II.

SOURCES OF INTERNATIONAL LAW Thirlway in Evans, 115-119

A. In General: Primary and Secondary Rules The Sources of International Law – Hugh Thirlway

Thesis: A rule of international law must derive from one of the

The Sources of International Law: Schwarzenberger, International
recognized sources, namely: 1) treaties and conventions; 2)
Law (Harris 18-21) – Harris
international custom; 3) general principles of law; and 4) judicial
decisions and legal teachings.
Article 38, Statute of the International Court of
Justice
Treaties are binding only on the parties to them; custom is in
principle binding on all States, unless it is a local custom. The
1. The Court, whose function is to decide in
general principles of law may be appealed to if a point is not
accordance with international law such disputes as
settled either by treaty or custom.
are submitted to it, shall apply:

Other sources have from time to time been suggested, but the
a. international conventions, whether general or
traditional analysis continues to be used in practice.
particular, establishing rules expressly recognized
by the contesting states;
I. INTRODUCTION: WHAT ARE SOURCES OF LAW
b. international custom, as evidence of a general
In legal systems, there are two kinds of rules: primary rules and
practice accepted as law;
secondary rules. PRIMARY RULES are those that lay down the
rights and obligations of the subjects of the legal system.
c. the general principles of law recognized by
SECONDARY RULES are those that determine what the primary
civilized nations;
rules are, how they come into existence, and how they can be
changed.
d. subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly
In municipal legal systems, identifying secondary rules is
qualified publicists of the various nations, as
straightforward. Either they are enactments of a legislature or
subsidiary means for the determination of rules of
formulations by a long line of judicial decisions.
law.

In contrast, secondary rules are less clearly defined in

There are three law-creating processes that enable the World
international law. This situation is caused by a number of reasons:
Court to apply any asserted rule of international law:
a) In the international level, there is neither a universal
legislative body nor a system of universal judicial
1. Treaties;
jurisdiction
2. International customary law;
b) In the international level, disputes may often turn on
3. General principles of law recognized by civilized
whether the legal rule relied on by one state exists at all
nations.
as a legal rule
c) Although there is recognition of a legal rule, there may
This enumeration rules out other potential law-creating processes
also be dispute as to whether it is a rule binding on one
such as natural law and moral postulates. Conversely, the court is
or the other party to the dispute
bound to take into consideration any asserted rule which bears the
hallmark of one of the enumerated processes.
Secondary rules are referred to in international law as SOURCES
OF INTERNATIONAL LAW. This terminology reflects the idea
Sub-paragraphs (a) to (c) deal with the three formal sources of
that a rule must come from somewhere. Before a rule becomes
international law. Sub-paragraph (d), meanwhile, refers to
binding, it is called lex ferenda. When it becomes binding and
decisions of judicial institutions and teachings as “subsidiary
thereafter, it is called lex lata.
means for the determination of rules of law.” Following this, there
must be principal means. These are called law-determining
agencies. However, they are composed of fallible human beings.
Sources of international law may be a material source and/or a
These cannot be taken to be passive agents who merely reflect
formal source. A MATERIAL SOURCE is simply the place in
true international law.
which the terms of the rule are set out. This is usually a document
of some kind. Thus, a treaty may be a material source. A FORMAL
In the case of law-creating processes, the focus is on the forms by
SOURCE refers to the determination of the authority of a rule as
which any particular rule of international law is created; in the
law.
case of law-determining agencies, it is on how an alleged rule is to
be verified.
To differentiate between material and formal source, consider a
particular treaty. To the parties to the treaty, the treat is both
Notes:
material and formal source. However, when entities outside of the
A formal source of law is that from which a rule of law derives its
treaty apply its rules, there is a different situation. To these
force and validity. A material source is that from which the matter
entities, the treaty is a material source. However, since their acts
(and not the validity) is derived.
determined the authority of the rule as law, custom is the formal
source.

