LAW OF TREATIES

Prof. Dr. M. Gandhi

Dean, VIT School of Law,
VIT University Chennai Campus
Chennai 600127
 Statute of ICJ on Sources
Article 38

1. 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.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto
 Treaties in General
Treaties are more a direct and formal method
of law creation( through multilateral or
bilateral agreements)
Treaty is basically an agreement between
parties (between states or between states and
international organisations)
Certain Treaties are Law making Treaties (
eg,UN Charter)
 Written and Oral Treaties
The dispute between Denmark and Finland about
the construction by Denmark of a bridge across
the Store Blt (Great Belt), which Finland had
taken to the International Court of Justice (ICJ),
was in 1992 settled in a telephone conversation
between the Danish and Finnish Prime Ministers,
in which Finland agreed to discontinue the case in
return for a payment by Denmark.
There is no official joint written record of this oral
agreement (see ILM (1993) 103; see also the
Eastern Greenland Case).
Vienna Convention on Law of Treaties
1969
This Convention is called treaty on treaties.
This contains law stipulating body of rules
which determines whether an instrument is a
treaty, how it is made, brought into force,
amended, terminated and operates generally.
However, it is not so concerned with the
substance of a treaty what is called treaty
law
 Vienna convention was signed in 1969 and came
into force in 1980.This partly reflects customary
international law.
Certain provisions of the convention may be
regarded as reflective of customary international
law such as rules of interpretation, material
breach and fundamental change of
circumstances.
others may constitute principles binding only
upon parties. at least in part, may have
represented progressive development of the law,
such as Arts 9 (2), 19 to 23, 40, 41, and Part V
(Sinclair 1218).(Sinclair)
As on today the Convention has 114 States
parties
 Pacta sunt servanda
The fundamental principle of treaty law is that
treaties are binding upon the parties to them and
must be performed in good faith. (pacta sunt
servanda) see Article 26 of the 1969 convention.
Article 26
Pacta sunt servanda
Every treaty in force is binding upon
the parties to it and must be
performed by them in good faith.
 Name does not matter
A treaty can be named in any manner such as
Convention, Protocol, Charter, Act, Exchange of
notes, MoU, etc. A treaty need not be signed.
Only by content and binding obligation that flows
from that instrument determines whether the
instrument is a treaty or not.
There could be oral treaties. The 1969
Convention does not deal with them. They are
dealt under customary international law
 Art. 4 VCLT provides that the VCLT applies only to those treaties which are
concluded by States after the date on which the VCLT enters into force for those
States.
The VCLT will thus not apply to States which, even if they took part in the
conclusion of the treaty, were not at that time parties to the VCLT. The VCLT
entered into force on 27 January 1980.
The UN Convention on the Law of the Sea was concluded on 10 December 1982
(Law of the Sea). Thus for those States which were parties to the VCLT on that
date, the rules of the VCLT will apply as between them with regard to UN
Convention on the Law of the Sea.
Art. 4 VCLT provides, however, that the rule against retrospection is without
prejudice to the application of any rules in the VCLT to which treaties would be
subject under international law independently of that VCLT.
Thus, those rules of the VCLT which reflect customary international law apply
(albeit as customary law) to treaties concluded before the entry into force of the
VCLT, or concluded afterwards but before the VCLT entered into force for parties to
those treaties. (See further Sinclair 230 and P McDade The Effect of Article 4 of
the Vienna Convention on the Law of Treaties 1969 (1986) 35 ICLQ 499511.)
Anthony Aust
 Reservation & Declarations
The VCLT in Article 2(d) says 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;
 Permissibility of reservation
There is no possibility of reservations in
bilateral treaties given the nature of the
treaty.
Reservations are generally not prohibited.
19 (a),(b) and (c) of the VCLT deals with
different situations in relation to Treaty
 Formulation of Reservations
Article 19
Formulation of reservations
A State may, when signing, ratifying, accepting, approving
or acceding to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations,
which do not include the reservation in question, may
be made; or
(c) in cases not failing under subparagraphs (a) and (b),
the reservation is incompatible with the object and
purpose of the treaty.
 Objection to and acceptance of
reservations
In plurilateral treaties like Antarctica Treaty
(15 members) reservations need to be
accepted by every party.
Reservations to multilateral constituent
instrument reservations need to be accepted
by every member.
Reservation compatible with objects and
purposes of the treaty will be acceptable.
(Reservation to Genocide convention Advisory opinion by ICJ,(ICJ Reports 1951 )
Belilos case about Swiss reservsation in ECHR
 By date
By ratification
By ratification of definite numbers
Ratification by numbers as well as some
objective cretaria.
 Binding nature of the Treaty
When Treaty becomes customary
international law it binds on all (Hague rules
on Humanitarian law)
Until it becomes customary law it binds only
the parties.
 Interpretation of Treaty

1 actual text of the treaty

2.intention of the parties
3.object and purpose of the treaty. (Articles 31 to 33 of
VCLT)
Invalidity ,termination and suspension of Treaties
invalidity of Treaties
Municipal law
2Error
3fraud and corruption
4.coercion
5.Jus cogens (Article 53)
 Invalidity of Treaties
There is a general rule that internal laws cannot
be the reason for the invalidity of a treaty.
1.Municipal law
2.Error
3.fraud and corruption
4.coercion
5.Jus cogens (Article 53)
 Jus cogens
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 purposes of 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.
 Jus cogens and candidate jus cogens
Article 2(4) of the Charter (Nicaragua v.US)
Genocide (DRC v. Rwanda)
Crimes against humanity (including systemic
form of racial discrimination) South West
Africa case
Rules prohibiting slave trade (Roach v.
Pinkerton)
 Termination of Treaty

1.Termination by Treaty provision or consent

2.Material breach (reprisal or counter
measure).Customary law supports something
more than a breach to terminate a treaty.(Article
60(3) of VCLT) Rainbow warrier and Gabcikovo-
Nagimaros project case)
3.supervening impossibility of performance
4. Fundamental change of circumstances
Doctrine of ribus sic stantibus
 There is no agreement on the criteria for
identifying which norms of general
international law have peremptory character
Prohibition of use of force has been accepted
as jus cogens.
Genocide, slave trade and piracy?
 Settlement of Dispute
Violation of Treaty is violation of international
law.
State can make use of rules relating to
internationally wrongful acts.
Treaty commission
Litigation before international Court of Justice
and other forms of pacific settlement of
disputes.