LAW OF TREATIES

Prof. Dr. M. Gandhi

Dean, VIT School of Law,
VIT University Chennai Campus Chennai
600127

Statute of ICJ on Sources

Article 38
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.
2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto

Treaties in General
Treaties are more a direct and formal
method of law creation( through
multilateral or bilateral agreements)
Treaty is basically an agreement
between parties (between states or
between states and international
organisations)
Certain Treaties are Law making
Treaties ( eg,UN Charter)

Written and Oral Treaties

The dispute between Denmark and Finland about
the construction by Denmark of a bridge across
the Store Blt (Great Belt), which Finland had
taken to the International Court of Justice (ICJ),
was in 1992 settled in a telephone conversation
between the Danish and Finnish Prime Ministers,
in which Finland agreed to discontinue the case
in return for a payment by Denmark.
There is no official joint written record of this oral
agreement (see ILM (1993) 103; see also the
Eastern Greenland Case).

Vienna Convention on Law of

Treaties 1969
This Convention is called treaty on
treaties.
This contains law stipulating body of
rules which determines whether an
instrument is a treaty, how it is
made, brought into force, amended,
terminated and operates generally.
However, it is not so concerned with
the substance of a treaty what is
called treaty law

 Vienna convention was signed in 1969 and came

into force in 1980.This partly reflects customary
international law.
Certain provisions of the convention may be
regarded as reflective of customary international
law such as rules of interpretation, material
breach
and
fundamental
change
of
circumstances.
others may constitute principles binding only
upon parties. at least in part, may have
represented progressive development of the law,
such as Arts 9 (2), 19 to 23, 40, 41, and Part V
(Sinclair 1218).(Sinclair)
As on today the Convention has 114 States
parties

Pacta sunt servanda

The fundamental principle of treaty law is that
treaties are binding upon the parties to them and
must be performed in good faith. (pacta sunt
servanda) see Article 26 of the 1969 convention.

Article 26
Pacta sunt servanda
Every treaty in force is binding upon the
parties to it and must be performed by
them in good faith.

Name does not matter

A treaty can be named in any manner such
as Convention, Protocol, Charter, Act,
Exchange of notes, MoU, etc. A treaty need
not be signed.
Only by content and binding obligation that
flows from that instrument determines
whether the instrument is a treaty or not.
There could be oral treaties. The 1969
Convention does not deal with them. They
are dealt under customary international law

Art. 4 VCLT provides that the VCLT applies only to those treaties
which are concluded by States after the date on which the VCLT
enters into force for those States.
The VCLT will thus not apply to States which, even if they took
part in the conclusion of the treaty, were not at that time parties
to the VCLT. The VCLT entered into force on 27 January 1980.
The
UN Convention on the Law of the Sea was concluded on 10 Decem
ber 1982
(Law of the Sea). Thus for those States which were parties to the
VCLT on that date, the rules of the VCLT will apply as between
them with regard to UN Convention on the Law of the Sea.
Art. 4 VCLT provides, however, that the rule against retrospection
is without prejudice to the application of any rules in the VCLT to
which treaties would be subject under international law
independently of that VCLT.
Thus, those rules of the VCLT which reflect customary international
law apply (albeit as customary law) to treaties concluded before
the entry into force of the VCLT, or concluded afterwards but
before the VCLT entered into force for parties to those treaties.
(See
further
Sinclair
230
and
P McDade The Effect of Article 4 of the Vienna Convention on the

Reservation & Declarations

The VCLT in Article 2(d) says
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;

 Permissibility of reservation
There is no possibility of reservations
in bilateral treaties given the nature
of the treaty.
Reservations are
generally not
prohibited.
19 (a),(b) and (c) of the VCLT deals
with different situations in relation to
Treaty

Formulation of Reservations
Article 19
Formulation of reservations
A State may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a
reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified
reservations, which do not include the reservation in
question, may be made; or
(c) in cases not failing under subparagraphs (a) and
(b), the reservation is incompatible with the object
and purpose of the treaty.

Objection to and acceptance of

reservations
In plurilateral treaties like Antarctica
Treaty (15 members) reservations need
to be accepted by every party.
Reservations to multilateral constituent
instrument reservations need to be
accepted by every member.
Reservation compatible with objects and
purposes of the treaty will be acceptable.
(Reservation to Genocide convention Advisory opinion by ICJ,(ICJ Reports 1951 )
Belilos case about Swiss reservsation in ECHR

Entry int
o force o
f the tre
(differen
ati es
t thresho
lds)

By date
By ratification
By ratification of definite numbers
Ratification by numbers as well as
some objective cretaria.

Binding nature of the Treaty

When Treaty becomes customary
international law it binds on all
(Hague rules on Humanitarian law)
Until it becomes customary law it
binds only the parties.

Interpretation of Treaty
1 actual text of the treaty
2.intention of the parties
3.object and purpose of the treaty. (Articles 31 to 33 of
VCLT)
Invalidity ,termination and suspension of Treaties
invalidity of Treaties
Municipal law
2Error
3fraud and corruption
4.coercion
5.Jus cogens (Article 53)

Invalidity of Treaties
There is a general rule that internal
laws cannot be the reason for the
invalidity of a treaty.
1.Municipal law
2.Error
3.fraud and corruption
4.coercion
5.Jus cogens (Article 53)

Jus cogens
Article 53
Treaties conflicting with a peremptory norm of
general international law (jus cogens)
A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general
international law. For the purposes of the present
Convention, a peremptory norm of general
international law is 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.

Jus cogens and candidate jus

cogens
Article 2(4) of the Charter (Nicaragua
v.US)
Genocide (DRC v. Rwanda)
Crimes against humanity (including
systemic form of racial
discrimination) South West Africa
case
Rules prohibiting slave trade (Roach
v. Pinkerton)

Termination of Treaty
1.Termination by Treaty provision or consent
2.Material breach (reprisal or counter
measure).Customary law supports something
more than a breach to terminate a treaty.
(Article 60(3) of VCLT) Rainbow warrier and
Gabcikovo-Nagimaros project case)
3.supervening impossibility of performance
4. Fundamental change of circumstances
Doctrine of ribus sic stantibus

 There is no agreement on the criteria

for identifying which norms of
general
international
law
have
peremptory character
Prohibition of use of force has been
accepted as jus cogens.
Genocide, slave trade and piracy?

Settlement of Dispute
Violation of Treaty is violation of
international law.
State can make use of rules relating
to internationally wrongful acts.
Treaty commission
Litigation before international Court
of Justice and other forms of pacific
settlement of disputes.