Contents
Law of Treaties
Treaties and international law, importance;
In
modern period international treaties are the most important source of
international law. Article 38 of the Statute of the International Court of
Justice lists, “international conventions whether general or particular,
establishing rules expressly recognized by the contesting states” as the first
source of international law.
A
convention may be general either because of the number of the parties to it, or
because of the character of its contents, and it may be particular either
because of the limited number of the parties or because of the limited
character of its subject matter.
The
word “convention” means a treaty, and it is the only meaning in the context of
international law.
Whenever
an international court has to decide an international dispute, its first
endeavour is to find out whether there is an international treaty on the point
or not, and if there is a treaty then the decision of Court is based on
provisions of such treaty.
Furthermore
for many writers, treaties constitute the most important sources of
international law as they require the express consent of the contracting
parties. Treaties are thus seen as superior to custom, which is regarded in any
event as a form of tacit agreement
Forms and Terminology;
The
principal forms of treaties are maybe as follows;
1. Head
of States Form;
In
this case, treaty is drafted as an agreement between head of states or
sovereigns e.g. British Crown or President of United States.
2. Inter-governmental
Form;
The
treaty is drafted as an agreement between governments.
3. Inter-state
Form;
The
treaty is drafted as an agreement between States, it may be expressly or
impliedly.
4. Minister
Form;
The
treaty may be negotiated and signed as between ministers of respective
countries i.e. ministers of foreign affairs.
5. Inter-departmental
Form;
The
treaty concluded between representatives of particular government departments,
e.g. between Customs Administration of countries concerned.
Even
it is not necessary that a treaty be in writing. In case cited as Eastern Greenland Case (1933) Pub PCIJ
Series A/B, No. 53, it was held that;
“An
oral declaration in nature of a promise made by the Minister of Foreign Affairs
of on country on behalf of his country, to the Minister of Foreign Affairs of
another and in a matter witing his competence and authority may be as binding as
formal written treaty”.
Beside
the term “treaty” it goes under a variety of names, so the following titles
have been given to it;
1. Convention
2. Protocol
3. Agreement
4. Arrangement
5. Process
verbal
6. Statute
7. Declaration
8. Modus
vivendi
9. Exchange
of notes
10. Final
Act
11. General
Act
1. Convention;
This
term is ordinarily reserved for a proper formal instrument of multilateral
character. The term itself has an emotive content, dating back to the Magna
Carta of 1215.
For
example; Charter of United Nations 1945.
2. Protocol;
This
signifies an agreement less formal than a treaty or convention proper and which
is generally never in the heads of state form. It may be understand as;
An
instrument subsidiary to a convention and drawn up by the same negotiators. It
deals with ancillary matters e.g. interpretations
For
example;
·
The 1987 Montreal
Protocol to the 1985 Vienna Convention for the protection of the Ozone Layer.
·
The 1997 Kyoto
Protocol to the United Nations Framework Convention on Climate Change 1992.
3. Agreement;
This
is in less form than a convention or treaty and generally not in the head of
states forms. It usually applied to agreements of more limited scope and with
fewer parties. For example, The General Agreement on Trade and Tariffs (GATT
1947)
4. Arrangement;
The above mentioned observation applied here.
It is more usually employed for a transactions of a provisional or temporary
nature.
5. Process
Verbal;
This
term originally denoted the summary of the proceedings and conclusions of a
diplomatic conference, but it is now used as well to mean the record of terms
of some agreement reached between parties.
6. Statute;
A
collection of constituent rules relating to the functioning of an international
institution, for example, the Statute of International Court of Justice 1945.
7. Declaration;
The
Term often deliberately chosen to indicate that the parties do not intend to
create a binding obligations but merely want to declare certain aspirations
like the Rio Declaration (1992). This term may also denotes a treaty e.g. the
Declaration of Paris, 1856 or an informal instrument appended to a treaty or
convention inter-parting or explaining the provisions of the latter. It may
also denotes an informal agreement with respect to a matter of minor importance
or desideratum for observance by all states e.g. the Declaration on the
Prohibition of Military, Political or Economic Coercion in the Conclusion of
Treaties, adopted by the Vienna Conference of 1968-1969 on the Law of Treaties.
