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LAW 431- PUBLIC INTERNATIONAL LAW

LECTURER- MR J. PFUMORODZE
TREATIES- GROUP 3

Discussion surrounding how a treaty is a source of international law, what a treaty Is and the effect of a reservation on the operation of a treaty.

Contents
LAW 431- PUBLIC INTERNATIONAL LAW ................................................................................................ 1 A treaty as a source of International Law ............................................................................................... 3 Law making treaties vs Treaty-Contracts ..................................................................................... 5 What is a treaty? ..................................................................................................................................... 6 Classification of Treaties ......................................................................................................................... 7 The Codification of Customary International Law .................................................................................. 8 Definition of a Custom: ....................................................................................................................... 8 Sources of Customary International Law ............................................................................................ 8 State practice must be material .......................................................................................................... 9 The Negotiation and Ratification of Treaties ........................................................................................ 10 The negotiation of a treaty ............................................................................................................... 10 What does the ratification of a treaty mean? .................................................................................. 11 The Distinction between Ratification and Accession ...................................................................... 12 The Exercise of a Reservation on a Treaty ............................................................................................ 12 The legal effect of reservations ........................................................................................................ 14 The effect of objections to reservation ............................................................................................ 14 Withdrawal from a treaty ..................................................................................................................... 15

A treaty as a source of International Law

Article 38 (1) of The statute of the International Court of Justice of 19451 enumerates a list which has come to be known as the accepted and recognised sources of international law. Article 38 (1) of the aforementioned Statute provides as follows; 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. At the time Article 38 of the UN Charter was drafted, the term convention denoted any sort of treaty: bilateral or multilateral, and in the context of Article 38 it still retains this meaning. Since WWII2, treaties have assumed a clear prominence as the primary source of law-making on the international plane, especially multilateral treaties. Even so, international tribunals have clarified customary international law in ways which have developed the legal principles governing the law applicable to treaties. For example, the International Court of Justice has contributed significantly in clarifying the general rules for the interpretation of treaties.3 Furthermore, with the increased focus on relations between States that comes with globalisation, there has been greater pressure and demand to codify rules obtaining between those States. This codification has been done mainly through treaties because they are a relatively simple, clear and quick way of crystallizing existing international rules and developing new ones.
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The Statute of the International Court of Justice is an integral part of the United Nations Charter, as specified by Chapter XIV of the United Nations Charter. 2 World War Two, 1939- 1945 3 GG Fitzmaurice, The Law and Procedure of the International Court of Justice: Treaty Interpretation and Other Treaty Points, 1951 BYBIL, pp 1-28; cf Article 31 Vienna Convention on the Law of Treaties, ( 1969).

Indeed, it is now commonplace for legal scholars to classify those treaties which lay down universal (or even fairly general) rules governing international society as 'law-making' or 'normative' treaties. The Hague Peace Conferences of 1898 and 1907 are often cited not only as a watershed in the institutionalisation of international co-operation, but also as the first major international lawmaking conferences. The Britannica Micropedia 4 begins the definition of a treaty as: a contract or other written instrument.. The above underscores the fact that the manner in which treaties are negotiated and brought into force is governed by the intention and consent of the parties thereto. D.J Harris5 argues that treaties are innately in their inception, a source of obligation as opposed to a source of law. The astute observations made by the dissenting Judges in the [Reservations to the Genocide Convention Case]6in connection with Harriss belief echoed his sentiments when they stated that: the legal basis of these conventions, and the essential thing that brings them into force, is the common consent of the parties Similarly to the terms and conditions which govern the relationship between the parties to a contract- outlining the respective duties, rights and obligations of the parties thereto- a treaty can be seen to be of the same tenor. Harris postulates that the only law, that enters into these agreements is not from the treaty creating them, but emanates from one of the oldest principles of international law - pacta sunt servanda.7 Pacta sunt servanda is the Latin maxim which, loosely translated means agreements must be kept. Article 26 of the Vienna Convention of 1969 reaffirms this principle, and provides that: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. The law in these agreements is that the obligation must be honoured, but that the obligation does not of itself constitute a law. Whereas a statute is always from its inception, law- a treaty may eventuate in the promulgation of law(s) but is not in its inception itself, a law.

