SECTION 3 THE LAW OF TREATIES

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

3 It however also applies to agreements between states within an international

organisation. See Art. 3(c) VCLT.

4 E.g. Cameroon v Nigeria, 2002 ICJ Reports 303, 429

 Full powers must be produced by representatives of the states. 5
Certain persons need not produce such full powers by virtue of their position
and functions. E.g. Heads of state and government. Foreign ministers, heads
of diplomatic missions and representatives accredited to international
conferences or organisations may not need to produce full powers for specific
purposes. See Genocide Convention (Bosnia v Serbia) case where the
International Court noted in the preliminary objections to jurisdiction, that
according to international law, there is no doubt that every head of state is
presumed to be able to act on behalf of the state in its international relations.6
Any act relating to the making of a treaty by a person not authorised as
required will be without any legal effect, unless the state involved afterwards
confirms the act.

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.

Methods of Expressing Consent

Article 11 sets out different ways in which states may express their consent:
Consent by signature.7
Consent by exchange of instruments.8
Consent by ratification9
Consent by acceptance
Consent by approval or accession.10
It may also be accomplished by any other means if so agreed.

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.

5 See Article 7 Vienna Convention

6 [1996] ICJ Rep 595,622

7 Article 12 Vienna Convention

8 Article 13 Vienna Convention

9 Article 14 Vienna Convention

10 Article 15 Vienna Convention

 Reservations are beneficial to the development of international law as they
enable states to agree to be bound (at least in part) by a treaty they would
otherwise have totally rejected.
Whilst reservation enhances the principle of sovereignty of states, it cannot
be over utilised as this would lead to a treaty that is very much altered from
what it was intended to be. The effectiveness of the treaty would be
compromised if there were untold reservations to several of its provisions.
This is a problem that does not arise in bilateral treaties as objection by one
party would necessitate a renegotiation.
Reservations can be distinguished from understandings, political statements
or interpretative declarations, where no binding consequence is intended with
regard to the treaty in question. See Anglo-French Continental Shelf case
Cmnd 7438 (1979); 54 ILR 6, Belilos case European Court of Human Rights,
Series A No 132.11
The general rule was that reservations could only be made with the consent
of all the other states involved in the process. Where such consent was not
obtained, the state could either become a party to the original treaty or note
become a party at all. Contrast with the view of the International Court of
Justice in the Reservations to the Genocide Convention case.12 The Courts
views are reflected in Art 19.
However, where the application of the treaty in its entirety between all the
parties is an essential condition of the consent of each one to be bound by
the treaty, then the traditional rule of acceptance by all parties will still apply to
a reservation. Art 20(2).
A reservation has the effect of modifying the provisions of the treaty to which
it relates to the extent of the reservation between the states Art 21.
There are differing views in relation to impermissible reservations. One view
is that such reservations are invalid while the other is that the validity of any
reservation is dependent on acceptance by other states.
In general, reservations are deemed to have been accepted by states that
have raised no objection to them at the end of a period of twelve months after
notification of the reservation, or by the date on which consent to be bound by
the treaty was expressed, whichever is the later. See Art 20(5).
Reservations must be in writing and communicated to the contracting states
and other states entitled to become parties to the treaty. Acceptances and
objections to the reservations must also be in writing. See Art 22(3) for
withdrawal of reservations.

Entry into Force and Application of Treaties

In the absence of any provision or agreement regarding this, a treaty will
enter into force as soon as consent to be bound by the treaty has been
established for all negotiating states Art 24.
Where ratification is required, only those states that ratify the treaty would be
bound except in instances where signature is deemed sufficient to express
the consent of the state to be bound.
A treaty will not operate retroactively except a contrary intention is expressed
Art 28.

11 See also S Marks, Reservations Unhinged: the Belios Case Before the European
Court of Human Rights 39 (1990) ICLQ 300

12 [1951] ICJ Rep 15; 18 ILR 364

 It would also apply to all the territory of the state except a contrary intention is
expressed Art 29. E.g. colonial application clauses.
Where there are successive treaties on the same subject matter, Art 30
provides a general guide on how to deal with such issues but in most cases
the parties resolve thus with express terms.

Application of Treaties to Third States

Third states are states that are not parties to the treaty in question.
The general rule is that international agreements bind only the parties to
them. The rationale for this can be found in the principle of the sovereignty
and independence of states. See Art 34.
However, where the provisions of a particular treaty have entered into
customary law, all states would be bound, regardless of whether they had
been parties to the original treaty or not.
Parties may also include a term in a treaty that creates an obligation on a
third state. Such obligation must be expressly accepted by the third state in
writing. Art 35
In relation to rights allocated to third states from a treaty, it must be
ascertained whether the states which have stipulated in favour of a third state
meant to create for that state an actual right which the latter has accepted as
such.13 A states assent shall be presumed so long as the contrary is not
indicated, unless the treaty otherwise provides - Art 36.
Where a treaty creates obligations or rights erga omnes14, all States would be
bound by them and also benefit from them. In the Wimbledon case, the
Permanent Court noted that an international waterway...for the benefit of all
nations of the world had been established.

