UNIT- IV

THE LAW OF
TREATIES
The significance of the
concept of Treaties
 - A TREATY -
Any international agreement in
written form, whether embodied
in a single instrument or in two or
more related instruments and
whatever its particular
designation (), concluded
between two or more States or
other subjects of international law
and governed by international law
The Vienna Convention on
the Law of Treaties, 1969
Referred to as a treaty on
treaties
Convention here refers to written
treaties
Every state has the capacity to
conclude treaties.
Acknowledges the fundamental
role of treaties in the history of
international relations.
 The VCLT, 1969 does not deal
with:
(a)Treaties between states &
organizations or between two or
more organizations;
(b) state succession to treaties; or
(c)The effect of armed conflict on
treaties

() Each of the above has been the

subject of separate ILC projects.
The functions/categories of
Treaties
Basis of the binding force
of the international
Treaties
Pacta Sunt Servanda: General
Principle of International Law
A treaty in force is binding upon
the parties and must be
performed by them in good
faith
Legally treaties are enduring
instruments, not easily
disposed of.
Internal law may not be invoked
 THE MAKING OF
TREATIES- STEPS &
FORMALITIES
(A) Form & Intention
Who may enter into Treaties?
 CONSENT
Treaty drafted & agreed by authorized representa
Ways of expressing consent

Articl
e 11
 Consent by Signature
Signature, authenticates the agreed
text.
Unless otherwise expected, signature
establishes consent to be bound.
If signature is subject to ratification,
acceptance or approval, signature does
not establish consent to be bound.
It just creates an interim obligation of
good faith to refrain from acts calculated
to frustrate the objects of the treaty.
 Ratification
Ratification involved two distinct
procedural acts

Internal Act of approval

International Procedure bringing
a treaty into force
 Ratification
The device of ratification
 Growing popularity of
Ratification
Ratification: A general Rule
Accession, Acceptance and
Approval
Accession
 Entry into Force, Deposit
and Registration
Art.102 of the UN Charter provides as follows:
1. Every treaty and every international agreement
entered into by any Member of the United
Nations after the present Charter comes into
force as soon as possible be registered with the
Secretariat and published by it.
2. No party to any such treaty or international
agreement which has not been registered in
accordance with the provisions of paragraph 1
of this Article may invoke that treaty or
agreement before any organ of the United
Nations.
Entry into Force, Deposit
and Registration
 RESERVATIONS TO
TREATIES
Art. 2(d) of the Convention defines
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 to
modify the legal effect of certain
provisions of the treaty in their
application to that state.
HISTORICAL BACKGROUND
The Compatibility Test
1.)
ICJ on Genocide Convention
Case
The Genocide Convention Case
 Some specific aspects of
Reservation
Reservations not applicable in bilateral treaties
Interpretative Declarations
Simple Interpretative Declaration
 Belilos v. Switzerland,
ECHR, 1988

The European Convention of Human

Rights

Switzerland signed & ratified

At the time of ratification,

Switzerland made in total 2
Interpretative Declarations and 2
Reservations
 The Declaration in
question in the Present
Case
 The arguments
Switzerland
In this casethe court
therefore noted
 English Channel Arbitration
In this case, France had made reservations to
Art.6, Continental Shelf Convention, 1958 to
which U.K. had objected.
As to the effect of these reservations and its
opposition between the two parties, the Court of
Arbitration stated:
Just as the effect of the French reservations is
to prevent the UK from invoking the provisions
of Art.6 except on the basis of the conditions
stated in the reservations, so the effect of their
rejection is to prevent the French Republic from
imposing the reservations on the United
Kingdom.
 continued
for the purpose of invoking against it as binding
a delimitation made on the basis of the conditions
contained in the reservations. Thus, the combined
effect of French Reservation and their rejection by
the United Kingdom is neither to render Art.6
inapplicable in toto, as the French Republic
contends, nor to render it applicable in toto, as the
U.K. primarily contends. It is to render that Article
inapplicable as between the two countries to the
extent, but only to the extent, of the reservations.
This is the precise effect envisaged in such cases,
under Art.21, para.3 of the VCLT and the effect
indicated by the principle of mutuality of consent.
Impermissible Reservations
 Entry into force of treaties
Treaties will become operative when and how
the negotiating states decide.

