TREATIES

Definitions and meaning:

Prof. Oppenheim – "International Treaties are agreements of a contractual character

between States or organisations of States creating legal right and duties."

Prof. Schwarzenberger – “Treaties are agreements between subjects of International

Law creating a binding obligation in International Law.”

Article 2(1)(a) of the Vienna Convention on the Law of Treaties, 1969 – Treaty is "an
agreement Concluded between States in written form and governed by international
law”

The Vienna Convention came into force on January 27, 1980. As of April 2014, 114
Countries have become parties to the Vienna Convention on the Law of Treaties,
1969. Even those that have not signed need to recognise it as binding upon them
inasmuch as it is a restatement of customary law.
Subsequently, Vienna Convention on the Law of Treaties between States and
International Organisations or between International Organisations was concluded
on 21st March, 1986. Article 6 of this convention provides that the capacity of an
international organisation to conclude treaties is governed by the rules of that
organisation.

Basis of the binding force of International Treaties – Pacta Sunt

Servanda

In the view of Italian Jurist Anziliott, Pacta sunt Servanda is the basis of the binding
force of international law. This principle means that states are bound to fulfil in good
faith the obligations assumed by them under agreements. According to Prof.
Oppenheim, " treaties are legally binding because there exists a customary rule of
international law, that treaties are legally binding because there exists a customary
rule of international law, that treaties are binding. The binding effect of that rule
rests in the last resort on the fundamental assumption which is neither consensual
nor necessarily legal of the objectively binding force of international law". This
assumption is frequently expressed by the norm or principle, 'Pacta Sunt Servanda'.
In the dissenting opinion in the 1958 case concerning the application of the
convention of 1902 to governing the guardianship of infants (Netherland v. Sweden),
the judge referred the rule as " a time honoured and basic principle".
In its advisory opinion in 1922 on the Designation of Workers Delegation in the
International Labour Conference, the Permanent Court of International Justice
emphasised that the contractual obligation was not merely "moral obligation" but
was "an obligation by which, in law, the parties are bound to another".
In the words of Edward Collins "perhaps the most fundamental principle of
international law and surely the basic principle of treaties is that of pacta sunt
servanda

Various Modes by which a State may express its consent to be bound by a

treaty

The consent of a state to be bound by a treaty may be expressed by:

a) Signature,

b) By an Exchange of instruments constituting a treaty.

c) By Ratification, acceptance or approval,

d) By Accession,

e) By any other means if so agreed.

Various Stages of formation of the treaties:

According to Starke the various Stages of formation of the treaties are as follows –

1) Accrediting of Representatives:
The first step in formation of the Treaty is the accrediting of person on behalf of the
contracting parties. States authorise some representatives to represent them for
negotiations, adoption, signature, etc of the Treaty. Unless these representatives are
accredited or authorised, they cannot participate in the conference.
2) Negotiation and adoption
The accredited persons of contracting parties enter into negotiations for adopting the
Treaty. After the matters are settled, the Treaty is 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. The authorised representatives of the
state parties signed the Treaty on behalf of their states. The Treaty does not become
binding until it is ratified by the respective state. 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.

When there are no full powers, conferred on the representatives when the parties are
representatives in absence of Pleni Potentials then such treaties are negotiated by the
representatives by their signature subject to ratification. When they have limited
power then treaty can be reserved for ratification by the state Pleni Potentials. It is
the basic term stipulated in the credentials itself. Thus, ratification is a sort of
confirmation by Pleni Potentials or Head of the states. The Head of State may ratify
the Treaty contract made by their representative on their behalf. Pleni Potentials may
ratify or refuse the treaty contract, but generally, ratification is the rule and refusal is
an exception.
Ratification of a Treaty may withhold on the following grounds
 If the representative or plenipotentiary has exceeded his powers;
 If any deceit as to matters of fact has been practiced upon him
 If the performance of treaty obligations becomes impossible
 If there has not been consensus ad idem (meeting of mind) e.g. there
has not been agreed as to the same thing
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. To the
same effect are the provisions in the United Nations Charter.

Article 102 of the Charter reads:

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. No party to any such treaty or
international agreement which has not been registered in accordance with the
provisions of paragraph 1 of this Article may invoke that treaty or agreement before
any organ of the United Nations.

8) Incorporation of 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.
Ratification of a treaty:

In the words of Starke, " the ratification is the approval by the head of the state or the
government of signature appended to the treaty by the duly appointed
plenipotentiary". According to Article II of the Vienna Convention on the Law of
Treaties, 1969, "ratification is the international act... ......... whereby a state
establishes on the international plain its consent to be bound by a treaty."