8. Modus
Vivendi;
It
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. It is usually made in a most informal way.
9. Exchange
of Notes;
Through
Exchange of Notes states subscribe to certain understandings or recognize
certain obligations as binding them. Sometimes these are effected through the
diplomatic representations of states concerned.
VCLT 1969, importance;
This
may be termed as ‘controlling document’ for treaties. Prior to 1969 the law of
treaties consisted for the most part of customary rules of international law.
These rules were to a large extent codified and reformulated in the Vienna
Convention on the Law of Treaties, concluded on 23 May 1969 and which entered
into force on 27 January 1980, following the deposit of 35 ratifications or
accessions as required by its article 84. But, VCLT was not, however intended
as complete code of treaty law, and in the preamble it is in fact affirmed that
rules of customary international law will continue to govern questions not
regulated by the provisions of convention.
Certain
provisions of the Convention may be regarded as reflective of customary
international law, such as the rules on interpretation, material breach and
fundamental change of circumstances. Others may not be so regarded, and
constitute principles binding only upon state parties.
Definition of Treaty;
A
treaty is basically an agreement between parties on the international scene. A
Treaty may be defined, in accordance with the definition adopted in article 2
of the VCLT as;
““treaty”
means 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”.
So it can be defined as, an agreement whereby two or
more states establish or seeks to establish a relationship between themselves
governed by international law. Although treaties may be concluded, or made,
between states and international organizations, they are primarily concerned
with relations between states. Indeed the term treaty, may be include an
agreement between international organizations on the one hand and a state on
the other, but it should be borne in mind that the provisions of VCLT do not
apply to such other instruments.
Prof Oppenheim defines Treaty “as an agreement of a
contractual character between states or organizations of states creating legal
rights and treaties”.
But
treaty must be distinguished from a contract between a state and an alien
citizen or corporation. For a treaty it should be subject to rules of
international law.
Basis for the binding force of treaties;
The
fundamental principle of treaty law is undoubtedly the proposition that
treaties are binding upon the parties to them and must be performed in good
faith. This rule is termed pacta sunt
servanda and is arguably the oldest principle of international law. It
was reaffirmed in article 26 of the 1969 Convention, and underlies every
international agreement for, in the absence of a certain minimum belief that
states will perform their treaty obligations in good faith, there is no reason
for countries to enter into such obligations with each other.
Prof
Oppenheim remarked; “that the question why international treaties have binding
force always was and is still, much disputed. Many writers find the binding
force of treaties in the law of nature, religious and moral principles, others
again in self-restraint exercised by States in becoming a party to the treaty.
Some assert that it is a will of the contracting parties which gives binding
force to their treaties. The correct answer is probably that the treaties are
legally binding because there exists a customary rule of international law that
treaties are binding”.
Parties to Treaties;
Generally
only sovereign states which fulfil the requirements of statehood at
international law. But sometimes agreements of a technical character are made
between the government departments of concerned states.
Treaty & third state;
General rule;
Article
34 of VCLT 1969 provides; “A treaty does not create
either obligations or rights for a third State without its consent.”
Exception;
The
exceptions to this rule are;
1.
Article 35 denotes that an
obligation may arise for a third state from a term of a treaty if the parties
to the treaty so intend and if the third state expressly accepts that
obligation in writing.
2.
Article 36 purports to declare a
general principle covering the case of such treaties intended to confer third
party rights. On the matter of third party assent, it lays down that such
assent shall be presumed so long as the contrary is not indicated, unless the
treaty otherwise provides.
3.
Further, particular kinds of
treaties may create obligations or rights erga omnes and in such cases,
all states would presumptively be bound by them and would also benefit. For
example In the Wimbledon case,
the Permanent Court noted that ‘an international waterway . . . for the benefit
of all nations of the world’ had been established. In other words in the case
of benefits granted to third states, their assent is presumed in the absence of
contrary intention.
4.
Multilateral treaties, creating new
rules of international law may bind the non-parties in the same way as do all
rules of international law.
5.