4 5

Britannica Micropedia Ready Reference, volume 11, 15 ed., 1990 rd The author of Cases and Materials on International Law, 3 ed 6 Advisory Oppinion I.C.J.Reports 1951 7 rd DJ Harris, Cases and Materials on International Law, 3 ed.

th

What then is the status of a treaty, which then becomes incorporated into the national body of laws? For example, the UN Convention on the Rights of the Child which led to the enactment of the Childrens Act.8Whilst one half of the group opine that the contents of the treaty are that from which the law emanates (the source), the other half opine that the treaty remains a reference material which simply evidences the obligations undertaken by the respective signatories to a treaty. Both schools of thought are correct to a certain extent, as shall be illustrated by the discussion to follow.

Law making treaties vs Treaty-Contracts


For the purposes of this discussion, treaties can be classified into two categories; I. law making treaties- alludes to multilateral treaties that are universal or general in nature. Treaties of this nature are said to codify the peremptory norms that are already recognised as international law customs- they essentially repeat what is already recognised as customary international law; and II. treaty-contracts, which are treaties that are signed between a smaller number States on certain limited issues. Treaties of this nature, do not codify existing customary international law, but create new obligations binding upon the member states thereto. The norms created by such a treaty contract are used to develop the international legal framework, and as such, under these circumstances can be said to be a source of international law. In regard to law making treaties Harris9 states: True, where it reflects (e.g. codifies) existing law, non-parties may conform to the same rules, but they do so by virtue of general law thus reflected in the treaty, not by virtue of the treaty itself. In that sense, the treaty may be an instrument in which the law is conveniently stated, and evidence of what it is.For example the four Geneva Conventions of 1949 or the Convention against the Prevention of Torture and other Cruel, Inhuman and Degrading Treatment. The Fourth Geneva Convention of 1949, although only a treaty and thereby only binds parties to the treaty is accepted as setting out the international law relating to the protection of civilians in armed conflict. Similarly, the definition of torture found in Article 1 of the Torture Convention is by and large reflective of the definition of torture under international law (and national laws). These treaties although only binding on the State parties, contain provisions that give guidance and evidence the peremptory rules on what constitutes international law.

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(Cap 28:04) rd DJ Harris, Cases and Materials on International Law, 3 ed

On the other hand, were we to contrast this with a hypothetical agreement, for instance the Agreement between India and Sri Lanka for the Development of the Coconut and Rubber Industries. This agreement does not, ab initio, create standards or norms of international law. It operates as an agreement, or a contract, between India and Sri Lanka in relation to coconut and rubber. The provisions of this agreement will not bind Pakistan.

What is a treaty?

Several definitions have been advanced in an attempt to describe and ascribe the characteristics which dictate what a treaty is, inter alia: 1. A settlement or agreement arrived at through negotiation which gives rise to binding obligations between parties who make them. Such settlement/agreement may outline the rights and responsibilities of the parties as they are agreed upon10; or 2. A formal written agreement between sovereign states or between states and international organisations11; or 3. A contract or other written instrument binding two or more states under international law.12 A treaty as defined in Article 2 (1) (a) of the Vienna Convention on the Law of Treaties of 196913 is said to be: an international agreement concluded between states in writing and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation Additionally, The Draft Articles on the Law of Treaties between States and International Organisations mirrors the above definition, substituting states to read states and international organisations instead.14The Draft Articles on the Law of Treaties between States and International Organisations were completed by the International Law Commission in 1982, and essentially follow the provisions of the Vienna Convention mutatis mutandis. The aforenamed Draft Articles differ from the Vienna Convention with regard to dispute settlement procedures. This is so because international organisations cannot be parties to contentious proceedings before the International
10 11

Ian Brownlie, Principles of Public International Law , 1998 Supra 12 th Britannica Micropedia Ready Reference, volume 11, 15 ed.,1990 13 Hereon after referred to as the Vienna Convention, which entered into force January 1980 and has been ratified by more than 100 countries 14 nd Malcom N Shaw, International Law ,2 ed., 1946

Court of Justice. Therefor Draft Article 66 provides for the compulsory arbitration of jus cogens matters. According to modern diplomatic usage, the term treaty is restricted to delineate international agreements of greater significance, whereas those international agreements of lesser or subordinate importance are referred to as conventions, protocols and arrangements.15 Simpliciter, treaties are concerned with governing the relations between states and international organisations, which are intended to create binding obligations upon the parties to them. Therefore the purpose of treaties is to create general norms for the future conduct of the parties in terms of legal propositions.16

