It is public international law

1. CHAPTER 5
International Law of Treaties
As we have seen in Chapter four treaties are one of the most
important sources of IL. They are the only way in which state may
create binding legal obligations in a deliberate and conscious
manner.
The law of treaties is the name given to that body of IL which
deals with the procedural and substantive rules governing the use
of treaties as source of IL. Although the analogy is far from
perfect, the law of treaties is similar to those rules of national law
which lay down the requirements for the creation and operation of
contracts.
The law of treaties cover a wide variety matters. These are rules
dealing with entry in to force, termination, interpretation,
reservation, and the relationship of treaty law to custom. In
addition, it should be appreciated that the law of treaties is one of
the least political areas of IL.

2. 5.1 What is treaty?
Before examining the law of treaties in detail, we must be sure
that we understand what a treaty actually is.
Generally , a treaty can be defined as a legally binding
agreement deliberately created by and between two or more
subjects of IL who are recognized as having treaty making
capacity. A treaty is an instrument governed by IL and once it
entered into force, the parties thereto have legally binding
obligations in IL. In this sense, a treaty creates rights and
obligations distinct from those arising under IL of any state.
Obviously, the great majorities of treaties will be made between
states, but IOs have a capacity entering into treaty arrangements
either with states or with each others.
Accordingly, an VCLT was signed in 1969 and came into force
in 1980, while a Convention on Treaties between States and IOs
was signed in 1986.

3. The 1969 VCLT partly reflects customary law and constitutes the basic
framework for any discussion of the nature and characteristics of
treaties. Certain provisions of the Convention may be regarded as
reflective of CIL, such as the rules on interpretation, material breach
and fundamental change of circumstances. Others may not be so
regarded, and constitute principles binding only upon state parties.
Treaties may be bilateral or multilateral. Bilateral treaties are treaties
between two parties. Multilateral treaties are treaties among three or
more parties. Generally the same legal rules apply to the different
types of treaties. A treaty can create obligations or rights for one
party/ies.
In IRs, treaties tend to serve one of two functions. Some treaties
are like international “legislation” they are open for all states to
join and are intended to be universal and binding on all. Such
treaties are called “law-making.” Their prime purpose is to
establish a set of universal rules to govern state conduct. Other
treaties are more like “contracts.” These treaties are the means
by which two or more States transact business.

4. • Their prime purpose is to establish a set of universal rules to
govern state conduct.
• On the other hand, there are treaties more like “contracts.” These
treaties are the means by which two or more States transact
business. In such cases, international treaty law may seem in a
way similar to domestic contract law.
• The fundamental principle of treaty law is undoubtedly the
proposition that treaties are binding upon the parties to them and
must be performed in good faith.
This rule is termed pacta sunt servanda and is arguably the
oldest principle of IL. It was reaffirmed in Article 26 of the 1969
VCLT, and underlies every international agreement for, in the
absence of a certain minimum belief that states will perform
their treaty obligations in good faith, there is no reason for
countries to enter into such obligations with each other.

5. The term ‘treaty’ itself is the one most used in the context of
international agreements but there are a variety of names which
can be, and sometimes are, used to express the same concept,
such as protocol, act, charter, covenant, pact and concordat.
They each refer to the same basic activity and the use of one
term rather than another often signifies little more than a desire
for variety of expression.
Treaty Formation
Under general IL there are no obligatory formal requirements
which must be satisfied before a treaty can come into existence,
that means treaties can be oral, in single written instrument or
several instruments. However, the VCLT applies to written
treaties entered into between States. (Art. 2). Moreover, there is
no procedure how a treaty is formulated and by whom it is
actually signed will depend upon the intention and agreement of
the states concerned.

6. Treaties may be drafted as between states, or governments, or
heads of states, or governmental departments, whichever appears
the most expedient. In practice, for instance, of the most
important treaties are concluded as between heads of state, and
many of the more mundane agreements are expressed to be as
between government departments, such as minor trading
arrangements.
Nevertheless, there are certain rules that apply in the formation of
international Treaties. In IL, states have the capacity to make
agreements, but since states are not identifiable human persons,
particular principles have evolved to ensure that persons
representing states indeed have the power so to do for the
purpose of concluding the treaty in question.
Such persons must produce what is termed ‘full powers’
according to Article 7 of the VCLT, before being accepted as
capable of representing their countries.

7. ‘Full powers’ refers to documents certifying status from the
competent authorities of the state in question.
• A treaty may arise from the deliberations of an international
conference, direct bilateral negotiations, informal governmental
discussion, an exchange of note, an exchange of letter or any
other means which the parties choose.
• In sum, the method by which international treaty is formulated
and the name given to it by the parties is irrelevant. the
instrument will be a treaty as long as it is intended to be legally
binding in the sense of creating rights and duties enforceable
under IL, and this is to be judged objectively according to the
nature, content of the agreement and the circumstance in which
it was concluded.

