THE GROUNDS OF INVALIDITY AND TERMINATION OF TREATIES; NAHLIK

 Termination – limits as from a given moment, the effects of treaties which had been perfectly binding and whose
initial legal force, ben though now put to an end or temporarily suspended cannot be doubted.
 Invalidity – undermines the very legal roots of the treaty; compels attention to the moment of the conclusion of
the treaty, for, at that very moment, something already must have existed which stood in the way of the validity
of the treaty.
 A treaty is presumed to be valid and in force, unless one of the grounds listed in the convention has occurred.
o Each of these grounds must draw its authority from some particular provision of the convention.
o This system is mean to serve the purpose of solidifying the stability of treaty relations, as it does not allow
any ground for either invalidating, terminating, or even merely suspending the operation of a treaty to
be in any way presumed or sought for anywhere else BUT IN THE CONVENTION ITSELF.

 The grounds of invalidity of treaties ca be subdivided into 3 distinct categories:

o FIRST CATEGORY: The first category comprises two articles only. They cover situations in which the
representative of a state, when expressing consent to be bound by a treaty on its behalf, either violated
its internal law or exceeded his powers.
o 3 conditions must be fulfilled if a state is to be allowed to impeach the validity of a treaty because of the
violation of a provision of its internal law by its representative:
 a) the provision concerned must be one "regarding competence to conclude treaties";
 (b) it must also be one "of fundamental importance';
 No internal provision below the level of a constitutional law, regulating in detail either
the competence of the state organs or the manner in which such competence is to be
exercised, could claim to be of fundamental importance.
 whereas (c) the violation itself must be "manifest
 Manifest – not from the POV of the state impeaching the validity of a treaty on this
account, but from that of its partner.
o SECOND CATEGORY: The articles in question are five in number. The lack of proper consent on the part
of one of the states concerned to be bound by a treaty is here the common denominator. The origin of
this whole group of grounds is deeply rooted in the general principles of civil law. Error, dolus, vis can all
be found in Roman law. They were introduced into the theory of the law of nations by those publicists
who, like Gentili or Grotius, were brought up in the Roman law tradition.
 Reasons for adopting the grounds under this category:
 They serve as a kind of safety-valve for the case, however rare and unlikely, when ay of
them might appear.
 Their inclusion would negate any implication that the list of possible grounds of invalidity
of treaties is not exhaustive and that further such grounds can be sought for outside the
convention.
 3 grounds:
 First: ERROR, relating to a fact of situation which was assumed by that State to exist at the time
when the treaty was concluded and formed an essential basis of its consent to be bound by the
treaty.
 2 important restrictions in the invocation of this treaty: (1) No state can claim a treaty to
be invalid if either its own conduct or its negligence contributed to the creation of the
error; (2) An error relating to the mere wording of a treaty provision can never constitute
sufficient ground for the invocation.
 Second: FRAUD, i.e. the fraudulent conduct of another negotiation State, if such conduct induced
the state invoking it to conclude the treaty.
  Third: COERCION of the representative of a state to express its consent to be bound by a treaty.
 NEW GROUNDS:
 Corruption: proposed by representatives from 3rd world countries, often exposed
to temptations of this kind in their relations with economically stronger partners.
 Threat or Use of Force: Considered as relatively new, because the use of force
under classical or traditional doctrine of IL, is perfectly normal. Under the UN
Charter, states are forbidden from using force against asserting their territorial
integrity or political independence, or in any other manner.
o THIRD CATEGORY: Nullity of a treaty if it is in conflict with a JC norm.
 Author said that in all of these, notwithstanding the existence and presence of the grounds of invalidity, a state
loses its right of invocation, if it either expressly or impliedly agrees to consider the treaty as valid after it has
become aware of the reason for challenging its validity.

