Haslinda Mohd Anuar COLGIS

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All kinds of inter-State transactions are conducted through treaties. Various international organizations are established by means of treaties. Disputes between States are brought before international courts by means of treaties. The treaty is the most important source of international law. Therefore, the special importance of treaties in international law does not need emphasis.

The main reference in this area of the law is the Vienna Convention on the Law of Treaties, 1969. [VCLT] € Adopted on 23 May 1969 and entered into force on 27 January 1980. € It is a combination of codification and progressive development of international law.
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€ Oppenheim: International treaties are agreements.Schwarzenberger: ³a treaty may be defined as a consensual engagement which subjects of international law have undertaken towards one another. with the intent to create legal obligations under international law´. between states. € . or organisations of states. creating legal rights and obligations between the parties´. of a contractual character.

1. For the purposes of the present Convention: a) ³treaty´ means an international agreement concluded between states in written form and governed by international law. . whether embodied in a single instrument or two or more related instruments and whatever its particular designation.

shall not effect: a) the legal force of such agreements.€ The fact that the present Convention does not apply to international agreements concluded between states and other subjects of international law or between such other subjects of international law. . or to international agreements not in written form.

. 1) It deals only with treaties concluded between states (this is because there is a separate convention on the law of treaties to which international organisations are parties). 2) The Convention is limited to µwritten treaties¶ only. However.€ The definition of µtreaty¶ under Article 2 of the Vienna Convention can be distinguished in two respects from the traditional definition. it is not intended to deny the legal effect of oral agreements under international law.

€ . € The following is an examination of the elements of the definition of treaty under Vienna convention as supplemented by customary international law.The definition in the Vienna Convention is expressed to be for the purposes of the Convention and is limited to treaties between States.

2. para. reflects customary international law. € Capacity to make treaties is.States € Article 6 of the Convention . € Federal States (Art. in fact. 6. Draft Articles) ³States members of a federal union may possess a capacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits there laid down´. .states may make treaties. valuable evidence of statehood.

International Organizations € The Vienna Convention on the Law of Treaties. . is limited to treaties to which states are parties. € A special convention. the Convention on the Law of Treaties Between States and International Organizations or Between International Organizations. It does not cover treaties to which public international Organizations are parties. was signed in 1986. 1969.

´ . the ICJ held that a contract between Iran and the Anglo-Iranian Oil Company was not a treaty.Individuals € Individuals have never been recognised as having the capacity to make treaties. 93. ³ It is nothing more than a concessionary contract between a government and a foreign company. € In the Anglo-Iranian Oil Company case. 1952 ICJ Rep. Even transnational corporations (TNCs) have no such capacity.

telex. constituted by an exchange of such communications. € .The Vienna Convention does not apply to oral agreements. fax message or even e-mail. although such agreements are valid under customary international law. € Even though the traditional practice is for the original text of a treaty to be typed or printed. or. rather. there is no reason why a treaty should not be contained in a telegram.

€ .There may be agreements between states (e. € They are regulated by the local law of one of the parties or by a private law system determined by reference to conflict of laws principles.g. agreements for the acquisition of premises for a diplomatic mission or for some purely commercial transaction). € The notion of an ³international agreement´ for the purposes of the law of treaties is confined to one the whole formation and execution of which is governed by international law.

€ The ILC: The element of µintention¶ is included in the phrase µgoverned by international law¶. € This element of ³intention to create legal obligations under international law´ can be found in the traditional definitions of µtreaty¶ by eminent writers but it is not expressly mentioned in the definition of µtreaty¶ by the Vienna Convention. [See also Aegean Sea Continental Shelf case.From practical point of view. the decisive factor is whether the instrument is intended to create international legal rights and obligations between the parties.] € .

€ However. In other words it consists of two related instruments. in modern practice treaties are made in less formal ways. € The above phrase clearly acknowledges the validity of the increasing use of such exchanges of notes and letters in modern treaty practice. € An exchange of notes usually consists of an initial note (by one State) and a reply note (by the other State). such as ³exchanges of notes´ or µexchange of letters´.The classic form for a treaty is a single instrument. € .

alliance. or some other fundamental matter. In practice. a number of terms are used to indicate an international agreement. or the cession of territory.µTreaty¶ is the generic term to embrace all types of binding international agreements. extradition. € The term µTreaty¶ itself is used to indicate formal agreements relating to peace. € .

very frequently adopted in recent years. whereby states reach to certain understanding or recognize certain obligations as binding them. € A µProtocol¶ is an instrument which is subsidiary or ancillary to a convention or is a supplementary treaty € An µExchange of Notes (or of letters)¶ is an informal method.Convention¶ is the term used for a proper formal instrument of a multilateral character. € .