1
II. ENUMERATION OF THE TRADITIONAL SOURCES OF
INTERNATIONAL LAW
Article 38 of the Statute of the International Court of Justice:
1) The Court, whose function is to decide in accordance
with international law such disputes as are submitted to
it, shall apply:
a. International conventions, whether general or
particular, establishing rules expressly
recognized by the contesting states;
b. International custom, as evidence of a general
practice accepted as law;
c. The general principles of law recognized by
civilized nations;
d. Subject to the provisions of Article 59 (Court
decisions are binding only to parties of the
case), judicial decisions and the teachings of
the most highly qualified publicists of the
various nations, as subsidiary means for the
determination of rules of law.
2) This provision shall not prejudice the power of the Court
to decide a case ex equo et bono, if the parties agree
thereto.
It seems that the intention of the drafters of the statute is that
those enumerated in the first paragraph are the sole sources of
international law. Paragraph 2 seems to be an exception only
when the parties agree to a decision ex equo et bono, i.e., a
decision not based on law, but simply based on what seems to be
the fairest solution in the circumstances.
Thirlway in Evans, 130-139 (?)
III. The Relationship Between the Sources of International Law
A. Treaty and Custom
The State practice which is required for the establishment of a
rule of customary law has to take the form of action by a State on
the international level. One of the most normal and essential acts
of a State in relation to another State is the conclusion of a treaty
or agreement. If a number of States make a habit of concluding
treaties containing certain standard provisions, then this may be
taken to show that they recognize the existence of a custom
requiring to do so. However, it can also be argued that the very
fact that States have recourse to treaties to establish certain rules
shows that they consider that those rules would not be applicable
if no treaty were concluded, i.e., that there is no customary rule of
that nature.
There is a parallel existence of treaties and custom as sources of
international law. In the case of Military and Paramilitary
Activities in and against Nicaragua, it has been held that where a
customary rule has been replaced a multilateral treaty, the
customary rule continues to exist, not only for non-parties to the
treaty, but also for the parties to it.
This relationship between custom and treaty is not necessarily
static. In North Sea Continental Shelf, the International Court
identified three situations in which the existence or creation of a
customary rule might be related to treaty provisions:
1) a treaty may embody already established rules of
customary law;
2) a multilateral treaty may state rules and principles
reflected in State practice prior to the adoption of the
treaty—in this case, the treaty “crystallizes” custom;
3) after the convention has come into force, non-party
States may find it convenient to apply the conventions—
constituting State practice leading to the development of
a customary rule (opinio juris).
B. The Hierarchy of Sources
In general, there is lex specialis derogat generali (the special rule
overrides the general rule) and lex posterior derogat priori (the
later rule overrides the earlier rule). There is normally no
difficulty in applying these to treaties, but it is less clear that they
can operate in relation to custom.
It will normally be the case that a treaty is lex specialis and as such
prevails over any inconsistent rules of customary law. It is to be
presumed that the parties to the treaty were aware of the existing
customary rule.
IV. Possible New or Additional Sources
A. How can new sources come into existence?
Does it follow that if the nature of international society changes,
there may be a modification of the secondary rules? The nature of
international society has changed since the Treaty of Westphalia,
and so on. One cannot exclude a priori the possibility of a
modification of the secondary rules.
But by what process? Either a new source (e.g., resolutions) had
arisen through the operation of an existing source (custom); or
that the scope of custom as a source had become widened to
include resolutions.
B. Additional or Quasi-Sources
1. Unilateral acts
There are acts in which the State performing such an act chooses
of its own will to do so, but the consequences of which are
governed by general international law (e.g., ratification of a
treaty). The question now is whether or not there are unilateral
acts not directed to a specific addressee, and the effects of which
are defined, not by pre-existing legal rules, but the simple
intention of the State performing them.
The International Court has said: “It is well recognized that
declarations made by way of unilateral acts, concerning legal or
factual situations, may have the effect of creating legal
obligations...When it is the intention of the State making the
declaration that it should become bound according to its terms,
that intention confers on the declaration the character of a legal
undertaking.”
2. Equity
It has been said that “whatever the legal reasoning of a court of
justice, its decision must be by definition just and therefore in that
sense, equitable.” For example, the idea of “equitable principles”
plays an important part in the field of maritime delimitation.
When the rigorous application of accepted rules of law leads to a
result which appears unjust, equity may step in to adjust the
outcome.
2
However, equity is probably best regarded as one of the basic 1. Treaties
principles governing the creation and performance of legal
obligation, but not in itself a source of obligation where none Evans, 119-121
would otherwise exist.

A. Treaties and Conventions in Force

3. Resolutions of the UN General Assembly
The whole point of making binding agreement is that each of the
parties should be able to rely on performance of the treaty by the
Many resolutions are convenient material sources of law inasmuch
other party, even when such performance has become onerous or
as they state, with apparent authority, propositions of general law,
unwelcome to such other parties.
and are often assented to by a very large majority of the Members,
and thus of the States of the world.
The 1969 Vienna Convention on the Law of Treaties states this in
Article 26, pacta sunt servanda: “Every treaty is binding upon the
The theoretical difficulties involved in seeing resolutions as
parties to it and must be performed by them in good faith.”
independent sources of law involve, for example, the rules in
It has been argued that a treaty is better understood as a source of
declarations being relied upon in international litigation only as
obligation and that the only rule of law in the matter is the basic
declaratory of customary law. The Court has stated, “The mere
principle that treaties must be observed. At the other end, there
fact that States declare their recognition of certain rules is not
are more examples in modern law of “law-making” treaties, like
sufficient for the Court to consider these as part of customary
the Geneva Conventions; however, the principle underlying
international law, and as applicable as such to those States.”
remains the same: that the States accept a commitment to certain
behavior that would not be legally required of them in the
4. “Superior Norms”
absence of the treaty.
In the classical theory of international law, any priority of
Following this, it is also axiomatic that a State which is not a party
conflicting rules was resolved simply according to their hierarchy
to a treaty is under no such obligation. This rests on the principle
of sources. For this purpose, the content of the rules was
irrelevant. In more recent years, however, more attention has
res inter alios acta nec nocet nec prodest (a transaction between
others effects neither disadvantage nor benefit). The Vienna
been paid to the concept of jus cogens (“peremptory legal norms
Convention on the Law of Treaties expresses this in Article 34: “A
from which no derogation by agreement is permitted”). This is
treaty does not create either obligations or rights for a third State
normally a rule of customary law.
without its consent.” The Vienna Convention, itself being a treaty,
is only applicable as treaty-law to the States which have ratified it.
For a rule to be one of jus cogens, there would have been practice
of such a kind as to show conviction that the developing rule was
One exception to this is the situation in which an obligation stated
that of a specific nature, i.e., a sort of superior opinio juris.
in a treaty is or becomes an obligation of general customary law,
in which case the non-party State may be bound by the same
V. Conclusion
obligation, but only as a matter of customary law. Another is the
possibility of a State not a party to a treaty to accept an obligation
In a nutshell, the author says that despite the controversies and
stated in the treaty or to derive a benefit from it if all States
disputes regarding the sources of international law, the definition
concerned agree.
given in Art. 38 of the Statute of the Court has proved to embody
a workable structure of recognized law-making processes, and
The normal way in which a State becomes bound by the
despite criticisms made of it, and the multiplicity of new
obligations in a treaty is by becoming a party to it; but in
approaches to international law, that definition seems likely to
multilateral conventions of the “law-making” type, States can,
continue to guide the international community and the
simply by conduct, indicate its acceptance.
international judge.