8. • Principles of Treaty Law
There are five fundamental principles of treaty law
1. Free consent
2. Good faith
3. Pacta sunt servanda
4. Rebus sic stantibus
5. Favor contractus
 Free consent (Article 34): This international principle is
embodied in preambular para 3 of the VCLT. First of all, it is the
corollary of the prohibition of the threat and use of force
contained in the Charter of the UNs (Article 2 (4)) which
legitimates such behavior only in specific circumstances.

9. The severance or absence of diplomatic (or consular) relations
between two or more States does not prevent the conclusion of
treaties between those States (Article 74).
According to the principle of free consent, international
agreements are binding upon the parties and solely upon
themselves. These parties cannot create either obligations or
rights for third States without their consent (rule of pacta tertiis
nec nocent nec prosunt - Article 34). The only explicit exception
to this rule appears in Article 22 (1) which is an expression of
the favor contractus principle and concerns the withdrawal of
reservations.
Another important principle which can be deducted from the free
consent rule is expressed by the latin phrase lex posterior derogat
legi priori. According to this rule, a later treaty prevails over an
earlier one when two treaties exist which relate to the same
subject-matter (Article 30 para. 3). This principle will be dealt
with in the context of treaty amendments.

10. The consent of the state to be considered as free consent it shall
be free from:
• Error = the error shall exist at the time of the conclusion of
treaty and the error is fundamental to the very object of the treaty
(Article 48)
• Fraud/Deceit= the consent of the state shall procured via
fraudulent conduct of another negotiating State (Article 49)
• Corruption = corruption of state representative directly or
indirectly by another negotiating State (Article 50)
• Force/ Violent/Coercion = coercion/forcing of state
representatives via act or threat directed against them/ state via
threat or use of force against state in violation of international
law particularly the UN Charter (Article 51 & 52)
In addition to the above, a treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general IL.

11. 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 IL having the
same character. (Article 53)
• Good faith : Similar to free consent, good faith is of
fundamental importance for the conduct of international
relations in general and is therefore recognized as an
international principle according to the very terms of the Vienna
Convention (Preambular Para. 3). If a State does not behave in
good faith, peace and international security, the supreme goals of
the Charter of the UNs might eventually be put in jeopardy.
• In a resolution from July 2001, the International Whaling
Commission (IWC) which is constituted by more than 40
member countries declared that "good faith requires fairness,
reasonableness, integrity and honesty in international behavior".

12. An abuse of right is contrary to the principle of good faith (see
Article 300 of the United Nations Convention on the Law of the
Sea).
Of course, being a subjective element of behavior, presence or
absence of good faith can be difficult to prove. In the last analysis,
good or bad faith can only be found in the minds of individuals, in
particular of those who happen to have an influence on the conduct
of foreign policy and, more specifically, of those whose task it is to
negotiate and implement international conventions (see Articles 26,
31 (1) and 62 (2)(b)).
• Pacta sunt servanda : Apart from the fact that it is listed together
with good faith among the universally recognized principles
(preambular Para. 3), this rule is also enshrined in Article 26:
"Every treaty in force is binding upon the parties to it and must be
performed by them in good faith." In Paul Reuter's words, this
principle can be translated by the following formula: treaties "are
what the authors wanted them to be and only what they wanted
them to be and because they wanted them to be the way they are"

13. • A party is not authorized to invoke the provisions of its internal
law as justification for its failure to perform a treaty (Article 27).
Generally speaking, this solid legal link is nor even weakened in
the case severance of diplomatic relations between the parties to
a given treaty (Article 63).
• The only limit to the "pacta sunt servanda" rule is to be found in
the notion of "peremptory norm of general international law" (or
jus cogens).
• But apparently States expect increasingly out of realism that the
treaties they conclude in certain areas, in particular with regard
to the protection of the environment, will not be properly
implemented by all States parties just out of respect for the
"pacta sunt servanda" rule. This is why several recent treaties
contain obligations to cooperate in order to facilitate compliance
with the treaty obligations (see also Article 8 of the Ottawa
Convention on the prohibition of landmines).

14. • The rebus sic stantibus clause : According to this principle
(understood in a broad sense), extraordinary circumstances can
lead to the termination of a treaty. These circumstances can
consist either in a material breach of a given treaty by one of
the States Parties (Article 60), in a permanent disappearance
of an object indispensable for the execution of the treaty
(Article 61) or in a fundamental change of circumstances
(Article 62, clausula rebus sic stantibus should be understood
in a narrow sense).
• A fundamental change of circumstances can also occur in the
case of the outbreak of hostilities between the States Parties (see
Article 73). However, this fact cannot be invoked as a ground
for terminating a treaty; if it has been concluded with regard to
the possible out-break of an armed conflict as in the case of the
Geneva Conventions of 12 August 1949 (so-called Red Cross
Conventions) or The Hague Conventions of 1899 and 1907.

