MOI UNIVERSITY

LLB|5203|21

MOSES MATSEKHE

3RD YEAR 1ST SEM

FLB300 PUBLIC INTERNATIONAL LAW

IS UTOPIA BOUND BY THE AGREEMENT ON THE CONSTRUCTION OF A DAM ON VALDUA

First of all, in my introduction I would like to discuss allitle things about the law of treaties and
hence see if the party states above formed a valid treaty and if Utopia was bound by the
agreement
Any international pact governed by international law and signed by two or more nations or other
parties is referred to as a treaty.1
It is customary to distinguish between treaties that create laws, or treaties that establish principles
applicable to all parties’ multilateral treaties, and treaty contracts, which are agreements between
two governments addressing a specific issue between or exclusively affecting those states
bilateral treaties .2
under article2(1) (A) of the 1969 Vienna convention on the law of treaties treaty is defined 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.3
Treaties can be classified into bilateral and multilateral; treaties. A multilateral treaty is a
treaty involving more than two parties, while a bilateral treaty involves an agreement between
two parties.4 Treaties, whether multilateral or bilateral, are a direct source of rights and
obligations for the parties and are an increasingly important source of international law.5
As a rule, diplomatic channels are used to indicate to the other side one’s desire and/or
willingness to negotiate with the aim of treaty-making. This implies also law-making, in so far as
the usual goal is a legally binding instrument, that will become a part of IEL.
According to the scope of the problem to be settled and the number of actors (states) involved,
one may distinguish three levels of treaty-making. If there is a problem between two neighboring
countries, e.g. the waters of a common river or lake, or the transboundary impact of accidents in
a nuclear power plant situated near a common border a bilateral treaty Is called upon