In the absence of any provision to the

contrary, a treaty will enter into force as soon
as consent to be bound by the treaty has been
established for all the negotiating states.

Generally, multilateral treaties provide for

entry into force upon ratification by a fixed
number of states, since otherwise large
multilateral treaties might be prejudiced.
The application of Treaties
 The Third States
Art.34 A treaty does not create either
obligations or rights for a third state without
its consent.
One exception to the rule is that where the
provision of the treaty in question have
entered into customary law.
Art2(6) of the UN Charter:
the organization shall ensure that states
which are not members of the United Nations
act in accordance with these principles so far
as may be necessary for the maintenance of
international peace and security
 Wimbledon Case
creation of obligation
 The amendment &
modification of treaties
Amendments refer to formal alteration of treaty
Amendment of treaties
Modification of a treaty
Treaty Interpretation
 Some other aspects of
Treaty Interpretation
Natural & Ordinary meaning in the context in w
Depends upon the nature
of the treaty
Human Rights Treaties
Invalidity, Termination &
Suspension of the
operation of treaties
General Provisions: Art.44
 Invalidity of treaties
(i) Violations of Internal Law
(ii)Defects of authority
(iii)Error
(iv)Fraud
(v)Coercion
(vi)Conflict with a peremptory
norm
Error
 Fraud & Corruption
Article 49: Fraud
Coercion
Jus Cogens
Consequences of invalidity
InvalidEach
Acts party
Treaty isismay
If nevertheless
aParties
treaty void
performed
have voidrequire
toinw/out other
any
under
performed
good faith
eliminate party
legal
Art.53
are
the to establish
notforce
rendered
consequences ofthe
unlawful
the by
a
 The termination of Treaties
(1) By treaty provision or consent
()In accordance to the provisions of the treaty.
()If no specific provision on termination,
parties may do so if the right may be implied
by the nature of the treaty.
()A treaty may come to an end when its object
and purpose come to an end.
()Where all the parties to a treaty later
conclude another agreement relating to the
same subject matter, the earlier treaty may
be regarded as terminated if incompatible.
Termination by Material Breach

There are two

approaches
 Material Breach
Breach of provision/s
Supervening Impossibility
of Performance
Fundamental change of
circumstances
 The ICJ in the Fisheries
Jurisdiction Case

Before the doctrine may be

applied, it is necessary that such
changes must have increased the
burden of the obligations to be
executed to the extent of
rendering the performance
something essentially different
from that originally undertaken.
Fisheries Jurisdiction Case

U.K. v. Iceland
The Treaty was an Instrument of Exchange, 1961
between the UK & Iceland

A dispute arising under this could be referred to

the ICJ.

Iceland terminated the treaty unilaterally due to

change in circumstances.

The changed circumstances have resulted due to

the ever increasing exploitation of the fishery
resources in the seas surrounding Iceland.
Change must be fundamental
The opinion of the Court
The only change that could possibly
be relevant would be some change
relating directly to the operability of
the jurisdiction clause itself.
Developments in fishery techniques
would militate for not against
adjudication.
The change in circumstance has not
radically transformed the
jurisdictional obligation of 1961
Gabcikovo-Nagymaros
Project case
Hungary v. Slovakia
The essential timeline
 The ICJ
Object & Purpose of the Treaty
 The ICJ
Hungary invoking the breach by
Czechoslovakia as a ground for
terminating the treaty was pre-mature.

Even though, there are change in

circumstances, Hungary by its own
prior unlawful conduct, had prejudiced
its right to terminate the Treaty

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