LECTURE 5: THE LAW OF TREATIES

By ABUBAKAR KOROMA; LL.M, MSc, PhD (Cand.)

E: bakarsenior@gmail.com
YONI CAMPUS - 04/01/2023
1. A recap of last lecture
2. Introduction
3. The Making & Entry into force of Treaties

4. Reservations to Treaties
5. Interpretation & Application
6. Invalidity, Termination and Suspension of the Operation of
Treaties
7. Registration and Supremacy
 IL and domestic law regulate human rights, environmental and
international investment law
 But whilst domestic law deals with aspects of government and
issues between individuals, or between individuals and the state, IL
focuses primarily upon the relations between states.
 Key theories such as Dualism (two laws), Monist (one law),
positivism (consent), and Naturalist (well being and IL supremacy).
 Supremacy of International Law over national law (not invoke
domestic law)- see Art. 27 VCLT, 1969.
 IL in domestic courts i.e IL imposes specific obligations on states
 TODAY’S LECTURE FOCUSES ON THE LAW OF TREATIES
 The Law of Treaties: - What is it about?
THE VIENNA CONVENTION ON THE LAW OF TREATIES, 1969
◦ 23 April 1969 -- opened for Signature by the UN Conference on Law of Treaties (See GA Res. 2166
(XX1) 1966 & 2287 (XXII) 1967.
◦ 27 Jan 1980 – Entered into force
◦ 116 Parties - (as of 03 January 2023)
◦ VCLT applies to treaties between States- Art. 1, VCLT

◦ Vienna Convention of the Law of Treaties between States and International Organizations (1986)

 Not Yet in force – only 33 States have ratified it, but 35 states are required (see
art. 85 (1)) - “The present Convention shall enter into force on the thirtieth day
following the date of deposit of the thirty-fifth instrument of ratification or accession by
State…”
Vienna Convention on the Law of Treaties (1969):

- - Formation of Treaties
- - Interpretation of Treaties, and
- - Termination of International Treaties
- - Codification of Customary International Law (Majority of
rules)
Art. 2 (1) (a) VCLT 1969:
 “treaty” means 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;
 VCLT IS:
◦ Non retroactive – Art. 4 VCLT.
 Applies to treaties that are concluded after its entry into force
 Unless provided otherwise by the treaty itself
 Or parties agreed otherwise

 “Without prejudice to the application of any rules set forth in the present Convention to
which treaties would be subject under international law independently of the
Convention, the Convention applies only to treaties which are concluded by States after
the entry into force of the present Convention with regard to such States” (art. 4, VCLT
1969)
1. Freedom to consent i.e Treaties are based on free consent.
 Freedom of Contract
 Freedom of content
 Irrelevance of name and form

2. Good Faith - Pacta sunt servanda (Art. 26 VCLT):

- “Every treaty in force is binding upon the parties to it and must be
performed by them in good faith”
 Non binding nature of treaties to third parties:
◦ Art. 34 VCLT: A treaty does not create either obligations or rights for a third State without its
consent”
 Obligations for third States:
◦ Art. 35 VCLT: “An obligation 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 obligation
and the third State expressly accepts that obligation in writing.”
◦ Art. 2(6) UN Charter: “The Organization shall ensure that states which are not Members of
the United Nations act in accordance with these Principles so far as may be necessary for
the maintenance of international peace and security.”
Rights for third States:
1. Art. 36 VCLT: Assent of third State is presumed, unless treaty provides otherwise or
indications to the contrary
Non prevention of Rule to become Customary Law
Art. 38 VCLT: Does not “precludes a rule set forth in a treaty from becoming
binding upon a third State as a customary rule of international law…”
1. NEGOTIATION
2. INITIALLING

3. SIGNATURE

4. APPROVAL WITHIN THE STATE

5. RATIFICATION
 Authority to conclude treaties. Who?
◦ See Art. 7 VCLT: - Persons with ‘Full Powers’- such as
 Heads of State; Foreign Ministers; Ambassadors

◦ Heads of diplomatic missions between the accrediting State and the

State to which they are accredited
◦ Representatives to an International Conference, IOs,
 Expression of consent to be bound:

◦ SIGNATURE & RATIFICATION -

◦ But also:
 exchange of instruments constituting a treaty,
 acceptance,
 approval or accession

 See Art. 11 VCLT 1969:

