Chapter 3: Law and Practice of Treaties

Introduction

The treaty is the ubiquitous tool through which all kinds of international transactions are conducted. It is, in fact, the closest analogy to legislation that international law has to offer. It can range from merely a bilateral arrangement among States to a multilateral constituent instrument of an international organization. Almost every kind of legal act or transaction is performed through treaties. The multilateral treaty remains the best medium for imposing binding rules in many classical and new issues of international law for codifying, clarifying, and supplementing the customary law.

The Concept of Treaty in International Law

The Vienna Convention defines treaty as “an international agreement concluded between states in written form and governed by international law” (Art. 2(1)/a). The terms treaty, pact, charter, constitution, statute, convention, General Act, Final Act (when it is an independent instrument) are generally used for formal instruments of multilateral character. The terms such as memorandum of understanding, procés vérbal, arrangement, exchange of notes are used for less formal instruments and generally related to transactions of provisional or temporary nature. The terms like declarations, agreements, modus vivendi or joint communiqué are common to both formal and less formal types of agreements.

A treaty may be in the form of an agreement between the heads of states of the concerned countries, in an inter- governmental form, between ministers of the respective countries, or it may be an inter-departmental agree ment. Irrespective of the form or terminology of a particular instrument, an agreement should have the following characteristics to be considered as a treaty: a) it should be embodied in a written instrument between two or more entities; b) those entities should be endowed with international personality; and c) it should be governed by international law.

Under international law, a unilateral declaration made by a state in certain circumstances has been accepted as binding ipso facto on the state in the nature of a treaty without any quid pro quo, if it has been acted upon by other nations.

Quid pro quo: some favor or advantage given to someone in return for something they have done.

The Making of Treaties

The municipal law governs all matters concerning the authority to make international agreements. International law does not prescribe any manner or procedure to exercise the treaty-making power by a state, which has the constitutional arrangements. Generally, the authority to conclude treaties vests in the Heads of State, who in turn delegate the power to negotiate and sign treaties to the ministers of Foreign Affairs and other diplomatic officials. Governments may also authorize their diplomatic officials.

The making of treaties involves various steps, viz., consultation, negotiation and adoption of the text, commencement of treaty, ratification, accession, adhesion etc.

As a first step towards the conclusion of treaty is the negotiation and adoption of the text. Once the state decides to enter into a treaty relationship, it appoints the representatives to negotiate the text of the treaty. These representatives should be duly empowered through “full powers”. Full powers is a formal document emanating from the competent authority of a state designating a person or persons to represent the state for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the state to be bound by a treaty, or for accomplishing any other act with respect to a treaty (Art. 2(1)/c, Vienna Convention).

After its adoption, authentication of the text is done in a manner as agreed by the parties among themselves. It can be done according to the procedure provided in the text of the treaty, or by signature, initialling or signature ad referendum. Unless there is an agreement to dispense with signature, this is essential for a treaty, principally because it serves to authenticate the text. In the case of initialling, formal signature in proper form takes place later. Initialling also occurs where a representative, without authority or clear instructions to sign, prefers not to sign the text. On the other hand, signature ad referendum (for referral) are deferred signatures, which generally denotes that the negotiated text was not fully acceptable to the signatory state at the time of authentication; and moreover, they are without any legal effect unless confirmed subsequently by the state.

The question as to when a treaty becomes binding on parties and creates a legal relationship between them is very significant. A state may express its consent to be bound by a treaty by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means agreed between the parties (Art. 11).

The signing of a treaty may be merely an authentication of its text, but if the treaty so provides or the parties otherwise agree, the signature of their representatives will signify their consent to be bound by the treaty. Where the treaty is silent on ratification, accession and approval, better view seems to be that it will be binding upon signature. If the treaty is subject to ratification, acceptance, approval or accession, signature merely signifies that the delegates have agreed upon a text that will be referred to their governments for further action in the acceptance of the treaty.

Ratification is the international act whereby “a State establishes on the international plane its consent to be bound by a treaty” (Art. 2(1)/b, Vienna Convention). Ratification is an act of government to approve the treaty in question. Treaty becomes binding on the state after ratification. Ratification presupposes signing of a treaty by the duly appointed plenipotentiary (person having full powers). Generally, there is no prescribed time limit for ratification and states usually take many years before ratifying the treaty. For example, the Vienna Convention on Law of Treaties had been signed on 23 May 1969, but it came into effect on 27 January 1980, after 35 ratifications were deposited with the Secretary-General of the United Nations. Ratification provides a breathing time to state functionaries after the authentication of the text, during which they can consider its implications or prepare the public opinion in its favor. The procedure of ratification is governed by the constitutional provisions and practices, which vary from states to states. However, there is no duty on a state to ratify a treaty. Similarly, the state is not obliged to give reasons for its refusal to ratify or to inform other states.

Accession, adhesion or adherence is a method by which a state becomes a party to a treaty of which it is not a signatory. Under the earlier practice, accession could be made only after the treaty had come into force. According to present practice, a non-signatory state may accede before or after the treaty has come into force. A state may accede to a treaty only with the consent of the parties to the treaty. This consent may be given in advance by specifying in the treaty or it may be otherwise established.

