Treaties (Vienna Convention on the Law of Treaties 1969)

Definition:
- Schwarzenberger defines treaty as "a consensual agreement which
subjects of international law have undertaken towards one another with
the intent to create legal obligaitons under international law”
- Oppenheim definition is that “international treaties are agreements of
a contractual character, between states or organisations of states,
creating legal rights and obligations between parties”
- Consequently, according to the traditional definition of treaty under
customary international law, there are 3 essential elements
o It is an international agreement
o Between subjects of international law
o With intent to create rights and obligations under international
alw
- Art. 2(1)(a)
o it deals only with treaties concluded between states. Secondly, it
is limited to “written treaties” only.
- The law of treaties is a body of rules which provides a definition of a
treaty and deals with matters relating to the conclusion, entry into
force, application, validity, amendment, modification, interpretation,
suspension and termination of a treaty.
- Play a role in international law similar to law of contract.
1) An international agreement between States
- Art. 6 VC: States
- Limited to treaties which States are parties
- Individuals do not have the capacity to enter into a treaty; similar
agreements between transnational and multinational companies or
between State and company
o Anglo Iranian Oil Company – nothing more than a
concessionary contract between a government and foreign
company
o Wimbledon case: the court held that the rights to enter a
treaty are an attribute of state sovereignty
o Bosnia v Serbia: the court affirmed that every head of state is
presumed to be able to act on behalf of international relations
2) In written form
- However, the court held that this exclusion will not affect the legally
binding character of the oral agreement.
- US v Gonzales
o The court held that the conversation through phone constitutes a
valid agreement with the US government.
- There is not strict definition of ‘writing’, but it shall include documented
oral agreement, exchange of letters, notes, telegrams & memoranda.
Electronic data carrier/electronic text are also accepted because it
fulfills he requirement of permanence.
- Moreover, number of instrument forming a treaty is irrelevant.
3) Governed by international law
- Governed by any sources of international law as outlined in Article 38
of ICJ statutes. For example, load agreement between Malaysia, Jordan,
Brazil, Iran & Denmark, is not a treaty because it is expressly governed
by Danish Law.
 4) Intention to create legal obligations
- Aegean Sea Continental Shelf case – no intention to conclude an
agreement to submit to the jurisdiction of the court
5) Whether embodied in a single instrument or in 2 or more related
instruments
- Acknowledges the validity of the increasing use of such exchange of
notes and letters in modern treaty practice
6) Whatever its particular designation
- Treaty can also be called as accord, act, convention (Article 38 of ICJ
statute), covenant, declaration, pact, protocol, statute, modus vivendi,
memorandum of understanding, and etc.
- But, Declaration may sometimes suggest non-binding character.
- Tan Ping Hoi v AG
o The court held that the declaration of Sino-British Joint
Declaration is indeed a treaty, and therefore, binding upon the
parties.
- Mohd Ezam v Ketua Polis Negara
o The court held that UDHR is binding in Malaysia due to its
rectification and hence, constitutes a valid treaty.
- However, Article 3 of VCLT
o This will not affect the binding character of international
agreement having other designation than international treaty.
- Qatar v Bahrain
o The court held that the binding effect of an agreement depends
on its actual term. So, the minutes drawn between parties were
to be construed as an international agreement creating rights
and obligations for parties since parties have consented to it.
The International Transactions
- Art 3 provides the fact that the Convention is thus limited shall not
affect the legal force of agreement between states and other subjects
of international law or between such other subjects of international law
or between such other subjects.
- Art 2 stipulates that the agreement to which the Convention extends
be ‘governed by international law’ and thus excludes the various
commercial arrangement, such as purchase and lease, made between
governments and operating only under one or more national laws.
- The capacity of particular international organizations to make treaties
depends on the constitution of the organization concerned.
THE VCLT AND CUSTOMARY LAW
- Confirm that Article 39 (a) and 4 and the eighth paragraph of the
preamble that customary law will apply to issues not regulated by its
provisions.
- State practice and judgment of the ICJ show mirrors the rules of
customary law. Case Concerning Gabcikovo-Nagymaros Project
(Hungary v Slovakia) ICJ applied Articles 60 to 62 as reflecting
customary law, even though previously those provisions had not been
accepted as representing customary law
- Primary sources, e.g. oral proceedings before the International Court in
Namibia:
o The rules laid down by the Vienna Convention…concerning
termination of a treaty relationship on account of breach
 (adopted without a dissenting vote) may in many respect be
considered as a codification of existing customary law on the
subject.