Classification of Treaties
Generally speaking, treaties may be classified into two broad categories- which classification is based upon the number of states party to the treaty in question: a) General (Multilateral) treaty A treaty that has three or more states as signatories thereto and lays down behavioural rules i.e. The Treaty of Versailles of 1919 17 b) Bilateral treaty A treaty which embodies an agreement between two states, and is generally drafted from a contractual standpoint i.e. The Camp David Accords 18 between Egypt and Israel, signed in 1978. International jurists have classified treaties on a number of various principles. Discussed herein, in greater detail is an extensive classification of treaties according to their principle object. As a result of the phenomena of globalisation and the expansion of intercourse between states beyond the political arena, states and international organisations employ treaties to govern their relations with their counterparts in an assortment of areas i.e. economic and technical fields.19 1. Political treaties- such as treaties of peace, of alliance, of cession of territory and of disarmament i.e. The Treaty of Versailles
15

Britannica Micropedia Ready Reference, volume 11, 15 ed., 1990

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17

One of the peace treaties signed at the end of World War One. The Treaty of Versailles signified the end of the state war between Germany and the Allied Powers ( Great Britain, France and Russia) 18 A peace treaty that ended thirty years of conflict between the two states, which was witnessed by President J Carter of the United States of America 19 Britannica Micropedia Ready Reference, volume 11, 15th ed., 1990

2. Commercial treaties- these treatises include agreements concerning tariff, consular, and fishery and navigation agreements i.e. The Geneva General Agreement on Tariffs & Trade 1947 3. Constitutional and administrative treaties-such as conventions establishing and regulating international unions, organisations and specialized unions 4. Treaties relating to criminal justice- such as those that define international crimes and provide for the extradition of accused persons i.e. United Nations Convention Against Corruption 2003 5. Treaties relating to civil justice- such as conventions for the protection of human rights, trademarks and copyrights, and providing for the execution of foreign judgements i.e. The International Convention on Civil & Political Rights 1966 6. Treaties codifying international law- commonly referred to as law making treaties, these treaties are elaborations of international law i.e. such as procedures for the peaceful settlement of international disputes, rules for the conduct of war, and definitions of the rights and duties of states.

The Codification of Customary International Law


(was this not meant to be the codification of customary international law in treaties-it seems out of context? )

Definition of a Custom:
According to Article 38 of the International Court of Justice, the essence of a custom is that it should constitute evidence of a general practice accepted as law. Consequently from this statement, one may deduce that a custom includes certain rules of behaviours which prescribe what it permitted and what is not i.e. expresses the needs and values of a given society.

Sources of Customary International Law


Hence, in international law, the existence of customary rules can be deducied from the practice and behaviour of states. Evidence of what a state does can be obtained from numerous sources. One must note that a state is not a living entity, but rather consists of governmental departments which often interact in the international field, and therefore one must examine such material sources.

The international Law Commission (herein after referred to as the ILC) has expressed that records of the cumulative practice of international organisation may be regarded as evidence of customary international law with reference to states, relations to the organisations.20

One must note that the opinio juris or belief that a state activity is legally obligatory is the factor which turns the usage into custom and renders it part of the rules on international law. In other words, states will behave a certain way because they are convinced it is binding upon them to do so. The permanent Court of International Justice expressed this point of view when it dealt with the [Lotus case]. In that particular case, there was a collision on the high seas between the Lotus , a French ship and the Baz- Kourty, a Turkish ship. Several people upon the latter drowned and Turkey alleged negligence on the part of the French officer of the watch. The French officer was arrested on reaching Istanbul on a charge of manslaughter. The issue at hand was whether Turkey had the jurisdiction to try him. The French maintained that there existed a rule of customary international law that they as the flag state of the accused, it had exclusive jurisdiction, and that the flag state of the victim was barred from trying him. This view was justified by the fact that there were no previous criminal prosecutions by such states in similar situations and hence, there was tacit consent in the practice which therefore became a legal custom. The court rejected this and held that only if such abstention were based on the states being conscious of a duty to abstain, would it be possible to speak of an international custom.21 Thus the essential ingredient of obligation was lacking and the practice remained practice and nothing more.