 All grounds may further be organized into 4 headings:

o (1) objective circumstances specified in the treaty itself;
o (2) objective circumstances for which there is no provision in the treaty;
o (3) concordant action of the parties;
o (4) action of one party only.
 All causes belonging to the 1st and 3rd category have one thing in common  they support and reaffirm pacta
sunt servanda.
 First category: the termination of a treaty is something which the parties had agreed in advance by including in
the text of the treaty a specific clause to this effect. VCLT provides for 3 possible objective circumstances.
o A treaty must be considered as terminated if a JC norm emerges AFTER the treaty has already been
entered into force.
o Supervening impossibility of performance, ONLY if it results from the permanent disappearance or
destruction of an object indispensable for the execution of the treaty.
 The impossibility of performance cannot be invoked by a party that itself instrumental in causing
it by a breach of its own international obligations.
 Third category: respect the concordant will of the parties.
o Parties may manifest their will either expressly or impliedly, by concluding another treaty on the same
subject which differs from the old one to such an extent that the simultaneous performance of both
treaties would be impossible.
 “Fundamental change of circumstances”  only debatable cause of termination. This change existed at the
time when the treaty was concluded and which had constituted an essential basis of the consent of the parties
to be bound by the treaty.
o Many supporters of the doctrine of rebus sic stantibus fear that it may constitute as an implied restriction
of the binding force of any treaty.
o This ground cannot be invoked in connection with a treaty which established a boundary.
o Likewise, no state can invoke it if the change has been brought about by a breach of its own international
obligations either under the treaty concerned or any other international agreement.

 Termination can be interpreted under both a narrow and a broad sense:

o Narrow sense: Covers causes that put an end to the treaty in relation to all the parties to it.
 Covers defection of one party from a bilateral treaty.
 In case of multilateral treaties, defection does not do much damage, except that there will be a
smaller number of participating states.
  Denunciation  applies to both bilateral and multilateral treaties; Withdrawal  only applies to
multilateral treaties.
o Broader sense: Covers absolute (all parties) and relative (with regard to only one party) extinction of
juridical relations established by a treaty.

 Does the violation by a party of a treaty entitle the other party/ies to declare the treaty as terminated?
o Several conditions qualifying the “violation” are established in the Convention:
 Breach must be material.
 It must either apply to a provision essential to the accomplishment of the object or
purpose of the treaty, OR, consists in the repudiation of the treaty.
 In case of multilateral treaties, all parties must be unanimous in declaring the treaty to be
terminated.

 No guilty party may invoke these grounds for praying for the invalidity of the treaty; nemo commodum capere
potest de iniuria sua propria.

 Part V, Section 4 of the VCLT explicitly precludes any state from invoking two circumstances as sufficient grounds
in themselves for terminating a treaty.
o The mere fact that the number of parties to a multilateral treaty has fallen below the number necessary
for its entry into force is not in itself a sufficient ground for terminating the treaty.
o Such is also the case of the severance of diplomatic or consular relations, unless, in the absence of such
relations, the treaty cannot be applied.

 In many cases where, from the point of view of traditional international law, one would expect to be confronted
with the termination of a treaty, the convention recommends the treaty merely to be suspended in operation,
unless the gravity of the circumstances of the particular case requires recourse to this ultimate means of bringing
an end to a treaty.
o This applies particularly to three such grounds known to the convention, i.e., impossibility of performance,
fundamental change of circumstances and, above all, violation by a party of its obligations under a treaty.

 Termination of a treaty based on subjective impossibility of performance:

o E.g. Extinction or disappearance of a state.
o The VCLT merely acknowledged the fact that the parties were aware of the succession problem by a
reservation included among the “Miscellaneous Provisions.”

 One important question that was left out altogether by the ILC, is the outbreak of hostilities between the parties
to such agreements:
o According to traditional doctrine and practice, the outbreak of a war had the effect of severing all treaty
relations between the belligerent states, with the only exception of such treaties as were especially meant
to apply in the event of war.
o BUT, it would be closing one's eyes to obvious realities to pretend that the outbreak of hostilities has no
effect whatever on treaty relations between belligerents.