THE FUNDAMENTAL PRINCIPLES OF THE LAW OF TREATIES
 THE PRINCIPLE OF FREE CONSENT
 PACTA SUNT SERVANDA
o Embodies in article 26 which states: every treaty in force is binding
upon the parties to it and must be performed by them in good faith’.
o Emphasis a close proximity between pacta sunt servanda and the
principle of good faith.
o Case Concerning Gabcikovo-Nagymaros Project (Hungary v
Slovakia) ICJ held that ‘Article 26 combines two elements, which are
of equal importance,’ i.e. pacta sunt servanda and good faith.
Human rights context
o Pacta sunt servanda only applies to a treaty in force but not to
invalid, suspended or terminated treaties.
 THE PRINCIPLE OF GOOD FAITH
o In the Nuclear Test Case (Australia v France) the ICJ held that:
 One of the basic principles governing the creation and
performance of legal obligations, whatever their course, is the
principle of good faith.
o In contrast to pacta sunt servanda which applies to treaties which
are in force, good faith is all encompassing as it even imposes
obligations on a state in the pre-ratification stage.
o Article 18 VCLT
o Applies throughout a treaty life from its negotiation through its
performance (Article 26 VCLT) to its termination.
o Treaty must be interpreted in good faith in Article 31 (1) not only
by contracting parties but also third parties e.g. arbitrators,
international courts and domestic courts.

Formation of treaties
Treaty-making capacity:
- Art. 7(1): A person is considered as representing a State for the
purpose of expressing the consent of the State to be bound by the
treaty if he produces appropriate full powers.
o “Full powers”: Documents certifying status from competent
authorities of the State which is required before a representative
can be accepted as capable of representing the State.
- Two elements:
o He produces appropriate full powers
o The practice of States so provide for evidence that there is an
intention to consider that person a representative of the State.
- Art. 8
- However, Art. 7(2) provides an exception: In virtue of their functions
and without having to produce full powers, Heads of State,
Heads of Government and Ministers of Foreign Affairs are
considered as representing their States for the purpose of performing
all acts relating to the conclusion of a treaty.
- The ICJ in Application of the Genocide Convention (Bosnia) case
 - If the authority of a representative to express the consent of his State
to be bound by a particular treaty has been made subject to a specific
restriction, failure on his part to observe that restriction will not
invalidate the consent expressed by him unless the restriction was
notified to other negotiating States prior to expressing such consent
(Art. 47).
-
STEPS TO BE TAKEN IN THE CONCLUSION OF A TREATY
1) ADOPTION AND AUTHENTICATION OF THE TEXT OF THE TREATY
(Step One):
- The manner by which such authentication is primarily guided by the
procedures set forth in the treaty itself. If not followed, then the
signature ad referendum or initialling of representatives will serve as
sufficient authentication (Art. 10)
- Done through foreign ministries by negotiators who are authorised to
do so (full powers)
- Signature has, as one of its function, that of authentication, but a text
in the final act of a coherence or by installing.
2) Authentication (Step Two):
- Bilateral treaty: treaty concluded when signed by both states
- Multilateral treaty: concluded on the date when the text of the treaty is
adopted or, if applicable, on the date the treaty is open for signature,
whichever is the later
3) Consent to be bound (Step Three):
- The principle of free consent: A State cannot be bound by a treaty to
which it has not consented.
- Art. 11: A State can express its consent by signature, exchange of
instruments constituting a treaty, ratification, acceptance or approval,
or accession.
a. By signature:
- Art. 12:
- North Sea Continental Shelf case
b. By exchange of instruments constituting a treaty
- Art. 13
c. By ratification, acceptance or approval
- Art. 14
- Ratification involves two steps:
o Internal act of approval: The signing and sealing of the
instrument of ratification, which must be signed by the Head of
State, Head of Government, or Minister of Foreign Affairs
depending on the constitution and practice of each State.
o International procedure which brings a treaty into force: The
exchange or deposit of the instruments of ratification (Art.
16)
- Art 14 of the VCLT regulates the matter by reference to the attention
of the parties.
- Bilateral treaties: Exchange of instrument of ratification with the
corresponding instrument produced by the other party.
