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Dr. Raju KD
Assistant Professor of Law
Rajiv Gandhi School of Intellectual Property Law
y the maintenance of international peace and security,
the development of friendly relations and the achievement of co-operation among nations,
y International Law Commission draft articles 1966. y Vienna Convention on Law of the Treaties
and an Annex. y Convention entered into force in 1980. y Source of law codification of existing laws on treaties Namibia case (A.O) ICJ held that y the rules laid down by the Vienna Convention . Concerning termination of a treaty relationship on account of breach may in may respects be considered as a codification of the existing customary law on the subject. KDR/IIT KGP/RGSOIPL/-2008 3
y It does not deal with: y 1. treaties between states and organizations or between
two organizations y 2. questions of state succession y 3. the effect of war on treaties.
y Vienna Convention of the Law of the Treaties, 1969 y Entered into force in 1980. y Deals only with treaties between states Art. 1.
y S.2. "treaty" means an international agreement
concluded between States with an intention to create legal obligations 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; y "ratification", "acceptance", "approval" and "accession" mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;
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y The object of a treaty is to impose binding obligations
on the states who are parties to it. y Based on the maxim pacta sunt servanda y Two or more states establish or seek to establish a relationship between themselves governed by international law.
y Heads of sovereign states y Inter governmental form
technical or non-political
agreements. y Ministers of the countries. y Inter state form drafted expressly or impliedly as an agreement between states. y Inter departmental agreement. y Political heads of the countries. y Even a treaty need not be in the form of writing.
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y 1. Convention y 2. Protocol y 3. Agreement y 4. Arrangement y 5. process-verbal y 6. statute y 7. covenant y 8. Declaration y 9. exchange of notes.
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y Proper formal instrument of a multilateral character. y Standard formal instruments of a multilateral
character. y Instruments adopted by international organisations like ILO or ICAO.
y Less formal than a treaty or convention. y An instrument subsidiary to convention y Ancillary matters such as the interpretation of
particular clauses. y Ancillary instrument to a convention. y A supplementary treaty.
y Less formal y Fewer parties y Technical or administrative character only. y Signed by representatives of governments. y Not subject to ratification.
y Summary of the proceedings and conclusions of a
diplomatic conference. y Minor alteration to a convention. y Not subject to ratification.
y Collection of constituent rules relating to the
functioning of an international institution. y Statute of the ICJ. y Collection of rules laid down by international agreement. y An accessory instrument to a convention setting out certain regulations to be applied.
y Engagements of fundamental importance. y United Nations Covenant on Civil and Political Rights. y Covenant on Economic, Social and Cultural Rights,
y Joint declaration, 19 December 1984 between UK and
China on the revision of Hong Kong to Chinese by 1997. y An informal instrument appended to a treaty or convention interpreting or explaining the provisions of the latter. y Minor importance. y Resolution in a diplomatic conference.
y Is an instrument recording an international agreement
of a temporary or provisional nature intended to be replaced by an arrangement of a more permanent and detailed character.
Exchange of notes
y Informal method. y Through diplomatic route or military representatives.
Practices and entry into force
y 1. Accreditation of negotiators y 2. Negotiations and adoption. y 3. Authentication, signature and exchange of
instruments. y 4. Ratification. y 5. Accessions and adhesions y 6. Entry into force y 7. Registration and publication y 8. Application and enforcement
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y First step to appoint negotiators. y Power to attend and negotiate with other states. y Power to sign is not required for negotiations. y The power to negotiate signed by the head of the state
or Minister of Foreign Affairs is known as Full Powers or Pleins Pouvoirs. y The sending for negotiations with Full Powers A.7.1(b).
Negotiation and adoption
y Either through discussions in case of bilateral treaties. y Multilateral diplomatic conferences. y Different committees were constituted like steering
committees and drafting committees. y The Conference appoints a prominent member as Rapporteur. y A.9(2) vote of two thirds of the states present and voting. y Even can be adopted by consensus.
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Authentication, signature and exchange of instruments
y Once the final draft is agreed upon it will be made
public for sometime. y Signature is effected at a formal closing session. y It should be authenticated by a resolution. y Heads of the states may sign. y 1919- Woodrow Wilson Treaty of Versailles. y 1972 US USSR Anti-ballistic Missile System.
Open for signature
y Common practice to open the convention for signature
by certain states. y Generally this period does not exceed 9 months. y After expiry of the date no signature y Signature, without reservation y Signature subject to later acceptance y Acceptance simpliciter. y Signature subject to reservation.
Exchange of instruments
y Exchange by representatives. y Result: parties becomes bound by the treaty Vienna
convention Art. 13.
y Signed treaty will be send to respective governments
for approval. y Ratification is the approval by the head of the state. y A. 2(1)(b) - 'ratification', 'acceptance', 'approval' and 'accession' mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;
Object of ratification
y Opportunity to re-examine the instrument before
undertaking any obligations. y Enable the state to pass any domestic legislation or parliament approval in between signature and ratification. y In international law there is neither a legal nor a moral duty to ratify a treaty. y Obligation not to defeat the object and purpose of a treaty - A.18 of the Convention.
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y A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: y (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or y (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
Exchange or deposit of ratifications
y After exchange it should be deposited or exchanged
between the parties. y Notice of ratification is necessary. y Bilateral treaties exchange y Multilateral deposit with authorised authority
Accessions and adhesions
y A state not signed the treaty can accede or adhere to it. y Accede full treaty without any reservation. y Adhere acceptance of part of a treaty. y Accession after prescribed ratifications. y Same form as of ratifications accessions.
Entry into force, Registration
y According to the provisions of the treaty A.24. y Deposit of prescribed number of ratifications.
A.102 of UN Charter
y 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. y 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.
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y It means that, non registered treaties cannot be
challenged in ICJ. y The treaty will be published by the UN Treaty Series
Application and enforcement
y Incorporation in the municipal law of state parties. y Provisional application provisions.
A.253 of the Constitution of India
anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.
y Certain provisions of the treaty do not bind it, or apply
with modifications. This can be effected by: 1. Express provision in the treaty itself 2. By agreement between the contracting states; 3. By a reservation duly made
y S.2(1) (d) '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;
y 17(1): Without prejudice to articles 19 to 23, the consent
of a State to be bound by part of a treaty is effective only if the treaty so permits or the other contracting States so agree. y 2. The consent of a State to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates.
y Reservation as an incident of sovereignty and perfect
equality of states. y It applies to relations with other parties. y Assent of other states party to the treaty are necessary. y Reservations are made as a Protocol of Signature. y A.23 - Objections to the reservation must be in writing and communicated to other members.
Effect of reservation
y If the reservation is incompatible with the convention,
it may legitimately consider that the reserving state is not a party thereto. y If a state is not ratified a treaty don t have the right to object to a reservation.
ICJ advisory opinion
y Reservations to Genocide Convention, ICJ Reports
(1951), 15. y a state which has made 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.
Amendment of treaties
y Altering the provisions of treaties by revision,
amendment, and modification. y A.39 amended by agreement of the parties.
Invalidity of treaties
y 1. treaty making incapacity y A.46
representative exceeded their treaty making
power. y A.47 if the restriction and power of the representative is not notified to other members prior, no invalidity. y 2. Error ground for invalidity error of fact or situation. y Not error of law.
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y 3. A.49 - fraud
fraudulent conduct of negotiating
state. y No precedents y A. 50 - Procured through corruption of its representative. y A. 51-52 coercion coercion of representative. y Use of force in violation of the principles of international law. y Conflict with norms of Jus Cogens
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