Multilateral conventions which are
intended to have universal operation, may provide in terms for their
application to non-parties, e.g. Narcotic Drugs concluded at New York in 1961,
as amended in 1975, enabled an international organ finally to determine the
estimates for legitimate narcotic drug requirements of states, not parties to
the Convention.
Cases;
·
Nuclear Test Case (Australia &
New Zealand Vs France, I.C.J. 1974) France was making above ground atmospheric
nuclear tests. Australia and New Zealand protested furiously, and it went to
the I.C.J. The Court never go the legality of these evil cloud producing tests,
however, because the French President made a unilateral statement that they
would cease above-ground atmospheric test. The assertion made by President
while negotiating before international community. In this context, statement
was binding, even though it was just a unilateral assertion.
·
Mali Vs Burkina Faso; The Prime
Minister’s statement to a reporter from Mali about concerning a border dispute
did not create a binding legal obligation. It was not in the context of
negotiations. It was not announced to the world in the forum of legal dispute.
He was merely chatting to the press. So, the statements are only binding when
the parties intends them to be binding.
The making of Treaty;
Treaties may be
made or concluded by the parties in virtually any manner they wish. Treaties
may be drafted as between states, or governments, or heads of states, or
governmental departments, whichever appears the most expedient.
Since states are
not identifiable human persons, particular principles have evolved to ensure
that persons representing states indeed have the power so to do. Such persons
must produce what is termed ‘full powers’ according to article 7 of the
Convention. ‘Full powers’ refers to documents certifying status from the
competent authorities of the state in question.
There are various
steps in creation of obligations by treaty, which can be summarized as under;
Accrediting of negotiations;
Once
a state has decided to commence negotiations with another state or other states
for a particular treaty, the first step is to appoint a representative for
negotiations.
Negotiation and adoption;
Negotiations
concerning a treaty are conducted either through Pourparlers (A French term meaning for speaking,
used to mean a preliminary discussion before a main one) in case of bilateral
treaties or by a diplomatic conference, the moral usual procedure when a
multilateral treaty is to be adopted. In both cases, the delegates remain in
touch with their government.
Article
9 of VCLT 1969, provides;
1. The adoption of the text of a treaty takes place by the consent
of all the States participating in its drawing up except as provided in
paragraph 2.
2. The adoption of the text of a treaty at an international
conference takes place by the vote of two thirds of the States present and
voting, unless by the same majority they shall decide to apply a different
rule.
Authentication, signature and exchange of instruments;
When
the final draft of the treaty has been agreed upon, the instruments is ready
for signature. The act of signature is most formal conventions, signature is
generally effected at a formal closing in the course of which delegate signs on
behalf of head of the state.
This would be appropriate for the more routine and less politicised
of treaties. The act of signature is usually a formal affair. Often in the more
important treaties, the head of state will formally add his signature in an
elaborate ceremony, but in multilateral conventions, a special closing session
will be held at which authorised representatives will sign the treaty.
Article
10 of the VCLT provides;
That
the text may be authenticated by such procedure as is laid down in the treaty
itself, or as is agreed to by the negotiating states, failing
such procedure, by the signature, signature ad referendum or initialing by the
representatives of those States of the text of the treaty or of the Final Act
of a conference incorporating the text.
Consent by Signature;
A state may regard itself as having given
its consent to the text of the treaty by signature in defined circumstances
noted by article 12, of VCLT, that is,
·
Where the treaty provides that
signature shall have that effect, or
·
Where it is otherwise established
that the negotiating states were agreed that signature should have that effect
or
·
Where the intention of the state to
give that effect to the signature appears from the full powers of its
representative or was expressed during the negotiations.
Effect of signature;
It depends on whether or not the treaty is
subject to ratification, acceptance, or approval and if it is subject as
provided then signature means no more than that the delegates have agreed upon
a text and are willing to accept it and refer it to their governments for such
actions as those governments may choose to take in regard to the acceptance or
rejection of the treaty. And if it is not subject to any condition, then the
instrument is binding as from signature.
Consent by Exchange of Instruments;
Article 13 provides that the consent of
states to be bound by a treaty constituted by instruments exchanged between
them may be expressed by that exchange when the instruments declare that their
exchange shall have that effect or it is otherwise established that those
states had agreed that the exchange of instruments should have that effect.
