<The Law of Treaties>

1. Introduction

International conventional obligations, both bilateral and multilateral, are

all regulated by the same general principles of international law. For the
greater part, these are contained in the Vienna Convention on the Law of
Treaties 1969. Although this treaty did not enter into force until 1980, and
technically applies only between state parties to the agreement, certain
elements represent a codification of the law of treaties, carried out under
the auspices of the International Law Commission. This agreement has
been revised and will ultimately be replaced by the Vienna Convention on
Law of Treaties between States and International Organizations or between
International Organizations 1986.

2. Definition and force of treaties

(1).The Vienna Convention is limited in application to treaties between

states, although this does not preclude principles embodied in the treaty
being applied as customary international law to agreements between non-
state entities such as international organizations. The Convention defines
the term ‘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”. The term is therefore a generic one, which includes
all international agreements, protocols, exchanges of notes, declarations,
etc regardless of designation.
(2).Although the Convention only refers to written agreements, valid
obligations may also be constituted on an oral basis. However, the
Convention promotes the use of written agreements in order to discourage
oral agreements which are more susceptible to misinterpretation. In
practice, unwritten agreements are limited by Art 102 of the UN Charter
which stipulates that “every treaty…entered into by any Member of the
United Nations…shall as soon as possible be registered with the Secretariat
and published by it…(and)…no party to any such treaty…which has not
been registered…may invoke that treaty or agreement before any organ of

1
the United Nations.”
(3). The legal force of treaties is derived from the principle pacta sunt
servanda. This fundamental norm is reiterated in Art 26 of the Convention,
according to which “every treaty in force is binding upon the parties to it
and must be performed by them in good faith.” One aspect of this principle
is that “a party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty (Art 27)”.

3. Capacity and authority to negotiate treaties

(1). Authority to enter into binding legal engagements is a matter for the
internal constitutional foundation of each individual state. At the
international level, a plenipotentiary is either expressly or impliedly
granted full powers from the appropriate national authorities to enter into
binding obligations. Article 6 of the Convention recognizes that all
sovereign states have full capacity and power to conclude treaties, while
7(1) provides that an individual is deemed to possess authority to represent
a state if: a) appropriate full powers are produced; or b) it appears from the
practice of the state concerned or from other circumstances that such a
person is intended to represent a state for this purpose
(2). In addition, according to Article 7(2), a number of individuals are
presumed to have authority to enter into certain obligations without having
to produce full powers. These include: a) heads of state, heads of
government and ministers for foreign affairs, for the purposes of
performing all acts relating to the conclusion of a treaty; b) heads of
diplomatic missions, for the purpose of adopting the text of a treaty
between the accrediting state and the state to which they are accredited; c)
representatives accredited by states to an international conference or to an
international organization or one of its organs, for the purpose of adopting
the text of a treaty in that conference, organization or organ.

4. Consent to be bound by a treaty and ratification

(1). In order to a treaty to be valid, it must be adopted by the free consent of

the contracting parties. Consent may be expressed by signature, exchange
of instruments constituting a treaty, ratification, acceptance, approval or

2
accession, or by any other means if so agreed (Art 11). The important point
is that the means selected to express consent should be recognized and
acknowledged by all the parties. Signature, exchange of instruments or
ratification will be binding if the text provides that these actions are to have
that effect. Equally, signature, exchange or ratification expresses consent if
this has been agreed to elsewhere than in the agreement by the parties.
Where signature, exchange or ratification is made subject to approval or
acceptance, then these actions do not represent consent to be bound.
(2). Article 2 of the Convention defines ratification as “the international
act…whereby a state establishes on the international plane its consent to be
bound by a treaty.” This is generally manifested by the approval from the
head of state or government of the signature of the plenipotentiary. By
ratification a state acknowledges the assumption of international rights and
duties. In procedural terms, ratification involves two stages: the act of the
appropriate organ of state, which is the Crown in the United Kingdom, for
example; and the exchange or deposit of instruments of ratification at the
international level.
Article 24 of the Convention stipulates that a treaty enters into force in
accordance with the terms provided in the treaty, eg at a certain date or
when a certain number of states become parties to the agreement. A treaty
becomes binding on parties subsequently acceding to the agreement at the
moment that consent of the state to be bound by its provisions is expressed.