 - Multilateral treaties: Deposit all instruments of ratification with the
depositary (where the treaty was signed)
- Treaties concluded under UN: Deposited with the Secretary-General of
UN.
- Effect of a treaty before ratification or before entry into force
o Art. 18
o Obligation under art. 18 is only to refrain from acts which would
defeat the object and purpose of the treaty.
d. By accession:
- Art. 15
- E.g: If a State wishes to become a party to a treaty after the expiration
of the period allowed for signature, it can do so by way of accession.
- However, no State has a right to accede to a treaty unless the treaty so
provides or the parties agree.
Effect of a treaty before its entry into force:
- Art. 18

4) Reservations (Step Four: if any)

- Article 19 of the VCLT
- Article 20 provides as follows for acceptance of and objection to
reservation other than those expressly unauthorized by a treaty:
- Art. 2(1)(d)
- Acceptance of, and objection to, reservations:
o Art. 20(1): A reservation expressly authorized by a treaty does
not require acceptance by other States.
o Art. 20(2): For a treaty which requires the application of it in its
entirety between all the parties, a reservation requires
acceptance by all the parties.
o Art. 20(3): For a treaty which is a constituent instrument of an
international organization, a reservation requires the acceptance
of that organization.
- For situations not falling under Arts. 20(1), (2) or (3), Art. 20(4)
outlines the following general rules:
o (a) Acceptance by another contracting State of a reservation
constitutes the reserving State a party to the treaty;
o (b) An objection by another contracting State to a reservation
does not preclude the entry into force of the treaty as between
the objecting and reserving States (mere objection), unless a
contrary intention is definitely expressed by the objecting
State (objection with an express statement);
o (c) An act expressing a State's consent to be bound by the treaty
and containing a reservation is effective as soon as at least
one other contracting State has accepted the reservation.
- Art. 20(5): For Art. 20(2) and (4), acceptance by a contracting State
to a reservation is implied where no objections are raised against the
reservation by the end of twelve months after the reservation was
made.
- Art. 23: A reservation, an express acceptance and an objection to a
reservation must be formulated in writing and communicated to the
parties of the treaty.
- Disguised reservations:
o One must look at the substance. When it is described as
“understanding”, “explanation”, or “observation”. Such cases are
commonly known as disguised reservation
- Interpretive declarations
o The rules in Art. 31 and 32 will apply to it
- Effects of permissible reservations:
o Permissible reservations are those not prohibited under Art. 19.
o When a State makes a reservation, the legal effect of that
reservation has to be assessed only between two States: the
reserving State and another contracting State, which either
accepts or objects to the reservation.
- A reservation will create the following relationships:
o Between a reserving State and a contracting State which has
made no objection: The treaty will be modified to the extent of
the reservation in that the reservation will not apply to them
(Art. 21(1)(a) & (b))
o When a contracting party has objected to the reservation and
opposed the entry into force of the treaty, the treaty will not
enter into force for the reserving State.
o When a contracting party objected to the reservation, but did not
oppose the entry into force of the treaty between itself and the
reserving State (Art. 20(4)(b)), the reservation will not apply
between the two States (Art. 21(3))
- The effect of a reservation that has not been objected to is
reciprocal, in that both States can rely on it:
o The principle of reciprocity as in Libyan People’s Bureau
Incident:
- Legal effects of reservations:
o Art. 21
o Art. 21(1)
o Principle of reciprocity – Libyan People’s Bureau Incident
o Art. 21(2): The reservation does not modify the
provisions of the treaty for the other parties to the treaty
as between themselves.
o Art. 21(2)
o Art. 21(3)
o Among the other parties, all the provisions of the treaty must be
followed as though there has been no reservations.
- Effect of an invalid or non-permissible reservation (those falling within
Art. 19):
o Belios v Switzerland: The effect of an invalid reservation is
that the reserving State is fully bound by the Convention
without the benefit of the reservation.
- CURRENT PROBLEMS WITH RESERVATION
 o First, whether to accept the position of the ICJ in Reservation to
the Convention on the Prevention and Punishment of the Crime
of Genocide (Advisory Opinion) which stated that if a reservation
was incompatible with the object and purpose of the convention
the reserving state could not be regarded as a party to that
convention.
