The 1969 Vienna Convention on the Law of Treaties provides that every treaty in force is binding upon the

parties to it and must be performed in good faith, but its provisions on invalidity and termination of treaties
and on reservations offer too much scope for states to escape their treaty obligations.
Discuss with examples.
Tripos [2013]

The 1969 Vienna Convention on the Law of Treaties reflects the traditional principle of pacta sunt
servanda, such that every treaty in force is binding upon the parties to it, which must perform their obligations
in good faith. The view of certain sceptics that the Convention allows states too easily to escape their
obligations under the treaty is based on an analysis of the concepts of invalidity, termination, and reservations.
The provisions regarding invalidity are found in Section 2 of the Convention, and state under which
circumstances a treaty may be declared invalid. Section 3 of the Convention concerns the termination and
suspension of the operation of treaties, and provides the circumstances in which a State may lawfully
terminate their participation in the treaty obligations. Reservations, according to Article 2(d) of the Convention
are:
Unilateral statement(s), however phrased or named, made by a State when signing, ratifying, accepting,
approving, or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain
provisions of the treaty in their application to that State.
Provisions on all three of these matters do provide scope for states to escape from their treaty obligations,
but it is worth further considering the meaning of the phrase escape from their treaty obligations. The word
escape implies an attempt to wriggle out of obligations that may have a detriment on the participating State.
However, in reality, the State is invoking a set of circumstances to argue that the obligation does not in fact
apply to them, based on the crucial international law principle of consent. Despite the importance of the
brocard of pacta sunt servanda, international law is, and always has been, consent-governed. The vital basis of
international law that sovereign states are only bound should they consent to the binding provides the
justification for the provisions regarding invalidity, termination, and reservations, and I shall examine the three
in turn to show how the consent principle runs deep throughout them.
The Section 2 Convention provisions regarding invalidity of treaties fully reflect the principle of
consent in international law. Invoking any Article other than Article 53 (concerning conflict with a ius cogens
rule) is an expression of the State not just that they no longer consent to be bound by the treaty, but in fact
that they never truly consented to be bound, and but for circumstances such as error, consent, fraud,
corruption, and coercion, the State would not have consented to be bound. So we can see that the vital
principle of consent forms the justification for the provisions, but we must consider the terms of the
Convention, and the valid case law to decide whether too much scope is offered by Section 2 for states to
escape their obligations. Although the principle of consent is extremely important in international law, it is
welcome to see limitations to the scope of some of the treaty provisions to prevent abuse of the rights that
they grant. For example, Article 46 states that a state may be able to invalidate its consent to be bound by a
treaty by saying that the expression of consent was in violation of an internal law provision regarding
competence to conclude treaties. However, this may only be done if that violation was manifest and
concerned a rule of its internal law of fundamental importance. This limitation was shown to be interpreted
to a strict standard by the Court in the Legal Status of Eastern Greenland case, and the Spanish Zones of
Morocco Claims case. In both cases, the Court rejected the arguments that a treaty was not binding upon one
of the states because it had not been approved in a manner required by the States constitution. There is also a
limitation to Article 48 of the Convention, namely that a State cannot invoke an error in a treaty as invalidating
its consent if it contributed by its own conduct to the error. The Court, ruling against Thailand in the Temple
of Preah Vihear case, confirmed this limitation to the scope of the rule allowing invalidation to be invoked as a
result of an error. As regards coercion of a state to procure consent (Article 52 Vienna Convention), the United
Kingdom v Iceland (Fisheries Jurisdiction) case provides authority that due to the seriousness of a charge of
duress, it cannot be invoked if the treaty instruments were freely negotiated by the interested parties on the
basis of perfect equality and freedom of decision on both sides. The Convention provisions and subsequent
decisions of the International Court reflect the welcome compromise drawn between respecting the consent
principle for the parties, and ensuring that it is not too easy to shy away from treaty obligations, respecting the
pacta sunt servanda principle also.