15. • The International Law Commission (ILC) has elaborated draft
Articles on Effects of armed conflicts on treaty. A further
extraordinary circumstance foreseen by the Vienna Convention is
the emergence of "jus cogens”, i.e. of a new peremptory norm of
general IL.
• This circumstance is distinct from those enumerated above by the
fact that it is of normative and not factual nature. The rebus sic
stantibus clause can be considered as an implicit reservation
generally affecting the consent expressed by a State to be bound
by a treaty. It seems worthwhile mentioning in this context that
Argentina has made a reservation to Article 62 in which it made
plain that she would not accept the idea that a fundamental change
of circumstances which has occurred with regard to those existing
at the time of the conclusion of a treaty, and which was not
foreseen by the parties, may be invoked as a ground for terminating
or withdrawing from the treaty.
•

16. However, according to Article 62 (2)(a) (rebus sic stantibus
clause understood in a narrow sense), a fundamental change of
circumstances may not be invoked in the case of boundary
treaties, the reason being that putting into question international
boundaries can lead to a peace threatening situation, because it
jeopardizes the principle of territorial integrity (see Article 2 (4)
of the UN Charter) which is quite fundamental in international
relations. Hence, the Vienna Convention on Succession of States
in respect of Treaties of 1978 has restated the rule that a
succession of States does not affect as such a boundary or any
other territorial regime established by a treaty.
• Favor contractus :This principle expresses the preference
of international treaty law for the maintenance and the
conclusion of treaties over expiry for reasons of form.
Hence, unless the treaty otherwise provides, a multilateral
treaty does not terminate by reason only of he fact that the
number of the parties falls below the number necessary for
its entry into force (Article 55).

17. The Vienna Convention also sanctions the prohibition to
denounce a treaty or to withdraw from it, if it does not foresee
itself these forms of termination. This applies, of course, un-less
the parties did not wish, be it by tacit understanding, a different
solution (see Article 56). Likewise, in order to uphold the
validity of treaties, Article 68 allows parties to revoke at any
time before they take effect notifications or instruments designed
to lead to invalidity, even this is done only in relationship to one
single other party. In practice, however, the most important
expression of the favor contractus principle is contained in the
provisions of the Vienna Convention concerning reservations.
In particular, whereas a reservation has to be accepted implicitly
or explicitly by at least one other State Party (Article 20
(2),(4)(c) and (5)), it can be withdrawn at any time without the
consent of the State or States which had accepted it in the first
place (Article 22 (1)).

18. This is the only explicit exception to the free consent principle.
The favor contractus principle can be found in Article 74, too.
This provision clarifies that the severance or absence of
diplomatic or consular relations does not prevent concerned
States to conclude treaties between themselves.
The Vienna Convention on the law of treaty
The VCLT is one of the most important piece of work ever
undertaken by the ILC. The convention adopted by the Vienna
conference in 1969, but it did not enter in to force until 26
January 1980. the convention is quite comprehensive in scope
and that with a number of controversial issues.
 Scope of application
The convention has no retroactive effect on treaties concluded
before its own entry into force. Thus, it applies only to treaties
concluded after its entry into force and for state that have
become party to the convention. (Article 4)

19. Moreover, in terms of subject matter, the convention does not
applicable on all international treaties. In stead it applies only
treaties between states and only treaties in written form and
governed by international law.(Article 1 & 2)
 Authorities to Conclude Treaties (Article 7)
As a rule it is a matter of national law of each state to decide
which officials or entities is competent to create international
treaties on its behalf.
However, Article 7 of the convention stated that a person who
authorized to consent to treaty on behalf of a state. Look the
case between France v Australia and New Zealand Nuclear Tests
case, Eastern Greenland case between Belgium and Denmark.
Article 8 states the effect of the act of unauthorized person. The
act become without legal effect, unless afterwards confirmed by
the state.
 Modes of consent and Entry into Force
Before the treaty can create legally binding obligations for a state ,
two distinct criterion must be met. First the state must have give
consent to be bound and, secondly the treaty must have entered
into force.

20.  Consent
Article 11 of the convention stipulates that consent of a state to
be bound by the treaty may be expressed: signature, exchange
of instruments constituting a treaty (in the case of bilateral
treaties this often happens through the exchange of notes),
ratification, acceptance, approval, accession or by any other
means if so agreed. Obviously this provision is open ended. The
more detailed aspect of each mode are dealt with in Article 12-
17.
The most significant issue here is the re/ship b/n signature and
ratification. Ratification is the process whereby a state finally
confirms that it intends to be bound by a treaty which has
previously signed, consent not being effective until such
ratification. In practice usually most treaties themselves will
indicate weather signature or ratification is the appropriate
mode of consent and this is recognized under Article 12&14.