▪ Therefore, an admissibility reservation will render the
reserving state’s ratification of the relevant treaty
ineffective.
o Second, reservation is inappropriate for human rights treaties
seeking to guarantee the minimum standard of inalienable rights
for individuals present within the territory of a contracting state:
▪ To allow reservations to human rights treaties would be
tantamount to reducing the standard of protection of
human rights which is already very low (given the
multilateral nature of those treaties).
o Reciprocity rule is not appropriate to human rights treaties
because they are concluded to benefit individuals other
contracting states. Reciprocity means when reservation is
accepted, both the reserving state and the accepting state are
released from treaty obligations to the extent of the reservation.
If this were to apply to human rights treaties, then the accepting
State would considerably lower the standard of protection of
persons present within its territory.
- Norwegian Loan Case (France v Norway)
- Libyan People’s Bureau Incident
5) Entry into force (Step Five)
- Art. 24(1)
- A treaty enters into force on the date the parties agreed to. If there is
no such agreement, the treaty will enter into force as soon as consent
to be bound by the treaty has been established for all the negotiating
States (Art. 24(2)).
- Registration and publication:
o Art. 102(1) of UN Charter
▪ Every treaty and every international agreement entered
into by any member of the UN after the present Charter
comes into force shall as soon as possible be registered
with the Secretariat and published by it.
▪ 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 UN.
o Art. 80 of Vienna Convention
- Legal effect of registration and non-registration:
o Act of registration has no effect on the status of the instrument
o Art. 102(2)
o Qatar v Bahrain – 1987 exchange of letters which the parties
agreed to constituted a treaty, but which had not been
 registered, were invoked before the court which gave full regard
to their terms
Observance and Application of treaties
A. BINDING FORCE OF PARTIES
- Art. 26: Every treaty in force is binding upon the parties to it and must
be performed in good faith.
- This provision embodies both:
o The principle of pacta sunt servanda (treaties are binding on
the parties and must be performed in good faith) and
o The principle of good faith
- Each time a State is in breach of the principle of pacta sunt servanda it
also violates the principle of good faith.
- E.g: When a State does not perform its obligations deriving from a
treaty, it breaches both principles.
- The principle of pacta sunt servanda only applies to treaties which
are in force, and not to invalid, suspended or terminated treaties.
- The principle of good faith requires States and non-State actors to
comply with binding obligations imposed upon them by international
law.
- Unlike the principle of pacta sunt servanda, the principle of good faith
encompasses obligations throughout every stage of a treaty, from the
pre-ratification stage to its termination.
- TREATIES V DOMESTIC LAW
o Art. 27: In the event of conflict between treaties and domestic
law, a party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.
- A State may not invoke its municipal law to justify its non-
compliance to treaty obligations.
- Similarly, non-compliance with municipal law on the competence to
make treaties may not generally be invoked to invalidate its consent
to a treaty (Art. 46)
- EFFECT OF TREATIES ON STATE PARTIES
o Art. 28
o A treaty does not take effect retrospectively, but the act or fact
in question must cease to exist before the date of the entry into
force of the treaty
o If the act or fact is a continuing situation, the treaty will be
effective (De Becker case)
o Art. 29
B. Application of successive treaties on the same subject matter:
- Art. 30, ‘clause paramount’: In the event of a conflict between the
obligations under the UN Charter and obligations under any other
international agreement (treaty), the obligations under the UN
Charter shall prevail.
- Art. 103 of the Charter, “clause paramount”
- Lockerbie case:
- However, in the Application of the Genocide Convention case:
 - Aside from the UN Charter and in the absence of any express provision
to the contrary, all other treaties which are inconsistent are subject to
the rules in Art. 30.
o Art. 30(3): Where parties to both treaties are identical, the
later treaty prevails over the earlier treaty. (in accordance
with maxim (lex posterior derogate legi priori)
o Art. 30(4): As between a State party to both treaties and a
State party to only one of the treaties, the treaty to which
both States are parties governs their mutual rights and
obligations.
▪ One of the States which is a third party to the other treaty,
does not have a binding force on it. Based on the rule
pacta tertiis nec necent nec prosunt
- States have a duty not to conclude with third States treaties
inconsistent with the obligations of their existing treaties. If such an
inconsistent treaty is concluded, the existing treaty continues to
apply to the relations of the parties to it and is in no way amended
by the provisions of the later treaty.
o E.g: State A has an earlier treaty with State B. Later, State A
enters into a treaty with State C, obligations under which are
inconsistent with those under the earlier treaty.