 Signature : Expresses consent to be bound - BUT
- Art. 18 VCLT: Sets an obligation not to defeat object and
purpose
 Ratification:
◦ Step between signature and ratification
◦ Enables State to promulgate necessary legislation or parliamentary approval
 Accession:
◦ Art 15 VCLT : Consent to become a party to a treaty to which it was originally
not able to sign, act as the depositary for ratification
 Acceptance & approval:
◦ Art. 14 (2) VCLT: Consent to be bound by a treaty expressed by ratification,
acceptance or approval
◦ Same rules applicable to ratification apply to acceptance and approval
 NOTE: Ratification, Acceptance and Approval involve two
steps:

1. For multilateral treaties, the deposit of the instrument with the

depositary;
- Usually the UN Secretary-General act as the depositary for
ratification

2. In terms of bilateral treaties, the exchange of the instruments

between parties.
 Amendment & Modification:
◦ Arts. 39 -41 VCLT :
◦ Amendment is the formal alteration of treaty provisions, affecting all the
parties to the particular agreement
◦ ie; bringing a formal changes to the treaty text on the approval of the parties

 But modifications relate to variations of certain treaty terms as

between particular parties only
◦ Provided it is not prohibited by the particular treaty; and
◦ provided it does not affect the rights or obligations other
parties;
◦ incompatible with the object and purpose of the treaty as a
whole
 Art 2, (1)(d) VCLT:
◦ “reservation” means 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 to modify the legal effect of certain provisions of the treaty in their
application to that State;

 Art. 19 VCLT: Reservation is permitted unless:

◦ It is Expressly prohibited in the treaty, or
◦ Incompatible with Object and purposes of the treaty
 Art 20 (5) VCLT: Reservation is regarded as accepted as long as no objection by other
party

 Art. 21 VCLT: Legal effects of reservation is the modification of the reserving party’s treaty
obligation or to
◦ simply to exclude the treaty provision to which the reservation has been made from the terms of
the treaty in force between the parties – (See, ICJ case Law)
 Reservations to Human Rights Treaties:
◦ Reservations offending peremptory norms would not be compatible
with object and purpose.

◦ Human Rights Commission: is the body to decide whether reserve. are

compatible with the object & purpose.
 Interpretation:
◦ Art. 31(1) VCLT: “A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the term of the
treaty in their context and in the light of its object and purpose”
◦ Arts. 31 -33 VCLT
 IL there three forms of Interpretations:
◦ First, focuses on the actual text of the agreement and emphasises the
analysis of the words used - (Objective )
◦ Second, is the intention of the parties adopting the treaty - (subjective
approach)
◦ Third, emphasises the object and purpose of the treaty – (Teleological)
 Under International Law Invalidation, termination, suspension
occurs:
◦ Material Breach
◦ Supervening Impossibility of Performance
◦ Fundamental Change of Circumstances

 But no invalidation because of conflict with national law – Art. 27

VCLT - (see also art. 103 UN Charter)
 Invalidity on two grounds:
◦ Relative grounds (articles 46-50)
 Render a treaty voidable at the insistence of an affected State
◦ Absolute grounds (articles 51-53)
 Renders treaty void and without legal effect
 Consensual Termination
◦ Withdrawal of Member State in conformity with treaty provisions
◦ Termination by lapse of agreed time
 One-sided Termination or Withdrawal on the following
grounds:
◦ Art. 60 VCLT: - material breach of treaty
◦ Art. 61 VCLT: - Impossible of performance
◦ Art. 62 VCLT : -Fundamental change of circumstances
 Registration:
 Art. 102 UN Charter:
“(1) 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.
(2) 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.”
 Supremacy of Treaty Law:
◦ Art. 103 UN Charter:
“In the event of a conflict between the obligations of the Members of the
United Nations under the present Charter and their obligations under
any other international agreement, their obligations under the present
Charter shall prevail.”
 Convention Against Torture – 25 April 2001
 ICCPR – 23 August 1966
 CEDAW -11 Nov 1988
 CERD - -2 Aug/ 1967
 ICESCR – 23 Aug 1996
 CRC - 18 Jun 1990
 CRPD - 04 Oct. 2010
 QUESTIONS ?
 Thank you for your attention.
 United Nations, Vienna Convention on the Law of Treaties, 23
May 1969, United Nations, Treaty Series, vol. 1155, p. 331