Treaties: 1 Kdr/Iit Kgp/Rgsoipl/-2008

Treaties
KDR/IIT KGP/RGSOIPL/-2008 1
Objective
the maintenance of international peace and security,
the development of friendly relations and the
achievement of co-operation among nations,
Developments
International Law Commission – draft articles 1966.
Vienna Convention on Law of the Treaties – 85
Articles and an Annex.
Convention entered into force in 1980.
Source of law – codification of existing laws on treaties
– Namibia case (A.O) ICJ held that
‘the rules laid down by the Vienna Convention….
Concerning termination of a treaty relationship on
account of breach may in may respects be considered
as a codification of the existing customary law on the
subject.’ KDR/IIT KGP/RGSOIPL/-2008 3
Applicability
It does not deal with:
1. treaties between states and organizations or
between two organizations
2. questions of state succession
3. the effect of war on treaties.
International conventions
Vienna Convention of the Law of the Treaties, 1969
Entered into force in 1980.
Deals only with treaties between states – Art. 1.
Definition
S.2. "treaty" means an international agreement
concluded between States with an intention to create
legal obligations 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;
"ratification", "acceptance", "approval" and "accession"
mean in each case the international act so named
whereby a State establishes on the international plane
its consent to be bound by a treaty;
Treaties
The object of a treaty is to impose binding obligations
on the states who are parties to it.
Based on the maxim ‘pacta sunt servanda’
Two or more states establish or seek to establish a
relationship between themselves governed by
international law.
Examples
Heads of sovereign states
Inter governmental form – technical or non-political
agreements.
Ministers of the countries.
Inter state form – drafted expressly or impliedly as an
agreement between states.
Inter departmental agreement.
Political heads of the countries.
Even a treaty need not be in the form of writing.
Different forms
1. Convention
2. Protocol
3. Agreement
4. Arrangement
5. process-verbal
6. statute
7. covenant
8. Declaration
9. exchange of notes.
Conventions
Proper formal instrument of a multilateral character.
Standard formal instruments of a multilateral
character.
Instruments adopted by international organisations
like ILO or ICAO.
Protocols
Less formal than a treaty or convention.
An instrument subsidiary to convention
Ancillary matters such as the interpretation of
particular clauses.
Ancillary instrument to a convention.
A supplementary treaty.
Agreement
Less formal
Fewer parties
Technical or administrative character only.
Signed by representatives of governments.
Not subject to ratification.
Process –Verbal
Summary of the proceedings and conclusions of a
diplomatic conference.
Minor alteration to a convention.
Not subject to ratification.
Statute
Collection of constituent rules relating to the
functioning of an international institution.
Statute of the ICJ.
Collection of rules laid down by international
agreement.
An accessory instrument to a convention setting out
certain regulations to be applied.
Covenant
Engagements of fundamental importance.
United Nations Covenant on Civil and Political Rights.
Covenant on Economic, Social and Cultural Rights,
1966.
Declaration
Joint declaration, 19 December 1984 between UK and
China on the revision of Hong Kong to Chinese by
1997.
An informal instrument appended to a treaty or
convention interpreting or explaining the provisions of
the latter.
Minor importance.
Resolution in a diplomatic conference.
Modus vivendi
Is an instrument recording an international
agreement of a temporary or provisional nature
intended to be replaced by an arrangement of a more
permanent and detailed character.
Exchange of notes
Informal method.
Through diplomatic route or military representatives.
Practices and entry into force
1. Accreditation of negotiators
2. Negotiations and adoption.
3. Authentication, signature and exchange of
instruments.
4. Ratification.
5. Accessions and adhesions
6. Entry into force
7. Registration and publication
8. Application and enforcement
Credentials
First step to appoint negotiators.
Power to attend and negotiate with other states.
Power to sign is not required for negotiations.
The power to negotiate signed by the head of the state
or Minister of Foreign Affairs is known as Full Powers
or Pleins Pouvoirs.
The sending for negotiations with Full Powers –
A.7.1(b).
Negotiation and adoption
Either through discussions in case of bilateral treaties.
Multilateral diplomatic conferences.
Different committees were constituted like steering
committees and drafting committees.
The Conference appoints a prominent member as
Rapporteur.
A.9(2) – vote of two thirds of the states present and
voting.
Even can be adopted by consensus.
Authentication, signature and exchange of
instruments
Once the final draft is agreed upon it will be made
public for sometime.
Signature is effected at a formal closing session.
It should be authenticated by a resolution.
Heads of the states may sign.
1919- Woodrow Wilson – Treaty of Versailles.
1972 – US – USSR – Anti-ballistic Missile System.
Open for signature
Common practice to open the convention for
signature by certain states.
Generally this period does not exceed 9 months.