The consequences will be that:
o State A’s act may amount to a denunciation of the earlier treaty
o State A may be responsible under international law by virtue of
being in breach of its obligations under the earlier treaty
o State B may, as a result of State A’s act, acquire a right to
terminate or suspend the operation of the earlier treaty
C. Effect of treaties on a third party:
- VC reaffirms the general rule as enunciated in the maxim pacts tertiis
nec nocent nec prosunt: a treaty does not create either obligations or
rights for a 3rd state without its consent
- By virtue of the principle of free consent, a treaty applies only between
the parties to it.
o Art. 2(1)(h): A third State is a State not a party to a treaty.
o Art. 34: A treaty does not create either obligations or rights for a
third State without its consent.
o PROVIDING OBLIGATIONS FOR 3RD STATES
▪ Art. 35
o TREATIES PROVIDING RIGHTS FOR 3RD STATES
▪ Art. 37: The obligation may be revoked or modified only
with the consent of the parties to the treaty and the third
State.
▪ Art. 36(1): A right arises for a third State from a provision
of a treaty if the parties to the treaty intend the provision
to accord that right either to the third State; or a group of
States to which it belongs; or to all States, and the third
State assents to it.
 ▪ A provision of a treaty may also become binding on non-
parties if it becomes a part of international customary law.
- The maxim pacta tertiss nec nocent nec prosunt express the
fundamental principle that a treaty applies only between the parties to
it.
- EXCEPTION:
o First, a rule in a treaty may become binding to non-parties if it
becomes a part of international custom.
▪ The Hague Convention concerning rules of land warfare
and, perhaps, certain treaties governing international
waterways fall within this category.
▪ Article 75 of the UN Charter , Article 2 para 6. Kelsen
holds the view that the provisions create duties and
liabilities for sanctions under enforcement provision of the
Charter, for non-members.
o Conferment of rights on third parties, stipulation pour autrui.
▪ The rule is that the third state only benefits in this sense if
it expressly or implicitly assents to the creation of the
right, a proposition accepted by the leasing authorities.
▪ Another view, supported by some members of the ILC
(Free Zones case), was that the right which was
intended to create in favour of the third state was not
conditional upon any specific act of acceptance by the
letter.
o Article 36 of the VC creates a presumption as to the existence
of the assent of the third state.
o A third state may, of course, disclaim any already inhering right
expressly or tacitly through failure to exercise the right. The right
of a third state may not be revoked or modified by the parties if
it is established that it was intended that this could only occur
with the consent of the third state: Article 37 (2).
Interpretation of treaties
- Art. 31(1): 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.
- A treaty must be interpreted in good faith
o Flows directly from the rule pacta sunt servanda enshrined in
Art. 26 of VC which imposes upon parties to a treaty the
obligation to perform it in good faith
- The terms of a treaty are to be given their ordinary meaning
o The need to give terms their ordinary meaning has often been
affirmed by the World Court
- Interpretation must be compatible with the object and purpose
The provision embodies:
A. Textual approach or Literal interpretation (The principle of ordinary
meaning):
- The meaning must emerge in the context of the treaty as a whole
o Art. 31(2)
 - The words used must be given their natural and ordinary meaning.
o Competence of the General Assembly for the Admission
of a State to the United Nations Case (Advisory Opinion):
o If the words used are clear and unambiguous, effect must be
given to the treaty in the sense required by the wording, unless a
valid ground can be shown for interpreting the provision
otherwise.
o The ordinary and natural meaning must not lead to an absurd
or unreasonable result.
o The language of the treaty must be interpreted in the light of the
rules of general international law in force at the time of
its conclusion, and also in the light of the contemporaneous
(current) meaning of terms (Land and Maritime Boundary
between Cameroon and Nigeria case)
- Subsequent agreement and subsequent practice
o Art. 31(3)
o For example, interpretation by Members of the UN on Art.