We move onto the provisions and case law regarding termination of treaties. Articles 54-59 of the
Vienna Convention are easy to deal with. They concern the unambiguous and indisputable rule that the
termination of a treaty may take place if the treaty so provides, or if all the parties consent to the termination.
There can be little argument against these provisions given the importance of sovereign states consent when
considering international law. Article 60 is more difficult to interpret, and concerns the extent to which a
material breach of a treaty by one of the parties can give rise to grounds for termination of the treaty. At first,
this seems as though it may give unnecessary scope to states who wish to free themselves from obligations at
the smallest act of another party which is incompatible with the treaty. However, the subsequent qualifications
apply to render the principle acceptable. Firstly, and perhaps most basically, the breach must be a material
one, as found in the Tacna-Arica Arbitration. Secondly, a breach is only considered material if it consists in
the violation of a provision essential to the accomplishment of the object or purpose of a treaty Article
60(3)(b) of the Convention. The International Court in the Legal Consequences of the Continued Presence of
South Africa in Namibia case, and followed by the Danube Dam case, has treated Article 60 as stating
customary law in many respects. This provides a wide scope for escaping from treaty obligations, but must
be qualified by Article 60(5), which restricts the invocation of Article 60 to treaties which do not concern
humanitarian protection. It is welcome to see that in many respects where it seems that the provisions of the
Vienna Convention provide lots of scope for states easily to discharge their obligations, there are in fact strict
qualifications which respect the pacta sunt servanda principle and ensure that treaties are not entered into
lightly.
Articles 61 and 62 are worth noting in that they provide the possibility of terminating treaty
obligations if there is supervening impossibility of performance (Article 61), or a fundamental change of
circumstances (Article 62). Yet again, these two Articles reflect a perfectly balanced compromise between the
consent principle and the pacta sunt servanda principle which restricts states powers to escape from
obligations. Articles 61 and 62 exist because it is easy to understand that a State would not have consented to
certain treaty obligations if circumstances were fundamentally different and may restrict their competence to
perform. However, in line with restricting the scope of easily discharging obligations, Article 61 provides that
impossibility of performance can only be invoked if the impossibility results from the permanent
disappearance or destruction of an object indispensible for the execution of the treaty. The need for
permanent loss of an indispensible object provides a very high standard of consideration for the court,
reflected in the Danube Dam case. Article 62 will only apply in relation to a change of circumstances if the
original circumstances constituted an essential basis of the consent of the parties to be bound and if the
extent of the change is radically to transform the extent of obligations. This strict qualification has been
applied in both the Fisheries Jurisdiction case, and the Danube Dam case, in which the Court stated that the
stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in
exceptional cases. So we can see that once again, the Convention and case law are very much willing to
respect the consent principle by which states could discharge their obligations, but it is subject to the strict
qualification of pacta sunt servanda, as explicitly stated by the International Court.
Reservations are a manner in which states may modify or exclude their legal obligations under a
treaty. Article 19 of the Vienna Convention provides that they may formulate a reservation unless the treaty
prohibits that type of reservation (Article 19(a) and 19(b)), or if the reservation is incompatible with the object
and purpose of the treaty (Article 19(c)). The issue of compatibility has been inextricably linked with the
Genocide Convention ever since it was formed in 1948. Most recently the issue came to a head in the Armed
Applications (New Application) case in 2002. Rwanda had made a reservation to a provision which would have
subjected it to the complete jurisdiction of the ICJ. It was held that the reservation was valid, as it was not
incompatible with the object and purpose of the treaty. The object and purpose of the Genocide Convention
relates to a peremptory norm, i.e. the abhorrence of genocide and the need for its prevention. Although a
reservation would prevent the ICJ from ruling on a ius cogens rule, the need for complete jurisdiction of the ICJ
in matters of international law is not a peremptory norm, nor is it linked closely enough for the provisions
against genocide of the Genocide Convention and therefore a reservation on this ground was not invalid. I find
this judgment of the International Court to be completely in accordance with international law principles, and
the wider aims of treaties and the existence of reservations for treaties. The vital rule that states should only
be bound by obligations should they consent to be bound, unless the obligation concerns a rule of ius cogens,
was respected in the Armed Applications case, and is vital for the functioning of the system of international
law. Furthermore, reservations to treaties, although they do provide scope for modifying or discharging

obligations, stand as a major encouraging factor for states to participate in the treaty in the first place. It is
unlikely that on a large treaty concerning an important matter, all parties will agree to every provision. It is
extremely important, however, that this does not discourage parties from signing the treaty, which is where
the provisions regarding reservations have their place. States are happy to consent to be bound by only the
obligations to which they consent, and as long as the reservation does not contravene the main aim of the
treaty, it should be allowed. The decision of the European Court of Human Rights in Belilos v Switzerland
provided an influence for the International Law Commissions 2011 report on reservations, in which it
suggested that invalid reservations keep the party fully bound by the Convention, without the benefit of the
reservation. This ensures that it is not easy for a party to discharge its obligations under a treaty, and leaves
the current position as follows: the existence of the provisions for reservations encourage a party to
participate in international law-making, but ensure that it is wary not to take too many liberties when signing
or ratifying the treaty.
In conclusion, the Vienna Convention on Treaties does provide states with scope to modify or escape
their treaty obligations. However, this scope is not too wide, and it accurately reflects a welcome compromise
between two important principles of international treaty law. In general, states should only be bound by the
obligations to which they consent, but upon signing a treaty, respect for the pacta sunt servanda provides that
it must be made reasonably difficult to escape treaty obligations, otherwise the stability treaty-making would
fall apart.