Ratification;
The device of ratification by the
competent authorities of the state is historically well established and was
originally devised to ensure that the representative did not exceed his powers
or instructions with regard to the making of a particular agreement. And
was originally a function of the sovereign, it has in modern times been made
subject to constitutional control.
Ratification is the approval by the head
of state or the government of the signatures of its delegate. In article of 2
VCLT 1969, ratification is defined to mean;
“Whereby a State establishes
on the international plane its consent to be bound by a treaty”.
Advantage of ratification;
The advantages of waiting until a state
ratifies a treaty before it becomes a binding document are basically twofold,
internal and external. In the latter case, the delay between signature and
ratification may often be advantageous in allowing extra time for
consideration, once the negotiating process has been completed. But it is the
internal aspects that are the most important, for providing participation by a
state’s population in public affairs.
Case;
According to Judge, J.B. Moore in the Mavrommatis Palestine Concessions Case
(1924) “the doctrine that treaties may be regarded as operative before they
have been ratified is obsolete, and lingers only as an echo from the past”.
Article 14 of VCLT provides;
Article 14
Consent to be bound by a treaty
expressed by ratification
1. The consent of a State to
be bound by a treaty is expressed by ratification when:
(a) The treaty provides for such
consent to be expressed by means of ratification;
(b)
It is otherwise established that the negotiating States were agreed that
ratification should be required;
(c)
The representative of the State has signed the treaty subject to ratification;
or
(d)
The intention of the State to sign the treaty subject to ratification appears
from the full powers of its representative or was expressed during the
negotiation.
Duty to ratify;
The power of refusing the ratification is
deemed to be inherent in the state sovereignty, and accordingly at
international law there is neither a legal nor a moral duty to ratify a treaty.
Exchange of ratifications;
Unless the treaty itself otherwise
provides, an instrument of ratification has no effect in finally establishing
consent to be bound by the treaty until the exchange or deposit of
ratification. (Article 16 of VCLT 1969).
Accession and adhesions;
This is the normal method by which a state becomes a party to a
treaty it has not signed either because the treaty provides that signature is
limited to certain states, and it is not such a state, or because a particular
deadline for signature has passed
In
practice, when a state has not signed a treaty it can only accede or adhere to
it. But today, non-signatory state may accede or adhere even before the treaty
enters into force. Accession includes full entire acceptance of whole treaty
precluding reservations to any clause, whereas adhesions may be an acceptance
of part only of the treaty.
Entry into force;
The
entry into force of treaty depends upon its provisions, or upon what the
contracting states have otherwise agreed.
As
provided under
Article 24
Entry into force
1.
A
treaty enters into force in such manner and upon such date as it may provide or
as the negotiating States may agree.
2.
Failing
any such provision or agreement, a treaty enters into force as soon as consent
to be bound by the treaty has been established for all the negotiating States.
3.
When
the consent of a State to be bound by a treaty is established on a date after
the treaty has come into force, the treaty enters into force for that State on
that date, unless the treaty otherwise provides.
4.
The
provisions of a treaty regulating the authentication of its text, the
establishment of the consent of States to be bound by the treaty, the manner or
date of its entry into force, reservations, the functions of the depositary and
other matters arising necessarily before the entry into force of the treaty
apply from the time of the adoption of its text.
Many treaties become operative on
the date of their signature, but where ratification, acceptance or approval is
necessary, the general rule of international law is that the treaty concerned
comes into force only after the exchange or deposit of ratifications,
acceptance, or approvals by all the states signatories.
The United Nations Charter 1945,
provides by article 102 that all treaties and international agreements entered
into by members of the United Nations Organizations shall ‘as soon as possible’
be registered with the Secretariat of the Organizations and be published by it.
No party to a treaty or agreement not registered in this way, may invoke that
treaty or agreement before any organ of the United Nations. This means that a
state party to such an unregistered treaty or agreement cannot rely upon it in
proceedings before the International Court of Justice or in meetings of the
General Assembly or Security Council.
The object of article 102 was to
prevent the practice of secret agreements between states, and to make it
possible for the people of democratic states to repudiate such treaties when
publicly disclosed.
