International Law

Law and Practice as to Treaties

VIENNA CONVENTION ON THE LAW OF TREATIES, 1969

- Treaties are the first and foremost source of International law

- Decision of a court regarding any case is taken based on the provisions of a treaty, if
exists
- An international treaty occupies the same position in International Law as legislation
occupies in the municipal law
- Professor Oppenheim: “international treaties are agreements of a contractual character
between States or organizations of States creating legal rights and duties”
- Professor Shwarzenberger: “Treaties are agreements between subjects of international
law creating a binding obligation in international law”
- Starke: “in nearly all cases, the object of treaty is to impose binding obligations on the
States which are party to it.”

Basis of Binding Force of International Treaties

- Pacta Sunt Servanda: States bound to fulfill treaty obligations in good faith
- Oppenheim gives religious, moral principles, self-restraint as the bases of binding force
of international treaties
- Some contend that it is the will of the contracting parties at foundations of a treaty that
keeps them bound to its provisions
- Most agreed upon answer to this enigma is that because it is a customary rule of
international law to fulfill treaty obligations, the international treaties are considered
inviolable (Oppenheim)
- Professor Hans Wehberg, in his book ‘Pacta Sunt Servanda’, has expressed that the
sanctity of contracts given religious importance and moral significance holds the treaty
sacrosanct
- He also remarked: “no economic relations between States and foreign corporations can
exist without the principle of pacta sunt servanda.”
- Pacta sunt servanda, however, embraces only lawfully concluded treaties

Classification of Treaties

- Professor Oppenheim has classified treaties into two categories:

1. Law-making Treaties
2. Treaties for other purposes

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Parties Competent to Make a Treaty

- Generally, only sovereign States competent to make a treaty

- However, in the changing view of the world, International institutions may also make
treaties
- States or entities that enjoy the position of an international person may conclude
international treaties

Free Consent in Treaties

- Consent procured by coercion or fraud cannot make the contract binding

- Article 51 of the Convention: “expression of a State’s consent to be bound by a treaty
which has been procured by the coercion of its representatives through acts or threats
against him shall be without any legal effect”
- Article 52 of the Convention: “A treaty is void if its conclusion has been procured by the
threat or use of force in violation of the principles of International Law embodied in the
Charter of the United Nations.”

Formation of Treaties

1. Accrediting of persons on behalf of contracting parties

2. Negotiation and adoption
3. Signatures: by the authorized representative
4. Ratification: head of State confirms or approves the signature
5. Accession and Adhesion: States who do not sign the treaty may accept it later on
(accession). States other than those who are party to a treaty may also accept or adhere
to that treaty (adhesion)
6. Entry into force: binds only the parties who have ratified it (pacta treaties nec nocent
nec prosunt)
7. Registration and Publication: as per Article 102 of UN Charter, registration and
publication of every International treaty is essential. It prevents the practice of secret
agreements between States.
8. Application and Enforcement

Ratification of a Treaty

- Head of State or the State Government approves the signatures of its authorized
representative
- Article 2 of the Convention: “Ratification is the international act whereby a State
establishes on the international plain its consent to be bound by a treaty”
- Ratification has no retroactive effect

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- Without ratification, a treaty has no value in law

- Article 14 of the Convention on necessity of ratification when:
i. There is a provision for the same in a treaty
ii. Parties express the view that the ratification is necessary
iii. Treaty is signed under the condition that ratification is necessary
iv. Intention of ratification is evident from circumstances and talks during
negotiations
- Reasons for ratification of a treaty:
i. Opportunity to consider in detail the treaties
ii. Basis of the principle of sovereignty
iii. Sometimes, treaties require some change in State law; allows time
iv. Basis of democratic principles; consent of the Parliament taken
- It must be noted that the signature of an authorized representative on a treaty does not
bind a State Government or a Head of State in an obligation to ratify such treaty
- Ratification is not a must before a treaty could be concluded. In case of non-ratification,
it depends upon the parties as to what happens to the treaty

Reservation

- Article 2(1) of the Convention: “Reservation means a unilateral statement made by a

State when signing, ratifying, accepting, approving, or acceding to a treaty, whereby, it
purports to exclude or modify the legal effects of certain provisions of the treaty in their
application to the State.”
- In bilateral treaties, if either party refuses to accept the reservation, the treaty comes to
an end
- Multilateral treaties, however, present conflicting legal problems

Interpretation of Treaties

1. Grammatical Interpretation
2. Object and Context of the Treaty
3. Reasonable and Consistent
4. Principle of Effectiveness
5. Recourse to Extrinsic Material

The famous jurist Bynkershoek wrote: “The Civil law protects the contracts of individuals; good
faith the contracts of princes. If you destroy good faith, you destroy the mutual intercourse of
princes and destroy even international law itself.”

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International Law

Termination of Treaties

1. By Operation of Law
a. Extinction of either party to a bilateral treaty
b. Outbreak of war
c. A material breach of bilateral treaty
d. Impossibility of performance
e. Rebus sic stantibus: change of fundamental circumstances under which treaty
was entered into
f. Expiration of fixed term
g. Successive Denunciation
h. Jus Cogens
2. By act of the State parties

Pacta Terties Nec Nocent Nec Prosunt

- Only parties to a contract are bound by the contract

- Exception to this principle is given in Article 34 to 38 of the Convention, whereby other
States may also be bound by a treaty:
i. Treaties concerning the rights of third parties
ii. Multilateral treaties which declare international customary law
iii. Treaties which make new rules of International Law
iv. Treaties having universal application
v. Treaties imposing obligations on third parties, and the third party accepts the
obligation

Conclusion

- The revision of treaties is neither exception nor in contradiction with the norm of pacta
sunt servanda
- Rebus sic stantibus must be clearly defined
- Article 62)1) of the Convention allows invocation of rebus sic stantibus only when
changed circumstances constitute an essential basis and if the effect of change is
radically to transform the extent of obligations still to be performed under the treaty

Unequal Treaties

- According to the Soviet view, unequal treaties are those which are entered into
between imperialist powers and colonial and dependent nations; a treaty which
provides that one State has a power to exercise control over another State, permitting

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establishment of foreign military bases, collective security agreements between

capitalist States and economic assistance agreements
- Western States and jurists oppose the concept of unequal treaties
- The Vienna Convention on the Law of Treaties does not contain any provision relating to
unequal treaties

Jus Cogens

- Article 53 of the Convention incorporates: “A treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international law.”
- A norm from which no derogation is permitted
- Article 2 of the UN Charter possess the character of jus cogens
- Article 64 of the Convention: “if a new peremptory norm of general international law
emerges, any existing treaty which is in conflict with that norm becomes void and
terminates.”
- By codifying the doctrines of jus cogens and rebus sic stantibus, the Convention provides
a framework for dealing with change in an orderly fashion. By reasserting the principles
of pacta sunt servanda, it strengthens the customary rule which has always been the
keystone of the treaty structure

Muhammad Minhaj Mahdi