Entry into force of a treaty is entirely dependent upon the agreement between negotiating States (Art. 24/1). They may prescribe the manner and the date for its coming into force. They may agree that the treaty shall be effective immediately after signature, or at some fixed time, i.e., 30, 60 or 90 days after the prescribed number of ratifications or accessions is deposited, or on the happening of a certain event. In the absence of any agreement between the parties or a provision in the treaty, “it enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states”.

As a general rule, a treaty primarily binds the parties to it and may not confer rights or impose obligations on third parties without their consent. This general rule, known as pacta tertiis nec nocent nec prosunt, reflects the customary international law. It is incorporated in the Vienna Convention (Pacta tertiis nec nocent nec prosunt: A treaty does not create either obligations or rights for a third state without its consent). The Convention states that “a treaty does not create either obligations or rights for a third state without its consent”. However, “an obligation arises for a third state from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third state expressly accepts that obligation in writing. This reflects the fundamental principle of international law that a state cannot be bound by a treaty provision without its consent. Certain kinds of treaties, however, bind or produce effects for third states without their consent such as dispositive treaties and constitutive treaties. For example, treaties of cession, boundary treaties; treaties relating to international settlements or arrangement, such as those guaranteeing neutrality of Switzerland and passage through the Suez canal; treaties establishing special régimes, such as de- fortification of Aaland Islands; or international institutions endowing them with legal personality valid erga omnes cannot be ignored by non-parties. They create or affect their rights. The Reparations case (ICJ 1949) has established the binding character of the UN Charter in relation to non-members.

Unlike obligation, the acceptance of the right by a third party is not conditional upon any specific act or upon the conclusion of a collateral agreement between it and the parties to the treaty. Any right so created that has been claimed and enjoyed by third parties cannot be revoked or modified without their consent, when it is established that the right was intended not to be revocable or subject to modification.

Reservations to Treaties

A reservation is a unilateral statement made by a state at the time of signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state. The object of a state making the reservation is to alter its obligations with regard to other parties. A declaration in the nature of interpretation of certain provisions in a particular way, which does not vary the obligations of that signatory vis-a- vis other signatories, is not a true reservation.

The rationale behind reservation is that a state which is unable to fulfil its treaty obligations in totality because of certain constraints should be allowed to do so, even if in a limited way, provided that the reservation does not materially affect the basic provisions of the treaty. However, the right to make reservation to multilateral treaties that do not have any specific provision on reservation has always remained controversial. There have been three principal approaches in this regard: (a) the traditional approach, (b) the Pan American approach and (c) the modern approach.

Effects of reservation on the reserving state’s legal position vis-a-vis other parties closely follow the Court’s approach in the Genocide Convention case. Acceptance of a reservation by another state makes the reserving state a party in relation to the accepting state. However, objection to reservation does not preclude the entry into force of the treaty between the reserving state and the objecting state unless a definite intention to this effect had been expressed by the objecting state.

The making of reservations and acceptance or objections must be in writing and must be duly communicated. Reservations made at the time of signing a treaty subject to ratification, acceptance or approval, must be confirmed in the subsequent instrument of ratification, acceptance, or approval. A reservation or an objection to it may be withdrawn at any time by giving a notice. The notice will become effective when it is received by the other state that has accepted the reservation or formulated the reservation, as the case may be.

Invalidity of Treaties

The principle pacta sunt servanda (treaties must be observed) has long been recognized as a fundamental principle of international law that makes the treaties binding. Once entered into a treaty, a state must observe the treaty obligations in good faith. The Vienna Convention provides that “every treaty in force is binding upon the parties to it and must be performed by them in good faith”. However, the customary law of treaties provides certain situations when a treaty cannot be enforced because of its invalidity.

Violation of Domestic Law on Treaty-Making: There are three different opinions regarding the validity of a state’s consent for non-compliance with a requirement of municipal law on treaty making: a) A treaty becomes voidable in contravention of constitutional limitations; b) A state contesting the validity of a treaty on constitutional grounds may invoke only those provisions of the constitution which are notorious; c) Once the state has expressed its consent to be bound by the treaty through one of the established procedures under its constitutional law, the state is bound by the treaty in international law.

Error: Article 48 the Vienna Convention considers error or mistake a reason to invalidate a treaty. The state practice, however, is scanty in this regard. All the recorded instances in which errors were alleged to have invalidated certain treaties were related to geographical errors, and mostly errors in maps. Error, to be a ground of invalidity, must be the one related to a fact or situation assumed by the state concerned. That fact or situation has formed an essential basis of State’s consent to the treaty. However, (a) if the State has contributed by its own conduct to the error or (b) if the circumstances were such as to put that state on notice of a possible error, or (c) the error related only to the wording of the text of the treaty, it cannot become a ground for the invalidation of the treaty (Art. 48). The Vienna Convention does not make a distinction between mutual and unilateral error, or between error of fact or error of law, though it mentions about error relating to a “situation” and a “fact.”