State practice must be material

There are certain points in limine which must be focused on i.e. a) The duration; b) Consistency; c) Repetition; and d) Generality of a particular practice by states;

20 21

Yearbook of the ILC 1950 volume 2 , pages 368-372 PCIJ Series A. no. 10 1927 at page 28

The basic rule as regards continuity and repetition was laid down in the [Asylum Case], 22in which the court declared that a customary rule must be in accordance with a constant and uniform usage practiced by the states in question.23In the [Anglo-Norwegian Fisheries Case]24, the ICJ emphasised the view that some degree of uniformity amongst state practices was essential before a custom could come into existence.

The Negotiation and Ratification of Treaties


The negotiation of a treaty
Normally treaties are negotiated between plenipotentiaries (envoys, delegates, and the like) of the respective governments involved in a particular undertaking. These plenipotentiaries are persons vested by their governments with full power to conclude the treaty within the scope of their instructions. In creating a treaty, the author(s) need not employ any particular form.25 Generally a treaty most often takes the form of a contract but it may take other forms such as: A Joint Declaration i.e US & China Joint Statement of 201226 An Exchange of Notes i.e The Rush- Bagot Agreement of 181727 Although a treaty is often likened to a contract, the signatures appended thereto by the plenipotentiaries of the respective governments involved, are today presumed to be subject to ratification- unless explicitly waived. For instance, Article 6 (2) of the American Constitution provides that all treaties made under the authority of the United States shall be the supreme law of the land. Therefore treaties entered into by the United States of America form part of their domestic law; once the treaty is concluded it becomes binding upon the United States (no legislative Act is required for the binding effect of these treaties to become operative). A treaty of this nature is known as a Self executing treaties.

22 23

ICJ Reports 1950 p266 Ibid pp 276-277 24 ICJ Reports 1951 pages 116,131 and 138 25 th Britannica Micropedia Ready Reference, volume 11, 15 ed., 1990 26 The Joint Declaration, inter alia, reaffirmed the two states intention to enhance communication and cooperation on major international security, jointly tackle global challenges and addressed major regional issues 27 Entered between Great Britain and the United States for the mutual disarmament on the Great Lakes

What does the ratification of a treaty mean?


The Chambers Concise Dictionary defines the term ratify as: The confirmation or adoption of an act that has already been performed. Treaties of this nature are known as Non- Self executing treaties, as they require the promulgation of legislation /statute so as to become specifically incorporated into the national juris corpus.28 The legal position of treaties in Botswana is illustrated in the landmark case of [Unity Dow v Attorney General]29 wherein Judge Aguda had occasion to state that treaties require legislation to become part of national law. Similarly, this position was confirmed in the case of [Good v Attorney General]30, the The International Convention on Civil and Political Rights (also commonly referred to as the ICCPR) was declared by the court to be only of persuasive value and not a directive, as it had not been ratified so as to become part of Botswanas domestic law. Section 24 of the Interpretation Act31 provides that such international conventions and treaties as far as they have not been incorporated into domestic law, those undertakings may be used as an aid to construction of the Constitution and of statutes. According to DD Nsereko32, the rationale for the practice of ratifying and thereby incorporating international treaties into the domestic legal framework is that the unlike the practice obtaining in other states (South Africa, Germany and Namibia) our Parliament is neither consulted nor involved in the negotiation of treaties .The conclusion of treaties with foreign states is an Executive act- with the President acting alone. If such treaties were to automatically become laws and thus enforceable by our judicial machinery, without the input and intervention of Parliament, this would amount to a usurpation of legislative powers by the President without the sanction of the Constitution. Therefore, treaties that create rights and obligations for persons in Botswana, or whose enforcement influence the operation of existing law, require our legislature (Parliament) to promulgate specific Acts incorporating the treaty in question into the national body of laws. For example, the Vienna Convention on Diplomatic Relations of 1961 was incorporated into our national body of law, when Parliament enacted the Diplomatic Immunities and Privileges Act.33

28 29

DD Ntanda Nsereko, Constitutional Law in Botswana, 2004 1994 (6) BCLR 1 30 2005 (2) BLR 337 (CA) 31 (Cap 01:04) 32 nd Constitutional Law in Botswana, 2 ed , 2004 33 (Cap. 39:01)

The Distinction between Ratification and Accession

An outstanding feature of treaties as a source of law is the weight attached to the intention of the parties. In manifesting this intention, parties may ratify or accede to a treaty34. Accession occurs when a state which did not sign a treaty, already signed by other states, formally accepts its provisions. Whereas ratification, was originally associated with the formal act done by a state to make a treaty binding upon itself. Ratification as a whole involves two distinct procedural acts viz; I. II. The act of the appropriate organ of the state The international procedure which brings a treaty into force by means of formal exchange (feel this should be explained- exchange of letters?)