Art. 38, ICJ Statute 1. The Court, whose function is to decide in
accordance with international law such disputes as are submitted
to it, shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted
as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
(Treaties that have not, or not yet, come into force, or which have
ceased to be binding on the parties are excluded as sources of law.)
B. Custom
Historically, at the international level, once the authority of
natural law had weakened, it was natural to derive legal
obligations from the legitimate expectations created in others by
conduct.
This can be approached as a form of tacit agreement, that States
behave to each other in given circumstances in certain ways
which are found acceptable.

2. This provision shall not prejudice the power of the Court to

decide a case ex aequo et bono, if the parties agree thereto.

3
Fitzmaurice in Evans
The Practical Working Law of Treaties – Malgosia Fitzmaurice
Thesis: This chapter discusses the concept, anatomy, invalidity,
and termination of treaties. Issues addressed here include the
scope of legal obligation, interpretation and reservation of treaties,
and problems concerning the grounds for termination. It takes
into consideration the theory and practice of the law of treaties
with case law (ICJ) analysis.
I. Introduction
Treaties are one of the means through which States deal with each
other and a precise method of regulating relations between States.
They regulate some areas of international law (IL) such as
environmental law, human rights, and economic relations which
is why knowledge of the law of treaties is essential. That law is
codified in the 1969 Vienna Convention on the Law of Treaties
(VCLT).
II. Basic Concept and Structures
A. What is a Treaty?
A treaty is 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.” The Vienna
Convention (VC) does not require that a treaty be in any
particular form or have particular elements so if a status of a
document is in dispute, an objective test is used to determine it,
taking into account its terms and the circumstances in which it
was made.
Since a treaty is a method to create binding legal obligations, there
must be an intention to create legal relations. Some international
acts may have the form of international agreements but were
never intended to create obligations – these are called “soft law.”
They are not legally binding and enforceable in courts but they
may “harden” into a treaty or become a norm of international
customary law.
B. The Vienna Conventions
The 1969 VCLT was opened for signature on Apr 1969 and
entered into force on Jan 1980. It was the product of the
International Law Commission and the UN Conference on the
Law of Treaties.. The 1986 VC, though not in force, is considered
to be applicable as law. The 1978 VC is in force but not all of its
rules are considered to represent customary IL. This article is
based on the 1969 VC.
1. The Scope of the Vienna Convention
The VC regulates treaties concluded between States and in written
form. Oral arguments, though it may affect IL, are not governed
by the VCLT. Questions of succession of treaties, State
responsibility, and the effect of the outbreak of hostilities on
treaties are also excluded. The VC is not retroactive. It acts as a
residual rule – it is applicable unless a particular treaty provides
otherwise or the parties agree otherwise or a different intention is
established. Though it does not apply to treaties between States
and international orgs, its provisions that reflect rules of
international customary law do apply to such. The provisions of
the VC apply as between State parties to the VCLT as regards
treaties to which other forms of subjects of IL are also parties.
2. The VC and Customary Law
Two problems concerning their relationship:
1) Which VC provisions codified customary law and which
constituted progressive development? Certain provisions of the
VC that represented progressive development at the time of its
signing (e.g. reservations and modifications) were probably
already international customary law by the time of its entry
into force.
2) How does customary law relating to treaties operate? When the
provisions of the VC are inapplicable the rules of international
customary law with the same legal content may be applicable.
Art. 4 (retroactivity), however, is not reflective of customary
law.
III. The Anatomy of a Treaty
A. The Making of Treaties
Treaties are the most important tools of regulating international
relations and may be concluded between States, States and intl.
orgs, and between intl. orgs. Intl. orgs (UN) play an important role
in IL-making as initiators of treaties and a source of expertise.
B. Authority to Conclude Treaties
A holder of full powers is authorized to adopt and authenticate the
text of a treaty and to express the consent of the state to be bound
by a treaty, although there are a growing number of simplified-
form treaties that do not require it. The general rule is that a
person is considered as representing a State for the purpose of
expressing the consent of the State to be bound by it if he or she
produces appropriate full powers or it appears from the practice of
the States or from other circumstances. Heads of States, Ministers
of Foreign Affairs, etc., by virtue of their functions are considered
to have such authority. In Cameroon v Nigeria – Credentials,
which are submitted by a delegate attending an intl. conference to
negotiate a multilateral treaty, only authorize the delegate to
adopt the text of a treaty and to sign a Final Act.
Where an unauthorized person purports to conclude a treaty, the
action is without legal effect, unless subsequently confirmed by
the State. Where an authorized person expresses State’s consent to
be bound though not instructed by the State to do so, this does not
invalidate that consent, unless the limitation on their authority
was made known beforehand.
C. Expression of Consent to be Bound
The role of the expression of consent by the State to be bound by a
treaty is to constitute a mechanism by which the treaty becomes a
juridical act. The consent may be expressed by signature, exchange
of instruments constituting a treaty, ratification, etc., or by any
other means if so agreed.
If the signature is subject to a ratification/acceptance/approval,
then it indicates that the delegates have agreed upon the text and
are willing to accept it. Here, signature does not express final
consent to be bound. However, the initial signature constitutes a
juridical act in the sense that the State accepts certain legal
consequences. Ratification conforms to the democratic principle