5. Reservation to treaties

(1).The question of reservations to treaties involves a conflict between two

desirable objectives in international negotiations:
a) the desirability of having near-universal participation in the multilateral
treaty-making processes; and
b) the need to maintain consistency and uniformity in the creation of legal
obligations on a universal basis.
A reservation is defined by Art 2(1)(d) of the Convention as a “unilateral
statement, however phrased or named, made by a state, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports
to exclude or modify the legal effect of certain provisions of the treaty in
their application to that state”.

3
Under traditional international law, a state could not make a reservation to a
treaty unless it was accepted by all the parties signing the agreement. In the
absence of unanimous consent to the reservation, it would be null and void,
and the state would fail to become a party to the treaty. This was the clear
policy of the League of Nations when acting as depository for the
registration of treaties.
(2). Increasing state participation in the process of multilateral treaty-
making rendered this approach impractical and in the Reservation to the
Convention on Genocide Case (1951) ICJ Rep 15, the ICJ enunciated a
compromise series of principles. The Court held that a state making a
reservation to a treaty to which one or more, but not all, of the parties to the
treaty had raised an objection, could be considered a party to the treaty so
long as the reservation was compatible with the ‘the object and purpose of
the treaty’. In relation to (a) states objecting to the reservation; and (b)
those accepting the reservation, the Court laid down the following rules:
a) If a party to the Convention objects to a reservation which it considers to
be incompatible with the object and purpose of the Convention, it can
consider the reserving state not to be a party to the Convention.
b) If, on the other hand, a party accepts the reservation as being compatible
with the object and purpose of the Convention, it can consider the reserving
state to be a party to the Convention.
The Court introduced a new test of ‘compatibility’ which, according to the
Court, was to be applied individually by states on a subjective basis.
(3). On the whole, the Vienna Convention follows the rules laid down in
the Genocide Case. It distinguishes between ‘permissible’ and
‘impermissible’ reservations. Article 19 allows a state to formulate a
reservation when signing, ratifying, accepting, approving or acceding to a
treaty, unless the reservation is ‘impermissible’ which occurs when:
a) The reservation is prohibited by the treaty. An example of this is Art 64
of the European Convention on Human Rights 1950 which specifically
prohibits reservation of a general character;
b) The treaty provides that only specified reservations, which do not
include the reservation in question, may be made; or
c) In cases not falling under sub-paragraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.

4
(4). If a reservation is permissible, Art 20 regulates the occasions on which
a reservation requires acceptance by other parties. Two rules are important.
a) A reservation expressly authorized by a treaty does not require any
subsequent acceptance by other parties unless specifically stipulated; and
b) When it appears from the limited number of parties and the object and
purpose of the treaty that the application of the treaty in its entirety between
all parties is an essential condition of the consent of each one to be bound
by the treaty, a reservation requires acceptance by all the parties.
(5). The effect of a reservation depends on whether it is accepted or
rejected by the other parties in accordance with the rules described above.
The relations between reserving state and other parties to the treaties are
governed by the following rules:
a) Acceptance by another contracting state of a reservation constitutes the
reserving state a party to the treaty in relation to that other state if or when
the treaty is in force for those states;
b) An objection by another contracting state to a reservation does not
preclude the entry into force of the treaty as between the objecting and
reserving states unless a contrary intention is definitely expressed by the
objecting state; and
c) An act expressing a state’s consent to be bound by the treaty and
containing a reservation is effective as soon as at least one other contracting
state has accepted the reservation.
(6). The actual legal obligations of a state making a reservation are
modified in accordance with principles enunciated by Art 21. Where a
permissible reservation has been properly constituted and accepted
according to the rules prescribed, it:
a) modifies for the reserving state in its relations with that other party the
provisions of the treaty to which the reservation relates to the extent of the
reservation; and
b) modifies those provisions to the same extent for that other party in its
relations with the reserving state.
However, the reservation is ineffective in relation to the contractual
relations of other parties to the treaty.

