UNIVERSITY INSTITUTE OF LEGAL STUDIES

INTERNATIONAL TREATIES: FEATURES AND IMPORTANCE

FROM INTERNATIONAL LAW PERSPECTIVE

SUBMITTED TO :- SUBMITTED BY:-

DR. JASMEET GULATI MAMTA

UILS, PU 2071

CHANDIGARH LL.M. ( 2 yr)

Ist Semester

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 ACKNOWLEDGEMENT

Success is a blend of multiple efforts. The final import of this project is also a result of the sheer
hard work and constant support of many people. I would like to take this opportunity to thank all
of them.

To begin with, I would like to express my humble gratitude to my teacher, Dr. Jasmeet, for her
able guidance and mentoring. The meticulous manner in which she teaches has paid significantly
in the completion of this project.

Secondly, I would like to thank my department, University Institute of Legal Studies, Panjab
University, Chandigarh, for providing such an expansive library which provided me all the
relevant material required for this project.

Last but not the least, I would like to express my profound gratitude to my parents and my
friends who have constantly supported and motivated me throughout this project.

MAMTA

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TABLE OF CONTENTS

Contents

INTERNATIONAL TREATIES.....................................................................................................4
KINDS OF TREATIES...................................................................................................................7
VIENNA CONVENTION ON LAW OF TREATIES, 1969..........................................................8
FORMATION OF A TREATY:-.................................................................................................9
ROLE OF TREATIES IN INTERNATIONAL LAW..............................................................11
INVALIDITY OF TREATIES......................................................................................................12
TERMINATION OF TREATIES:-...............................................................................................13
Conclusion.....................................................................................................................................14
BIBLIOGRAPHY..........................................................................................................................15

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INTERNATIONAL TREATIES
International Treaty is an international agreement in writing between two States (Bilateral treaty)
or a number of States (Multilateral treaty). Vienna Convention on Law of Treaties 1969 Section
2(1) (a) states that “ An agreement concluded between states, in written form and governed by
International law.”

International Treaties which are considered as primary source of International law, are most
important means of creating International rules or standards. These International rules or
standards are supposed to abide by the States and other actors of international community in the
most effective manner .They serve to fulfill an essential need of states by focusing on some
major common concerns of states and tries to maintain a good relation between all the states. All
the states try to maintain a healthy relation with all the other states for the International peace
and security. These International treaties ensure friendly and peaceful relations of states with
one another and helps in achieving this goal of international peace and security. Article 38 (1) of
International Court of Justice statute states that:-

38. The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.1

As 38(1) states that International treaties are an important source of international law
along with customs and general principles.

1
Article 38 of STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

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In simple words, it can be said that Treaty is a formal written agreement. This agreement of
treaty takes place between actors of International law. This is also known as convention, pact,
exchange of letters, protocol, covenant etc. The same term is used at various places but the
purpose is same. With the passage of time, this concept of treaty has gone through various
changes. The history of treaties is very long as in the beginning, the treaties were used to be oral
and both the parties used to make a solemn vow to God. The first treaties known today are
probably those concluded by the rulers of the Hittite empire with their neighbors and vassals in
the fourteenth century BC,2 followed by Hittite treaties with Ramses II, King of Egypt, around
1280–1270 BC.3

Now as the time has changed, the concept of treaty has also changed. Now, the treaty must be
written in nature and is binding upon both the parties or the parties involved. Treaties have been
classified on many basis depending upon the nature like commercial treaties (fisheries and trade
agreements), political treaties ( disarmament treaties) etc.

The codified law on treaties is known with the name of Vienna Convention on the law of
Treaties (VCLT). It was drafted by the International Law Commission of the United Nations. It
became effective from 27 January, 1980 and it set out some comprehensive rules, procedures and
guidelines that how treaties are to be drafted, operated, interpreted etc. The VCLT is divided into
8 parts and 85 Articles. The Preamble of the VCLT itself emphasizes the fundamental role of
treaties in the history of international relations and also focuses on the major role played by
treaties for international peace and security, harmony and friendly relations between the states.

2
See Grewe (1995), pp. 2–17. Examples dating even further back are given by Sulyok (2014)
3
Grewe (1995), pp. 18–23; Harvard Draft 666, citing a treaty of 1272 BC.

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The ICJ had stated in North Continental Shelf Cases that a country who has not signed the treaty
has no obligation to follow its norms.

NORTH CONTINENTAL SHELF CASES4:-

 Denmark and Germany both submitted an individual dispute to the ICJ, which both
claimed the North Sea Continental Shelf. The ICJ later merged these cases as one and
were decided upon as such.
 Denmark and the Netherland decided that the Principle of Equidistance should be
implemented, they also claimed that the Geneva Convention supported this.
 Germany, which did not ratify the Geneva Convention, viewed the previously mentioned
principe to be unfair, and they later argued that the shelf be apportioned, keeping it
proportional to the size of each state’s adjacent land.
 As Germany did not ratify the Geneva Convention, it alongside the Principle of
Equidistance was considered to be non-binding.
 Both the Principle of Equidistance and Germany’s suggestion to apportion the shelf were
rejected and it was decided that the two states must instead come to an amicable
agreement, wherein both area and proportion are maximized.