Fraud and Corruption of the State Representative: A treaty can be invalidated on the grounds of the fraudulent conduct of a contracting party and the corruption of its representative. However, the precise scope of both these grounds has so far remained unspecified. Fraud is a ground for the avoidance of contractual obligations in most legal systems. However, under international law, there is a lack of judicial precedents in this regard; the Vienna Convention does not define the term “fraud”. For corruption acts meant to exercise a substantial influence on the disposition of the representative to conclude a treaty may also become a ground for invalidating the treaty.

Coercion: A treaty becomes void if its conclusion was procured by the threat or use of force in violation of the principles of the UN Charter. Coercion can be of a state’s representative or of a state. The use of coercion against the representative of a state for the purposes of procuring the conclusion of a treaty would be a serious matter that is sufficient to declare the treaty devoid of any legal consequence. In practice, sometimes it becomes difficult to make a distinction between the coercion directed at a state or its representative.

Conflict with a Norm of Jus Cogens: A treaty is void ab initio (from the beginning), if at the time of its conclusion it conflicts with a peremptory norm of general international law, i.e., jus cogens. “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates” (Art. 64). Thus, a treaty is void if it is in contradiction with the existing or new jus cogens. The Vienna Convention does not provide any definition of jus cogens. But it is stated to be “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 be modified only by a subsequent norm of general international law having the same character” (Art. 53). Jus cogens is opposed to jus dispositivum, i.e., rules that yield to the will of the parties. In case of a contrary disposition of the parties, one can contract out of jus dispositivum but not out of jus cogens.

Termination and Suspension of Treaties

Treaties are liable to be terminated or suspended either in accordance with the will of the parties or by the operation of any rule of law.

The termination of a treaty or withdrawal by a party may be in accordance with the terms of the treaty or at any time by the consent of all the parties. The operation of a treaty may be suspended for all the parties or for a particular party according to the express stipulations of the treaty or by mutual consent of all the parties at any time. Most treaties contain clauses limiting the duration of the treaty after which it comes to an end. Some give reference to a specific purpose or event. When the purpose is accomplished or that event has occurred, the treaty comes to an end. Similarly, a treaty may allow a state to withdraw at any time after giving requisite notice.

Where a treaty is silent on the matter of termination, withdrawal or denunciation, normally no denunciation or withdrawal is possible. This is in accordance with the basic tenet of pacta sunt servanda; because a state cannot get rid of its treaty obligation without the consent of all the parties to the treaty. Unless it is established that the parties intended to admit the possibility of denunciation or withdrawal, or the right of denunciation or withdrawal may be implied by the nature of the treaty, it is not permissible.

A treaty may be “impliedly repealed” if all its parties conclude a new treaty relating to the same subject matter, where (a) it appears from the later treaty or is otherwise established that the parties intended that the matter be governed by the new treaty, or (b) its provisions are incompatible with the earlier treaty and the two are not capable of being applied at the same time (Art. 59).

Sometimes it becomes difficult for the parties to fulfil their obligations under a treaty because of certain events that may lead to its termination or denunciation by a party. These could be; a) Breach of Treaty by a Party; b) Supervining Impossibility of Performance; c) Fundamental Change of Circumstances (rebus sic stantibus).

Treaty Interpretation, Amendment and Modification of Multilateral Treaties

The technique of interpretation is important to ascertain the true meaning of the text of a treaty. When parties ascribe different meanings to the same term, or they are unable to give any meaning thereof, or the meaning of the term is obscure and ambiguous, it is through the technique of interpretation that the term of the treaty is elucidated. Interpretation differs from “application of treaties,” which almost invariably involves some measure of interpretation. Whereas interpretation is the process of determining the meaning of the text, application is the process of determining the consequences, which according to the text, should follow in a given situation. However, they are interdependent because differences over interpretation of a treaty invariably arise in connection with its application. Disputes related to its application practically always involve a question of interpretation. Whenever a question of interpretation comes before a tribunal, it becomes its duty to ascertain and give effect to the intention of the parties as expressed in the words used by them in the surrounding circumstances. There are three main approaches to treaty interpretation:

• Textual (ordinary meaning of the words),
• The intention of the parties,
• Teleological (the object and purpose of the treaty).

These three approaches can be compounded to ascertain the true meaning of a treaty. The Vienna Convention (through its Articles 31, 32, and 33) incorporates some measures from each approach.

The concepts of amendment, revision, and modification connote the process of altering the provisions of treaties. Amendment is related to the individual provisions of a treaty, whereas revision concerns with the general review of the whole treaty. The ILC has applied the term “amendment” to cover alteration of particular provisions and the general review of the whole treaty, thus covering the “revision” also. On the other hand, modification is about inter-se agreements concluded between certain parties and it refers to varying the provisions of the treaty in their mutual relations. Articles 39 and 40 of the Vienna Convention deal with amendment. Article 41 deals with the modification of treaties. The law enshrined therein is mainly relevant to multilateral treaties. However, the general rule contained in Article 39, i.e., that a “treaty may be amended by agreement between the parties”, is equally applicable to bilateral treaties. This rule is generally applicable, irrespective of a specific provision to this effect in the treaty. However, when a treaty creates rights in favor of a third state, the consent of that state may be required for modification or revocation.