LAW OF TREATIES

HISTORY
• Vienna Conv. on law of Treaties, 1969- ‘Treaty on treaties’
• History
• Harvard Draft Convention on Law of Treaties (1935)
• ILC- sessions on Draft Articles (law of treaties) began in 1949; 1966- Draft
Articles (first set created)
• Vienna Conference (1968, 1969) VCLT, 1969 (adopted)
SCOPE
• Not applicable to:
• State Succession to treaties
[Governed by Vienna Convention on Succession of States in respect of
Treaties (1978)]

• Treaties b/w States and I.O.s, or b/w I.O.s

[Vienna Convention on Law of Treaties between States and International
Organizations or between International Organizations (1986) [not yet in force]]
MEANING AND FORM
• ‘Protocol’, ‘Charter’, ‘Covenant’, ‘Convention’, ‘Agreement’, ‘Accord’, etc.
• Definition- Art. 2
“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”

• No special requirement as to the form

• Written form (not oral)
• Intention of creating legal relations [difference between binding and non-
binding/informal international instruments]
• Special cases-
• MoUs [Maritime Delimitation in the Indian Ocean- Somalia v. Kenya (2017)]
• Unilateral agreements [Preferential Trade agreements under WTO; Free Zones case (1932)]
• ‘Minutes’- Qatar v. Bahrain (1994) (‘actual terms’)
• Mandate Agreement (South West Africa cases, 1962)
• (Sometimes) Oral agreements (but not under VCLT, 1969)- [Eastern Greenland case (1933);
Judge Jessup’s Separate Opinion in South West Africa Cases (1962]
• Eg of Non-binding International Agreement Helsinki Final Act (1975)
TREATY-MAKING
• No specified procedure
• General pattern of the procedure is as follows: Negotiation Adoption of the
text of a treaty Expression of a State agreeing (consent) to a treaty Entry
into force of the Treaty
• Capacity to make treaties- Art. 6
• Between- States/Heads of States/Govt. Deptts.
• Rules of treaty-making are governed by the municipal law
• By persons who produce ‘full powers’ (Art.7)
• Documents which endorse the competence/status of the person
• Exceptions- Art. 7 (2)
• UK- difference b/w ‘General’ and ‘Special’ full powers
• Cameroon v. Nigeria (2002)
• Does an act performed by a person who is not authorized under Art.7 have legal
effect?
• Art. 8
TREATY-MAKING (contd.): Consent
• Means of manifesting consent (Art. 11)
• By Signature (Art. 12)
• By Instrument of Exchange between parties (Art. 13)
• By ratification/acceptance/approval (Art. 14)
• By accession (Art. 15)
• Art. 18 (Obligation not to defeat the purpose of a treaty prior to its
entry into force)
ENTRY INTO FORCE (of a treaty)
• Treaties, in general, may enter into force:
• (a) Upon a certain number of States depositing instruments of ratification, approval, acceptance
or accession with the depositary
• E.g., article VIII of the Protocol relating to the Status of Refugees, 1967: The present Protocol shall come into
force on the day of deposit of the sixth instrument of accession.
• (b) Upon a certain percentage, proportion or category of States depositing instruments of
ratification, approval, acceptance or accession with the depositary
• E.g., article XIV of the Comprehensive Nuclear-Test-Ban Treaty, 1996: This Treaty shall enter into force 180
days after the date of deposit of the instruments of ratification by all States listed in Annex 2 to this Treaty,
but in no case earlier than two years after its opening for signature.