6. Effect of treaties on third parties

5
(1). As a general principle, a treaty does not establish rights or duties for
third parties without consent (Art 34). However, a number of exceptions to
this rule have been established both under the Convention and also in
customary law. These include the following:
a) A duty arises for a third state from a provision of a treaty if the parties to
the treaty intend the provision to be the means of establishing the duty and
the third state has expressly accepted this obligation in writing (Art 35).
b) A right arises for a third state from the provision of a treaty if the parties
to the treaty intend the provision to accord that right either a third state, or a
group of states to which it belongs, or to all states, and the third state
assents thereto. Its assent shall be presumed so long as the contrary is not
indicated, unless the treaty provides otherwise (Art 36).
c) Multilateral treaties declaratory of customary law will apply to non-
parties, although in fact they are not bound by the treaty itself, but rather
the underlying customary principles.
d) Multilateral treaties which are instruments in the creation of new
customary rules may ultimately bind third parties on a customary basis, for
example, the Hague Convention on the Rules of Land Warfare 1907.
e) Certain multilateral conventions which are intended to have near-
universal operation may require application to non-parties. For example,
Art 2(6) of the United Nations Charter provides that the Organization shall
ensure observance of the principles of the Charter by states which are not
members of the United Nations.

7. Validity of treaty obligations

(1). The Vienna Convention is deemed to exhaust all possible criteria on

which the application of a treaty may be discontinued. Article 42 declares
that a treaty may only be terminated under the terms of the Convention
itself. Further, where an agreement is terminated under the Convention’s
rules, this is specifically declared not to relieve a state of duties embodied
in a treaty which either codified or created customary principles of law
which are independently imposed (Art 43).
(2). Where avoidance of a treaty is permitted, it is not usually possible to
divide the provisions of a treaty into applicable and inapplicable provisions.
Consequently the treaty must stand or fall as a whole and cannot be divided

6
into operative and inoperative sections. The main exception to this rule is
that, where the reason for invalidity can be attributed to specific provisions
and not the treaty as a whole, then division may be possible if:
a) the provisions are separable with regard to their application;
b) acceptance of these provisions was not an essential basis for the
procurement of the other party’s consent; and
c) continued performance of the obligations in the remaining section of the
treaty would not be unjust (Art 44(3)).
(3). Under Art 45 of the Convention, if a state party to a treaty has
knowledge of a reason for vitiating an agreement, but either consents to, or
acquiesces in, the continuation of the agreement, then the right to terminate
the treaty on that ground is lost. Under the Convention, a number of
reasons and causes may justify a treaty being declared invalid.
a) Error: Article 48 stipulates that “a state may invoke an error in a treaty as
invalidating its consent to be bound by a treaty if the 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 an essential basis of its consent to be
bound by the treaty”. However, where a state contributed or caused the
error to arise, consent cannot be invalidated.
b) Fraud: If a state has been induced to enter into a treaty by the fraudulent
misrepresentations of another state, the deceived state may invoke the fraud
as a reason for invalidating its consent to be bound by the treaty (Art 49).
This is not thought to be a particularly important principle in actual
practice.
c) Corruption: Expression of a state’s consent to be bound by a treaty
procured by the corruption of its representative during the negotiation
process and directly or indirectly perpetrated by another negotiating state,
allows that state to invoke such corruption, as a justification for
withdrawing its consent to be bound (Art 50).
d) Coercion: Consent on the part of a state to a contractual obligation shall
have no legal effect if it was procured:
i) By the coercion of the representative of the state (Art 51); or
ii) By the threat or use of force in violation of the principles of international
law embodied in the United Nations Charter (Art 52).
e) Jus cogens: A treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law (Art 53). A

7
peremptory norm of general international law is a norm accepted and
recognized by the international community as a whole as a norm from
which no derogation is permitted. Such norms may only be modified by the
creation of a subsequent and equally authoritative norm of general
international law having the same character.
In the Barcelona Traction, Light and Power Co Case (1970) ICJ Rep 3, the
majority judgment of the ICJ drew a distinction between the obligations of
states among themselves and the obligations of states owed to the
international community as a whole. In relation to the latter, the Court
stated:
“Such obligations derive, for example, in contemporary international law,
from the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination.”
This is generally taken to be a statement of the present content of the
concept of jus cogens.

8. Interpretation of treaty obligations

(1). In traditional international law, three methods or techniques have been

suggested as being appropriate for the interpretation of treaties. In summary
these are:
a) the ‘intention of the parties method’ which attempts to give effect to the
obligations intended by the parties at the time of concluding the agreement;
b) the ‘textual’ or ‘ordinary meaning of the word method’ which seeks to
avoid referring to extra-textual elements by restricting analysis to the terms
of the text in the light of the meaning ordinarily attributed to them;
c) the ‘teleological method’ which looks to the objectives of the treaty in
order to construe and apply the terms of the agreement.
For example, the ICJ has been prepared to look to the purposes and objects
of a treaty where the terms of an agreement are not explicit or clear. Thus,
in the Reparations Case (1949) ICJ Rep 174, in which the Court derived
the international legal personality of international organizations, and the
Certain Expenses Case (1962) ICJ Rep 151, where the Court determined
the role of the UN General Assembly in relation to the United Nations
organization, evidence of this approach is obvious.

