The Law of Treaties

Public International Law

What is a treaty?
any international agreement in written form,
whether embodied in a single instrument or in two
or more related instruments and whatever its
particular designation (treaty, convention, protocol,
covenant, charter, statute, act, declaration,
concordat, exchange of notes, agreed minute,
memorandum of agreement modus vivendi or any
other appellation), concluded between two or more
States or other subjects of international law and
governed by international law.
Function of Treaties
The lawmaking character of a treaty is said:
(a) to rule out recourse to preparatory work as an aid
to interpretation;
(b) to avoid recognition by one party of other parties
as states or governments; and
(c) to render the doctrine of rebus sic stantibus
inapplicable
Participation in Treaties

states should have a right to become parties to this

type of treaty, a solution adopted in the insubstantial
form that the right existed except where the treaty
or the rules of an international organization provided
otherwise.
How treaties conclude
Form and Intention

Where the parties wish to record mutual

understandings for the conduct of their business or
other relationships, but do not intend to create legally
binding obligations, they often conclude non-binding
instruments commonly referred to as memoranda of
understanding (MOUs). The name of the instrument is
not conclusive as to its legal status, however; what
matters is the intention of the parties as reflected in
the terms of the instrument.
Full powers and signatures
• Full powers give the bearer authority to negotiate
and to sign and seal a treaty but not to commit the
state
• The successful outcome of negotiation is the
adoption and authentication of an agreed text.
Signature has, as one of its functions
authentication, but a text may be authenticated in
other ways, for example by incorporation in the
final act of a conference or by initialling.
Ratification
• Ratification is an important act involving consent to
be bound.
• Ratification involves two distinct procedural acts:
1. internal act of approval (e.g. by the parliament,
or the Crown in the UK);
2. the international procedure which brings a
treaty into force by a formal exchange or deposit
of instruments of ratification
Accession, Acceptance, and
Approval
• ‘Accession’ occurs when a state which did not sign a
treaty formally accepts its provisions: this may be
before or after the treaty has entered into force.
• Recent practice has introduced the terms ‘acceptance’
and ‘approval’ to describe the substance of accession.
• Terminology is not fixed, however, and where a treaty is
expressed to be open to signature ‘subject to
acceptance’, this is equivalent to ‘subject to ratification’.
Entry into Force, Deposit, and
Registration
• The provisions of the treaty determine how and when
the treaty enters into force. Where the treaty does not
specify a date, there is a presumption that the treaty
comes into force as soon as all the negotiating states
have consented to be bound.
• After a treaty is concluded, the written instruments of
ratification, accession, etc and also reservations and
other declarations are placed in the custody of a
depositary, which may be one or more states or an
international organization
United Nations
Secretariat
Depositary of Multilateral
Treaties
Article 102 of the UN Charter provides as follows:
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.
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.
Effect of Non-registration
Non-registration does not affect the validity of
agreements, but these may not be relied upon in
proceedings before UN organs. In relation to the
similar provision in the Covenant of the League the
view was expressed that an unregistered agreement
could be invoked if otherwise appropriately
publicized.
Reservations
• VCLT Article 2(d) defines a reservation as ‘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’.
• It is to be distinguished from an interpretative
declaration, which is an expression of view by a
declarant state as to the meaning of a treaty which is
not put forward as a condition of being bound.
Observance of Treaties

a treaty in force is binding upon the parties and must

be performed by them in good faith.

PACTA SUNT SERVANDA

Application of Treaties
Treaties are not retroactive; that is, unless a contrary
intention is established, parties are only bound in
respect of acts or facts taking place after the treaty
has entered into force for the party in question.
Unless otherwise stated, they apply within the whole
territory of the states parties.
Interpretation of Treaties
Various ‘rules’ for interpreting treaties have been put
forward over the years. These include the:

1. textual approach
2. the restrictive approach
3. the teleological approach
4. effectiveness principle
 The general rule:
VCLT Article 31
entitled ‘General rule of interpretation’, is
recognized by the International Court as reflecting customary
international law
1. A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the
light of its object and purpose.
2. The context for the purpose of the interpretation of
a treaty shall comprise, in addition to the text,
including its preamble and annexes:
(a) any agreement relating to the treaty which was
made between all the parties in connection with the
conclusion ofthe treaty;
(b) any instrument which was made by one or more
partiesin connection with the conclusion of the treaty
and accepted by the other parties as an instrument
related to the treaty.
3. There shall be taken into account, together with the
context:
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the
application of its provisions;
(b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties
regarding its interpretation;
(c) any relevant rules of international law applicable in
therelations between the parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended.
The VCLT cautiously qualifies the textual approach by permitting
recourse to further means of interpretation in certain
circumstances.
VCLT Article 32 provides:
Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances
of its conclusion, in order to confirm the meaning resulting from the
application of Article 31, or to determine the meaning when the
interpretation according to Article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Obligations and Rights
for Third States
• GENERAL RULE:
pacta tertiis nec nocent nec prosunt
a treaty applies only between the parties to it

• EXCEPTIONS:
1. A treaty may become binding on non-parties if it
becomes a part of international custom.
2. A treaty may provide for lawful sanctions for
violations of the law which are to be imposed on an
aggressor state
Amendment and
Modification of Treaties
• The amendment of treaties depends on the consent of
the parties, and the issue is primarily political.
• Apart from amendment, a treaty may undergo
‘modification’ when some of the parties conclude an
inter se agreement altering the application of the treaty
between themselves alone: VCLT Article 41 restricts this
capacity in certain cases.
• Modification may also result from the conclusion of a
subsequent treaty or even the emergence of a new
peremptory norm of general international law.
Invalidity, Termination,
and
Suspension of Treaties
Grounds for Invalidity
• Violations of Internal Law
• Defects of Authority
• Error
• Fraud
• Coercion
• Conflict with peremptory norm
Grounds for Termination and
Suspension
• War and Armed Conflict
• Denunciation and termination by agreement
• Material Breach
• Supervening impossibility of performance
• Fundamental change of circumstances
Procedure and Consequences
The consequences of invalidity, termination, and
suspension will depend on the grounds relied upon.
Certain grounds of invalidity must be invoked by a
party and so the treaties concerned are not void but
voidable.