Article 6 of Geneva Convention stated that unless the parties had already agreed on a method for
delimitation or unless some special circumstances exist, the equidistance method would apply.

THE VIENNA CONVENTION ON THE LAW OF TREATIES 1969 (VLCT) discusses in

more detail treaty obligations of third States (those states who are not parties to the treaty). It
clearly stipulates that obligations arise for third States from a provision of treaty only if:

(1) the actual parties to the treaty intended the provision to create obligation for third States; and

(2) third State expressly accept those obligations in writing(Article 35 of VCLT).The VCLT was
not in force when the Court deliberated on this case. The Court concluded that the equidistance
principle was not binding on Germany by way of treaty or customary international law. In the
case of the latter, the principle had not attained a customary International law status at the time of
the entry into force of the Geneva Convention or thereafter.

4
I.C.J. Reports 1969, p.3

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KINDS OF TREATIES

(1) Law Making Treaties: Law making treaties are those treaties which are conducted
between many states and creates general rules of binding the states. Law making treaties or
conventions are the main source of International law since the basis of all International law is
consent. These are kind of multilateral treaties which generally stand for a common cause. For
eg:- Geneva Convention on Law of sea and Vienna Convention on Diplomatic Relations, 1961
are examples of such a treaty.

(2) Contractual Treaties: By Contractual Treaties means those treaties in which there are
small number of parties involved and also known as Bilateral treaties. Generally, in these
treaties parties are dependent on each other for profits and also plays rights and obligations
towards each other like a barter system. Like a Contract here one party agrees to give other
something it needs and vice versa and the parties involved have to take care of both the statutory
as well as contractual framework.

On the basis of Parties involved:-

(1) Bilateral Treaties:- Treaties involving two parties, entitites or states are known as Bilateral
Treaties. In these type of treaties participation and rights and obligations are limited.

(2) Plurilateral Treaties:- Treaties in which participation is restricted to a limited number of

states are known as Plurilateral States. The minimum number of parties in such treaties should be
more than two and this is generally not open to all members of International community. The
main purpose is to maintain peace, security or to promote and develop commerce. Eg:- North
Atlantic treaty or League of Arab States.

(3) Multilateral Treaties:-These Treaties are open to participation for all the states without
restriction to number of parties. According to Oppenheim, these treaties are the most promising
methods for the development of International Law. These are also known as Law making
treaties. The states who donot ratify these treaties are under no obligation to follow its provision.

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VIENNA CONVENTION ON LAW OF TREATIES, 1969

The VCLT is an international agreement regulating treating between states. This was drafted by
International Law Commission of the United Nations. This is also known as “treaty on treaties”.
VLCT is the only instrument to codify International Laws on treaty. It has been ratified by 116
states as of January 2018. During the twenty years of preparation, several draft versions of the
convention and commentaries were prepared by special rapporteurs of the ILC. James Brierly,
Hersch Lauterpacht, Gerald Fitzmaurice and Humphrey Waldock were four special rapporteurs.
In 1966, the ILC adopted 75 draft articles which formed the basis for the final work. Over two
sessions in 1968 and 1969, the Vienna Conference completed the Convention, which was
adopted on 22 May, 1969 and opened for the signature the following day. The convention
codifies several bedrocks of contemporary International law.

PACTA SUNT SERVANDA This latin term is mentioned under Article 26 of the Convention. By
this term mean Agreements must be kept. This means States are bound to fulfill in good faith the
obligations assumed by them under treaties. Article 27 also states that no party to a treaty might
attempt to justify its failure to perform any of its International treaty obligations by invocation of
its internal law. Exceptions to Pacta Sunt Servanda:

 When a new state comes into existence as a result of revolt.

 Treaty obligations which are related to property ceded or merged.
 Clausula rebus stantibus- Inapplicability of treaty or contract due to fundamental change
of circumstances.(Article 62 of VLCT).

PARTIES TO A TREATY:- State parties and the Third parties are considered as party to a treaty.
A State party is that party who has ratified and signed the treaty. After this the state is legally
bound to follow it and to fulfill all duties , rights and obligations conferred on them in a bona
fide way. Third state is that state or party which is not a party to a treaty. Article 24 also states
that the third party shall be free from all rights and obligations to a treaty but if in case , the third
party gives consent if the parties to a treaty wish to confer rights or obligation upon a third state
then it shall arise for third state. Artcle 36 talks about this.

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FORMATION OF A TREATY:-

(1) Accrediting of Persons by the Contracting States-

- Appointment of a representative who should have the authority to conclude treaty and full
powers given by head state or foreign minister.

Article 2 of Vienna Convention lays down that full powers mean a document emanating from
competent authority of a state designating a person or persons to represent the state for
negotiating, adopting or authenticating the text of a body.