It should be noted that, there is a common feature between ratification and accession; being that, both acts can be governed by a provision contained in a treaty. The legal effect of accession is to render the acceding state a party to an instrument or treaty, as in the case of a convention approved by the UN General Assembly and proposed for accession by member states.35 The prevailing presumption was that treaties in principle require ratification; however the International Law Commission36 changed its view and now makes reference to Article 14 of the Vienna Convention which regulates the matter having strict regard to the intention of the parties.

The Exercise of a Reservation on a Treaty

Article 2(1) (d) of the Vienna Convention defines a reservation as: a unilateral statement, however phrased or named, made by a state when signing, ratifying, accepting, approving or acceding to a treaty whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state. In short, where a state is satisfied with the bulk of a treaty, but is opposed to certain provisions, it may refuse to be bound by such provisions and consent to be bound by the non-offending portions

34 35

Ian Brownlee, Principles of Public International Law, pages 582-583 Mcnair, Law of Treaties pages 153-155 36 International Law Court Draft, Article 1 (1)(d)

of the agreement. The rights and obligations arising from treaties of this nature are binding, as reservations do not operate to nullify a treaty in its entirety.37 The legal regime pertaining to reservations has been codified in Articles 19 23 of the Vienna Convention. Article 19 of the Vienna Convention provides that reservations may be made when signing, ratifying, accepting, approving or acceding to a treaty, but they cannot be made where: a) the reservation is prohibited by the treaty; or b) where the treaty provides that only specified reservations may be made and these do not include the reservation in question; or c) where the reservation is not compatible with the object and purpose of the treaty. The general rule was that reservations could only be made with the consent of all the other states party to the agreement. In instances where the exercise of a reservation is permissible, the traditional rule requiring acceptance by all parties will apply.38 If no objection is made to a reservation by the parties to a treaty, it is assumed all the parties thereto accede to the reservation.39 If consent to the exercise of a reservation was withheld, the state dissatisfied with the agreement could nevertheless still become a party to the treaty- minus the reservation, or be excluded from the treaty as a whole. This restrictive approach to reservations was not accepted by the International Court of Justice in the [Reservations to the Genocide Convention Case].40 In the aforementioned case, a number of states had made reservations to the 1948 Genocide Convention- which contained no clause permitting such reservations- and subsequently a number of objections were made to the on the matter, the International Court of Justice stated that: a state which has made a reservation which has been objected to one or more of the parties to the Convention but not by others, can be regarded as being party to the Convention if the reservation is compatible with the object and purpose of the Convention. In essence the court in this held that a state or parties of states to a convention can still have a valid Convention/Treaty though there is a reservation clause as long as the reservation is not against the

37 38

Armed Activity on the Territory of Congo case I.C.J 2005 As illustrated by Article 20(4) of the Vienna Convention, which outlines the general rules to be followed with regard to treaties not within Article 20(2) and not constituent instruments of international organisations. 39 Yugoslavia and Spain 28. ILM 1149 (1999) 40 Advisory Oppinion I.C.J.Reports 1951

purpose of the convention. That is, though other states to a convention may object to the reservation, that alone does cannot be the sole reason to invalidate the convention. For the convention to be rendered invalid, the reservation purported, must be contrary to the purpose of the whole convention.

The legal effect of reservations

According to Article 21 (1) of the Vienna Convention of 1969, the effect of a reservation established with regard to another party is provided as follows: a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and b) modifies those provisions to the se extent for that other party in its relations with the reserving State. An illustration of the above was provided by the Libyan Reservation to the 1961 Vienna Convention on Diplomatic Relations, which concerned the immunity of diplomats having their bags and/or belongings searched. Libya was permitted to search the bag of the diplomat in question, with the consent of the state of whose bag it was and insist that it be returned to the state of origin. As the United Kingdom did not object to the reservation, it could have similarly treated the baggage of Libyan diplomats in the same manner.