As an MOU is not a treaty. € . a treaty being used only when it cannot be avoided. there is as a rule no domestic or international requirement to publish it.The use of MOUs is now so widespread in State practice that governments may use the MOUs as the more usual form. € The main reasons for using MOUs in preference to treaties are confidentiality and convenience.

€ An MOU can be a treaty in some cases but it cannot be so in other cases. µundertake¶. The decisive factor is whether there is an intention to create legal obligations. € The actual practice of States is to indicate their intention to conclude a treaty by employing terminology such as µshall¶. µagree¶.Are MOUs treaties? € Generally speaking MOUs are not treaties and they are not legally binding. € An MOU will become effective on signature without the need for any further procedure . € Only by studying the terms of the instrument can one determine its genuine status. and µenter into force¶.

. € An agreement or undertaking made orally between two states is as valid as a written treaty.Oral undertakings € According to customary international law writing is not an essential requirement of a treaty.

A territorial dispute between Denmark and Norway over Eastern Greenland. € During the official conversation between M. € . and the Danish Minister accredited to Norway. Ihlen. the Danish Minister suggested that Denmark would raise no objection to any claim Norway might want to make at the Paris Peace Conference to Spitzbergen if Norway would not oppose the Danish claim at the same conference to Greenland. Norwegian Foreign Minister.

declared that ³the Norwegian Government would not make any difficulty concerning the Danish claim´. in the course of further conversations with the Danish Minister. Ihlen.M. [This is known as the Ihlen Declaration] € Denmark argued before the ICJ that this undertaking was binding upon Norway. € .

in regard to a question falling within his province.€ Held: The Court considers it beyond all disputes that µa reply of this nature¶ given by the Minister of Foreign Affairs on behalf of his Government µin response to request by the diplomatic representative of a foreign Power¶. is binding upon the country to which the Minister belongs. .

€ . 36 (2) of the Statute of the International Court of Justice.Sometimes there are non-treaty circumstances which give rise to binding obligations. € One example is: declarations made under Art. € If a State publicly makes unilateral statements with an intention to be legally bound. these statements bind the State. € Another example is: unilateral statements. even though there is not a treaty (since there is no agreement between two States).

unilateral public pronouncements were made by French authorities indicating that France would no longer conduct atmospheric nuclear tests.Australia and New Zealand brought proceedings against France arising from nuclear tests conducted by France in the South Pacific. € Before the Court heard the merits of the case. € .

2) statement made by the President himself at press conference. 3) statement by Foreign Minister addressing the UNGA.Statement issued by the Office of the President. 1) .

and with an intent to be bound. is required for the declaration to take effect. is binding. nothing in the nature of a quid pro quo «nor even any reply or reaction from other states. even though not made within the context of international negotiations.€ Held: An undertaking of this kind. if given publicly. . In these circumstances.

Treaty-making capacity o Full powers ± is a document emanating from the competent authority of the state designating a person to represent the state for accomplishing certain or all acts with respect to a treaty. o Article 7(1) ± the general rule is that a person is considered as representing a state for purpose of expressing the consent of the state to be bound by the treaty if he produces appropriate full powers. .

b) Heads of diplomatic missions. o Article 7(2) .In virtue of their functions and without having to produce full powers. the following are considered as representing their state: a) Heads of States. adopting the text of a treaty between the accrediting state and the state to which they are accredited . Heads of Governments and Ministers for Foreign Affairs (the Big Three).o Exception ± certain persons never require full powers to represent the state in this respect.

). and 4) Registration and publication. 3) Entry into force. etc. Ratification. 2) The expression of consent to be bound by the treaty (Signature. .Steps to be taken in the making of a treaty € The various steps in the creation of a treaty are: 1) Adoption and authentication of the treaty. Accession.

