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INTRODUCTION ● Lack of precision of wording (terms such as “will” and
The law of treaties is part and parcel of the international law of “ought” usually signal the lack of intent to create a
coexistence. The primary rules and principles in the area of the legally binding agreement, whereas “shall” and
law of treaties are found in the 1969 Vienna Convention on the “must” indicate the opposite)
Law of Treaties (VCLT), entered into force in January 1980 - ● Circumstances surrounding the conclusion of the
drafted by successive Special Rapporteurs of the ILC. instrument
● Manner in which it is dealt with subsequent to its
PURPOSE conclusion
It seeks to codify existing customary practices. It is meant to
be applied to all types of written treaties and therefore When binding (examples from cases):
governs treaties as a diverse bilateral agreement to construct ● Press communique without signatures
infrastructure as well as a multilateral agreement such as the ● Minutes from a meeting over agreements and
UN Charter. disagreements created rights and obligations in
international law for the parties
APPLICATION
It’s application may differ depending on the type of treaties in AUTHORITY TO CONCLUDE A TREATY
relation to the VCLT’s principles of interpretation. It does not Art 6 of VCLT - All states possess the legal capacity to conclude
concern itself with the material content of the instrument, treaties.
rather, it is a matter for the parties to the particular treaty.
Note: but not all representatives of a state are considered
Art 2 (1) (a) of VCLT - VCLT applies to written TREATIES competent to conclude a treaty.
concluded between states
Art 7 of VCLT: concept of full powers - it is a document that
TREATY AS A CONCEPT UNDER INTERNATIONAL LAW authorizes a state rep to negotiate and conclude a treaty on
behalf of the state.
What is a treaty?
● It is an international agreement governed by Art 7 (2) (a) - by virtue of their functions, all heads of state,
international law concluded by two or more heads of government, and ministers for foreign affairs may
international subjects with treaty-making capacity. perform all acts that relate to a conclusion of a treaty on behalf
● A means of regulating interests of the state without presenting full powers.
Note: not all legally binding agreements entered into by the The following may participate in the adoption of a text of a
state will be treaties governed by international law. Like when treaty without full powers (dependent on circumstances):
a state enters into an agreement under national law, the
national law will govern. Art 7 (2) (b) - a more limited authority to represent a home
state rests on the heads of diplomatic missions
Legal basis - state consent (cannot be bound without it)
Art. 34 of VCLT - No one can force a sovereign state to enter Art 7 (2) (c) - reps accredited by a state to an international
into a legally binding agreement and a treaty only creates conference or an international organization
legal obligations for the parties
Art 46 (1) - a state may not invoke the fact that its consent to
Art 26 of VCLT - principle of pacta sunt servanda be bound by a treaty has been in violation of their national
Once state has consented to be bound by a treaty, it must laws as invalidating its consent UNLESS the violation was
comply with its terms. A treaty in force is binding upon the manifest and concerned a national law of fundamental
parties to it and must be performed in good faith. importance
Art 27 of VCLT - National laws is not a justification for failure to Art 46 (2) - violation must be manifest in the sense that it is
perform a treaty-based obligation. Thus, the state is obliged to objectively evident to any state conducting itself in the matter
comply even if it breaches their national law. (see exception in in accordance with normal practice and good faith.
art 46)
Note for art 46: states are not obliged to keep themselves
Art 3 of VCLT - the fact that the Convention applies to written apprised of the goings on in other states’ legislative and
treaties does not affect the legal force of other agreements. constitutional developments.
Title of the treaty is immaterial Art 8 of VCLT - If a person with no authority to conclude a
Everything from minutes, notes, protocols, exchange, may treaty has nevertheless done so, the state may decide to avail
qualify as treaties as long as the instrument shows intent to itself of the opportunity to disavow the act of the person in
create a legal obligation, it is a treaty for the purposes of question by subsequently endorsing the act and thereby
international law. I ntent is decisive. establishing its consent to be bound.
Indications of lack of intent, not binding:
PIL NOTES FROM THE BOOK OF HENRIKSEN
TREATIES BETWEEN STATES AND INTERNATIONAL Note: the VCLT itself is subject to ratification. Also, if not
ORGANIZATIONS specified if ratification is needed, there is a presumption that
Depending on the circumstances, international organizations ratification is NOT required.
may have some treaty making powers as illustrated in the
Certain Expenses case & Legality of the Use by a State of FYI meaning of ratification
Nuclear Weapons in Armed Conflict. Art 2 (1) (b) of the VCLT - "Ratification", "acceptance", "approval"
and "accession" mean in each case the international act so
The Vienna Convention on the Law of Treaties between named whereby a State establishes on the international plane
International Organizations or between States and its consent to be bound by a treaty;
International Organizations was adopted in 1986 to regulate
treaty relations of international organizations. The ILC used ENTRY INTO FORCE - OBLIGATIONS IN THE INTERIM PERIOD
VCLT as basis, so with a few exceptions, they are identical. A state is not legally bound by the treaty until the treaty enters
into force. A treaty that has not yet entered into force cannot
CONSENT TO BE BOUND create legal obligations for the contracting states.