that the government should consult public opinion before
approving a treaty.
1. Signature
4
Only expresses consent to be bound when it constitutes the final
stage of a treaty-making process. Signature ad referendum
indicates that the signatory State is currently unable to accept the
terms of the treaty or that the plenipotentiary concerned had no
definitive instructions in the matter. This becomes a full signature
if subsequently confirmed.
2. Ratification
Understood as a formal, solemn act on the part of a Head of State
through which approval is given and a commitment to fulfil its
obligation is undertaken. The older view that treaties may be
regarded as binding before ratification is now obsolete. Consent to
be bound is expressed by ratification if a) the treaty so provides, b)
the States agree that ratification is necessary, c) the treaty has
been signed subject to ratification, or d) an intention to sign
subject to ratification appears from the full powers or was
expressed during negotiations. It is unconditional and, unless
provided otherwise, does not depend on the deposit of
instruments of ratification by other States.
3. Accession
Refers to the means by which a State expressed its consent to
become a party to a treaty that it was not in a position to sign. A
State can only accede if the treaty so provides or the parties agree.
In modern treaties the right to accede is made independent of the
entry into force of a treaty.
4. Acceptance and approval
Widely used methods of expressing consent to be bound. The use
of these methods was to simplify procedures by, for example,
avoiding constitutional conditions for ratification. The rules
applicable to ratification apply to acceptance and approval and
have the same legal effect (unless provided otherwise). Expressing
consent to be bound by acceptance or approval without prior
signature is analogous to accession.
D. Invalidity of Treaties
The grounds for invalidity can be divided into 2:
1) The relative grounds render a treaty voidable at the insistence
of an affected State.
Art. 46 provides that the failure to comply with internal law
regarding competence to conclude a treaty may only be a ground
for invalidating consent to be bound if failure was manifest. Art.
47 concerns cases wherein the representatives purporting to
conclude a treaty were acting beyond the scope of their
instructions. Art. 48 concerns error (In Temple case – The plea of
error cannot be allowed as a vitiating consent if the party
advancing it contributed by its conduct or error, or could have
avoided it, or the circumstances were such as to put party on
notice of a possible error.) Art. 49 & 50 concern fraud and
corruption.
2) The absolute grounds mean that the treaty is rendered void ab
initio and without legal effect.
Art. 51 deals with the coercion of a representative, Art. 52 the
coercion of a State, and Art. 53 the conflict with norms of jus
cogens. In all these, a treaty is void ab initio by virtue of its
conflicting with international public policy.
In bilateral treaties, establishing either an absolute or a relative
ground has the same legal effect. In multilateral treaties,
establishing an absolute ground means that the treaty has no legal
force whereas establishing a relative ground (meaning the consent
of a particulate State is vitiated) does not affect the validity of the
treaty as a whole between the other remaining parties.
E. Amendment and Modification
Amendment is a formal matter introducing changes into the treaty
text whereas modification is a less formal procedure which affects
only certain parties to a treaty. In practice, the two are difficult to
distinguish. Revision is a more comprehensive process resulting in
changes to a treaty. Amendments are subject to approval by the
parties. Some treaties contain technical annexes which may be
amended by a simplified system.
F. Termination and Suspension of the Operation of Treaties
Termination may result from internal or external grounds. As
regards internal grounds, the general rule is that a treaty may be
terminated or a party may withdraw from a treaty in accordance
with the provisions of the treaty itself, or at any time by consent
of all parties following consultations.
IV. The Scope of Legal Obligations
A. The Principle pacta sunt servanda
The principle pacta sunt servanda provides that every treaty in
force is binding upon the parties to it and must be performed by
them in good faith. In Gabcikovo-Nagymaros – The reciprocal
wrongful conduct of both parties did not bring the treaty to an
end nor justify its termination.
B. Treaties and Third States
Fundamental rule concerning relationship between treaties and 3 rd
States is expressed by pacta tertiis nec nocent nec prosunt. Art. 35
deals with an obligation while Art. 36 deals with a right
(stipulations in favorem tertii) arising from a treaty for a 3rd State.
As to obligation, the requirements are so strict that, when
fulfilled, they amount to the existence of a collateral agreement
between the treaty parties and the 3rd state. There are procedural
differences in establishment of obligation and right. The 3rd State
must accept an obligation in writing. In a case of the right, the
assent of the 3rd State is presumed, unless treaty provides
otherwise or there are indications to the contrary. Obligation for a
3rd State can be revoked or modified only by the parties if it is
established that the right was intended to be revocable or subject
to modification without the consent of the 3rd State. Caution is
recommended when considering whether a treaty has given rise
to a right.
The VC does not prevent a rule in a treaty from becoming binding
upon a country as customary international law but it does not deal
with whether the objective regimes created by treaties are binding
only on State parties to those instruments or whether they are
valid as against the entire international community – are valid
erga omnes, for example, treaties that provide for the neutrality or
demilitarization of a certain area.
V. General Principles of Interpretation
A. General Issues
The purpose of interpretation is to establish the meaning of the
text that the parties intended it to have in relation to
circumstances with reference to which the question of
interpretation has arisen. ILC’s Rapporteur Fitzmaurice’s
principles of interpretation:
1) Actuality of text – treaties are to be on the basis of their actual
texts.
2) The natural and ordinary meaning – subject to the principle of
contemporaneity, particular words and phrases are to be given
their normal, natural, and unstrained meaning in the context in
