Introduction
Legal rights and duties in municipal law may be created by contracts between
parties, agreements under seal, legislation or judicial decisions.
Customs and treaties usually create legal rights and duties in international
law.
Custom relies upon a measure of state practice supported by opinio juris.1
By contrast, treaties are a more direct and formal method of international law
creation.2
Treaties between states are primarily governed by the Vienna Convention on
the Law of Treaties 19693 whilst those between States and international
organisations are governed by the Vienna Convention on the Law of Treaties
between States and International Organisations 1986.
What is a Treaty?
Article 2 of the1969 Vienna Convention defines a treaty as:
An international agreement concluded between states in written
form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and
whatever its particular designation.
An agreement between parties in the international arena.
The fundamental principle of treaty law is that treaties are binding upon
parties to them and must be performed in good faith.
The term pacta sunt servanda expresses this principle which is arguably the
oldest principle of international law. See Art. 26.
Formalities
No specific requirement of form in international law for the existence of a
treaty.
Parties must however intend to create legal relations as between themselves
by means of their agreement.
Where the parties to an agreement do not intend to create legal relations the
agreement will not be a treaty, but its political effect may still be considerable.
E.g. memoranda of understanding. Such agreements may have the benefit of
flexibility and could be amended as required.
Each state decides where the power to create treaties is derived from in their
municipal law and it differs from state to state. E.g. in the United Kingdom the
treaty-making power is within the prerogative of the Crown, whereas in the
United States it resides with the president with the advice and consent of the
Senate and the concurrence of two-thirds of the Senators.4
1 An opinion of law. It is the belief that an action was carried out because it was a
legal obligation.
2 Malcolm N Shaw, International Law (6th edn, Cambridge University Press 2008)
902
Consent
The text of the agreement has to be adopted for a treaty to become binding.
Adoption in international conferences take place by the vote of two-thirds of
the states present and voting, unless by the same majority it is decided to
apply a different rule. In cases other than international conferences, adoption
will take place by the consent of all the states involved in the drawing up of
the text of the agreement Art. 9.
Reservations to Treaties
A reservation is defined in Art. 2 (1) (d) of the Convention 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.
It is a device utilised by states where they agree to certain provisions of a
treaty but disagree with certain others. By putting in a reservation to those
provisions they disagree with, they will not be bound by them.
11 See also S Marks, Reservations Unhinged: the Belios Case Before the European
Court of Human Rights 39 (1990) ICLQ 300
13 Permanent Court of International Justice in Free Zones case PCIJ Series A/B No
46 1932, 147-8, 6 AD
14 In relation to everyone.
Treaty Interpretation
There are three basic approaches to interpretation of treaties in international law:
The subjective (intention) of the parties approach
The objective (textual) approach
The teleological (object and purpose) approach.
These schools of interpretation are not mutually exclusive.
For the International Law Commission the starting point was the text rather
than the intention of the parties, since it presumed that the text represented a
real expression of what the parties did in fact intend. It also appears that the
ICJs preferred method of interpretation is reliance on the text of a treaty.17
Articles 31 to 33 contain to a certain extent, some measure of all three
schools of interpretation.
Invalidity of Treaties
The validity and continuance in force of a treaty can only be questioned on
the basis of the provisions in the Vienna Convention Art 42.
In certain instances a state would be unable to rely on any of the grounds for
invalidity due to its express or implied conduct. See Art 45.
The grounds for invalidity of treaties within the Convention can be divided into
two: relative grounds and absolute grounds. The primary difference between
these grounds is that the relative grounds render a treaty voidable at the
insistence of an affected State whereas the absolute grounds mean that the
treaty is rendered void ab initio and without legal effect.
16 Art. 30
Effect of Invalidity
An invalid treaty is void and without legal force subject to the provisions of
article 69. For treaties void under Article 53, Article 71 applies and parties
are allowed to being their mutual relations into conformity with the
peremptory norm.
Further Reading
MD Evans (ed), International Law (2nd edn OUP, Oxford 2006) 188-213
MN Shaw, International Law (5th edn Cambridge University Press, Cambridge) 902-
955
A Aust, Modern Treaty law and Practice (2nd edn, Cambridge University Press,
Cambridge 2007)
Ian Brownlie, Principles of Public International Law (7th edn, OUP 2008)
Francesco Parisi and Catherine evenko, Treaty Reservations and the Economics
of Article 21(1) of the Vienna Convention (2003) 21(1) Berkeley J Intl Law 1
1. How are rights and obligations created in public international law? Which
would you consider to be most effective and why?
2. How can consent to a treaty be expressed?
3. What is a reservation to a treaty and what impact if any does it have in both a
bilateral and a multi lateral treaty?
4. What are the grounds for invalidity of a treaty?
5. How can a treaty be terminated or suspended? What impact does this have?