For a state to be legally bound by a treaty, it must consent to it.
Art 24 of VCLT - A treaty enters into force in such manner and
Art 11 of VCLT - consent may be expressed by a signature, an upon such date as it may provide or as the negotiating States
exchange of the instruments that constitute a treaty, may agree.
ratification, acceptance, approval or accession, or by any other
means agreed. In bilateral agreements a treaty enters into force upon signing
of both parties.
Note: articles 12 to 16 also enumerate consent.
In multilateral agreements, it is not unusual for a substantial
Art 15 of VCLT consent by accession - The consent of a State to amount of time to pass before it enters into force.
be bound by a treaty is expressed by accession when:
If the treaty does not specify when it will enter into force, it will
(a) The treaty provides that such consent may be expressed by generally enter into force as soon as consent has been
that State by means of accession; established for a ll the parties.
(b) It is otherwise established that the negotiating States were During the interim period (interim obligations):
agreed that such consent may be expressed by that State by
means of accession; or Art 18 (b) of the VCLT - A State is obliged to refrain from acts
which would defeat the object and purpose of a treaty when:
(c) All the parties have subsequently agreed that such consent
may be expressed by that State by means of accession. (b) It has expressed its consent to be bound by the treaty,
pending the entry into force of the treaty and provided that
Note: accession is primarily relevant in multilateral treaties such entry into force is not unduly delayed.
that gradually expand their list of participating states.
Acts that “defeat the object and purpose of the treaty” are
Art. 14 of VCLT - 1. The consent of a State to be bound by a determined on a case to case basis. Probably those acts where
treaty is expressed by ratification when: a state’s behavior in relation to a treaty appears to be
“unwarranted and condemnable.”
(a) The treaty provides for such consent to be expressed by
means of ratification; VALIDITY
Most of the grounds for invalidity relates to defects in the
(b) It is otherwise established that the negotiating States were consent given by the state. The rules on invalidity illustrate
agreed that ratification should be required; how difficult it is to successfully raise a claim of invalidity. (arts
46-53 and 64)
(c) The representative of the State has signed the treaty
subject to ratification; or Art 46 of VCLT - a state can invoke the fact that its consent to
be bound by a treaty was expressed in violation of a national
(d) The intention of the State to sign the treaty subject to law and that violation was manifest and concerned a rule of its
ratification appears from the full powers of its representative internal law of fundamental importance.
or was expressed during the negotiation.
Note: means that it will be evident to any state conducting
2. The consent of a State to be bound by a treaty is expressed itself in the matter in accordance with normal practice and
by acceptance or approval under conditions similar to those good faith
which apply to ratification.
Art 47 of VCLT - addresses error in the formation of treaties.
The error may only be invoked if it “relates to a fact or situation
which was assumed to exist at the time when the treaty was
PIL NOTES FROM THE BOOK OF HENRIKSEN
concluded and if “it formed essential basis” of the consent
expressed. Intention: often, it is to ensure an interpretation of a treaty
provision that is consistent with the domestic law of the state
Art 48 (2) of VCLT - error cannot be invoked if the state in question.
contributed by its own conduct to the error or the
circumstances were such that the state should have noticed a Distinguished from derogations:
possible “error” Some human rights treaties contain provisions that authorize
the state to derogate - meaning some provisions may not
Note: VCLT works on the presumption that reps of a state are apply during times of emergency or similar periods of national
able to make reasonable judgements in their actions. emergency.
Art 49 of VCLT - fraud as invalidating consent if it has been Reservations:
mislead or “induced to conclude a treaty” Up until the ICJ issued an advisory opinion on the making of
reservations to the 1948 Genocide Convention, reservations
Art 50 of VCLT - corruption of a representative of a state may were not valid. According to the court, reservations are
be a ground for invoking invalidity generally accepted if they are compatible with the object and
purpose of the treaty in question.
Art 51 of VCLT - concerns coercion: an expression of consent
shall be without legal effect if it has been procured “through Art 19 of VCLT - reservations are excluded in the following
acts or threats” directed against a state rep circumstances:
1) Reservations cannot be made if the treaty expressly
Art 52 of VCLT - a treaty is void if its conclusion has been stipulates they are not permitted
procured by the threat or use of force in violation of the 2) Some treaties provide that only certain reservations
Charter of the United Nations. to the treaty can be made
3) A reservation cannot be made if it violates the object
Note: since some measure of coercion and pressure is and purpose of a treaty (in these cases the
endemic (prevalent, common) in international relations and reservation is void and has no legal effect regardless if
negotiations, it is of some importance that the article only states objected or not)
concerns military force.