• (c) A specific time after a certain number of States have deposited instruments of ratification,
acceptance, approval or accession with the depositary
• E.g., article 126(1) of the Rome Statute of the International Criminal Court, 1998: This Statute shall enter into
force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument
of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.
• (d) On a specific date
• E.g., article 45(1) of the International Coffee Agreement 2001, 2000: This Agreement shall enter into force
definitively on 1 October 2001 if by that date Governments representing at least 15 exporting Members
holding at least 70 percent of the votes of the exporting Members and at least 10 importing Members holding
at least 70 percent of the votes of the importing Members, calculated as at 25 September 2001, without
reference to possible suspension under the terms of Articles 25 and 42, have deposited instruments of
ratification, acceptance or approval.
ENTRY INTO FORCE (for a State)
• Treaties often provide for entry into force for a State in these
circumstances:
• (a) At a specific time after the date the State definitively signs or deposits
its instrument of ratification, acceptance, approval or accession
• E.g., article 126(2) of the Rome Statute of the International Criminal Court, 1998: For
each State ratifying, accepting, approving or acceding to this Statute after the
deposit of the 60th instrument of ratification, acceptance, approval or accession, the
Statute shall enter into force on the first day of the month after the 60th day
following the deposit by such State of its instrument of ratification, acceptance,
approval or accession.
• (b) On the date the State definitively signs or deposits its instrument of
ratification, acceptance, approval or accession
• E.g. - article VIII of the Protocol relating to the Status of Refugees, 1967: For each
State acceding to the Protocol after the deposit of the sixth instrument of accession,
the Protocol shall come into force on the date of deposit by such State of its
instrument of accession.
RESERVATIONS
• Definition- Art.2
• However phrased or named (“reservation”, “declaration”, “understanding”,
“interpretative declaration” or “interpretative statement”), any such statement
purporting to exclude or modify the legal effect of a treaty provision with regard
to the declarant is, a reservation
• Objective/rationale- Wide participation of States in a Treaty
• In bilateral treaties, scope of re-negotiation is always available (party may
accept/reject). Hence, concept of reservations is more important in case of
multilateral treaties
• VCLT Arts. 19-23
• History
• Principle of absolute integrity (League of Nations) [reservation valid only if accepted by ALL
parties]
• ICJ stressed on ‘compatibility’ criterion [Reservations to Genocide Convention, Adv. Opinion,
1951]
• ILC- Initially rejected (1951), but later accepted (1962) the compatibility criterion
Reservations
• Purport to exclude or modify the
legal effects of a treaty
Declarations
• Do NOT purport to exclude or
modify the legal effects of a treaty
• Interpretative Declarations (State’s
own interpretation of a provisions)
• (declaration about its understanding of
a matter contained in or the
interpretation of a particular provision
in a treaty/clarification of the meaning
of the provisions). Eg- UNCLOS 1982
• Optional Declaration (legally binding
on State)
• Eg- ICCPR, Art. 41
• Mandatory Declaration (legally
binding on State)
• Eg- Article 3(2) of the Optional
Protocol to the Convention on the
Rights of the Child on the involvement
of children in armed conflict, 2000
ICJ Advisory Opinion ‘Reservations to Genocide Convention’(1951)
[Questions]
1. Can the reserving State be regarded as being a party to the Convention while still
maintaining its reservation if the reservation is objected to by one or more of the
parties to the Convention but not by others?
2. If the answer to question 1. is in the affirmative, what is the effect of the
reservation as between the reserving State and:
(a) The parties which object to the reservation?
(b) Those which accept it?
3. What would be the legal effect as regards the answer to question I if an objection
to a reservation is made:
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but which has not yet done so?"
ICJ Advisory Opinion (1951) [Answers]
1. State which has made and maintained a reservation which has been objected to by one or more
of the parties to the Convention but not by others, can be regarded as being a party to the
Convention if the reservation is compatible with the object and purpose of the Convention ;
otherwise, that State cannot be regarded as being a party to the Convention.
2. (a) that if a party to the Convention objects to a reservation which it considers to be incompatible
with the object and purpose of the Convention, it can in fact consider that the reserving State is not
a party to the Convention
(b) that if, on the other hand, a party accepts the reservation as being compatible with the object
and purpose of the Convention, it can in fact consider that the reserving State is a party to the
Convention ;
3. (a) that an objection to a reservation made by a signatory State which has not yet ratified the
Convention can have the legal effect indicated in the reply to Question 1 only upon ratification. Until
that moment it merely serves as a notice to the other State of the eventual attitude of the signatory
State ; (b) that an objection to a reservation made by a State which is entitled to sign or accede but
which has not yet done so, is without legal effect.
OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES
• OBSERVANCE
• Pacta sunt servanda (Art. 26)
• Internal law to not be invoked (Art.27)
• Exception- Art. 46 (‘manifest’ violation)
• To whom- Art. 46(2)
• What constitutes ‘manifest’ violation- depends upon facts and circumstances

