Quaid-e-Azam Law College Lahore

Prof. Salman Kazmi LL.M (London) International Law

LAW OF TREATIES
1. Introduction
Law of treaties is currently followed by the Vienna Con ention on the Law of treaties !"#".this con ention has entered into force on $%th &anuary !"'(. Prior to this con ention) international customary Law *o erned all treaties. +he Vienna Con ention ,n +he Law ,f +reaties !"#" reco*nised as the authoritati e *uide to current treaty law and -ractice.

2. Definitions of Treaty
U/ Section 2(1 (A of T!e "ienna #on$ention on T!e La% of Treaties 1&'& Treaty (eans ) Essentia* E*e(ents 1. 2. -. .. 0. an Internationa* A+ree(ent conc*uded or for(ed ,et%een states s!ou*d ,e in %ritten for( and s!ou*d ,e +o$erned ,y Internationa* La%/ %!et!er e(,odied in a sin+*e instru(ent or in t%o or (ore re*ated instru(ent and %!ate$er its 1articu*ar desi+nation.)

2er+er O11en!ei( Star3e

-. 4*ace Of Treaties A(on+ Sources Of Internationa* La% .. 2asis Of Treaties

Pacta Sunt Servanda
Article 26 of the VCLT 1969 Pacta sunt servanda . ery treaty in force is bindin* u-on the -arties to it and must be -erformed by them in *ood faith. Article 27 Internal law and o servance of treaties / -arty may not in o0e the -ro isions of its internal law as 1ustification for its failure to -erform a treaty. +his rule is without -re1udice to article 2#.

Rebus Sic Stantibus Pacta Terties Nec Nocent Nec Prosunt

0. Ty1es of Treaty
/S +, 3/+45. 1. La% 5a3in+ Treaty

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Prof. Salman Kazmi LL.M (London) International Law Law Ma0in* treaties are those treaties which are concluded or made for creatin* 5ules of International Law or +o ma0e 5ules for the states. 1. Treaty #ontracts +reaty Contracts are those treaties which are made for a s-ecific ob1ect i.e. Construction of a Power Plant or a Car 6actory . It is always s-ecify its ob1ect) which does not create any rule or law for the States. /S +, S+5.37+8

A. 2i*atera* Treaty 9ilateral +reaty is that +reaty which made between two states 2. 5u*ti*atera* Treaty Multilateral +reaty is that +reaty which made between more than two states

'. W!o 5ay 5a3e Treaty

A##ORDI67 TO STAR8E Treaty 2et%een States Treaty 2et%een 9ead of States Treaty 2et%een 7o$ern(ents Treaty 2et%een 5inisters Treaty 2et%een 7o$ern(ent De1art(ents

:. #onc*usion of a treaty
i. Accreditin+ of 6e+otiators 6irstly) to form a treaty) the interested states a--ointed their 3e*otiators for the 3e*otiations. Mostly 3e*otiators are the e:-erts or ha in* the e:-ertise in the sub1ect matter of the treaty. ii. 6e+otiations

Secondly) the /uthorised 3e*otiators ne*otiate on the terms of the -ro-osed treaty and -resent their -ro-osals before the other ne*otiators of treaty states. iii. Ado1tion +hirdly) /fter the 3e*otiations) the 3e*otiators ado-ted the -ro-osed te:t to form the terms of the treaty. i$. Si+nature /fter the ado-tion of the te:t of the treaty) the 3e*ations erified the te:t by si*nin* it and confirmed their consent on it. $. Ratification

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Prof. Salman Kazmi LL.M (London) International Law $i. $ii. $iii. i;. ;. #o(in+ into Force Re+istration 4u,*ication A11*ication < Enforce(ent Accession #*ause It means a state other than -arty to a treaty can become -arty to an e:istin* treaty ;i. Ad!esion #*ause It means a state other than -arty to a treaty can become -arty to an e:istin* treaty e en without ratifyin* all terms of the treaty but -artly. ;ii. Reser$ation #*ause