€ Negotiations concerning a treaty are conducted through discussion in the case of bilateral treaties or by diplomatic conference when multilateral treaty is to be adopted.Negotiation € Appoint representatives to conduct negotiations. .

it needs to have a final text € The process by which this is established is known as µauthentication¶ .Adoption and authentication € Once the negotiation complete it is necessary for the state which took part in the drawing up the treaty to express their agreement with its form and content by adopting the text. € A state which takes part in the drawing up and adoption of a treaty is known as µnegotiating state¶ € Before a negotiating state can decide whether to consent to be bound by a treaty.

or 4) by accession. . o A µparty¶ is a state which has consented to be bound by a treaty and for which the treaty is in force.Consent to be bound by a treaty € Article 11 enumerates the ways in which a State can express its consent: 1) by signature. 3) by ratification. 2) by exchange of instruments constituting a treaty. acceptance or approval. even though it may not yet have entered into force. o A µcontracting state¶ means a state which has consented to be bound by a treaty.

1. € If the treaty is not subject to ratification. the instrument is binding on signature. Signature € The effect of signature of a treaty depends on whether or not the treaty is subject to ratification. the better opinion is that. signature means no more than an authentication of its text. or is silent on this point. . € If the treaty is subject to ratification. in the absence of contrary provision.

Why ratification is required? Two reasons: 1) A state requires an opportunity of re-examining the whole effect of the treaty upon their interests. . May need to prepare public opinion (or some times even referendum) for the obligation the state is about to undertake.2) Ratification € Ratification: µfinal confirmation¶.

US Constitution).According to the constitutional law of many states.g. (E. treaties are not valid without some kind of consent on the part of Parliaments. What treaties require ratification? € The more formal the type of instrument adopted. 2) . the more likely is ratification to be required.

€ Ratification involves two steps: 1. The exchange or deposit of the document of ratification . 2. the signing and sealing of the instrument of ratification.Procedure for ratification: € Instrument of ratification: A formal document duly signed by The Big Three.

€ In the case of a multilateral treaty. € With regard to treaties concluded under the auspices of the UN. to deposit all instruments of ratification in a central headquarters such as the Foreign Office of the state where the treaty was signed. the instruments of ratification are to be deposited with the Sec-Gen of the UN. the exchange of the instrument of ratification with the corresponding instrument produced by the other party. .Exchange or deposit the instrument of ratification € In the case of a bilateral treaty.

acceptance or approval. . or b) it has expressed its consent to be bound by the treaty.€ A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when: a) it has signed the treaty or exchanged instruments constituting the treaty subject to ratification. pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. until it shall have made its intention clear not to become a party to the treaty.

. € Treaties frequently provide that they shall be open for signature for a certain period. and that after the expiry of that period they shall become open for accession.3) Accession € Accede to: accession € Accession is a traditional method whereby a state which has not signed a treaty subsequently becomes a party to it.

approving or acceding to a treaty.Article 2(1)(d) of the VCLT: ³A unilateral statement. however phrased or named. accepting. ratifying. when signing.€ Definition .´ . made by a State. whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.

Disguised reservations: ³however phrased or named´; to look at the substance. It is the substance that matters, not the form. € Interpretative declarations: Purpose ± to establish an interpretation of the treaty which is consistent with the domestic law of the state. It will be an element in the interpretation of the treaty. If other parties do not make contrary declarations or indicate their disagreement, they may be regarded as having tacitly accepted it.
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Traditional approach ± a state trying to modify the terms of the treaty. A reservation can therefore be assimilated to the refusal of an offer and the making of a fresh offer. In principle, this fresh offer must obtain the assent of the other contracting states if it is to be effective.

Compatibility test laid down by the ICJ € In Reservation to the convention on the prevention and punishment of the crime of genocide, the Advisory Opinion of the ICJ held; y That a 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

it can consider that the reserving state is not a party to the convention. a party accepts the reservation as being compatible with the object and purpose of the convention.y 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. . and y That if. on the other hand. it can in fact consider that the reserving state is a party to it.

even for reservation. .Reservation regime under the Vienna convention € Although the convention does not generally distinguish between bilateral and multilateral treaties. under art 2(1)(d) a reservation cannot be made to a bilateral treaty.

€ A State may formulate a reservation unless: a) the reservation is prohibited by the treaty. may be made. . which do not include the reservation in question. the reservation is incompatible with the object and purpose of the treaty. or c) in cases not falling under sub-paragraphs (a) and (b). b) the treaty provides that only specified reservations.

a reservation requires acceptance by all the parties.‡ ‡ Article 20(1) . .A reservation expressly authorised by a treaty does not require any subsequent acceptance by the other contracting States Art 20(2) .When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty.