27(3) of the Charter
- Relevant rules of international law
o Art. 31(3)(c)
- Principle of effectiveness
o Parties are assumed to intend the provisions of a treaty to have a
certain effect, and not to be meaningless, the maxim is ut res
magis valeat quam pereat.
o In this respect, the ILC’s commentary reads: when a treaty is
open to 2 interpretations, one which does and the other does not
enable the treaty to have appropriate effects, good faith and the
objects and the purpose of the treaty demand that the former
interpretation should be adopted
o Therefore, an interpretation is not admissible which would make
a provision meaningless or ineffective
o However, the court cannot invoke the need for effectiveness in
order in effect to revise the treaty. The principle of effective
cannot go beyond what the text of the treaty justifies
▪ Case concerning Interpretation of Peace Treaties:
- Art. 31(4): A special meaning shall be given to a term if it is
established that the parties intended to do so.
- Eastern Greenland case: The burden of proof is on the party
asserting the intended use of a special meaning.
B. Object and purpose approach or Teleological interpretation (The
principle of effectiveness):
- The meaning of terms must be ascertained in the light of the object
and purpose of the relevant treaty.
- A provision must be given interpretation which is ‘effective’ and ‘useful’
to produce the appropriate effect.
- When a treaty is open to two interpretations, one of which does and the
other does not enable the treaty to have appropriate effects, the
 former interpretation should be adopted based on good faith
and the object and purpose of the treaty.
- This interpretation is favoured by bodies interpreting human rights
treaties:
o Tyrer v UK:
C. Supplementary means of interpretation
- Art. 32:
- However, if the application of Art. 31 establishes a clear and
reasonable meaning, it is not necessary to recourse to other means of
interpretation.
o In the Admission of a State to the UN, the World Court
stated: “the court considers that the text is sufficiently clear;
thus there is no occasion to resort to preparatory work if the text
of a convention is sufficiently clear in itself
- Travaux preparatoires or preparatory work includes the records of the
negotiations preceding the conclusion of a treaty, minutes of the
plenary meetings and of the committees of the Conference which
adopted a treaty, the successive drafts of a treaty, and so on.
- There are several other supplementary means
o Ejusdem generis rule
o Expression unius est exclusion alterius
o Contra proferentem

Validity of Treaty
- Art 42(1)
- This is to prevent state from attempting to evade an inconvenient
treaty obligation by alleging spurious grounds of invalidity.
- GROUNDS OF NULLITY AFFECTING THE CONSENT OF A PARTY
TO A TREATY
o Which concern lack of consent of a party to a treaty with the
consequences that it still be valid (not for bilateral treaty) for all
parties except the State which did not consent to it.
o Vitiating factors are mention in Art 8, 46-49.
o Which lead to nullity of a treaty for all parties on the ground that
either it was concluded in violation of jus cogens rule (Art 53) or
that it is in conflict with a jus cogens rule which has emerged
after its conclusion (Art 64.)
- NON-COMPLIANCE WITH PROVISIONS OF MUNICIPAL LAW

Invalidity of treaties
- Can be divided into 2 groups: relative grounds ( invalidating only the
consent of a state to be bound by the treaty as in Art 46 – 51) and
absolute grounds (invalidating the treaty per se; making the treaty void
as in Art. 52 – 53)
A. Relative grounds: Invalidate only the consent of a State to be
bound by the treaty.
- This position, which involve a presumption of competence and excepts
manifest irregularly, was approved by the ILC, in its draft Article 43 in
1966.
- The ILC stated that ‘the decisions of international tribunals and State
practice, if they are not conclusive, appear to support this type of
solution.’
- At the Vienna Conference the draft provision was strengthened and the
result appears in Article 46:
o A 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 exclude treaties as
invalidating its consent unless that violation was manifest and
o concerned a rule of its internal law of fundamental importance.
o A violation is manifest if it would be objectively evident to any
State conducting itself in the matter in accordance with normal
practice and in good faith.
- It will be very difficult for a state to nullify a treaty on the basis of art
46.
- Case Concerning the Land and Maritime Boundary between
Cameroon and Nigeria.
REPRESENTATIVE’S LACK OF AUTHORITY
- The VCLT provides that if the authority of a representative to express
the consent of his state to be bound by a particular treaty has been
made subject to a specific restrictions, his omission to observe the
restriction may not be invoked as a ground of invalidity unless the
restriction was previously notified to the other negotiating states.
CORRUPTION OF STATE REPRESENTATIVE
- The ILC decided that corruption of representative was not adequately
dealt with as a case of fraud and an appropriate provisions appears in
the VCLT, Article 50.