which they occur. This can only be displaced by evidence that
the terms are to be understood in a manner different to their
5
 ordinary meaning, or if doing so would lead to an unreasonable
or absurd result.
3) Integration – treaties are to be interpreted as a whole.
4) Effectiveness (ut magis valeat quam pereat) – treaties are to be
interpreted with reference to their declared or apparent object
and purposes, and provisions are to be interpreted so as to give
them the fullest effect consistent with the normal sense of the
words and with the text as a whole in such a way that a reason
and meaning can be attributed to every part of the text
5) Subsequent practice – recourse may be had to subsequent
practice of parties relating to the treaty.
6) Contemporaneity – the terms must be interpreted in the light of
linguistic usage current at the time the treaty was concluded.
3 main schools of interpretation: 1) the subjective (intention of
parties) approach, 2) the objective (textual) approach, and 3) the
teleological (object purpose) approach. These are not mutually
exclusive and the VC draws on all 3.
B. Practice
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. The ‘rule’ of
interpretation is a procedure consisting of 3 elements: the text, the
context, and the object and purpose. The Court has consistently
adhered to the textual interpretation as being the most important.
A common problem concerns what is to count as subsequent
practice for the purposes of interpretation.
C. Travaux Preparatoires
Supplementary means of interpretation – including travaux
preparatoires (preparatory work), may be used either to confirm
the meaning of the treaty or as an aid to interpretation where the
meaning is ambiguous or obscure or leads to a result which is
manifestly absurd or unreasonable.
D. The Object and Purpose of a Treaty
A treaty should be interpreted ‘in the light of its object and
purpose’ but this is a vague and ill-defined term, making it an
unreliable tool for interpretation.
E. The Principle of Effectiveness
When a treaty is open to 2 interpretations, the one that enables
the treaty to have appropriate effects should be adopted. The
principle of effectiveness (magis valeat quam pereat) means: 1)
that all provisions must be supposed to have been intended to
have significance. Thus an interpretation that renders a text
ineffective and meaningless is incorrect. It also means: 2) that the
instrument as a whole and each provision must be taken to have
been intended to achieve some end, and that an interpretation
that would make the text ineffective to achieve that object is also
incorrect.
F. Plurilingual treaties
A problem concerns treaty interpretations drawn up in more than
one language. Majority of formal treaties contain a provision
determining the status of the different language versions. If there
is no such provision, it is generally accepted that each of the
versions is to be considered authentic and therefore authoritative
for the purpose of interpretation. The plurality of texts may be a
serious additional source of ambiguity. But if the meaning is
ambiguous in one language but clear in another, the
plurilinguality of the treaty facilitates interpretations of the text
the meaning of which is doubtful.
VI. Reservations to Treaties
A. The Genocide Convention Case
Reservation means a unilateral statement, however phrased or
named, made by a State, when signing, ratifying, accepting,
approving, or acceding to a treaty, where, it purports to exclude or
to modify the legal effect of certain provisions of the treaty in
their application to that State. The modern approach is that a State
which maintained a reservation that has been objected to by one
or more of the parties to the Convention but not by others, can be
regarded as also being a party if the reservation is compatible with
the object and purpose of the Convention; otherwise, it cannot be
regarded as a party. The object and purpose of the Genocide
Convention imply that it was adopted with the intention that as
many States as possible should participate.
B. The Regime of the 1969 VC
The Court attempts to strike a balance between ensuring the
integrity of a treaty whilst encouraging universal participation.
Art. 20 provides that even if a State party objects to a reservation
attached, the treaty will nevertheless enter into force and the
reservation be effective between them unless a contrary intention
is definitely expressed by an objecting State. A reservation is
considered to have been accepted by a State if it has not objected
to it within 12 months of being notified of it, unless the
reservation concerns the constituent instrument of an intl. org, or
the treaty provides otherwise.
A State may not submit a reservation which is ‘incompatible with
the object and purpose of the treaty.’ This is vague and difficult to
grasp. However, reservations of general character are considered
to be incompatible with the object and purpose of a treaty. Whilst
treaty reservations which codify international customary law are
possible, reservations reflecting norms of jus cogens are not. There
are 2 schools of thought in distinguishing incompatibility:
1) Permissibility school – reservation must be objectively assessed
for compatibility. If incompatible, acceptance by other States
cannot validate it. If compatible, the parties may decide
whether to accept or object to the reservation on whatever
other grounds they wish.
2) Opposability school – the reservation’s validity is based upon
whether it has been accepted by other parties and the
compatibility test is merely a guiding principle in considering
whether to accept or object to the reservation.
What is the legal effect of having attached an impermissible
reservation to a signature or ratification? 1st solution: Unless it is
withdrawn, a State making an impermissible reservation will not
be considered a party to a treaty. 2nd solution: The impermissible
reservation may be severed and the State be bound by the treaty
in its entirety. It is difficult to see how reservation can
legitimately be severed if the consent to be bound is made
expressly subject to such a reservation.
C. The Problem of Reservations To Human Rights Treaties
The system of reservations in the VC was difficult to apply
particularly as regards the compatibility of reservations to human
rights treaties. Human rights treaties are not contractual in nature
and do not create rights and obligations between States.
The UN Human Rights Committee (HRC) view the VC system,
which give a role to State objections in relation to reservations, as
