Public International Law CA 2

CA2 Answer sheet Submission

Submitted By Submitted To

Naman Jain – 1625 Mr. Shashank Shekhar

V Semester Faculty of Law

BBA LLB Public International Law

Question 1. The Vienna Convention on the Law of Treaties(VCLT) lays down that ‘every
State possesses capacity to conclude treaties’. Treaty making is an elaborate process
involving many steps which ensures transparency, meaningful participation and
deliberation. Explain the steps involved in treaty formation as provided in VCLT.

Answer:

Treaties may be made or concluded by the States in any manner they want. There is no
prescribed form and procedure and how a treaty is to be formulated and by whom it is actually be
signed will always depend upon the intention and agreement of the States concerned.

Nevertheless, there are certain rules that apply in the formation of international treaties. Part II,
Section 6 to 25 of Vienna Convention on the Law of Treaties, 1969 (herein after referred as
Vienna Convention), specifically deals with conclusion and entry into force of Treaties. The
following are the various steps / requirements usually followed in concluding treaties.

1. Accrediting of persons who conduct negotiations on behalf of state.

2. Negotiation and adoption.
3. Authentication, signature and exchange of instruments.
4. Ratifications.
5. Accession
6. Entry into force.
7. Registration and publication
8. Application and Enforcement

1. ACCREDITING OF PERSONS WHO CONDUCT NEGOTIATIONS ON BEHALF OF STATE

It is important that persons who represent the state should possess necessary ‘authority’ to
conclude treaties. In practice representatives of a state are provided with a very formal
instrument given either by the head of state or by minister of foreign affairs. This instrument is
called the Full Powers. Each of the State Conducting negotiation appoints a representative or
plenipotentiary for this purpose. He is provided with an instrument given by the Minister for
Foreign Affairs showing his authority to conduct such negotiations, which is known as the full
power.
2. NEGOTIATION AND ADOPTION
There are proposals as to negotiation. In our commercial transaction, there is a bargain there are
proposals and counter proposals. Ultimately leading towards the concluded Contract. If the
proposal is accepted, then it is said to be a draft treaty. In draft treaties, the Conclusion of
discussions is put together in the precise statement and reduced into writing the Commonly
agreed terms in various proposals. It is a premature stage of the final draft. Finally the changes
are incorporated and the treaty is adopted. For adoption 2-3 rd of the majority is required. That
means, 2/3rd states sign to the treaty and it is considered adopted.

3. SIGNATURE
When the final draft of a treaty is drawn up, the instrument is ready for signature. The signature
is affixed at a formal closing session. A treaty generally comes into force on signature by
plenipotentiaries of the Contracting States unless the States desire to subject it to ratification.
Treaties and conventions are generally always sealed.

4. RATIFICATION
It is an act of adopting an international treaty by the parties thereto. In other words, ratification
implies the confirmation of the treaty entered into by the representatives of the different states.
States may be bound by the treaties only when they have given their consent. There are number
of ways in which a State may express its consent to a treaty. It may be given either by signature,
exchange of instruments, ratification or accession.

5. ACCESSION AND ADHESION

A third state can become a party to an already existing treaty by means of accession. Accession
and Adhesion is a consequential part of the treaty. Accession is a process when a non-party state
joins the already concluded treaties. They are not the original members of such treaty. Adhesion
is a process when a non-party State accepts the terms and conditions of the already concluded
treaty.
 6. ENTRY INTO FORCE:
There can be a specific provision in a treaty as to the effective date or date of application of the
treaty. It can be by signing process or by ratification. If the treaties are signed by the
Plenipotentiary then it will come into force. Multilateral treaties come into operation on the
deposit of a prescribed member of ratifications and accessions.

7. REGISTRATION AND PUBLICATION :

After the treaty has been so ratified, it has to be registered at the headquarters of the international
organization. According to Article 18 of the Covenant of the League, every treaty or
international engagement should be registered with the Secretariat of the League and published
by it as soon as possible. No such treaty or international engagement was binding on any state
until it was so registered. This means that in case of any dispute, the treaty could not be relied
upon if it was not registered.

