Signature                                  e. Approval

b. Exchange of Instruments         f. Accession

c. Ratification                               g. Other means if so agreed

d. Acceptance

5. Accession to a treaty—states which did not participate in the initial negotiation may express their consent to be bound

 

 Application of treaties

PACTA SUNT SERVANTA— legal term literal meaning agreements must be kept. Anzilotti

Means.States are bound to fulfill in good faith the obligations assumed by them. Under treaties.

.

Article 26 of the Vienna Convention on Law of Treaty says.

  “States are bound to fulfill in good faith the obligations assumed by them under treaties”.. 

Article 27 of the VCLT strengthens the rule of pacta sunt servanda by saying that.

“No party to the treaty might attempt to justify its failure to perform any international treaty or obligations by invocation of its internal law. “

 It is binding upon each party in respect of its entire territory unless a different intention appears in the treaty or is otherwise established.

Exceptions to pacta sunt servanda:-

1. When a new state is created. Or comes into existence as a result of a revolt.

2. Treaty obligations which are related to. The parts or territories which are ceded or merged to other states.

3. Clausula Rebus sic stantibus. Inapplicability of treaty or contract due to fundamental change of circumstances mentioned in Article 62 of the VCLT.  misused very much

Application on a third party (Pacta Tertiis nec nocent nec prosunt)

• Treaties Neither obligate nor benefit the third parties.

• A treaty binds the parties and only the parties. It does not create obligations for a third state.

Exceptions

• The third party accepts obligation via a collateral agreement In writing. Article 35.

• Right For third states can be created Article 36.

 Interpretation of Treaties​ (Articles 31-33, Section 3, VCLT)

a. Objective approach—interpretation according to the ordinary meaning of the words 31

b. Teleological approach—interpretation according to the telos or purpose of the treaty 32

c. Subjective approach—honors special meaning given by the parties 33

Invalidity of Treaties (ART 47-53)

1. Lack of power or authority of the representative. Article 47.

2.  Error—relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed Article 48.

3.  Fraud—State has been induced to conclude a treaty Article. 49.

4.  Corruption of a Representative of a State article 50

5. Coercion of a Representative of a State Article 51

6. Coercion of a State by the threat or use of force Article 52.52. Non-economic or political concern. Coercion. 

7.  Violation of jus cogens—treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.

JUS COGENS (Article 53)

1. Certain peremptory norms are to be followed by all states.

2. Higher principles not subject to state practice. In the international law.

3. Absolute in nature.

4. No exception to Jess Cogens.

5. Jus cogens principles uphold human rights and dignities.

6. Example. Nations make treaties among themselves To govern relations among themselves. Jus cogens doesn't allow that. Treaties can't mess with Jess Cogens. Only other jus cogens Principle Can change existing jus cogens.

7. Crimes against humanity. Genocide. 

8. Article 53 treaties conflicting with peremptory norms of general international law.(Jus cogens).

A treaty is void if, at its time of its conclusion, it conflicts with the 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 international community of states as a whole.As a norm for which there is no derogation from permitted and which can be modified only by subsequent norm of general international law having the same character.

9. Article 64. Emergence of new peremptory norm of general international law(.Jus cogens.) 

If a new peremptory law of General international law emerges, any existing treaty which is in conflict with that norm becomes void and is terminated. 

Amendment and Modification of Treaties

Amendment—formal revision done with the participation, at least in its initial stage, by all the parties to the treaty

Modification—involves only some parties.

Termination of Treaties

• By consent of parties. Article 54(B) 

• By denunciation or withdrawal of a party, Article 56.

• By concluding another treaty, Article 59. 

• By material breach, Article 60.

• Impossibility of performance Article 61.

• According to provisions of a treaty.

• Outbreak of war. 

• Jus cogens. Article 64

• Rebus sic stantibus, article 62. Fundamental change of circumstances. 

• Severance of diplomatic or consular relations, Article 63. 