21. For example in JAN 1989, over 100 states had signed the 1982
Law of Sea Convention , but this treaty did not enter into force
until Nov 1994, one year after 60 states had ratified it. These are
the two distinct stage in the inception of treaties as binding legal
instruments; consent and entry into force.
Where the treaty itself silent, it is a matter of debate whether
signature alone sufficient or whether some requirement for
ratification should be implied. The VCLT does not address this
issue sufficiently.
• On the other hand, state that did not participate in the
negotiation process leading to the treaty usually express their
consent to be bound by accession (Article 15)
 Entry into Force
Under article 24 of the VCLT, a treaty enter into force “in such
manner and upon such date as it may provide or as the
negotiating state may agree.”

22. Thus, primacy is given to each individual treaty and it is a
normal practice for treaties to contain a provision dealing with
these matter.
• In those cases where the treaty does not specify its own rules
Article 24 (2) of the VCLT indicate that the treaty enter into
force as soon as consent to be bound has been established for
all the negotiating states.
 Under Article 18 a state is legally obliged to refrain from acts
which would defeat the object and purpose of the treaty in the
period b/n signature and ratification.

23. Article 19 Reservation
In the negotiations leading to a bilateral treaty, the two
participating states may disagree over the precise terms of the
treaty which is to bind them. Thus, they may re-negotiate the
treaty in order to reach compromise or abandon the attempt
altogether.
In multilateral treaty, however; it is too much expect that all the
negotiating states will agree on every terms of the agreement and
it is unlikely that all the differences can be resolved via changes
of emphasis or substance in the proposed draft treaty. Therefore
the IL recognizes that state may be able to become parties to
treaties without accepting all the provisions thereof.
This is achieved by means of “Reservation” to the treaty, and
their validity and effect are dealt in the VCLT Article19-22.
Reservation can be defined as a unilateral statement made by
state at the time gives its consent to be bound (or later if the
treaty permit) and which are intended to modify or exclude an
otherwise binding treaty obligation.

24. In other word, reservation is made to exclude or to modify the
legal effect of certain provisions of the treaty in their application
to the state making that reservation.
Prior to 1969 VCLT there was disagreement as to the effect of a
reservation on state’s consent to multilateral treaty. In practice
the LNs was that if a state made a reservation to a multilateral
treaty, that reservation had to be accepted by all of the parties to
the treaty. If it was not, the state making the reservation could
not be regarded as a party to the treaty at all, even in respect of
those states that did accept the reservation.
This rule of unanimity was designed to ensure integrity and
uniformity of multilateral obligations. However, in practice such
rigid rule exclude many states from the operation of a treaty
when their reservation had little to do with the central object and
purpose of the treaty.

25. When is reservation to a provision/s of a treaty is made?
According to , Article 19 of the VCLT state can makes it
reservation to a treaty provision/s during signing, ratifying,
accepting, approving or acceding to a treaty. Which means that
they cannot made after expressing the consent to be bound by
the treaty. Any late reservation is not reservation and produces
no legal effect.
Moreover, Art 19 has put a limitation on reservation to a treaty
by a state. Art 19 prohibited reservations to a treaty when:
 reservation is prohibited by the treaty itself (e.g. Art 120 of the
Rome Statute states that no reservation to be made this statute)
 if the treaty is made only specified reservation, thus any other
reservation is not allowed and would have no effect
 reservation is incompatible with the object and purpose/the core
obligation of the treaty (this criteria taken form the advisory
opinion of the ICJ to the Convention on the Punishment of the
Crime of Genocide 1951)

26. The Effect of Reservation
The effect of reservation rule states that if the reserving party
considers itself not to be bound by a certain provision (or only
bound in a certain manner) it is not entitled to require from the
other contracting parties that they fully respect the treaty vis-a
vis itself. Thus the other parties to the treaty only be bound vis a
vis the reserving state to the same extent as it is self bound.
 Reciprocity effect and
 Relative effect
Reservation, Acceptance and Objection
As a rule if reservation expressly authorized by the treaty, it does
not require acceptance by any other party. Thus the reserving
state is a party to the treaty and its obligations are modified
according to the terms of the reservation in its relation with all
other parties. (look at Art 20(1) )

27. if it appears from that the limited number of negotiating states
and the object and purpose of the treaty that the treaty
obligations are to be accepted in their entirety by all prospective
parties, then reservation requires acceptance by all those parties.
In other words, for those classes of treaty which are intended to
create a completely uniform set of obligations, unanimity rule
still prevails. Hence a state whose reservation is accepted by all
states is a party to the treaty on the terms of its reservation, while
a state whose reservation is objected to by any one of the
prospective parties can not be party to the treaty at all. (look at
Art 20(2))
If the reservation is not prohibited or nor expressly permitted
and the treaty is not in one of the special cases of Art 20(2) and
Art 20(3):

28. Acceptance of one state’s reservation by another state means
that the multilateral treaty comes into force between the
reserving state and the accepting state. Thus, if state A makes
reservation to X convention and state B accepts it , states A and
B are parties to the X convention in their relations with each
other. The treaty is force between the two states, as modified for
both parties by the terms of the reservation. (look Art 21)
Objection to state’s reservation by another state does not prevent
the entry into force of the treaty between the reserving state and
the objecting state unless the a contrary intention of the objecting
state definitely expressed.
But if the objecting state further declared that it does not regard
the reserving state as party to the treaty, then the treaty does not
govern their relations. The treaty is not in force between them.