=. 5odes of 7i$in+ #onsent to Treaty

9y Si*nature ;;/rticle!$
Article 12 Consent to e ound ! a treat! e"#ressed ! si$nature !. +he consent of a State to be bound by a treaty is e:-ressed by the si*nature of its re-resentati e when< (a) the treaty -ro ides that si*nature shall ha e that effect= ( ) it is otherwise established that the ne*otiatin* States were a*reed that si*nature should ha e that effect= or (c) the intention of the State to *i e that effect to the si*nature a--ears from the full -owers of its re-resentati e or was e:-ressed durin* the ne*otiation. $.6or the -ur-oses of -ara*ra-h !< (a) the initiallin* of a te:t constitutes a si*nature of the treaty when it is established that the ne*otiatin* States so a*reed= ( ) the si*nature ad referendum of a treaty by a re-resentati e) if confirmed by his State) constitutes a full si*nature of the treaty.

9y .:chan*e of Instrument >/rticle !?

Article 1% Consent to e ound ! a treat! e"#ressed ! an e"chan$e of instru&ents constitutin$ a treat! +he consent of States to be bound by a treaty constituted by instruments e:chan*ed between them is e:-ressed by that e:chan*e when< (a) the instruments -ro ide that their e:chan*e shall ha e that effect= or ( ) it is otherwise established that those States were a*reed that the e:chan*e of instruments should ha e that effect.

9y 5atification > /rticle !2

Article 1' Consent to e ound ! a treat! e"#ressed ! ratification( acce#tance or a##roval !.+he consent of a State to be bound by a treaty is e:-ressed by ratification when< % (a) the treaty -ro ides for such consent to be e:-ressed by means of ratification= ( ) it is otherwise established that the ne*otiatin* States were a*reed that ratification should be re@uired= (c) the re-resentati e of the State has si*ned the treaty sub1ect to ratification= or (d) the intention of the State to si*n the treaty sub1ect to ratification a--ears from the full -owers of its re-resentati e or was e:-ressed durin* the ne*otiation. $.+he consent of a State to be bound by a treaty is e:-ressed by acce-tance or a--ro al under conditions similar to those which a--ly to ratification.

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Prof. Salman Kazmi LL.M (London) International Law 9y /ccession > /rticle !A
Article 1) Consent to e ound ! a treat! e"#ressed ! accession +he consent of a State to be bound by a treaty is e:-ressed by accession when< (a) the treaty -ro ides that such consent may be e:-ressed by that State by means of accession= ( ) it is otherwise established that the ne*otiatin* States were a*reed that such consent may be e:-ressed by that State by means of accession= or (c) all the -arties ha e subse@uently a*reed that such consent may be e:-ressed by that State by means of accession.

9y /ny other mode a*reed between state -arties > /rticle !#

Article 16 *"chan$e or de#osit of instru&ents of ratification( acce#tance( a##roval or accession 4nless the treaty otherwise -ro ides) instruments of ratification) acce-tance) a--ro al or accession establish the consent of a State to be bound by a treaty u-on< (a) their e:chan*e between the contractin* States= ( ) their de-osit with the de-ositary= or (c) their notification to the contractin* States or to the de-ositary) if so a*reed.

&. Ter(ination or Sus1ension of a Treaty

!) .:tinction of either -arty $) Mer*er of either -arty ?) 6ulfilment of ob1ect 2) Im-ossibility of -erformance > /rticle #! A) Chan*e in the fundamental circumstances > /rticle #$(!) #) .:istence of a state conflicted with the terms of treaty %) Benunciation > /rticle A# ') .:-iry of terms ") Subse@uent treaty > /rticle A" !() Material breach > /rticle #( !!) .mer*ence of new -erem-tory norm > /rticle #2 !$) Conflict with obli*ation under the 4nited 3ations !?) Car
+reaties between enemy states shall be terminated and between other states shall be sus-ended