inadequate and inappropriate in the context of human rights
treaties, which do not comprise a web of inter-State reciprocal
exchanges of mutual obligations but are concerned with endowing
individuals with rights. HRC raised the question of whether
reservations to non-derogable provisions of the Covenant are
compatible with its object and purpose. The HRC should
6
determine whether a reservation was compatible with the object
and purpose of the Covenant.
The UK and US consider the VC provisions adequate and that it is
for State parties to determine the compatibility of reservations
rather than the HRC. The US stressed that reservations formed an
integral part of the consent to be bound and are not severable. ILC
Special Rapporteur Alain Pellet argued that the VC is adequate
and that the practice of human rights bodies is to attempt to
persuade States to withdraw offending reservations rather than to
decide on impermissibility.
D. Interpretative Declarations
Interpretative declarations are appended to treaties by
governments at the time of signature, ratification, or acceptance
and sets out how a State understands its treaty obligation when
expressing its consent to be bound. They must be scrutinized for if
they change the scope of the obligation they become reservations.
Their legal effect depends upon whether they aim to offer an
interpretation that may be proved incorrect (mere interpretative
declaration) or they offer an interpretation that is to be accepted
by others (qualified interpretative declaration).
VII. Problems Concerning the Grounds for Termination
Specific issues concerning the external grounds for terminating a
treaty:
A. Material Breach
The guiding principle is that of reciprocity. A breach of a treaty,
however serious, does not ipso facto put an end to the treaty but
within certain limits and subject to certain safeguards the right of
a party to invoke the breach as a ground for termination must be
recognized. The ICJ takes a restrictive approach which aims at
striking a balance between the need to uphold the stability of
treaties and the need to ensure reasonable protection for the
innocent victim of the breach, though it may seem that stability is
prioritized.
The relationship between the material breach of a treaty and the
law of State responsibility is problematic. Special Rapporteur
James Crawford explained: The law of treaties is concerned
essentially with the content of primary rules and with the validity
of attempts to alter them; the law of State responsibility takes as
given the existence of primary rules and is concerned whether the
conduct inconsistent with those rules can be excused and, if not,
what consequences of such conduct are.
B. The Supervening Impossibility of Performance
This ground is limited to the permanent disappearance or
destruction of an object indispensable for the execution of a treaty.
It cannot be invoked by a party that was itself instrumental in
causing these circumstances to come about by the breach of its
treaty obligations. In Gabcikovo-Nagymaros – Hungary argues
that the essential object of a joint economic investment has ceased
to exist rendering the treaty impossible to perform but the ICJ
observed that it resulted from the party’s own failure to perform
its treaty obligations.
C. Fundamental Change of Circumstances
Art. 62 accepts termination on these grounds possible but it may
not be invoked in relation to a treaty, which establishes a
boundary, and cannot be invoked if the change was caused by a
breach of its own obligations, under the treaty or another intl.
agreement. In Fisheries Jurisdiction – The ICJ stated that a
fundamental change of circumstances which determined the
parties to accept a treaty, if it has resulted in a radical
transformation of the extent of obligation imposed by it, may
under certain conditions, afford the party affected a ground for
invoking termination. ICJ interprets Art. 62 strictly: a
fundamental change of circumstances must have been unforeseen;
the existence of the circumstances at the time of the Treaty’s
conclusion must have constituted an essential basis of consent of
the parties to be bound by the treaty. The stability of treaty
relations requires that the plea of fundamental change of
circumstances be applied only in specific cases.
VIII.Conclusion
The VC does not cover all possible areas and issues. The law of
treaties is a classical yet constantly developing branch of law. The
rules that govern the application of treaties are not static but
constant evolve and reflect the development of other branches of
international law.
Treaties – Cassese
Thesis: The Vienna Convention on the Law of Treaties effected a
lot of substantial changes in international law.
The most frequent means of creating rules is the conclusion of
agreements. These are called treaties, conventions, protocols,
covenants, etc. The terminology varies but the substance is the
same; they all denote a merger of the wills of 2 or more
international subjects for the purpose of regulating their interests
by international rules.
A major feature of treaties is that they only bind the parties to
them. Hence, for third States, treaties are something devoid of any
legal consequence. To put it differently, treaties may neither
impose obligations on, nor create legal entitlements for, third
States. (pacta tertiis nec nocent nec prosunt) In short, nothing can
be done without or against the will of a sovereign State.
The ‘Old” and the ‘New’ Law
Most of the provisions of the VCLOT either codify customary
rules belonging to the corpus of general law. Consequently, those
which do not will retain their status of treaty stipulations as long
as they do not turn into customary rules. It follows that, for the
time being, the VCLOT as a whole does not yet constitute general
international law.
3 principles of VCLOT:
1. Restriction on the previously unfettered freedom of States –
States are no longer at liberty to do whatever they wish but must
respect a central core of international values from which no
country may deviate.
2. Democratization of international legal relations – Coercion on a
State, especially from a more powerful State, to induce it to enter
an agreement is no longer allowed.
3. Emphasis on international values over national exigencies –
interpretation emphasizes State’s potential over pride of its
sovereignty.
However, the ‘new law’ has not completely superseded the ‘old.’
1. VCLOT itself states that it shall only apply prospectively. Thus,
treaties entered before its effectivity are still governed by the ‘old
law.’
2. Not all members of the world community have become parties
to the Convention.
7