ERROR
- Art. 48
- Para 1 shall not apply if the State in question contributed by its own
conduct to the error or if the circumstances were such as to put that
State on notice of a possible error.
- Temple of Preah Vihear case
Fraud
- Art. 49
Corruption
- Art. 50
COERCION OF STATE REPRESENTATIVE
- The VCLT, Article 51
COERCION OF STATE
- The ILC in its draft of 1963 considered that Article 2 para 4, of
the UN Charter, together with other developments, justified the
conclusion that a treaty procured by the threat or use of force in
violation of the UN Charter shall be void.
- Article 52 clearly refers to the prohibition of use of force under
Art. 2(4) of the charter
o Fisheries Jurisdiction Case
UNEQUAL TREATIES
 - The doctrine of international law in Communist states, invoked by their
representative in organs of the UN, held that treaties not concluded on
the basis of the sovereign equality of the parties to be invalid.
o An example of such a treaty is an arrangement between a
powerful state and a state will virtually under its protectorate,
whereby the latter grants extensive economic privileges and or
military facilities.
- The general view is that the principle does not form a part of positive
law but it is attractive to some jurist of the ‘Third World.’ Apart from the
presence or absence of general agreement on the content of this
principle, a proportion of its dominion may be exercised through the
rules concerning capacity of parties, duress, fundamental change of
circumstances, the effect of peremptory norms of general international
law, including the principle of self-determination.
B. ABSOLUTE GROUNDS: INVALIDATE THE TREATY ITSELF AND
RENDERS IT VOID AB INITIO.
Coercion of a State by the threat or use of force
- Art. 52
Conflict with jus cogens
- Art. 53
- “Peremptory norm”: A norm accepted and recognised 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.
o E.g: The prohibition of the use of force; the prohibition of
genocide; the rules prohibiting piracy and slave trading; the
principle of self-determination
- The ICJ in Nicaragua case quoted with approval the following
statement by the ILC: the law of Charter concerning the prohibition
of the use of force in itself constitutes a conspicuous example of a rule
having the character of jus cogens.” In any case, the following rules are
confirmed by State practice and decisions of international courts as
norms having the character of jus cogens:
o Prohibition of use of force
o Prohibition of genocide
o Rules prohibiting piracy and slave trading
o Principle of self-determination
o Principle of racial non-discrimination
o Universally recognized principles of IHL
- Effect: Art. 44(5)
- Bilateral treaties: Establishing a relative ground is the same as that of
establishing absolute invalidity in that the treaty is rendered null and
void.
- Multilateral treaties: Establishing a relative ground does not affect the
validity of the treaty as a whole as between the other remaining
parties, whereas establishing an absolute ground renders the treaty
null and void.
WITHDRAWAL, TERMINATION AND SUSPENSION OF TREATIES
Termination of treaties
- Art. 54
- Art. 70
Grounds upon which a treaty may be terminated or suspended:
A. Material breach
- It is widely recognized that material breach by one parties entitles the
other party or parties to a treaty to invoke the breach as the ground of
termination or suspension.
- This option by the wronged party is accepted as a sanction for securing
the observance of treaties.
- However, considerable uncertainty has surrounded the precise
circumstances in which such right of unilateral abrogation may be
exercised, particularly in respect of multilateral treaties. Article 60 of
the VC deals with precision.
- Art. 60(3), ‘material breach’ consists of:
o A repudiation of the treaty not sanctioned by the present
Convention, or
o The violation of a provision essential to the accomplishment of
the object and purpose of the treaty
- Art. 60(1)
- Art. 60(2)(a)
- Art. 60(2)(b)
- Art. 60(2)(c)
- Where a breach by one party tends to undermine the whole regime of
the treaty.
o Namibia case
- Art. 45
- It is to be noted that the ICJ takes a restrictive approach to the
application of Art. 60
o Gabcikovo-Nagymaros case:
- Art. 60(5): Art. 60(1) to (3) do not apply to human rights treaties,
and thus, such treaties are not allowed to be terminated or suspended.
B. Supervening impossibility of performance
- Art. 61(1)
- Art. 61(2)
- Gabcikovo-Nagymaros Project case
C. Fundamental change of circumstances (rebus sic stantibus)
- Article 62 of the VCLT.
- An example would be the case where a party to a military and political
alliance, involving exchange of military and intelligent information, has
a change of government incompatible with the basis of alliance.