29. • Treaty interpretation
• One of the enduring problems facing courts and tribunals and
lawyers, both in the municipal and international law spheres,
relates to the question of interpretation. Accordingly, rules and
techniques have been put forward to aid judicial bodies in
resolving such problems. As far as international law is
concerned, there are three basic approaches to treaty
interpretation.
• First based on the literal or textual approach: the actual text of
the agreement and emphasizes the analysis of the words used.
• Second the terms of the treaty must be interpreted based on the
intention of the parties at the time the treaty was adopted. This
approach apply to ambiguous provisions and can be termed the
subjective approach in contradistinction to the objective
approach of the previous school.

30. • Third the teleological approach: which adopts a wider
perspective than the other two and emphasizes the object and
purpose of the treaty as the most important backcloth against
which the meaning of any particular treaty provision should be
measured.
This teleological school of thought has the effect of underlining
the role of the judge or arbitrator, since he will be called upon to
define the object and purpose of the treaty, and it has been
criticized for encouraging judicial law-making. (These rule of
interpretation are part and parcel of general customary
international law)
• In addition to the above the principle of effectiveness/ ut res/
this is a supplementary rule of interpretation to the above.
Nevertheless, any true interpretation of a treaty in international
law will have to take into account all aspects of the agreement,
from the words employed to the intention of the parties and the
aims of the particular document. It is not possible to exclude
completely any one of these components.

31. Articles 31 to 33 of the Vienna Convention comprise in some
measure aspects of all the above doctrines. Article 31 lays down
the fundamental rules of interpretation and can be taken as
reflecting customary international law. Article 31(1) declares that
a treaty shall be interpreted ‘in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose’.
 The amendment and modification of treaties
Although the processes of amending and modifying international
agreements share a common aim in that they both involve the
revision of treaties, they are separate activities and may be
accomplished in different manners.
Amendments refer to the formal alteration of treaty provisions,
affecting all the parties to the particular agreement, while
modifications relate to variations of certain treaty terms as
between particular parties only.

32. Where it is deemed desirable, a treaty may be amended by
agreement between the parties, but in such a case all the
formalities as to the conclusion and coming into effect of treaties
as described so far in this chapter will have to be observed
except in so far as the treaty may otherwise provide (look at Art
39 of the VCLT).
It is understandable that as conditions change, the need may arise
to alter some of the provisions stipulated in the international
agreement in question. There is nothing unusual in this and it is a
normal facet of international relations. The fact that such
alterations must be effected with the same formalities that
attended the original formation of the treaty is only logical since
legal rights and obligations may be involved and any variation of
them involves considerations of state sovereignty and consent
which necessitate careful interpretation and attention.
It is possible, however, for oral or tacit agreement to amend,
providing it is unambiguous and clearly evidenced.

33. • Many multilateral treaties lay down specific conditions as
regards amendment. For example, the UNs Charter in Article
108 provides that amendments will come into force for all
member states upon adoption and ratification by two-thirds of
the members of the organization, including all the permanent
members of the Security Council.
• Problems can arise where, in the absence of specific amendment
processes, some of the parties may oppose the amendments
proposed by others. In this regard Article 40 of the Vienna
Convention specifies the procedure to be adopted in amending
multilateral treaties, in the absence of contrary provisions in the
treaty itself.
• According to Art 40, Any proposed amendment has to be
notified to all contracting states, each one of which is entitled to
participate in the decision as to action to be taken and in the
negotiation and conclusion of any agreements. Every state which
has the right to be a party to the treaty possesses also the right to
become a party to the amendment.

34. But such amendments will not bind any state which is a party to
the original agreement and which does not become a party to the
amended agreement, subject to any provisions to the contrary in
the treaty itself.
The situation can become a little more complex where a state
becomes a party to the treaty after the amendments have come
into effect. That state will be a party to the amended agreement,
except as regards parties to the treaty that are not bound by the
amendments. In this case the state will be considered as a party
to the unamended treaty in relation to those states.
On the other hand, two or more parties to a multilateral treaty
may decide to change that agreement as between themselves in
certain ways, quite irrespective of any amendment by all the
parties. This technique, known as modification, and it is possible
as long as it has not been prohibited by the treaty in question and
it does not affect the rights or obligations of the other parties.