8
(2). Article 31 of the Vienna Convention adopts a qualified ordinary
meaning approach by declaring that “a treaty 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”.
Although the primary method of interpretation remains the ‘ordinary
meaning method’, the treaty’s object and purpose are not irrelevant.
(3). Article 31(2) emphasizes that the primary source for the interpretation
of a treaty remains the text of the agreement itself, but may also extend to:
a) An agreement between the parties made in connection with the
conclusion of the treaty itself; and
b) Any instrument, ie a letter or declaration, made by parties in connection
with the negotiation and conclusion of the agreement.
c) Subsequent agreements and practice of the parties in relation to the
implementation of the treaty under examination (Art 31(3).
(4).Article 32 of the Convention does not preclude reference to the
preparatory works made in connection with the negotiation of the treaty,
but implies that such documentation may only be referred to as a
‘supplementary means of interpretation’ in order to ‘confirm the meaning
resulting from the application of Article 31, or to determine the meaning of
the treaty when the ordinary meaning method produces an ambiguous or
obscure meaning or leads to a result which is manifestly absurd or
unreasonable.

9. Modification, suspension and termination of treaty obligations

(1). A number of reasons may be advanced to justify the conclusion of an

international agreement. The Vienna Convention identifies a number of
such grounds.
a) Mutual consent: A treaty will terminate where this eventuality is
specifically envisaged in the agreement itself, on the occurrence of certain
conditions or at a certain time.
b) Material breach: Article 60 (1) specifies the applicable rule in relation to
material breach of a bilateral treaty by one party. In such circumstances, the
other party is at liberty to terminate the treaty, either in whole or in part. A
material breach of a multilateral treaty by one party entitles:

9
i) The other parties, by unanimous agreement, to suspend the operation of
the agreement in whole or part or to terminate it either in the relation
between themselves and the defaulting state or among all parties;
ii) A party specially affected by a breach is permitted to invoke it as a
ground for suspending the operation of the agreement in whole or in part in
the relationship between itself and the state in default; and
iii) Any party other than one in default may invoke the breach as a ground
for suspending the agreement in whole or in part with respect to itself
where the treaty is of such a character that a material breach by one party
radically changes the position of every other party to the agreement.
(2). A material breach of a treaty includes a repudiation of treaty or a
violation of a provision essential to the accomplishment of the object or
purpose of the treaty (Art 60(3).
c) Supervening impossibility: Article 61(1) of the Convention permits a
state to terminate or withdraw from an agreement if it has become
impossible to perform as a consequence of ‘the permanent disappearance or
destruction of an object indispensable for the execution of the treaty’.
However, temporary impossibility merely gives rise to suspension of the
obligations of the treaty. A party is precluded from invoking this defense to
non-performance of the agreement where the supervening impossibility has
been brought about by the failure of that party to perform its international
obligations.
d) Fundamental change of circumstances: The concept of rebus sic
stantibus is framed in the negative by the Convention. A fundamental
change of circumstances which was not foreseen by the parties may not be
invoked as a ground for terminating or withdrawing from a treaty unless:
i) The existence of those circumstances constituted an essential basis of the
consent of the parties to be bound by the treaty; and ii) The effect of the
change is radically to transform the extent of obligations still to be
performed under the treaty.
Notwithstanding these rules, a fundamental change of circumstances may
never be relied upon as a ground for terminating a treaty which establishes
a boundary or where the change is a consequence of the actions of a party
in breach of its obligations under the treaty (Art 62(2)).
f) Emergence of a jus cogens: Article 64 of the Convention stipulates that,
where a new peremptory norm of general international law has emerged,

10
any existing conflicting conventional obligations are terminated. Note that
a number of circumstances are specifically precluded from permitting the
termination of an agreement. In particular, according to Art 63, the
severance of diplomatic or consular relations between two states does not
affect the legal relations established between them on the basis of treaties.

11