Article 80 of VCLT 1969 provides;
Article 80
Registration and publication
of treaties
1.
Treaties shall, after
their entry into force, be transmitted to the Secretariat of the United Nations
for registration or filing and recording, as the case may be, and for
publication.
2.
The designation of a
depositary shall constitute authorization for it to perform the acts specified
in the preceding paragraph.
Application and enforcement;
Unless a different intention appears
from the treaty or is otherwise established, article 29 provides that a treaty
is binding upon each party in respect of its entire territory.
Article 29
Territorial scope of treaties
Unless a different intention
appears from the treaty or is otherwise established, a treaty is binding upon
each party in respect of its entire territory.
The final stage of the treaty making
process is the actual incorporation of the treaty provisions in the municipal
law of the state, and the application by such states of these provisions. In
practice, vigilant “follow up” work is needed to ensure that states parties do
actually apply instruments binding them. Some international organs e.g. the
International Labour Organization have Committee of Experts on the Application
of Conventions and Recommendations, to discharge its functions.
Reservation to treaties;
Where
a state is satisfied with most of the terms of a treaty, but is unhappy about
particular provisions, it may, in certain circumstances, wish to refuse to
accept or be bound by such provisions, while consenting to the rest of the
agreement, known as reservation.
And sometimes, state may often wish to sign or ratify or otherwise
consent to be bound by a treaty in such manner that certain provisions of the
treaty do not bind it; or apply to it subject to modifications. This can be
effected principally by;
1.
Express
provisions in the treaty itself
2.
By
agreement between the contracting states, or
3.
By
a reservation duly made.
Article 2 (d) of VCLT 1969, defines reservation as;
“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;
Effect of reservation;
The effect of reservation is to modify the provisions of the
treaty to which the reservation relates, but leaving intact the treaty
relations of non-reserving states inter-se. And Reservations
must be distinguished from other statements made with regard to a treaty that
are not intended to have the legal effect of a reservation, such as
understandings, political statements or interpretative declarations.
Principle;
In principle, a state making a reservation can do so only with the
consent of other contracting states, otherwise the whole object of the treaty
might be impaired. And the capacity of a state to make reservations illustrates the
principle of sovereignty of states, whereby a state may refuse its consent to particular
provisions so that they do not become binding upon it.
In
order to determine whether a unilateral statement made constitutes a
reservation, the statement will have to be interpreted in good faith in
accordance with the ordinary meaning to be given to its terms and within the
context of the treaty in question, also keeping in view the intention of making
such statement.
Form
of reservation;
The
form in which reservation have been recorded has varied. Sometimes they are in
shape of Protocols of Signature, sometimes in Final Act, sometimes in Exchange
of Notes etc. But Article 23 of VCLT 1969 laid it down that reservation and
acceptance of, or objection to reservations, must be in writing and be duly
communicated.
Article 23
Procedure regarding
reservations
1.
A
reservation, an express acceptance of a reservation and an objection to a
reservation must be formulated in writing and communicated to the contracting
States and other States entitled to become parties to the treaty.
2.
If
formulated when signing the treaty subject to ratification, acceptance or
approval, a reservation must be formally confirmed by the reserving State when
expressing its consent to be bound by the treaty. In such a case the
reservation shall be considered as having been made on the date of its
confirmation.
3.
An
express acceptance of, or an objection to, a reservation made previously to
confirmation of the reservation does not itself require confirmation.
4.
The
withdrawal of a reservation or of an objection to a reservation must be
formulated in writing.
The International Court of Justice set some rules and principles
applicable to reservations, which are;
1.
Reservations
can be made to a treaty as long as they are compatible with the object and
purpose of the said treaty.
2.
That
each state, party to treaty, is entitled to appraise the validity of
reservation.
3.
Any
signatory state (not yet ratified) and any state entitled to sign (not yet done
so) “they may object to reservation in the same way as any state which is a
party to the convention with full legal effect”.
In
general, reservations are deemed to have been accepted by states that have
raised no objections to them at the end of a period of twelve months after
notification of the reservation, or by the date on which consent to be bound by
the treaty was expressed, whichever is the later.