Ordinarily a treaty comes into force when it has been ratified by the prescribed
number of states. However, it would be wrong to say that a treaty can never come
into force unless and until it has been ratified by the prescribed number of states. A
state under certain circumstances may be bound by a treaty even though it has not
ratified it. Much depends upon the intention of the parties. According to Article 14 of
the Vienna Convention on the Law of Treaties, 1969, a state becomes bound by a
treaty when it ratifies it positively or it becomes bound by the treaty under the
following circumstances:

(1) When there is a provision in the treaty to that effect;

(2) When the parties express the view that the ratification is necessary. In such
case treaty becomes enforceable as law only after the ratification.

(3) When the treaty is signed under the condition that ratification is necessary; or

(4) When the intention of the ratification is evident from the circumstances and
talks during negotiations.

Consequences of Non-Ratification of a Treaty:

If a treaty is to come into force only after ratification and state does not ratify it then
such a state will not be bound by the treaty without ratification. However, as pointed
out earlier whether a treaty is to come into force after ratification or without
ratification depends upon the intention of the parties. The practice of the state,
however, shows that they do not regard themselves bound by a treaty unless and
until they ratify it.
Termination of Treaties
(The process for terminating or invalidating a treaty has been stipulated in the
Vienna Convention under Articles 65-68)

1. By Consent of Parties
A treaty may be terminated at any time by the consent of all the parties after
consultation with the other contracting States. It is provided under Article
54(b) of the Convention.

2. By denunciation
Many treaties are concluded for a specific period of years or until a particular
date or event. In such cases the Treaty comes to an end automatically upon the
expiry of the period or the passing of the date or the occurrence of the event
prescribed in the Treaty. However, in those treaties where such an expression
is not laid down, a party may terminate the treaty by denunciation. Some
treaties provide for the denunciation, and therefore denunciation takes place
in accordance with the provisions of the treaty. In those treaties where
denunciation is not provided, a treaty may denunciate in accordance with
Article 56 of the Vienna Convention which lays down that if a treaty does not
provide for termination, denunciation or withdrawal, it cannot be denounced
unless the ‘parties intended to admit the possibility of denunciation or
withdrawal’ or it is ‘implied by the nature of the treaty’.

3. By concluding another Treaty:

Article 59(1) of the Vienna Convention lays down that ‘a treaty shall be
considered as termination if all the parties to it conclude a later treaty relating
to the same subject-matter’. An earlier treaty shall be considered as
terminated if it appears from the subsequent treaties that the parties intended
that the matter should be governed by the subsequent treaty. The parties may
intend to supplement the earlier treaty or to revise it or they may intend that
the subsequent treaty should replace it completely.

4. By material breach:
Treaties may be breached by a party on a number of ground such as national
material interest, either defensive for security or offensive for power and the
internal political interest of the rulers. Breach of a bilateral treaty by one of
 the parties does not ipso facto put an end to the treaty, but only entitles the
other party to invoke the breach as a ground for terminating the treaty or
suspending its operation. However, where the breach is material breach or
breach of an essential provision of a treaty takes place by one party, it gives
right to the other party to abrogate the treaty. Article 60 of the Vienna
Convention also provides that a material breach of a bilateral treaty by one of
the parties entitles the other party to invoke the breach as a ground for
terminating the treaty.

5. Impossibility of performance:
Article 61 of the Vienna Convention provides for termination of the Treaty on
the ground of impossibility of performance. Treaty may be terminated by
reason of events or developments occurring outside the Treaty subsequent to
its conclusion, if the events or development makes the performance of the
treaty impossible. The permanent destruction or disappearance of a party is
ground for automatic dissolution of a treaty in case succession does not take
place. Where the impossibility of performance is temporary, or the
permanency of which is doubtful, the treaty may only be suspended is invoked
by a party.

6. According to provisions of the Treaty:

A Treaty may be terminated in conformity with the provisions of the Treaty.
For instance, if a Treaty has been concluded for a fixed period, it comes to an
end after the expiry of that period. If a Treaty has been concluded for a
particular object, it comes to an end after the fulfilment of the object. Article
54(a) of the Vienna Convention provides for termination of a Treaty in
conformity with the provisions of the Treaty.

7. By emergence of Jus Cogens:

A Treaty may be terminated if a new peremptory norm of general
International law has emerged and the existing treaty is in conflict with that
norm. Article 64 of the Vienna Convention.

8. By Fundamental Change of Circumstances:

Article 62 of the Vienna Convention laid down that the occurrence of the
fundamental change in the circumstances, i.e, rebus sic stantibus may
terminate a treaty.