1>. In$a*idity of a Treaty

/rticle 2# /rticle 2%
Article '6 Provisions of internal law re$ardin$ co&#etence to conclude treaties !. / State may not in o0e the fact that its consent to be bound by a treaty has been e:-ressed in Violation of a -ro ision of its internal law re*ardin* com-etence to conclude treaties as in alidatin* its consent unless that iolation was manifest and concerned a rule of its internal law of fundamental im-ortance. $. / iolation is manifest if it would be ob1ecti ely e ident to any State conductin* itself in the matter in accordance with normal -ractice and in *ood faith. Article '7 +#ecific restrictions on authorit! to e"#ress the consent of a +tate If the authority of a re-resentati e to e:-ress the consent of a State to be bound by a -articular treaty has been made sub1ect to a s-ecific restriction) his omission to obser e that restriction may not be in o0ed as in alidatin* the consent e:-ressed by him unless the restriction was notified to the other ne*otiatin* States -rior to his e:-ressin* such consent.

11. Reser$ation to a Treaty

Definition of Reser$ation
/rticle $ (!) (d) of VCL+ !"#") D5eser ationE means

Quaid-e-Azam Law College Lahore

Prof. Salman Kazmi LL.M (London) International Law
!. $. ?. 2. A. a unilateral statement) howe er -hrased or named) made by a State) when si*nin*) ratifyin*) acce-tin*) a--ro in* or accedin* to a treaty) whereby it -ur-orts to e:clude or to modify the le*al effect of certain -ro isions of the treaty in their a--lication to that State=

7enera* Ru*e Reser$ation #*ause as to 6ature of Treaties 2i*atera* Treaty 5eser ation is not -ossible 5u*ti*atera* 5eser ation may be -ossible (/rticle !") W!ere Reser$ation is not a$ai*a,*e a) If treaty -rohibits reser ation b) If reser ation incom-atible with the ob1ect and -ur-ose of treaty Acce1tance / o,?ection to Reser$ation If treaty allows no acce-tance re@uires but otherwise yes it is re@uired if treaty made by International ,r*anisation then /cce-tance re@uired by that International ,r*anisation. Artic*e 2>
Article 19 ,or&ulation of reservations / State may) when si*nin*) ratifyin*) acce-tin*) a--ro in* or accedin* to a treaty) formulate a reser ation unless< (a) +he reser ation is -rohibited by the treaty= ( ) +he treaty -ro ides that only s-ecified reser ations) which do not include the reser ation in @uestion) may be made= or (c) In cases not failin* under sub-ara*ra-hs (a) and ( )) the reser ation is incom-atible with the ob1ect and -ur-ose of the treaty. Article 2Acce#tance of and o .ection to reservations !. / reser ation e:-ressly authorized by a treaty does not re@uire any subse@uent acce-tance by the other contractin* States unless the treaty so -ro ides. $. Chen it a--ears from the limited number of the ne*otiatin* States and the ob1ect and -ur-ose of a treaty that the a--lication of the treaty in its entirety between all the -arties is an essential condition of the consent of each one to be bound by the treaty) a reser ation re@uires acce-tance by all the -arties. ?. Chen a treaty is a constituent instrument of an international or*anization and unless it otherwise -ro ides) a reser ation re@uires the acce-tance of the com-etent or*an of that or*anization. 2. In cases not fallin* under the -recedin* -ara*ra-hs and unless the treaty otherwise -ro ides< (a) /cce-tance by another contractin* State of a reser ation constitutes the reser in* State a -arty to the treaty in relation to that other State if or when the treaty is in force for those States= ( ) /n ob1ection by another contractin* State to a reser ation does not -reclude the entry into force of the treaty as between the ob1ectin* and reser in* States unless a contrary intention is definitely e:-ressed by the ob1ectin* State= (c) /n act e:-ressin* a StateFs consent to be bound by the treaty and containin* a reser ation is effecti e as soon as at least one other contractin* State has acce-ted the reser ation. A. 6or the -ur-oses of -ara*ra-hs $ and 2 and unless the treaty otherwise -ro ides) a reser ation is considered to ha e been acce-ted by a State if it shall ha e raised no ob1ection to the reser ation by the end of a -eriod of twel e months after it was notified of the reser ation or by the date on which it e:-ressed its consent to be bound by the treaty) whiche er is later. Article 21 Le$al elects of reservations and of o .ections to reservations !. / reser ation established with re*ard to another -arty in accordance with articles !") $( and $?< (a) Modifies for the reser in* State in its relations with that other -arty the -ro isions of the treaty to which the reser ation relates to the e:tent of the reser ation= and ( ) Modifies those -ro isions to the same e:tent for that other -arty in its relations with the reser in* State. $. +he reser ation does not modify the -ro isions of the treaty for the other -arties to the treaty inter se. ?. Chen a State ob1ectin* to a reser ation has not o--osed the entry into force of the treaty between itself and the reser in* State) the -ro isions to which the reser ation relates do not a--ly as between the two States to the e:tent of the reser ation. Article 22 /ithdrawal of reservations and of o .ections to reservations