The Amendment and Modification of Treaties

Amendments are the formal alteration of treaty provisions. Affects all the
parties to the particular agreement.15
Amendments to treaties have to follow the usual formalities laid down for the
coming into effect of a treaty unless the treaty otherwise provides Art 39.
Many multilateral treaties lay down specific conditions as regards
amendment. E.g. the UN Charter provides for the conditions for amendment
in Art 108.
Article 40 of the Convention provides the procedure to be adopted where
there are no specific conditions for amendment and some parties oppose the
amendment.
When a party becomes a party to a treaty after an amendment, they will only
be bound by the amended agreement except in regard to parties that are not
parties to the amendment who will then be bound only by the original
agreement.
Modifications relate to variations of certain treaty terms as between particular
parties only. It can be achieved by two or more parties to a multilateral treaty

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.

15 Malcolm N Shaw, International Law (6th edn, OUP 2008) 930

 provided it has not been prohibited by the treaty in question and provided it
does not affect the rights or obligations of the other parties.
Where a modification is going to interfere with the effective execution of the
object and purpose of the treaty as a whole, it will not be possible Art 41.
A treaty may also be modified by the terms of another later agreement16 or
by a subsequent rule of jus cogens.

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.

Relative Grounds of Invalidity:

Municipal law- Art. 46. Failure by a state to comply with its internal law
regarding competence to conclude a treaty many only be a ground for
invalidating consent to be bound if that failure was manifest. See
Cameroon v Nigeria Case.18 See Article 47 for a similar provision where
the representatives purporting to conclude the treaty were acting beyond
the scope of their instructions.
Error Art 48. Although error is an invalidating factor, a state will not be
able to rely on that error if it knew or ought to have known of the error, or if
it contributed to that error. See Temple case.19
Fraud and corruption: fraudulent conduct of a negotiating state can be
relied upon as a ground for invalidity Art 49. Direct or indirect corruption

16 Art. 30

17 MD Evans (ed), International Law (OUP 2010) 199

18 [2002] ICJ Rep 303

19 [1960] ICJ Rep 6

 of a representative of another sate by a negotiating state can also be
relied upon as a ground of invalidity- Art 50.
However note that as far as corruption is concerned, the ILC observed
that only an act calculated to exercise a substantial influence on the
disposition of a representative to conclude a treaty could be invoked as a
reason to invalidate an expression of consent that had subsequently been
given.20

Absolute Grounds of Invalidity

Coercion: Where the consent of a state to be bound by a treaty has been
procured by coercion of its representative, the treaty is void. Art 51.
Where a state has been coerced in contravention of the UN Charter, the
treaty will be void- Art 52. See the Fisheries Jurisdiction case.21
Jus cogens: A treaty that conflicts with norms of jus cogens will be void.
Art 53.
See also Art 64.

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.

Termination and Suspension of Treaties

A State may only withdraw from or suspend the operation of a treaty in
respect of the treaty as a whole and not particular parts of it, unless the treaty
otherwise stipulates or the parties otherwise agree Art 44.
A treaty may come to an end if its purposes and objects have been achieved.
This does not affect any right, obligation or legal situation of the parties
created through the execution of the treaty prior to its termination.

Grounds for Termination and Suspension

Treaty provision or consent- Arts 54 and 57
Achievement of object and purpose.
A multilateral treaty may be suspended between two or more parties if the
treaty provides this for. Art 58. This is subject to Art 41.
Tacit termination i.e. where all parties to a treaty enter into another treaty
relating to the same subject matter. The former treaty will be regarded as
terminated - Art 59. Compare this to successive treaties in Art 30.
Material breach- Art 60
Supervening impossibility of performance Art 61
Fundamental change of circumstances Art 62. See the Fisheries
Jurisdiction case.22

Consequences of Termination or Suspension of a Treaty

20 [1996] YBILC vol II 244

21 [1973] ICJ Rep 3; 55 ILR 183

22[1973] ICJ Rep 3

 Releases the parties from their obligations under the treaty although it does
not affect any rights, obligations created through the execution of the treaty
prior to its termination- Art 70. See also Art 72.
Article 66 provides for the procedure to follow in dispute settlement.
Unresolved disputes which relate to Articles 53 or 64 may be submitted to the
international Court of Justice by either of the parties for a decision unless the
parties agree to submit the dispute to arbitration.

Treaties Between States and International Organisations

The provisions of the Vienna Convention on the law of treaties between
States and International Organisations 1986 closely follow the provisions of
the 1969 Vienna Convention. Article 73 of the 1986 Convention however
affirms the superiority of the 1969 Convention for states that are parties to the
1969 Convention in relations between two or more states and one or more
international organisation.
The provisions for dispute settlement in Articles 66(2) of the 1986 Convention
differ from those of the 1969 Vienna Convention.

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

Questions for Self Assessment

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?