Revision, amendment and modification of treaties;
The
terms, ‘revision, amendment, and modification’ are in current use to denote the
process of altering the provisions of treaties.
The
term ‘revision’ frequently carries some political significance, being employed
by states claiming that unjust or unequal treaties should be reviewed and final
dispositions of territory or frontiers adjusted.
‘Amendments’
refer to the formal alteration of treaty provisions, affecting all the parties
to the particular agreement, while ‘modifications’ relate to variations of certain
treaty terms as between particular parties only.
Article 39
General rule regarding the
amendment of treaties
A
treaty may be amended by agreement between the parties.
And
to the extent of ‘modification’ two or more parties to a multilateral treaty
may decide to change that agreement as between themselves in certain ways,
quite irrespective of any amendment by all the parties. This technique, known
as modification, is possible provided it has not been prohibited by the treaty
in question and provided it does not affect the rights or obligations of the
other parties.
Inconsistency, invalidity, termination and suspension of the operation of treaties;
Inconsistency;
There
is question regarding the applicability of a treaty which is ‘inconsistent’
with the terms of an earlier treaty.
As
provided by Article 30 (2) of VCLT 1969;
Article 30
Application of successive treaties relating to the same
subject matter
2. When a treaty specifies that it is subject to, or that it is
not to be considered as incompatible with, an earlier or later treaty, the
provisions of that other treaty prevail.
Further, different considerations are applicable to bilateral and
multilateral treaties. In later case, if the earlier convention does not in
definite terms prohibit the international community then the later convention
should not be held inapplicable, notwithstanding that it derogates
substantially from the earlier convention and that it has not been entered into
by all of the parties to the other instrument.
Invalidity;
Article
42 states that the validity and continuance in force of a treaty may only be
questioned on the basis of the provisions in the Vienna Convention. The grounds
for invalidation of treaty are analogous to those applicable in the domestic
law of contracts, e.g. contractual incapacity, absence of free consent or
consent due to fraud, mistake or duress.
And
Article 45 in essence provides that a ground for invalidity, termination,
withdrawal or suspension may no longer be invoked by the state where, after
becoming aware of the facts, it expressly agreed that the treaty is valid or
remains in force or by reason of its conduct may be deemed to have acquiesced
in the validity of the treaty or its continuance in force.
1. Treaty making incapacity/municipal law;
Article
46 of VCLT 1969 provides, a state may not rely on the fact that its
representative exceeded his treaty making powers under internal law unless such
excess of authority was;
a.
Manifest.
b.
Concerned a
rule of internal law of fundamental importance.
Case;
The
International Court dealt with this question in Cameroon v. Nigeria,
where it had been argued by Nigeria that the Maroua Declaration of 1975 between
the two states was not valid as its constitutional rules had not been complied
with. The Court noted that the Nigerian head of state had signed the
Declaration and that a limitation of his capacity would not be ‘manifest’
unless at least properly publicised. This was especially so since heads of
state are deemed to represent their states for the purpose of performing acts
relating to the conclusion of treaties.
2. Error;
Article
48 declares that, a state is entitled to reply upon error as a ground, if error
be one as to a fact assumed by the state concerned to exist at the time when
the treaty was concluded, and which formed an essential basis of its consent to
the treaty.
But
if the state knew or ought to have known of the error, or if it contributed to
that error, then it cannot afterwards free itself from the obligation of
observing the treaty by pointing to that error.
The
scope in international law of error as invalidating a state’s consent is rather
limited.
Case;
In Temple
case 1960, the International Court of Justice rejected Thailand’s argument
that a particular map contained a basic error and therefore it was not bound to
observe it, since ‘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, or if the circumstances were such as to put that
party on notice of a possible error’.
3. Fraud;
Article
49 of VCLT 1969 provides that;
“If a State has been induced to conclude a treaty by the
fraudulent conduct of another negotiating State, the State may invoke the fraud
as invalidating its consent to be bound by the treaty”.
4. Corruption;
Under
Article 50 of VCLT it is provided that, if a state’s consent to a treaty has
been procured through the corruption of its representatives, directly or
indirectly by another negotiating state, the former is entitled to claim the
treaty as invalid.