8. INCORPORATION OF TREATY INTO STATE LAW:

Incorporation of the treaty into State Law: The final stage of the treaty is actual incorporation in
the multiple law of the Contracting State where such incorporation is necessary in order to
assume a binding character.
Question 2. The Republic of Athaga is an island country in South East Asia and is a
Parliamentary Democracy having common law origins. It has a senate and house of
representatives constituted and functioning in a similar way to Lok Sabha and Rajya
Sabha respectively. Athaga’s Constitution also known for its entrenched fundamental
rights. Recently the Foreign Minister of Athaga Dr. Ramadhir Singh was in Hague for
deliberations on “International Convention on Right to Privacy” on behalf of the President.
The Convention was successfully negotiated and signed by 130 states including Athaga on
22/9/20. The convention was to come into force on the day the 40th state had ratified it. Dr.
Ramadhir Singh ratified the Convention on 23/9/20. However, the secrct service of Athaga
informed the President that the foreign minister was in fact coerced personally to sign the
Convention. Dr. Ramadhir later confessed the same. There was a meeting of the cabinet on
this issue but no decision was taken. The convention came into force on 27/12/20.
Meanwhile the action of the Government was criticized by the opposition. Mr. Boman
Sodabottleopnerwala, leader of the opposition cited the Constituion of Athaga Article
6(66), which reads “the president or his representative shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators
present concur” The argument of the opposition is that President/Foreign Minister without
Senate could not have ratified the treaty. However, the opposition is aware of the fact that
for past 50 years treaties have been ratified by the President or Foreign Minister only
without any issue being raised. The government’s argument is that this practice is the norm
which has been followed for a long time. The criticism dissipated soon. On 2 nd October
2024 Athaga invoked invalidation of the treaty citing coercion of representative. In the light
of answer the following citing relevant provisions:-
1) Does the foreign minister in this case had authority to ratify the treaty?
2) What is the available recourse for Athaga?
3) Can the Convention said to be binding on Athaga?

Answer:
1) Does the foreign minister in this case had authority to ratify the treaty?

The foreign minister had the authority to make the treaty

1. The prior information regarding the inability of Ramadhir Singh(Representative) was
provided to the other negotiating parties had not been given in this case under Article 47 of the
VCLT.
Article 47 of the Vienna Convention on the law states that if the authority of the representative to
express the intention to be bound by the treaty is subject to any particular restriction then the
state cannot invoke that restriction as the ground of invalidating the treaty if the information
regarding this restriction had been provided to other states.
In the given case the authority of Dr Ramadhir Singh, was considered to be binding as far as
other states or negotiating parties is concerned considering the prior practice of Athaga because it
had in past accepted all the treaties signed by its representative. No prior information was given
to any negotiating party regarding the inability of the representative to enter into treaties. Hence
the foreign Minister shall be assumed to have the authority to enter into the treaty as far as
international law even after the presence of Article 6(66) which restricts the power of
representative to enter into treaties.
2. Article 46 regarding the Manifest violation of Rule of Fundamental Importance does not
apply in the given case.
Article 27 states the general rule that a party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.
All rules governing the competence of the State’s representative to conclude treaties are covered
in internal law. It doesn’t matter what is its status in the hierarchy of the domestic legal order or
whether such rules are written or unwritten. Hence, not only constitutional law (written and
unwritten), but also acts of parliament and administrative provisions may in principle be
invoked under Art 46, so long as they satisfy the test of “fundamental importance” and their
violation is “manifest”.

The International Court dealt with this question in Cameroon v.

Nigeria, where it had been argued by Nigeria that the Maroua Declaration of 1975 between the
two states was not valid as its constitutional rules had not been complied with. The Court noted
that the Nigerian head of state had signed the Declaration and that a limitation of his capacity
would not be ‘manifest’ unless at least properly publicised. This was especially so since heads of
state are deemed to represent their state for the purpose of performing acts relating to the
conclusion of treaties. The Court also noted that ‘there is no general legal obligation for states to
keep themselves informed of legislative and constitutional developments in other states which
are or may become important for the international relations of these states’

2) What is the available recourse for Athaga?

3) Can the Convention said to be binding on Athaga?

Article 52 of the Vienna Convention states that a treaty is void if its conclusion has been
procured by the threat or use of force in violation of the principles of international law embodied
in the Charter of the United Nations.
Art 52 is about force addressed to a State organ (eg the government) or the State’s representative
in his or her official capacity (eg the head of State, foreign minister). Depending on
circumstances, both targets – the individual (Art 51) and the decision maker (Art 52) may be
coincident. In treating consent procured by coercion of the representative as automatically and
absolutely void, Art 51 reaches beyond the aim of simply protecting the freedom of the
represented State. Coercion under Art 51 is considered “a matter of such gravity” that it touches
upon the “international public order” and must hence be sanctioned absolute nullity,
The coercive acts or threats may not necessarily affect the representative directly. Coercion
primarily affecting individuals close to the representative (in particular family members and
dependents) is also covered by Art 51 to the extent that such coercion exerts a compelling effect
on the representative, which is comparable to that of acts and threats against his or her own
person
In the present case as the convention was signed under coercion in personal capacity. Article 51
of the VCLT will be applicable here since Ramadhir singh was coerced in the personal capacity
and therefore it cannot be said to be binding on Athaga.