.‡ Art 20(4) . b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State.In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State.

a reservation is considered to have been accepted by a state if it shall have raised no objection to the reservation by the end of a period of 12 months after it was notified of the reservation € .An act expressing a state¶s consent to be found by the treaty and containing a reservation is effective as soon as at least one other contracting state has accepted the reservation € Art 20(5) .

€ Mere objection € Objection with a condition that the treaty shall not enter into force between the reserving and objecting State .Three options for the other states € Acceptance (expressly or impliedly).

but not in relation to State C. States C objected and at the same time stated expressly that it precluded the treaty entering into force between it and State A. € There is no doubt that State B and State C are mutually bound by the treaty after its entry into force. . € State A may be a party to the treaty in relation to State B. State B raised no objection. and C. € State A made a reservation to a treaty. B.A simple example: There are three states: A.

A reservation established with regard to another party (established here means ³not prohibited and not objected to by other party´) in accordance with Articles 19. a) modifies for the reserving state in its relations with that other party (non objecting state) the provisions of the treaty to which the reservation relates to the extent of the reservation [reservation is effective between reserving and non objecting states] .1. such a reservation. 20 and 23.

they have to follow all the provisions of the treaty as if there is no reservation). the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation. . 3. When a state objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving state. 2. (Among themselves.The reservation does not modify the provisions of the treaty for the other parties (Among those states apart from the reserving state) to the treaty inter se.

€ E.g. namely on November 16.6) Entry into force € A treaty often provides that it shall enter into force when it has been ratified or acceded to by a specific number of states. 1982. . entered into force one year after the 60th ratification. 1969. 1994. the Vienna Convention on the Law of Treaties. € The United Nations Convention on the Law of the Sea. provides for its entry into force ³on the 30th day following the date of the deposit of the 35th instrument of ratification or accession¶.

€ Treaty versus municipal law (Article 27) y A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.Binding force of treaties € Pacta sunt servanda (Article 26) y Every treaty in force is binding upon the parties to it and must be performed in good faith. This rule is without prejudice to Article 46. .

. its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.Non-retroactivity of treaties (Article 28) € Unless a different intention appears from the treaty or is otherwise established.

this may require the enactment of a statute by parliament. . € If treaties provisions affecting rights and duties of nationals of state parties.Effect of treaties on nationals of state parties € The binding force of a treaty and its effect concern in principle the state parties only. and not their nationals.

the later treaty prevails over the earlier treaty. the rights and obligations of States parties to successive treaties « shall be determined in accordance with the following paragraphs«.Subject to Article 103 of the Charter of the UN. not entry into force € .Art 30(1) . maxim Lex posterior derogat legi priori applies. In determining the earlier and later treaty. the relevant date is the date of adoption. € Art 30(3) ± if parties are identical.

€ Therefore.Art 30(4) .the effect is based on the rule pacta tertiis nec necent nec prosunt. € . as between a State party to both treaties and a State party to only one of the treaties. the treaty to which both States are parties govern their rights and obligations.If parties are not identical.

103 is known as ³clause paramount´. € Art. Obligations under the UN Charter have primacy over obligations under any other treaty.´ € Art. the obligations under the present Charter shall prevail. 30 deals with hierarchy among treaties. € . 103 of the Charter: ³In the event of a conflict between the obligations of the Members of the UN under the present Charter and their obligations under any other international agreements.Art.

Article 34 . undoubtedly reflects customary international law. € Art. o . 35 (obligations for third states ± must expressly accept in writing). which is known by the maxim pacta tertis nec nocent nec prosunt. o The general rule in Article 34.A treaty does not create either obligations or rights for a third state without its consent. 36 (rights for third states ± consent can be presumed). € Art.

€ Article 2(6) of the Charter states: ³ The organization shall ensure that States which are not Members of the United Nations act in accordance with these principles [principles set out in Article 2 of the Charter] so far as may be necessary for the maintenance of international peace and security´.Departure from the general rule: UN¶s authority over non-members. .