Quaid-e-Azam Law College Lahore

Prof. Salman Kazmi LL.M (London) International Law
!. 4nless the treaty otherwise -ro ides) a reser ation may be withdrawn at any time and the consent of a State which has acce-ted the reser ation is not re@uired for its withdrawal. $. 4nless the treaty otherwise -ro ides) an ob1ection to a reser ation may be withdrawn at any time. ?. 4nless the treaty otherwise -ro ides) or it is otherwise a*reed< (a) +he withdrawal of a reser ation becomes o-erati e in relation to another contractin* State only when notice of it has been recei ed by that State= ( ) +he withdrawal of an ob1ection to a reser ation becomes o-erati e only when notice of it has been recei ed by the State which formulated the reser ation. Article 2% Procedure re$ardin$ reservations !. / reser ation) an e:-ress acce-tance of a reser ation and an ob1ection to a reser ation must be for(u*ated in %ritin+ and co((unicated to t!e contractin+ States and other States entitled to become -arties to the treaty. $. If formulated when si*nin* the treaty sub1ect to ratification) acce-tance or a--ro al) a reser ation must be formally confirmed by the reser in* State when e:-ressin* its consent to be bound by the treaty. In such a case the reser ation shall be considered as ha in* been made on t!e date of its confir(ation. ?. /n e:-ress acce-tance of) or an ob1ection to) a reser ation made -re iously to confirmation of the reser ation does not itself re@uire confirmation. 2. +he withdrawal of a reser ation or of an ob1ection to a reser ation must be for(u*ated in %ritin+.

12. I6TER4RETATIO6 OF TREATIES

5ele ant Pro ision < Article

%1( %2( %%

0eneral rule of inter#retation !. $. / treaty shall be inter-reted in *ood faith in accordance with the ordinary meanin* to be *i en to the terms of the treaty in their conte:t and in the li*ht of its ob1ect and -ur-ose. +he conte:t for the -ur-ose of the inter-retation of a treaty shall com-rise) in addition to the te:t) includin* its -reamble and anne:es<

(a) /ny a*reement relatin* to the treaty which was made between all the -arties in connection with the conclusion of the treaty= ( ) /ny instrument which was made by one or more -arties in connection with the conclusion of the treaty and acce-ted by the other -arties as an instrument related to the treaty. ?. +here shall be ta0en into account) to*ether with the conte:t<