(2) Negotiation and Adoption - During negotiations, they consult their states for discussion.

Article 9(2) of Vienna Convention states that adoption of text or treaty at an international
conference takes place by vote of 2/3rd of states.

(3) Signature - By the accredited representative of the state-

-the text of the treaty is regarded as authentic and definite by signatures.

- it should be done at the same place and time in presence of each other.

- where provisions are made for ratification of a treaty it cannot come into force only by
signatures.

- the treaty is referred to Governments for ratification.

Article 18 of Vienna Convention states that signatory states are under an obligation to refrain
from doing acts which would defeat the object and purpose of treaty.

(4) Ratification- When a treaty is signed by the representative of state confirmed by the state the
act of confirmation is called ratification.

Article 2(1) (b) of Vienna Convention states ratification is an International act whereby a state
establishes its consent to be bound by a treaty.

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(5) Accession and Adhesion- A traditional method by which a state becomes a party to a Treaty
of which it is not a signatory. Right to accede is determined by provisions of the Treaty. If no
provision is provided, a state may accede by consent of all states.

(6) Entry into Force- Article 24 of Vienna Convention states that a treaty enters into force in
such manner and upon such date as agreed by parties. If no such date is mention treaty comes
into force as soon as consent is obtained by all negotiating states.

(7) Registration and Publication:- Treaty is required to be registered with Secretary General
of UN after it has come into force.

RESERVATIONS TO A TREATY:- Accepting a treaty but with exclusion or modifications in

certain parts of the treaty is called accepting the treaty with reservations. Reservations are
allowed or prohibited by treaty itself. If the treaty is silent then reservations can be made as long
as it is not against the object and purpose of the treaty.If the State objects to reservation made by
another state then the treaty would not operate between the objecting states and the state which
made the reservation.

PPACTA TERTIIS NEC NONCENT NEC PROSUNT-

 treaties not obligate 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).
 Rights for third states can be created.(Article 36)

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ROLE OF TREATIES IN INTERNATIONAL LAW

Treaties form the basis of International law that’s why they are considered as an important
source of International Law. It plays an important role in protecting international cooperation,
peace and security and also maintain stability and diplomatic relations between the states.

In earlier times there was no concept of State and there was existence of many sovereigns. When
the world started settling in States then the importance of treaties were realized. Treaties are
known by many other different names but they all denote the same purpose. The terminology
varies but the substance is the same; they all denote a 'merger of wills of two or more
international subjects for the purpose of regulating their interests by international rules'. 5In
modern International law their importance has also increased as they intend to create an
International set of rules which is the duty of states to follow. The importance of treaties in the
following spectrum has been pivotal:-

 The main problem which was faced by the classical theorists of International law was
related with the enforcement. For the enforcement of International law international
institutions or authorities are much needed for bringing in action the enforcement quality.
This major argument has been removed upto some extent by the increasing importance of
treaty making process. The Rome Statute, Statute of ICJ etc have provided much
assistance in enforcement of the rules of International Law.
 Prior to World War 2 , Geneva Conventions played an important role in formulating
humanitarian law significantly emerged in UN Charter and UDHR. One of the major big
achievement of the International treaty is enlarging and institutionalizing the universality
of human rights.
 Treaties create an obligation on the part of the states which can be legal and moral s well.
The classical opinion was that the treaties only bind parties to it but after the 1945 this
perspective changed with time. This has created such positive atmosphere for the states
that they assume obligations on their part created by treaties even though they are not
party to it.
5
Cassese, Antonio, 2001. International Law, Oxford University Press, Oxford. P. 126

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INVALIDITY OF TREATIES

 Lack of proper authority of representative (Article 47)

 Error or mistake in treaty(Article 48)
 Fraud committed by another party ( Article 49)
 Corruption of the representative(Article 50)
 Coercion of a representative(Article 51)
 Coercion of a state- (Article 52) (Not economic or political coercion)

JUS COGENS

Certain principles which all states must observe premptory norms.

Article 53- Treaties conflicting with a peremptory norm of general international law (jus
cogens) A treaty is void if at the time of its conclusion , it conflicts with a peremptory norm of
general International law. For the purpose of present convention a premptory norm of general
International law is a norm accepted and recognized by the International community of States as
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.

Article 64- Emergence of new premptory norm of general International law (jus cogens)

If a new premptory norm of general International law emerges, any existing treaty which is in
conflict with that norm becomes void and terminates.

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 TERMINATION OF TREATIES:-

 By consent of the parties (Article54(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 treaty
 Outbreak of War
 Jus Cogens

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CONCLUSION

Despite the recognized significance of treaties for international peace and security there was no
codified law until 1969. After that, the first comprehensive codification of International treaty
Law was adopted at the Vienna Conference of Law of Treaties after many years of tireless works
of ILC.As compared to the long history of treaties in International relations, the time it actually
took to actually prepare a codification of the International law on treaties is just a blink of an eye.
At the end it can be said that treaties lays down the fundamental principles or rules to govern
treaties.

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BIBLIOGRAPHY

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