5. Coercion;
Article
2(4) of the United Nations Charter provides that:
“All
members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any
state, or in any other measure inconsistent with the purposes of the United
Nations”.
It
followed that treaties based on coercion of a state should be regarded as
invalid.
Articles
51-52 of VCLT 1969 provides that, this ground is satisfied if;
a.
A state’s
consent to a treaty has been procured by the coercion of its representative
through acts or threats directed against him.
b.
The conclusion
of the treaty has been procured by the threat or use of force in violation of
the principles of international law embodied in United Nations Charter.
6. Jus Cogens;
Jus
congens, are body of peremptory principles or norms form which no derogation is
permitted. According to learned writer, the rules of jus-cogens are;
“The
fundamental rules concerning the safeguarding of peace…fundamental rules of a
humanitarian nature (prohibition of genocide, slavery, and racial
discrimination, protection of fundamental rights at the time of war and peace),
the rules prohibiting any infringement of the independence and sovereign
equality of states, the rules which ensure to all the members of the
international community the enjoyment of certain common resources (high seas,
outer space etc.)
And
Article 53 of VCLT provides that; “A treaty is void if at the time of its
conclusion it conflicts with a norm of jus cogens”.
Further
Article 64 of VCLT provides that, “if a new peremptory norm of general international
law emerges, any existing treaty which is in conflict with that norm becomes
void and terminates”.
Consequence
of invalidity;
Article 69
provides that an invalid treaty is void and without legal force.
Termination of treaty;
There
are a number of methods available by which treaties may be terminated or
suspended. This can be generally divided into two sections;
a.
Termination by
operation of law.
b.
Termination by
act or acts of parties.
Termination by operation of law;
1.
Extinction of
either party to a bilateral treaty or of the entire subject matter of the
treaty may discharge the instrument.
2.
Treaties may
also cease to operate upon the outbreak of war between the parties.
3.
A treaty may
also be terminated or suspended in accordance with a specific provision in that
treaty.
4.
A treaty may,
of course, com to an end if its purposes and objects have been fulfilled or if
it is clear from its provisions that it is limited in time and requisite time
has elapsed.
5.
Under Article
60 of VCLT, a ground known as ‘material breach’ is provided for a bilateral
treaty which entitles one party to terminate the treaty or suspend its
operations. And in case of material breach in multilateral treaty by one party
may according to the circumstances result in its termination as between all
parties, or between the defaulting state and other parties.
Article 60(3) declares that a material breach of a treaty consists
in either a repudiation of the treaty not permitted by the Vienna Convention or
the violation of a provision essential to the accomplishment of the object or
purpose of the treaty.
6.
Under Article
61 of VCLT, impossibility of performance of the treaty due to the permanent
disappearance or destruction of an object indispensable for the execution of
the treaty will result in termination.
7.
Article 64 of
VCLT provides, in case of emergence of new peremptory norm of jus cogens
emerges, any existing treaty which is in conflict with that norm becomes void
and terminates.
8.
Another
important ground for termination is known as a rule of “rebus sic stantibus”. The
doctrine of rebus sic stantibus is a principle in customary international
law providing that where there has been a fundamental change of circumstances
since an agreement was concluded, a party to that agreement may withdraw from
or terminate it.
The International Court in the Fisheries Jurisdiction case
1973 declared that:
“International law admits that a fundamental change in the
circumstances which determined the parties to accept a treaty, if it has
resulted in a radical transformation of the extent of the obligations imposed
by it, may, under certain conditions, afford the party affected a ground for
invoking the termination or suspension of the treaty”.
This matter is now dealt within Article 62 of VCLT as under;
Article 62
Fundamental change of
circumstances
1. A fundamental change of circumstances which has
occurred with regard to those existing at the time of the conclusion of a
treaty, and which was not foreseen by the parties, may not be invoked as a
ground for terminating or withdrawing from the treaty unless:
a.
the
existence of those circumstances constituted an essential basis of the consent
of the parties to be bound by the treaty; and
b.the
effect of the change is radically to transform the extent of obligations still
to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a
ground for terminating or withdrawing from a treaty:
a. if the treaty establishes a boundary; or
b.if
the fundamental change is the result of a breach by the party invoking it
either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty.