1
“Public International Law Notes by Mr.Akang’o.Doc.”
2
“PIL NOTES.Pdf.”
3
“Vienna Convention on the Law of Treaties (1969).”
4
“PUBLIC_INTERNATIONAL_LAW_LECTURE_NOTES.Docx.”
5
“PIL NOTES.Pdf.”
The main aspect of treaties is that they are binding and that any state that breaks the rules should
face the consequences A treaty typically takes effect when all parties agree, although it may also
include a deadline or the minimum number of signatures required.
According to the Pacta Sunt Servanda concept, States or other International Law persons are
bound by treaties that have been duly concluded and come into force. This principle states that
treaty parties are required to uphold and faithfully carry out their responsibilities. (act of good
faith)6
There are some requirements that make a treaty to be binding, and include
Consent
The consent of the state’s parties to the treaty in question is a vital factor.
Treaties are seen in a manner of a contract between states and if they do not receive the consent
of various states their provisions will not be binding upon them.
Consent may be through a way of signature.
A state may regard itself as having given or issued its consent to the4 text of the treaty by
signature and is usually in defined circumstances as stated in article 12.7
Consent by a way of signature is usually a formal affair and in most cases, the head of the state
will formally add his signature.
There is also consent by ratification. Article 14 of the Vienna convention states ratification will
express the consent of a state to be bound by a treaty where the treaty so provides so.8
Once treaties enter into force, and where there is no contrary intention the treaty will not operate
retroactively so that its provisions will not bind a party as regards any facts or suitable before the
state acceptance of the treaty.
Invalidity termination and suspension of the operation of treaties
Article 44 provides that a state may only withdraw from or suspend the operation of a treaty in
respect of the treaty as was whole and not part of it unless the treaty otherwise stipulates or the
parties otherwise agree.9
A ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty
recognized in the present Convention may be invoked only with respect to the whole treaty
except as provided in the following paragraphs or in article 60.
3. If the ground relates solely to particular clauses, it may be invoked only with respect to those
clauses where: (a) the said clauses are separable from the remainder of the treaty with regard to
their application;
6
“Vienna Convention on the Law of Treaties (1969).”
7
“Vienna Convention on the Law of Treaties (1969).”
8
“Vienna Convention on the Law of Treaties (1969).”
9
“Vienna Convention on the Law of Treaties (1969).”
 (b) it appears from the treaty or is otherwise established that acceptance of those clauses was not
an essential basis of the consent of the other party or parties to be bound by the treaty as a whole;
and
(c) continued performance of the remainder of the treaty would not be unjust
Article 46(1) provides that a state may invoke the fact that its consent to be bound by a treaty has
been expressed in violation of a provision of its internal law regarding competence to conclude
treaties as invalidating its consent unless that violation was manifest and concerned a rule of law
of fundamental importance10
Jus cogens
Article 53 of the convention provides that
A treaty is void if at the time of its conclusion it conflicts with a peremptory norm of general
international law.
Hence there are several ways a treaty may be terminated, either by consent or material breach
There is also a factor of fundamental change of circumstance and this is a doctrine of rebus sic
stantibus which provides that where there is a fundamental change of circumstances since the
agreement was concluded party to the agreement may terminate it.11
In this case of the Valdau Dam two states entered into a bilateral treaty for the construction of a
dam on the stretches of the river that separates the two territories.
Consent was reached by both states since an agreement was made and was approved by the
parliament in both states hence the commencement of construction of the dam began.
After the construction had begun at some point one state opted to annul the agreement.
According to my view I think that the two states at the time of creating the agreement met all the
requirements of a treaty and that no state was forced to enter into the treaty. And when a time
comes and there a disagreement and one state opts to annual the agreement am of the view that
the agreement was first of all binding since all the requirements of the formation were met.
According to the Vienna convention on the law of treaties.
1. A treaty enters into force in such manner and upon such date as it may provide or as the
negotiating States may agree.
2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be
bound by the treaty has been established for all the negotiating States.
3. When the consent of a State to be bound by a treaty is established on a date after the treaty
has come into force, the treaty enters into force for that State on that date, unless the treaty
otherwise provides.
10
“Vienna Convention on the Law of Treaties (1969).”
11
“Vienna Convention on the Law of Treaties (1969).”
 4. The provisions of a treaty regulating the authentication of its text, the establishment of the
consent of States to be bound by the treaty, the manner or date of its entry into force,
reservations, the functions of the depositary, and other matters arising necessarily before the
entry into force of the treaty apply from the time of the adoption of its text.
In this case, it’s true that Utopia was bound by the agreement for the construction of the dam,
however, it may opt out of the agreement due to certain circumstances
Article 46 deals with the Provisions of internal law regarding competence to conclude
treaties
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and concerned a rule of its internal law
of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself in the
matter in normal practice and in good faith.
Arte 47 deals with Specific restrictions on authority to express the consent of a State If the
authority of a representative to express the consent of a State to be bound by a particular treaty
has been made subject to a specific restriction, his omission to observe that restriction may not
be invoked as invalidating the consent expressed by him unless the restriction was notified to the
other negotiating States before his expressing such consent.12
Article 48 deals with Error 1. A State may invoke an error in a treaty as invalidating its consent
to be bound by the 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.13
Article 53 deals with 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 present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the international community of States as
a whole 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.
In this respect for the juscogens issue the prime minister of Utopia had argued that the
construction of the dam and in connection to the environmental implications which he says were
severe. We need to also look into the matter of the environmental law dealing with law of
treaties. Jus cogence norms are usually seen in a way of upper customary international law and
hence they protect fundamental values of the international community.
While the ICJ has not yet acknowledged environmental protection as a juscogence nom it did
recognize the importance of environmental protection in the Gabcikovo_Nagmaros case and the

12
“1_1_1969.Pdf.”
13
“Vienna Convention on the Law of Treaties (1969).”
court noted that environmental protection I an essential interest of the state in the sence of article
64 of the Viena convention Law of treaties (emerging juscogence)14
In the Chago case the court noted that
(!)jus cogens norms produce erga omnes obligations however
(2)in few cases erga omnes obligations arise from non_peremptory norms.
The court also noted that the right of self-determination was initially a customary international
law principle which then crystalized as jus cogens norm.
In conclusion I would say that when environment Is affected under this circumstance when the
utopian Times began to publish a series of highly critical articles on environmental and financial
implications on the construction of the dam am of the view that it foresaw the dangers that would
arise out of the destruction of the environment and furthermore the government had stated that
this actions would endanger the life of the green eagle that nested along the Valdau.
Am of the view that although the treaty agreement was at first instance binding upon utopia such
emerging issues of the environment would be sufficient for them to opt out of the treaty
agreement

14
“Vienna Convention on the Law of Treaties (1969).”