The Making of Treaties
2 main modalities of treaty-making
1. Solemn Form- entered into by plenipotentiaries (diplomats with
full powers in negotiation) but treaty becomes effective only after
ratification of the State, usually through its legislature.
2. Simplified Form – treaties made under this form become legally
binding as soon as the negotiators sign them.
Reservations
Reservations are unilateral statements made by States participating
in the negotiations for a multilateral treaty intended to either (a)
exclude the application of one or more provisions, or (b) place a
certain interpretation on them. Reservations had to be accepted by
all other contracting parties for the reserving State to become
bound by the treaty. However, in practice it gave a sort of right of
veto to all other parties.
This old regulation proved totally inadequate when membership
in the international community increased, the more so because
the newcomers belonged to very different political, economic, and
cultural background.
Thus, the doctrine of ‘universality of treaties’ came therefore to be
upheld. Under the regime established under the VCLOT, States
can append reservations at the time of ratification or accession,
unless such reservation (a) are expressly prohibited by the treaty,
or (b) prove incompatible with the purpose of the treaty.
Grounds of Invalidity
In the past, the law turned a blind eye to possible coercion of
weaker states by stronger ones. Thus duress- economic, political
or military- was not considered to invalidate a treaty. Similarly,
corruption of State officials negotiating a treaty did not render it
null and void. The only grounds of invalidity were minor ones. In
addition, they could only make the treaty voidable if the party
against which the grounds had been invoked was willing to
consider the treaty null and void, or a dispute resolution
mechanism made it possible for the parties to reach agreement;
and that only the parties allegedly damaged by the invalidity was
legally entitled to invalidate it. As such, the other parties, in cases
of multilateral treaties, had no say in the matter.
Under the VCLOT, coercion had been regarded as making the
treaty null and void.
Absolute Grounds of Invalidity – if established, the treaty is null
and void ex tunc (since the moment it was established)
1. Coercion against a State representative
2. Coercion against a State as a whole
3. Incompatibility with jus cogens
Relative Grounds of Invalidity – would vitiate only some
provisions of the treaty, not the whole. It may also be cured by
acquiescence or subsequent express consent by the aggrieved
party.
1. Error
2. Fraud
3. Corruption or representative has acted in manifest breach of
internal law or of the restrictions on his powers.
Interpretation
2 approaches of interpretation of treaties pre-VCLOT:
1. Subjective interpretation – resort to negotiating history or the
preparatory work or travaux preparatoires. US, France, and Italy
favor this type.
2. Objective Interpretation – a construction based on the text of
the treaty and the wording of its provisions. Great Britain favors
this type.
VCLOT gave emphasis to literal, systematic and teleological
interpretation. Article 31.1 states that:
“A treaty shall be interpreted in good faith in context and in light
of its object and purpose.”
Thus, great weigh was attributed to the purpose pursued by
contracting parties, as laid down in the text of the treaty. Also, the
principle of “effectiveness” is also given importance, whereby a
treaty must be given an interpretation that enables its provisions
to be effective and useful. Recourse to preparatory work may only
be regarded as a supplementary means of interpretation.
Termination
Pre-VCLOT, it was not clear under what circumstances the
material breach of treaty provisions authorized the other
contracting party to consider itself relieved of treaty obligations.
VLOT clarified the concept of material breach, which one of the
parties could invoke as a ground for terminating the treaty or
suspending its operation. Under Article 60, such a breach consists
in:
(a) A repudiation of the treaty not sanctioned by VCLOT
(b) Violation of a provision essential to the accomplishment of the
object or purpose of the treaty.
Furthermore, the principle of rebus sic stantibus (whereby a
change in the basic conditions underlying the making of a treaty
could terminate it) was also clarified the requirements for the
principle to be successfully invoked. First is that the circumstances
that changed constituted an essential basis of the consent of the
parties to be bound by the treaty and that second, the effect of the
change is radically to transform the extent of obligations still to be
performed.
VCLOT also laid down the role and legal effects of withdrawal or
termination of a treaty, upon denunciation when the treaty itself
does not contain any cause regarding it. Pursuant to its provisions,
a treaty is not subject to termination or withdrawal unless the
parties intended for allowing its possibility or that the right of
denunciation or withdrawal may be implied by the nature of the
treaty.
As a cardinal principle of VCLOT, the various causes of
termination do not make treaties end automatically but can only
invoked by one of the parties as a ground for discontinuing it.
Harris, 42-44 (?)
Fitzmaurice, Some Problems Regarding the Formal Sources of
International Law – Harris
8
Thesis: A treaty may reflect or lead to law but particularly in its
inception is not law.
Treaties are, formally, a source of obligation rather than a source
of law. They simply create rights and obligations. The only “law”
that enters international treaty rights and obligations is derived
from the principle pacta sunt servanda. The law is that the
obligation must be carried out, but the obligation is not, itself, law.
A treaty may reflect or lead to law but particularly in its inception
is not law. The treaty may be an instrument in which the law is
conveniently stated, and evidence of what it is, but it is still not
itself the law—it is still formally not a source of law but only
evidence of it. A treaty may become a material source of law when
the rules it contains come to be generally regarded as representing
rules of universal applicability.
For those cases where the treaty does not reflect existing law but
leads to the emergence of a new general rule of law, before that
