Contents

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;

(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.

Registration and publication;

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.

Wednesday, 17 January 2018

Law of Treaties

b. Object and context of treaty;

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