After expiry of the date – no signature
Signature, without reservation
Signature subject to later acceptance
Acceptance simpliciter.
Signature subject to reservation.
Exchange of instruments
Exchange by representatives.
Result: parties becomes bound by the treaty – Vienna
convention Art. 13.
Ratification
Signed treaty will be send to respective governments
for approval.
Ratification is the approval by the head of the state.
A. 2(1)(b) - 'ratification', 'acceptance', 'approval' and
'accession' mean in each case the international act so
named whereby a State establishes on the
international plane its consent to be bound by a treaty;
Object of ratification
Opportunity to re-examine the instrument before
undertaking any obligations.
Enable the state to pass any domestic legislation or
parliament approval in between signature and
ratification.
In international law there is neither a legal nor a
moral duty to ratify a treaty.
Obligation not to defeat the object and purpose of a
treaty - A.18 of the Convention.
S.18
A State is obliged to refrain from acts which would defeat
the object and purpose of a treaty when:
 (a) it has signed the treaty or has exchanged instruments
constituting the treaty subject to ratification, acceptance
or approval, until it shall have made its intention clear not
to become a party to the treaty; or
 (b) it has expressed its consent to be bound by the treaty,
pending the entry into force of the treaty and provided that
such entry into force is not unduly delayed.
Exchange or deposit of ratifications
After exchange it should be deposited or exchanged
between the parties.
Notice of ratification is necessary.
Bilateral treaties – exchange
Multilateral – deposit with authorised authority
Accessions and adhesions
A state not signed the treaty can accede or adhere to it.
Accede – full treaty without any reservation.
Adhere – acceptance of part of a treaty.
Accession – after prescribed ratifications.
Same form as of ratifications – accessions.
Entry into force, Registration
According to the provisions of the treaty – A.24.
Deposit of prescribed number of ratifications.
A.102 of UN Charter
1. Every treaty and every international agreement
entered into by any Member of the United Nations
after the present Charter comes into force shall as soon
as possible be registered with the Secretariat and
published by it.
2. No party to any such treaty or international
agreement which has not been registered in
accordance with the provisions of paragraph 1 of this
Article may invoke that treaty or agreement before any
organ of the United Nations.
Registration
It means that, non registered treaties cannot be
challenged in ICJ.
The treaty will be published by the UN Treaty Series
Application and enforcement
Incorporation in the municipal law of state parties.
Provisional application provisions.
A.253 of the Constitution of India
Notwithstanding anything in the foregoing
provisions of this Chapter, Parliament has power to
make any law for the whole or any part of the
territory of India for implementing any treaty,
agreement or convention with any other country or
countries or any decision made at any
international conference, association or other
body.
Reservation
Certain provisions of the treaty do not bind it, or apply
with modifications. This can be effected by:
1. Express provision in the treaty itself
2. By agreement between the contracting states;
3. By a reservation duly made
Ratifications
S.2(1) (d) 'reservation' means 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;
Reservation
17(1): Without prejudice to articles 19 to 23, the
consent of a State to be bound by part of a treaty is
effective only if the treaty so permits or the other
contracting States so agree.
2. The consent of a State to be bound by a treaty which
permits a choice between differing provisions is
effective only if it is made clear to which of the
provisions the consent relates.
Sovereignty
Reservation as an incident of sovereignty and perfect
equality of states.
It applies to relations with other parties.
Assent of other states party to the treaty are necessary.
Reservations are made as a Protocol of Signature.
A.23 - Objections to the reservation must be in writing
and communicated to other members.
Effect of reservation
If the reservation is incompatible with the convention,
it may legitimately consider that the reserving state is
not a party thereto.
If a state is not ratified a treaty don’t have the right to
object to a reservation.
ICJ advisory opinion
Reservations to Genocide Convention, ICJ Reports
(1951), 15.
‘a state which has made…a reservation which has been
objected to by one or more of the parties to the
Convention but not by others, can be regarded as
being a party to the Convention if the reservation is
compatible with the object and purpose of the
convention.’
Amendment of treaties
Altering the provisions of treaties by revision,
amendment, and modification.
A.39 – amended by agreement of the parties.
Invalidity of treaties
1. treaty making incapacity
A.46 – representative exceeded their treaty making
power.
A.47 – if the restriction and power of the
representative is not notified to other members prior,
no invalidity.
2. Error – ground for invalidity – error of fact or
situation.
Not error of law.
Invalidity
3. A.49 - fraud – fraudulent conduct of negotiating
state.
No precedents
A. 50 - Procured through corruption of its
representative.
A. 51-52 – coercion – coercion of representative.
Use of force in violation of the principles of
international law.
Conflict with norms of Jus Cogens
RGSOIPL, IIT Kharagpur
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Treaties: 1 Kdr/Iit Kgp/Rgsoipl/-2008

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