€ According to Fitzmaurice. 2) ³Intention school´ ± interpretation in accordance with the intention of the parties. . 3) ³Teleological school´ ± interpretation in accordance with the aims and purposes of the treaty. there are three traditional schools of treaty interpretation: 1) ³Textual school´± interpretation in accordance with the ordinary meaning of the words of the treaty.

a) any subsequent agreement. There shall be taken into account. 2. . 3. preamble and annexes. b) any subsequent practice. 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. The context shall comprise text.General Rule of Interpretation [Article 31] 1. together with the context.

2) In accordance with the ordinary meaning to be given to the terms of the treaty in their context. € Object and purpose is more for the purpose of confirming an interpretation. 31(1): 1) Interpreted in good faith. € Although Art. 31(1) contains both the ³textual´ and ³teleological´ approaches. it gives precedence to ³textual´. .Three integrated principles in Art. 3) In the light of its object and purpose.

. € The jurisprudence of the ICJ also demonstrates that the textual interpretation is regarded by it as established law. € The general rule primarily adopts the textual approach.Textual interpretation is the prevailing approach. € The ILC: the textual approach is the established rule of customary international law.

The importance of subsequent practice € The way in which the treaty is actually applied by the parties is a good indication of what they understand it to mean. . 27(3) of the Charter: Nine votes including concurring votes of the permanent members. ³concurring´ means ³not objecting´ (See. Interpretation of Art.g. abstention form voting). e. € According to the practice of the members. € E.g.

€ When a treaty is open to two interpretations. and not to be meaningless. . € Principle of effectiveness does not allow an interpretation going beyond what the text of the treaty justifies.Principle of effectiveness € The parties are assumed to intend the provisions of a treaty to have certain meaning. one of which does and the other does not enable the treaty to be effectively implemented. the former interpretation should be adopted. ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void).

provided for commissions to hear disputes concerning the treaty. on the one hand. The two parties to the dispute were to appoint a member each. and Bulgaria.The peace treaties between the Allied Powers. the parties were then to agree upon a third. If they could not agree. the third member was to be appointed by the Secretary-General of the United Nations. on the other. € The commissions were to consist of three members. Hungary and Romania. € .

Bulgaria. € The question was brought before the ICJ.Disputes arose over the human rights guarantees in the treaties. € The Allied powers wanted to establish the Commissions with only two members: one appointed by them and the other appointed by the SG of the UN. € . Hungary and Romania refused to appoint members to the commissions. € Held: It was not lawful to establish Commissions with only two members.

not to revise it.e. textual interpretation).The world Court in this case refused to apply the principle of effectiveness in such a way as to override the clear meaning of the text (i. € . € The duty of the court is to interpret the treaty.

. including the preparatory work of the treaty and the circumstances of its conclusion. or b) leads to a result which is manifestly absurd or unreasonable. 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.Supplementary means of interpretation [Article 32] € Recourse may be had to supplementary means of interpretation.

(1948) IICJ Rep 57 € ³There is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself´.Admission of a State to the United Nations. .

and to be gathered from scattered and incomplete documents. the US argued that preparatory work must be treated equally with the text and not just as a supplementary means. € It includes records of negotiations between the states that participate in the drafting and. € It was not accepted because preparatory work was confusing. . records of the work of independent bodies of experts. such as the ILC. € At the Vienna Conference. unreliable.Travaux preparatoires [Preparatory work] € It generally means the record of the drafting of a treaty.

4. Coercion of a State. Corruption. Violation of internal law on competence to conclude treaties. Conflict with jus cogens. 2. Error. 3. . and 5.Five important grounds of invalidity: 1.

to invoke violation of internal law as invalidating its consent.Article 46 allows a State. by way of exception. and iii. the State organs and representatives may have exceeded their powers in concluding such a treaty. the internal law relates to competence to conclude treaties. € [E. ii.] € . only when: i. it concerns a rule of fundamental importance. the violation is so µmanifest¶ that the other party (or parties) must be deemed to have been aware of it.g.

A state may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error formed an essential basis of its consent to be bound by the treaty. . 2. Paragraph 1 shall not apply if the state in question contributed by its own conduct to the error 1.

Cambodia relied upon the map. Thailand argued that the map embodied a material error because it did not follow the watershed line as required by the treaty € . € A map was prepared by the Commission.The boundary between Cambodia and Thailand in the area of Preah Vihear was determined by a treaty The treaty stated that it was to follow the watershed line and provided for the details to be worked out by a Mixed Commission.In 1904. This clearly placed the Temple in Cambodia.