• APPLICATION
• Treaties are not retroactive (Art. 28)
• Application to the whole territory (Art. 29)
• Application of successive treaties to same subject matter (Art. 30)
• Application only to parties
• Special case- Third States (Arts. 34-38); pacta tertiis nec nocent nec prosunt
• Exception- Customary International Law/Obligations erga omnes
• Wimbledon Case, PCIJ, 1923
AMENDMENT AND MODIFICATION OF TREATIES
• Arts. 39-41, VCLT 1969
• Art. 40 (4), (5) [Examples]
• Montreal Protocol on Substances that Deplete the Ozone Layer 1987 (to
Vienna Convention for the Protection of Ozone Layer 1985)
- Adopted : 1987
- Condition for entry into force: ratification by atleast 11 States by 1 January
1989; entered into force: 1 January 1989
- India and Bangladesh acceded in 1992 and 1990 respectively, i.e. after the
entry into force of the Protocol . Thus, became parties to both the Convention
as well as Montreal Protocol
Note: Montreal Protocol is the only treaty with universal ratification (197
parties)
OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES
• INTERPRETATION (Arts. 31-33)
• Three basic approaches
• Textual
• Intention of parties
• Teleological (object and purpose)
• Travaux préparatoires (preparatory work) [Art. 32]
• Principle of effectiveness (Ut Res Magis Valeat Quam Pereat )
• Law should be given effect rather than destroyed
• Induces flexibility in interpretation
• In case of I.O.s, can help implement aims of Organisation to its true effect
• Way to infer powers not explicitly provided in an instrument (programmatic interpretation doctrine = drafters
deliberately creating ambiguity during making of the text, so as to programme the provision as far as possible)
• Important case laws/Adv. Op.
• Qatar v. Bahrain (ICJ, 1995) [Meaning of “al-tarafan”]
• Temple of Preah Vihar case (ICJ, 1962) [‘subsequent practice/agreement’]
• LaGrand case (ICJ, 2001) [Art. 41 of ICJ Statute under question]
• Eritrea-Ethiopia Boundary case (Arbitral Tribunal, 2002) [Treaties of 1900 and 1902 under question]
• Libya/Chad case (ICJ, 1994) [principle of effectiveness and textual approach, Art. 3 of 1955 Treaty in question]
• Interpretation of Peace Treaties case (Second Phase) (ICJ Adv. Op., 1950) [‘natural and ordinary meaning’;
principle of effectiveness to not override the letter and spirit of the provision]
• Conditions of Admission of a State to Membership in UN (ICJ Adv. Op, 1948) [no need to resort to Preparatory
work if the text is clear; followed practice of PCIJ]
• Competence of General Assembly for Admission to UN (ICJ Adv. Op., 1950) [same reasoning as above]
INVALIDITY, TERMINATION AND SUSPENSION OF TREATIES
• General Provisions (Arts. 42-45)
• INVALIDITY (Arts. 46-53)
• Municipal Law (Art. 46, Art. 47) [Cameroon v. Nigeria, 2002]
• Error (Art. 48) [Temple case, 1962]
• Fraud (Art. 49)
• Corruption of representative (Art. 50)
• Coercion of Representative (Art. 51)
• Coercion of State by threat or use of force (Art. 52)
• Violation of jus cogens (Art. 53)
• Consequences of Invalidity (Arts. 69, 71)
• TERMINATION AND SUSPENSION (Arts. 54-64)
• Under treaty provision or by consent of States parties (Art. 54, 57)
• Purpose and object come to an end. Eg- Rainbow Warrior case
• Suspension between parties only (Art. 58)
• Conclusion of a later treaty (Art. 59)
• Material Breach (Art. 60)
• Supervening impossibility of performance (Art. 61)
• Fundamental change of circumstances, rebus sic stantibus (Art. 62)
• Consequences of Termination and Suspension (Arts. 70, 72)