35. Modification, however, is not possible where the provision it is
intended to alter is one ‘derogation from which is incompatible
with the effective execution of the object and purpose of the
treaty as a whole’. (Art 41 ) A treaty may also be modified by the
terms of another later agreement (art 30 ) or by the establishment
subsequently of a rule of jus cogens.(Art 53)
 Third State
As a general rule treaties are binding only on the parties. As
recognized in Art 34 of the VCLT, treaties can create rights and
obligations only for those state that have consented to be bound
by agreement s that are not prejudicial to third parties and do not
benefit them.
However, sometimes there is a case that parties to the treaty may
intend to confer rights or obligations to third state/ non parties.(
look Art 35)

36. Inconsistent treaties
Under art 59 of the VCLT if all parties to a treaty conclude a
later treaty dealing with the same subject matter , then the prior
treaty is considered terminated if this is the intention of the
parties or the provision of the earlier treaty are so incompatible
with the terms of the later treaty that is impossible to apply the
two treaties at the same time. however, where the earlier treaty
is not terminated under this this article, then the matter falls to be
consider under Art 30.

37. Invalidity, Termination and Suspension of the operation of
Treaties
General provisions
Article 42 states that the validity and continuance in force of a
treaty may only be questioned on the basis of the provisions in
the Vienna Convention. Article 44 provides that a state may only
withdraw from or suspend the operation of a treaty in respect of
the treaty as a whole and not particular parts of it, unless the
treaty otherwise stipulates or the parties otherwise agree.
If the appropriate ground for invalidating, terminating,
withdrawing from or suspending the operation of a treaty relates
solely to particular clauses, it may only be invoked in relation to
those clauses where:
(a) the said clauses are separable from the remainder of the treaty
with regard to their application;

38. (b) it appears from the treaty or is otherwise established that
acceptance of those clauses was not an essential basis of consent
of the other party or parties to be bound by the treaty as a whole;
and
(c) continued performance of the remainder of the treaty would not
be unjust.
Thus the Convention adopts a cautious approach to the general
issue of separability of treaty provisions in this context.
Article 45 in essence provides that a ground for invalidity,
termination, withdrawal or suspension may no longer be invoked
by the state where, after becoming aware of the facts, it
expressly agreed that the treaty is valid or remains in force or by
reason of its conduct may be deemed to have acquiesced in the
validity of the treaty or its continuance in force.

39.  Invalidity of treaties
Invalidity of a treaty on the basis of Municipal law
As a rule state cannot plead a breach of its constitutional
provisions as to the making of treaties as a valid excuse for
condemning an agreement. There has been for some years
disagreement amongst international lawyers as to whether the
failure to abide by a domestic legal limitation by, for example, a
head of state in entering into a treaty, will result in rendering the
agreement invalid or not. The Convention took the view that in
general it would not, but that it could in certain circumstances.
Article 46(1) provides that:
state may not invoke the fact that its consent to be bound by a
treaty has been expressed in violation of a provision of its
internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and
concerned a rule of its internal law of fundamental
importance.

40. Violation will be regarded as manifest if it would be ‘objectively
evident’ to any state conducting itself in the matter in accordance with
normal practice, and in good faith (Art 46(2)).
For example, where the representative of the state has had his
authority to consent on behalf of the state made subject to a specific
restriction which is ignored, the state will still be bound by that
consent save where the other negotiating states were aware of the
restriction placed upon his authority to consent prior to the expression
of that consent.(Art 47)
This particular provision applies as regards a person authorized to
represent a state and such persons are defined in article 7 to include
heads of state and government and foreign ministers in addition to
persons possessing full powers.
In this regard ICJ dealt with this question in Cameroon v.
Nigeria, where it had been argued by Nigeria that the Maroua
Declaration of 1975 between the two states was not valid as its
constitutional rules had not been complied with The Court noted
that the Nigerian head of state had signed the Declaration and
that a limitation of his capacity would not be ‘manifest’

41. unless at least properly publicized. This was especially so since heads
of state are deemed to represent their states for the purpose of
performing acts relating to the conclusion of treaties.
The Court also noted that ‘there is no general legal obligation for
states to keep themselves informed of legislative and constitutional
developments in other states which are or may become important for
the international relations of these states’.
Thus, a state may not invoke a provision of its internal law as a
justification for its failure to carry out an international obligation. This
is a general principle of international law and finds its application in
the law of treaties by virtue of article 27 of the 1969 VCLT.
Error
Article 48 declares that a state may only invoke an error in a
treaty as invalidating its consent to be bound by the treaty, if the
error relates to a fact or 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.

42. But if the state knew or ought to have known of the error, or if it
contributed to that error, then it cannot afterwards free itself
from the obligation of observing the treaty by pointing to that
error. In other word, ‘the plea of error cannot be allowed as an
element vitiating consent if the party advancing it contributed by
its own conduct to the error, or could have avoided it, or if the
circumstances were such as to put that party on notice of a
possible error.
Fraud and corruption (Art 49 & 50)
Where a state consents to be bound by a treaty as a result of the
fraudulent conduct of another negotiating state, that state may
under Article 49 invoke the fraud as invalidating its consent to
be bound. Where a negotiating state directly or indirectly
corrupts the representative of another state in order to obtain the
consent of the latter to the treaty, that corruption may under
Article 50 be invoked as invalidating the consent to be bound.