Art 20 of the VCLT - ACCEPTANCE OF AND OBJECTION TO
Art 53 of VCLT - a treaty is void if it “conflicts with a peremptory RESERVATIONS
norm of general international law” 1. A reservation expressly authorized by a treaty does not
require any subsequent acceptance by the other contracting
Recall: such norms are those that have been accepted and States unless the treaty so provides.
recognized by the international community of States as a
whole as a norm from which no derogation is permitted and 2. When it appears from the limited number of the negotiating
which can be modified only by a subsequent norm of general States and the object and purpose of a treaty that the
international law of the same character. application of the treaty in its entirety between all the parties
is an essential condition of the consent of each one to be
Article 53 should be read with article 64. bound by the treaty, a reservation requires acceptance by all
the parties.
Art 64 of VCLT - an existing treaty becomes void and
terminates if it conflicts with an emerging (new) peremptory 3. When a treaty is a constituent instrument of an international
norm. organization and unless it otherwise provides, a reservation
requires the acceptance of the competent organ of that
Note: concerns cases where a treaty is valid upon conclusion organization.
and subsequently becomes void due to an establishment of a
new rule of jus cogens. 4. In cases not falling under the preceding paragraphs and
unless the treaty otherwise provides:
RESERVATIONS
Reservations are unilateral statements whereby a state may (a) If a state accepts a reservation by another state they will be
exclude or modify the legal effect of one or more provisions of parties to the same treaty
a treaty in its application to the state.
(b) If a state objects to another state’s reservation the treaty
Distinguished from interpretative declarations: will not enter into force between the two states if the
Interpretative declaration does not seek to modify the treaty objecting state expresses a definite intention for that to be the
but merely to specify or clarify the meaning or scope the case
declaring state attaches to the obligation in question.
(c) A state’s reservation is effective when at least one other
Purpose: to communicate to other parties what the declaring contracting state has accepted it..
state understands the existing obligation to be.
PIL NOTES FROM THE BOOK OF HENRIKSEN
5. For the purposes of paragraphs 2 and 4 and unless the
treaty otherwise provides, a reservation is considered to have Note: a reservation subsequent to ratification cannot be
been accepted by a State if it shall have raised no objection to effective unless accepted by other contracting parties.
the reservation by the end of a period of twelve months after it
was notified of the reservation or by the date on which it A state that is not satisfied with an existing treaty obligation
expressed its consent to be bound by the treaty, whichever is may, in theory, withdraw from the treaty and try to re-accede
later. with a reservation that excludes the unwanted obligation in
question.
Art 21 (1) of VCLT - a reservation modifies the provisions of a
treaty for the reserving and the other state. A state that wishes to become “unbound” by a treaty
obligation may still be bound by the content of the obligation
Art 21 (2) of VCLT - it does not modify the provisions for the if it has become binding as a matter of customary
other parties inter se. international law.
Art 21 (3) of VCLT - if an objecting state has not expressly
opposed the entry into force of the treaty between itself and
the reserving State, the provisions to which the reservation
relates do not apply between the two states.
A state can react to another state’s reservation in 3 ways:
1) It can accept the reservation in which event the
treaty will come into force between the two states
with the reservation in force
2) It can object to the reservation and express an
intention that the treaty as a whole should not enter
into force between the states - the treaty will not
govern the two states’ relations
3) It can object to the treaty and refrain from expressing
intention that the treaty as a whole should not enter
into force between the two states - the treaty will
enter into force between the states with the
reservation in force
When a reservation violates the object and purpose of the
treaty, two possible outcomes:
1) Invalidity of the reservation nullifies the instrument as
a whole whereby the reserving state is no longer
considered a party to the agreement at all.
2) Ignore the reservation and conclude that the
reserving state remains bound by the treaty,
including the provision(s) to which the reservation
related
Outcome number 2 as stated above, is a so-called “severance”,
it goes against the principle of consensuality where the state is
only bound to a treaty obligation when it consents to it.
And so the ILC introduced a presumption of severability
according to which the reserving state will be considered a
contracting state without “the benefit of the reservation”
unless “it has expressed a contrary intention or such an
intention is otherwise established.” Unless the state makes it
manifest that it will only be a party to the treaty if it can benefit
from an invalid reservation, it will be presumed to be a full
party without benefitting from the reservation.
Art 19 of the VCLT - a reservation must be made by a state
when signing, ratifying, accepting, approving or acceding to a
treaty.