3.
If, under the
foregoing paragraphs, a party may invoke a fundamental change of circumstances
as a ground for terminating or withdrawing from a treaty it may also invoke the
change as a ground for suspending the operation of the treaty.
Termination by act or acts of parties;
1.
Under Article
59 of VCLT, a treaty will be considered as terminated if all the parties to it
conclude a subsequent treaty relating to the same subject matter and it appears
from this later treaty or otherwise that the parties intended that the matter
be governed by that treaty.
2.
Article 56 of
VCLT deals with withdrawal from a treaty. When a party wishes to withdraw from
a treaty, it usually does so by notice of termination, or by act of
denunciation. The term denunciation denotes the notification by a state to
other states parties that it intends to withdraw from the treaty. In practice,
multilateral conventions contain a special clause allowing denunciation after
the expiration of a certain period of time.
Consequence
of termination is provided under Article 70 of VCLT which provides;
Article 70
Consequences of the
termination of a treaty
1.
Unless the treaty
otherwise provides or the parties otherwise agree, the termination of a treaty
under its provisions or in accordance with the present Convention:
(a)
releases the parties
from any obligation further to perform the treaty;
(b)
does not affect any
right, obligation or legal situation of the parties created through the
execution of the treaty prior to its termination.
2.
If a State denounces or
withdraws from a multilateral treaty, paragraph 1 applies in the relations
between that State and each of the other parties to the treaty from the date
when such denunciation or withdrawal takes effect
Suspension of operation of treaties;
The
operation of a treaty may be suspended, in regard to either all parties or a
particular party;
a.
In conformity
with the provisions of treaty.
b.
At any time by
the consent of all parties after consultation (Article 57 VCLT)
c.
Through the
consultation of a subsequent treaty, if this be the intention of the parties.
(Article 59 VCLT).
d.
Subject to the
provisions of treaty, two or more parties to a multilateral treaty may suspend
its operation as between themselves alone. (Article 58 VCLT).
Interpretations of treaty;
As
far as international law is concerned, there are three basic approaches to
treaty interpretation.
1.
The first centers
on the actual text of the agreement and emphasises the analysis of the
words used.
2.
The second
looks to the intention of the parties adopting the agreement as the
solution to ambiguous provisions and can be termed the subjective approach in
contradistinction to the objective approach of the previous school.
3.
The third
approach adopts a wider perspective than the other two and emphasises the
object and purpose of the treaty as the most important backcloth against
which the meaning of any particular treaty provision should be measured.
General rules of treaty interpretation;
There
are numerous rules, canons, and principles have been laid down by international
tribunals and by writers to be used as tools in the interpretations of
treaties. They may be summarised as under;
a. Grammatical interpretation and intention of parties;
Words
and phrases are in the first instance to be construed according to their plain
and natural meanings, which if results in absurdity, then it should not be
adopted. Secondly rules concerning the intention of the parties provides that
the intention must be of at the time instrument was concluded. What must be
ascertained is the ostensible intention of the parties.
b. Object and context of treaty;
If a
particular words and phrases in a treaty are doubtful, their construction
should be governed by the general object of the treaty and by the context.
Article 31 of VCLT provides that a treaty should be interpreted by reference to
its object and purpose.
c. Reasonableness and consistency;
Treaties
should, be given an interpretation in which the reasonable meaning of words and
phrases is preferred, and in which a consistent meaning is given to different
portions of the instrument. In accordance with the rules of consistency,
treaties should be interpreted in the light of existing international law.
d. The principle of effectiveness;
This
principle is as stressed by International Courts of Justice requires that the
treaty should be given an interpretation which “on the whole” will render the
treaty “must effective and useful”.
e. Recourse to extrinsic material;
The
following may be resorted to;
·
Past history,
historical usage and relevant to treaty.
·
Preparatory
work, e.g. preliminary drafts, record of conferences etc.
·
Interpretative
protocols, resolutions, committee reports etc.
·
Subsequent
agreement regarding interpretations.
·
Other treaties
in pari materia.
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