43. Coercion
Of more importance than error, fraud or corruption in the law of
treaties is the issue of coercion as invalidating consent. Where
consent has been obtained by coercing the representative of a
state, whether by acts or threats directed against him, it shall,
according to Article 51 of the Convention, be without any legal
effect.
The problem of consent obtained by the application of coercion
against the state itself is a slightly different one. Prior to the
League of Nations, it was clear that international law did not
provide for the invalidation of treaties on the grounds of the use
or threat of force by one party against the other and this was a
consequence of the lack of rules in customary law prohibiting
recourse to war. With the signing of the Covenant of the League
in 1919, and the Kellogg–Briand Pact in 1928 forbidding the
resort to war to resolve international disputes, a new approach
began to be taken with regard to the illegality of the use of force
in international relations.

44. Accordingly, Article 52 of the VCLT provides that ‘[a] treaty is
void if its conclusion has been procured by the threat or use of
force in violation of the principles of international law embodied
in the Charter of the United Nations’.
Jus cogens/ Premptory norm
Article 53 of the Convention provides that: [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.
Article 64 declares that ‘[i]f a new peremptory norm of general
international law emerges, any existing treaty which is in
conflict with that norm becomes void and terminates’

45. Consequences of invalidity of a treaty
Article 69 provides that an invalid treaty is void and without legal
force. If acts have nevertheless been performed in reliance on such a
treaty, each party may require any other party to establish as far as
possible in their mutual relations the position that would have existed
if the acts had not been performed. Acts performed in good faith
before the invalidity was invoked are not rendered unlawful by reason
only of the invalidity of the treaty.
Where a treaty is void under article 53, article 71 provides that
the parties are to eliminate as far as possible the consequences of
any act performed in reliance on any provision which conflicts
with jus cogens and bring their mutual relations into conformity
with the peremptory norm.
Where a treaty terminates under Article 64, the parties are
released from any obligation further to perform the treaty, but
this does not affect any right, obligation or legal situation of the
parties created through the execution of the treaty prior to its
termination, provided that the rights, obligations or situations
may be maintained thereafter in conformity with the new
peremptory norm.

46. Termination of treaties
There are a number of ways by which treaties may be terminated
or suspended.
 Termination by treaty provision or consent
A treaty may be terminated or suspended in accordance with a
specific provision in that treaty, or otherwise at any time by
consent of all the parties after consultation. (Art 54&57)
Where, however, a treaty contains no provision regarding
termination and does not provide for denunciation or withdrawal
specifically, a state may only denounce or withdraw from that
treaty where the parties intended to admit such a possibility or
where the right may be implied by the nature of the treaty.
Indeed, a treaty may come to an end if its purposes and objects
have been fulfilled or if it is clear from its provisions that it is
limited in time and the requisite period has elapsed.

47. Moreover, two or more parties to a multilateral treaty may modify as
between themselves particular provisions of the agreement, so they
may under Article 58 agree to suspend the operation of treaty
provisions temporarily and as between themselves alone if such a
possibility is provided for by the treaty. Such suspension may also be
possible under that article, where not prohibited by the treaty in
question, provided it does not affect the rights or obligations of the
other parties under the particular agreement and provided it is not
incompatible with the object and purpose of the treaty.
Termination by other parties conduct
 Material breach (Art 60)
There are two approaches to be considered. First, if one state
violates an important provision in an agreement, it is not
unnatural for the other states concerned to regard that agreement
as ended by it. It is in effect a reprisal or countermeasure, a
rather unsubtle but effective means of ensuring the enforcement
of a treaty.

48. The fact that an agreement may be terminated where it is
breached by one party may act as a discouragement to any party
that might contemplate a breach of one provision but would be
unwilling to forgo the benefits prescribed in others.
Customary law supports the view that something more than a
mere breach itself of a term in an agreement would be necessary
to give the other party or parties the right to abrogate that
agreement.
Material breach of a treaty means a repudiation of a treaty in
manner not authorized by the VCLT or a violation of a provision
essential to the accomplishment of the object and purpose of a
particular treaty. But when a breach is material and it is not?
Where such a breach occurs in a bilateral treaty, then under
article 60(1) the innocent party may invoke that breach as a
ground for terminating the treaty or suspending its operation in
whole or in part.

49. There is a rather different situation in the case of a multilateral
treaty since a number of innocent parties are involved that might
not wish the treaty to be denounced by one of them because of a
breach by another state. To cover such situations, article 60(2)
prescribes that a 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 or to terminate it
either:
(i) in the relations b/n themselves and the defaulting state, or
(ii) as b/n all the parties;
(b) a party specially affected by the breach to invoke it as a ground
for suspending the operation of the treaty in whole or in part in
the relations between itself and the defaulting state;

50. (iii) any party other than the defaulting state to invoke the breach
as a ground for suspending the operation of the treaty in whole
or in part with respect to itself if the treaty is of such a character
that a material breach of its provisions by one party radically
changes the position of every party with respect to the further
performance of its obligations under the treaty.
It is interesting to note that the provisions of Art 60 regarding the
definition and consequences of a material breach do not apply,
by Art 60(5), to provisions relating to the ‘protection of the
human person contained in treaties of a humanitarian character,
in particular to provisions prohibiting any form of reprisals
against persons protected by such treaties’. This is because
objective and absolute principles are involved and not just
reciprocal rights and duties.