(a) /ny subse@uent a*reement between the -arties re*ardin* the inter-retation of the treaty or the a--lication of its -ro isions= ( ) /ny subse@uent -ractice in the a--lication of the treaty which establishes the a*reement of the -arties re*ardin* its inter-retation= (c) /ny rele ant rules of international law a--licable in the relations between the -arties. 2. / s-ecial meanin* shall be *i en to a term if it is established that the -arties so intended. Article %2 +u##le&entar! &eans of inter#retation 5ecourse may be had to su--lementary means of inter-retation) includin* the -re-aratory wor0 of the treaty and the circumstances of its conclusion) in order to confirm the meanin* resultin* from the a--lication of article ?!) or to determine the meanin* when the inter-retation accordin* to article ?!< (a) Lea es the meanin* ambi*uous or obscure= or ( ) Leads to a result which is manifestly absurd or unreasonable. Article %% Inter#retation of treaties authenticated in two or &ore lan$ua$es !. Chen a treaty has been authenticated in two or more lan*ua*es) the te:t is e@ually authoritati e in each lan*ua*e) unless the treaty -ro ides or the -arties a*ree that) in case of di er*ence) a -articular te:t shall -re ail. $. / ersion of the treaty in a lan*ua*e other than one of those in which the te:t was authenticated shall be considered an authentic te:t only if the treaty so -ro ides or the -arties so a*ree. ?. +he terms of the treaty are -resumed to ha e the same meanin* in each authentic te:t.

Quaid-e-Azam Law College Lahore

Prof. Salman Kazmi LL.M (London) International Law
2. .:ce-t where a -articular te:t -re ails in accordance with -ara*ra-h !) when a com-arison of the authentic te:ts discloses a difference of meanin* which the a--lication of articles ?! and ?$ does not remo e) the meanin* which best reconciles the te:ts) ha in* re*ard to the ob1ect and -ur-ose of the treaty) shall be ado-ted.

1-. A(end(ent or 5odification of Treaty 7enera* Ru*e @ Artic*e -&

/mendment or Modification of Multilateral +reaty > /rticle 2(
/M.3BM.3+ /3B M,BI6IC/+I,3 ,6 +5./+I.S Article %9 0eneral rule re$ardin$ the a&end&ent of treaties / treaty may be amended by a*reement between the -arties. +he rules laid down in Part II a--ly to such an a*reement e:ce-t insofar as the treaty may otherwise -ro ide. Article 'A&end&ent of &ultilateral treaties !. 4nless the treaty otherwise -ro ides) the amendment of multilateral treaties shall be *o erned by the followin* -ara*ra-hs. $. /ny -ro-osal to amend a multilateral treaty as between all the -arties must be notified to all the contractin* States) each one of which shall ha e the ri*ht to ta0e -art in< (a) +he decision as to the action to be ta0en in re*ard to such -ro-osal= ( ) +he ne*otiation and conclusion of any a*reement for the amendment of the treaty. ?. . ery State entitled to become a -arty to the treaty shall also be entitled to become a -arty to the treaty as amended. 2. +he amendin* a*reement does not bind any State already a -arty to the treaty which does not become a -arty to the amendin* a*reement= article ?() -ara*ra-h 2 (b)) a--lies in relation to such State. A. /ny State which becomes a -arty to the treaty after the entry into force of the amendin* a*reement shall) failin* an e:-ression of a different intention by that State< (a) 9e considered as a -arty to the treaty as amended= and ( ) 9e considered as a -arty to the unamended treaty in relation to any -arty to the treaty not bound by the amendin* a*reement. Article '1 A$ree&ents to &odif! &ultilateral treaties etween certain of the #arties onl! !. +wo or more of the -arties to a multilateral treaty may conclude an a*reement to modify the treaty as between themsel es alone if< (a) +he -ossibility of such a modification is -ro ided for by the treaty= or ( ) +he modification in @uestion is not -rohibited by the treaty and< (i) Boes not affect the en1oyment by the other -arties of their ri*hts under the treaty or the -erformance of their obli*ations= (ii) Boes not relate to a -ro ision) dero*ation from which is incom-atible with the effecti e e:ecution of the ob1ect and -ur-ose of the treaty as a whole. $. 4nless in a case fallin* under -ara*ra-h ! (a) the treaty otherwise -ro ides) the -arties in @uestion shall notify the other -arties of their intention to conclude the a*reement and of the modification to the treaty for which it -ro ides.

1.. #onc*usion