- Rebus sic stantibus which involve the implication of a term that the
obligation of an agreement would end if there has been a change of
circumstances.
- The Permanent Court in Free Zones Case
 - To import a ‘clausula’ rebus sic stantibus into a treaty by operation of
law, the clause operating automatically.
- Represent the modern law, the practice is an objective rule of law,
applying when certain events exist, yet not terminating the treaty
automatically, since one of the parties must invoke it
- Fisheries Jurisdiction Case (UK v Iceland)
- In the Hungary/Slovakia Case the court rejected the Hungarian
argument
- A party is not bound to perform a treaty if there has been a
fundamental change of circumstances since the treaty was concluded.
A fundamental change of circumstances may, within certain strict
limits, entitle a party to invoke the change as a ground for terminating,
withdrawing from or suspending the operation of a treaty.
- Art. 62(1)
- Art. 62(2)
 Gabcikovo-Nagymaros Project case
 Fisheries Jurisdiction case
D. Succession to Treaties
- Pacta sunt servanda
o The VCLT prescribes a certain presumption as to the validity and
continuance in force of a treaty, and such presumption may be
based upon pacta sun servanda as general principle of
international law.
o A treaty in force is binding upon the parties and must be
performed by them in good faith.
- Treaties may be affected when one state succeeds wholly or in part to the
legal personality and territorial of others.
- The conditions under which the treaties of the latter survive depend on
many factors, including the precise form and origin of the ‘succession’ and
the type of treaty concerned.
- Changes of this kind may terminate treaties apart from categories of state
succession.
- Clean slate rule: A new State succeeding another State previously a party
to a treaty is not obliged to maintain in force that treaty or to become a
party thereto.
- Exceptions to the clean slate rule:
o Boundary Regimes: Succession does not affect boundaries already
set by a treaty, or obligations and rights established relating to the
regime of a boundary.
o Other territorial regimes: Succession does not affect use of any
territory, or restrictions thereof, or rights established by a treaty for
the benefit of any territory.
o The provisions on other territorial regimes do NOT apply to treaty
obligations of the predecessor State providing for establishment of
foreign military bases.

E. WAR AND ARMED CONFLICT

 -Hostile relations do not automatically terminate treaties between the
parties to a conflict.
- Many treaties, including the UN Charter, are intended to be no less
binding in the case of war, and multipartite law-making agreements
such as the Geneva Convention 1949 survive war or armed conflict.
- Nevertheless, in state practice many types of treaty are regarded at
least suspended in time of war, and war conditions may lead to
termination of treaties on grounds of impossibility or fundamental
change of circumstances.
F. OPERATION OF THE PROVISIONS OF A TREATY
- A treaty may of course specify the conditions of its termination, and a
bilateral treaty may provide for denunciation by the parties.
- Where a treaty contains no provisions regarding its termination the
existence of a right of denunciation depends on the intention of the
parties, which can be inferred from the terms of the treaty and its
subject matter, but, according to the VCLT, the presumption is that the
treaty is not subject to denunciation or withdrawal.
G. TERMINATION BY AGREEMENT
- Termination or withdrawal may take place by consent of all parties.
- Such consent may be implied. In particular, a treaty may be considered
as terminated if all the parties conclude a later treaty which is intended
to supplant the earlier treaty or if the later treaty is incompatible with
its provisions.
- Irrespective of the agreement of the parties, an ancient treaty may
become meaningless and incapable of practical application.
APPLICATION AND EFFECT OF TREATIES
- (A) Justification for non-performance or suspension of performance.
o Topic of justification belongs to the rubric of state responsibility.
A state may plead necessity or force majeure.
o Legitimate military self-defence in case of armed conflict and
civil strife provides a more particular justification.
o Non performance by way of legitimate reprisals raises highly
controversial issues of the scope of reprisals in modern law.
SUSPENSION OF TREATIES
- Art. 72(1)
- Art. 72(2)
- Grounds upon which a treaty may be suspended:
o Art. 57(b): Where all contracting parties agree to suspend
the operation of a treaty
o Art. 58: Where two or more parties agree to suspend the
operation of a treaty temporarily between themselves.
o Art. 59(2): Where there are two treaties relating to the
same subject matter, the earlier treaty shall be considered
suspended.
o Art. 60 – 62: Upon material breach, supervening
impossibility of performance, or a fundamental change in
circumstances.