51. Supervening impossibility of performance/ Art 61
Article 61 of the Convention is intended to cover such situations
as the submergence of an island, or the drying up of a river
where the consequence of such events is to render the
performance of the treaty impossible. Where the carrying out of
the terms of the agreement becomes impossible because of the
‘permanent disappearance or destruction of an object
indispensable for the execution of the treaty’, a party may validly
terminate or withdraw from it.
However, where the impossibility is only temporary, it may be
invoked solely to suspend the operation of the treaty.
Impossibility cannot be used in this way where it arises from the
breach by the party attempting to terminate or suspend the
agreement of a treaty or other international obligation owed to
any other party to the treaty.

52. Fundamental change of circumstances/ rebus sic stantibus
/Art 62
The doctrine of rebus sic stantibus is a principle in customary
international law providing that where there has been a
fundamental change of circumstances since an agreement was
concluded, a party to that agreement may withdraw from or
terminate it. It is justified by the fact that some treaties may
remain in force for long periods of time, during which
fundamental changes might have occurred. Such changes might
encourage one of the parties to adopt drastic measures in the face
of a general refusal to accept an alteration in the terms of the
treaty.
However, this doctrine has been criticized on the grounds that,
having regard to the absence of any system for compulsory
jurisdiction in the international order, it could operate as a
disrupting influence upon the binding force of obligations
undertaken by states. It might be used to justify withdrawal from
treaties on rather weak grounds.

53. The modern approach is to admit the existence of the doctrine,
but severely restrict its scope.The International Court in the
Fisheries Jurisdiction case declared that:
International law admits that a fundamental change in the
circumstances which determined the parties to accept a treaty, if
it has resulted in a radical transformation of the extent of the
obligations imposed by it, may, under certain conditions, afford
the party affected a ground for invoking the termination or
suspension of the treaty.
In the above case before the doctrine may be applied, the Court
continued, 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.

54. Article 62 of the VCLT, which the ICJ regarded in many respects
as a codification of existing customary law, declares that:
1. A fundamental change of circumstances which has occurred
with regard to those existing at the time of the conclusion of a
treaty, and which was not foreseen by the parties, may not be
invoked as a ground for terminating or withdrawing from the
treaty unless:
(a) the existence of those circumstances constituted an essential
basis of the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a
ground for terminating or withdrawing from a treaty:
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party
invoking it either of an obligation under the treaty or of any
other international obligation owed to any other party to the
treaty.

55. If a state which needs to terminate treaty relations on the basis of
fundamental change of circumstance shall be prove the existence
following point:
1. The alleged change not be foreseen by the parties at the time of
treaty formation
2. The existence of the circumstance that have changed now must
be essential basis for the agreement
3. The change itself must be dramatic/radical that it transforms the
treaty obligation /the change must affect both the past and the
future obligation of the state.

56. Consequences of the termination or suspension of a treaty
Article 70 provides that:
1. Unless the treaty otherwise provides or the parties otherwise
agree, the termination of a treaty under its provisions or in
accordance with the present Convention:
(a) releases the parties from any obligation further to perform the
treaty;
(b) does not affect any right, obligation or legal situation of the
parties created through the execution of the treaty prior to its
termination.
2. If a state denounces or withdraws from a multilateral treaty,
paragraph 1 applies in the relations between that state and each
of the other parties to the treaty from the date when such
denunciation or withdrawal takes effect.

57. Article 72 provides that:
1. Unless the treaty otherwise provides or the parties otherwise
agree, the suspension of the operation of a treaty under its
provisions or in accordance with the present Convention:
(a) releases the parties between which the operation of the treaty is
suspended from the obligation to perform the treaty in their
mutual relations during the period of the suspension;
(b) does not otherwise affect the legal relations between the parties
established by the treaty.
2. During the period of the suspension the parties shall refrain
from acts tending to obstruct the resumption of the operation of
the treaty.

58. Dispute settlement
Article 66 provides that if a dispute has not been resolved within
twelve months by the means specified in Article 33 of the UN
Charter then further procedures will be followed. If the dispute
concerns Article 53 or 64 (jus cogens), any one of the parties
may by a written application submit it to the ICJ for a decision
unless the parties by common consent agree to submit the
dispute to arbitration.
If the dispute concerns other issues in the Convention, any one
of the parties may by request to the UN Secretary-General set in
motion the conciliation procedure laid down in the Annex to the
Convention.