The effect of objections to reservation

Article 21(3) of the Vienna Convention of 1969 provides as follows: When a state objects to a reservation, but not to the entry into force of the treaty between itself and the reserving State, then the provisions to which the reservation relations do not apply as between the two states to the extent of the reservation. The provision above was applied by the Arbitration Tribunal in the [Anglo French Continental Shelf case].41In the aforementioned case, the court enunciated the principle that an objection to a reservation does not render a treaty wholly inoperative but merely serves to render the provisions
41

(1977) 54 ILR 6

of the treaty relating to the reservation inapplicable between the reserving state and the objecting state. But these same provisions relating to the reservation may be applicable to the objecting state and some other state which does not make a reservation to the provisions. It was noted that the combined effect of the French Reservation and their rejection by the United Kingdom neither rendered Article 6 of the Geneva Convention on the Continental Shelf of 1958, inapplicable in its entirety- as the French Republic contended- nor rendered it inapplicable in toto, as the United Kingdom primarily contented. The effect of the objection to the reservations was limited to rendering Article 6 of the aforenamed Convention inapplicable as between the two countries to the extent of the reservation. (require facts of the issue at hand, this paragraph is FAR TOO WORDY)

Withdrawal from a treaty


(require citation to footnote this portion of the write up) Traditionally, treaties (as obligations in international law) are viewed as being consensual in nature; consequently, many of them expressly allow a state to withdraw as long as it follows certain procedures of notification. Therefore, treaties are not necessarily permanently binding upon the signatory parties. It is worth noting, however, that where withdrawal is contrary to the original intent of the parties, or to the nature of the treaty, withdrawal will be prohibited. A good example in this regard would be human rights treaties. Because of the importance of the obligations thereto, Human rights treaties are generally interpreted to exclude the possibility of withdrawal. The ramifications of states withdrawal from a treaty are basically that its obligations under that treaty are considered terminated. When a state withdraws from a multi-lateral treaty, that treaty will still otherwise remain in force between the other parties, whereas withdrawal by one party from a bilateral treaty of course terminates the treaty. See generally Article 70 of the Vienna Convention. Under Part V of the Vienna Convention, Article 42(2) provides generally that the termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or the Convention (Vienna) However Article 43 of the same provides that withdrawal, termination or denunciation of a treaty shall not in any way impair the duty of a state to fulfil any obligation embodies in the treaty to which it would be subject under international law independently of the treaty.

Parties to a treaty may also, by mutual consent, terminate their treaty obligations as provided under Article 54(b) of the Vienna Convention. A multiplicity of factors may also terminate the treaty obligation, to name just a few: a) Supervening impossibility of performance- Article 61(1) of the Vienna Convention provides, inter alia, that : a party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty Situations envisaged in this regard include submergence of an island, the drying up of a river etc. Additionally, war conditions may lead to termination of treaties on grounds of impossibility. b) Material Breach- material breach by one party entitles the other party/parties to a treaty to invoke the breach as the ground of termination. Article 60 of the Vienna Convention provides: (1) material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty. (2) material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part Article 60 (3) of the Vienna Convention gives insight as to what would constitute a material breach: (a) repudiation of the treaty not sanctioned by the Convention, or (b) violation of a provision essential to the accomplishment of the object or purpose of the treaty A State may by its own conduct prejudice its right to terminate a treaty on the ground of material breach.42 (c) New peremptory norm- a treaty becomes void if it conflicts with a peremptory norm of general international law (jus cogens) established after the treaty comes into force.

42

See generally the Gabcikovo- Nagymoros Project ( Hungary & Slovakia)

Article 64 of the Vienna Convention provides that the emergence of a new peremptory norm of general international law invalidates and terminates any existing treaty which is in conflict with that norm. This, it must be noted, does not have retroactive effects on the validity of a treaty.

Procedure

Article 65 of the Vienna Convention stipulates at sub-article 1, the procedure to be followed with respect to , inter alia, withdrawal from the operation of a treaty. It provides that: a party whichinvokes.a ground for impeaching the validity of a treaty..thereby withdrawing from it must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor.

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