1. Material Breach

a. Repudiation of the treaty not sanctioned by the present Convention.

b. Violation of a provision essential to the accomplishment of the object or purpose of the treaty

2. Supervening Impossibility of Performance

 Results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty

REBUS SIC STANTIBUS

A contracting State’s obligation under a treaty terminates when a vital or fundamental change or

circumstances occur, thus allowing the State to unilaterally withdraw from a treaty. (Art. 62, VCLT)

Requisites of ​Rebus Sic Stantibus

1. Change must be so substantial

2. Change must have been unforeseen or unforeseeable at the time of perfection of treaty

3. Change must not have been caused by party invoking it

4. Doctrine must be invoked within reasonable time and which duration of treaty be definite

5. Doctrine cannot operate retroactively

Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) (ICJ, 1972): India tells Pakistan its terminating treaty b/c Pakistan violated it. Then India brings Pakistan to ICJ using treaty’s jurisdictional provisions

1. ICJ: Unilateral termination doesn’t get rid of jurisdictional obligation

Advisory Opinion on Namibia (ICJ, 1971): G.A. terminated South Africa’s mandate over Namibia (SW Africa) b/c it introduced apartheid there. This didn’t end South African control, so the S.C. affirmed G.A. S.C. asked ICJ to clarify legal consequences. Answer:

1. South Africa is under obligation to withdraw immediately. U.N. and non-U.N. members alike shouldn’t aid South Africa.

2. Mandates have the characteristics of treaties under international law.

3. Just b/c League of Nations Covenant was silent on terminating mandates doesn’t mean such power doesn’t exists. It’s inherent in the mandate system.

4. Mandate-holder’s consent to revocation is not required.

Fisheries Jurisdiction Case(UK Vs Iceland) ICJ Mediator:

UK and Iceland signed a.Fishing treaty.Which granted Iceland.Nautical territory to 12 miles from coastline.This treaty was called the Fishing Treaty 1961.Later on.Iceland.Withdraw from the 1961 treaty.Inside that the nautical territory.Of Island will extend to 50 miles.The Treaty of 1961 contained a clause which mentioned that all the disputes would go to ICJ and hence ICJ.Was to judge over this case. 

Iceland argued that due to change of circumstances, they were doing this.The change of circumstances so referred to by Iceland was that.The set 12 nautical miles.Zone was undergoing a depletion of fishes which was detrimental to the Iceland's economic well-being and ecosystem. 

ICJ HELD changes of circumstances which must be regarded as fundamental or vital are those which imperil the existence or vital development of one of the parties.

 Change in circumstance alleged by Iceland cannot be said to have transformed radically the extent of the jurisdictional obligation.

Danube Dam Case: 

In 1977, Hungary and Czechoslovakia signed a treaty to construct the dam. 

In 1989, Hungary abandoned the project, but Czechoslovakia continued construction work.

 In 1992, Hungary notified Czechoslovakia that it was terminating.Treaty five months later, Czechoslovakia diverted the rivers waters into a bypass canal, which caused environmental harm. 

In January 1993, Slovakia became an independent country. 

Hungary claimed for Czechoslovakia's unilateral construction activities constituted a material breach .And that the treaty became impossible to perform because implementing it would cause serious environmental harm. 

. 

Impossibility of performance may not be invoked when it results from that party’s own breach.(Hungary at fault)

Changes of political nature, reduced economic viability of the project, and progress of environmental knowledge and international environment law are not of such nature that would radically transform obligations. 

Violation of other treaty rules or of general international law may justify taking certain measures but not constitute a ground for termination. Czechoslovakia did not act unlawfully when it constructed works

Procedure for the Termination of Treaties

Procedure of Termination: Article 65

A party invoking any of the grounds for termination must notify all the parties: (1)

• The notification must be in writing:Article 67(1)

If after the expiry of the period, which shall not be less than three months after the receipt of the notification, no State objects, then the termination may be carried out 

• Must be carried out through an instrument signed by an authorized representative:Article 67

• If a State objects, resort to Art. 33 of the UN Charter is necessary:

• What Art. 33 requires that States settle their dispute through negotiation, mediation, arbitration, and other peaceful means.

•  If no solution has been reached after 12 months following the date of the objection:

✓Any one of the parties may submit it to the ICJ for a decision unless the parties agree to submit to

arbitration

✓Any one of the parties may set in motion the procedure laid down in the Convention by submitting a

request to the Secretary- General of the United Nations.

Authority to Terminate

Belongs to the one who has authority to enter into the treaty 

Succession to Treaties

Clean Slate Rule: (TABULA RASA) newly independent state is not bound to maintain in force or to become a party to any treaty by reason only of the fact that at the date of the succession of states, the treaty was in force in respect of the territory to which the succession of state relates