€ The Court rejected Thailand¶s argument and stated: ³It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error.´ . or could have avoided it«.

€ If the expression of a State's consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State. the State may invoke such corruption as invalidating its consent to be bound by the treaty. .

2(4) of the UN Charter which prohibits the threat or use of force against territorial integrity or political independence of State.Article 52 € 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. € Article 52 clearly refers to Art. .

€ The Court rejected the argument because there was no concrete evidence of use of force and stated: ³The 1961 Exchange of Notes were freely negotiated by the interested parties on the basis of perfect equality and freedom of decision on both sides. «´ € .Iceland argued that the 1961 Exchanges of Notes took place when the British Navy had been using force to oppose the 12-mile fishery limit of Iceland and that they were void ab initio.

a peace treaty concluded by a defeated aggressor State as a result of military victory by a victorious victim (particularly in the case of lawful collective action against the aggressor) is valid. € .Not all peace treaties would be void. € A peace treaty would be void if procured by an aggressor state¶s coercion of a victim. € On the other hand. It is to be determined case by case.

General Assembly Declaration on Principles of International Law. € . the General Assembly Resolution 2625 (XXV). 1970 ³Principle on the threat or use of force´ € The territory of State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.

there is no sovereign political authority above the States.Since states are sovereign. by entering into new treaties. € Therefore international Law is consensual in nature. Its existence depends entirely on consent of States. To enable inter-State relations. They can at any time be amended or abolished by consent of States..e. Rules of international law are normally voluntary rules: ³jus dispositivum´. States voluntarily surrender a certain portion of their sovereignty and that is international law. € . i.

the concept of ³jus cogens´. i. a new concept crystallized in the late 1960s. € States can not contract out of them. they are jus cogens (compelling law)as opposed to jus dispositivum (voluntary law). € Many States have come to accept that there are certain rules of general international law which are so important for the existence of the international community that they are peremptory norms from which no derogation is permitted.. € .e.However.

Article 53 € 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 by modified only by a subsequent norm of general international law having the same character.

Article 64 € If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

Definition of jus cogens € ³A norm accepted and recognized by the international community as a whole´ € Chairman of the Drafting Committee¶s interpretation: All States less ³a very small number of States´. [The establishment of a jus cogens may not be affected if one state in isolation refuses to accept the peremptory character of it, or if that State is supported by a very small number of States.]

However. € The ICJ in the Nicaragua case quoted with approval the statement by the ILC: ³The law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule having the character of jus cogens.Identifying rules having the character of jus cogens € Many rules have been suggested as candidates for jus cogens.´ . at present only a few pass the test.

Least controversial norms having the character of jus cogens are: € The prohibition of the use of force. € Universally recognised principles of international humanitarian law. € The prohibition of piracy and slave-trading. € The prohibition of genocide. € The principle of racial discrimination. € The prohibition against torture. . € The principle of self-determination.

The effects of jus cogens € The typical effect of peremptory norms is that. . € A rule of jus cogens may also have a µdeterrent effect¶ in that they signal to all states and individuals that the prohibitions they envisage are absolute values µfrom which nobody must deviate¶. as States cannot derogate from them through treaties or customary rules (which are not endowed with the status of jus cogens). the treaty or customary rules contrary to them are null and void ab initio.

y The absolute grounds (coercion and jus cogens) invalidate the treaty itself and render it void ab initio. . corruption) invalidate only the consent of a State to be bound by the treaty. error.€ The main difference between the two groups of grounds for invalidity: y The relative grounds (violation of internal law on treaty-making.

€ . the legal effect of establishing a relative ground is the same as that of establishing absolute invalidity: the treaty falls. however. the legal consequences will depend on whether the treaty is bilateral or multilateral. whereas establishing a relative ground does not affect the validity of the treaty as a whole as between the other remaining parties.However. establishing an absolute ground means that the treaty is null and void and without legal effect. € In the case of bilateral treaties. € In the case of multilateral treaties.

2) Supervening impossibility of performance (Art. 61). € External grounds: 1) Material breach (Art. . and 3) Fundamental change of circumstances (Art. 60). with the consent of the parties.Internal and external grounds for termination € Internal ground: in accordance with the treaty. 62).

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