happens, parties still apply the treaty not as law but as an
obligation inter se. If a treaty does eventually pass into general
law, its formal source as law is custom or practice.
a. In General
VCLOT, Article 1. SCOPE OF THE PRESENT CONVENTION The
present Convention applies to treaties between States.
VCLOT, Article 2. USE OF TERMS
1. For the purposes of the present Convention:
(a) "Treaty" means 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;
(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;
(c) "Full powers" means a document emanating from the
competent authority of a State designating a person or persons to
represent the State for negotiating, adopting or authenticating the
text of a treaty, for expressing the consent of the State to be bound
by a treaty, or for accomplishing any other act with respect to a
treaty;
(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;
(e) "Negotiating State" means a State which took part in the
drawing up and adoption of the text of the treaty;
(/) "Contracting State" means a State which has consented to be
bound by the treaty, whether or not the treaty has entered into
force;
(g) "Party" means a State which has consented to be bound by the
treaty and for which the treaty is in force;
(h) "Third State" means a State not a party to the treaty;
(i) "International organization" means an intergovernmental
organization.
2. The provisions of paragraph 1 regarding the use of terms in the
present Convention are without prejudice to the use of those
terms or to the meanings which may be given to them in the
internal law of any State.
VCLOT, Article 3. INTERNATIONAL AGREEMENTS NOT
WITHIN THE SCOPE OF THE PRESENT CONVENTION
The fact that the present Convention does not apply to
international agreements concluded between States and other
subjects of international law or between such other subjects of
international law, or to international agreements not in written
form, shall not affect:
(a) The legal force of such agreements;
(b) The application to them of any of the rules set forth in the
present Convention to which they would be subject under
international law independently of the Convention;
(c) The application of the Convention to the relations of States as
between themselves under international agreements to which
other subjects of international law are also parties.
VCLOT, Article 4. NON-RETROACTIVITY OF THE PRESENT
CONVENTION
Without prejudice to the application of any rules set forth in the
present Convention to which treaties would be subject under
international law independently of the Convention, the
Convention applies only to treaties which are concluded by States
after the entry into force of the present Convention with regard to
such States.
VCLOT, Article 5. TREATIES CONSTITUTING
INTERNATIONAL ORGANIZATIONS AND TREATIES
ADOPTED WITHIN AN INTERNATIONAL ORGANIZATION
The present Convention applies to any treaty which is the
constituent instrument of an international organization and to any
treaty adopted within an international organization without
prejudice to any relevant rules of the organization.
VCLOT, Article 6. CAPACITY OF STATES TO CONCLUDE
TREATIES Every State possesses capacity to conclude treaties.
b. Consent
VCLOT, Article 11. MEANS OF EXPRESSING CONSENT TO BE
BOUND BY A TREATY
The consent of a State to be bound by a treaty may be expressed
by signature, exchange of instruments constituting a treaty,
ratification, acceptance, approval or accession, or by any other
means if so agreed.
VCLOT, Article 12. CONSENT TO BE BOUND BY A TREATY
EXPRESSED BY SIGNATURE
9
1. The consent of a State to be bound by a treaty is expressed by
the signature of its representative when:
(a) The treaty provides that signature shall have that effect;
(b) It is otherwise established that the negotiating States were
agreed that signature should have that effect; or
(c) The intention of the State to give that effect to the signature
appears from the full powers of its representative or was expressed
during the negotiation.
2. For the purposes of paragraph 1:
(a) The initialling of a text constitutes a signature of the treaty
when it is established that the negotiating States so agreed;
(b) The signature ad referendum of a treaty by a representative, if
confirmed by his State, constitutes a full signature of the treaty.
VCLOT, Article 13. CONSENT TO BE BOUND BY A TREATY
EXPRESSED BY AN EXCHANGE OF INSTRUMENTS
CONSTITUTING A TREATY
The consent of States to be bound by a treaty constituted by
instruments ex changed between them is expressed by that
exchange when:
(a) The instruments provide that their exchange shall have that
effect; or
(b) It is otherwise established that those States were agreed that
the exchange of instruments shall have that effect.
VCLOT, Article 14. CONSENT TO BE BOUND BY A TREATY
EXPRESSED BY RATIFICATION, ACCEPTANCE OR
APPROVAL
1. The consent of a State to be bound by a treaty is expressed by
ratification when:
(a) The treaty provides for such consent to be expressed by means
of ratification;
(b) It is otherwise established that the negotiating States were
agreed that ratification should be required;
(c) The representative of the State has signed the treaty subject to
ratification; or
(d) The intention of the State to sign the treaty subject to
ratification appears from the full powers of its representative or
was expressed during the negotiation.
2. The consent of a State to be bound by a treaty is expressed by
acceptance or approval under conditions similar to those which
apply to ratification.
VCLOT, Article 15. CONSENT TO BE BOUND BY A TREATY
EXPRESSED BY ACCESSION
The consent of a State to be bound by a treaty is expressed by
accession when:
(a) The treaty provides that such consent may be expressed by that
State by means of accession;
(b) It is otherwise established that the negotiating States were
agreed that such con sent may be expressed by that State by means
of accession; or
(c) All the parties have subsequently agreed that such consent may
be expressed by that State by means of accession.
VCLOT, Article 16. EXCHANGE OR DEPOSIT OF
INSTRUMENTS OF RATIFICATION, ACCEPTANCE,
APPROVAL OR ACCESSION
Unless the treaty otherwise provides, instruments of ratification,
acceptance, approval or accession establish the consent of a State
to be bound by a treaty upon:
(a) Their exchange between the contracting States;
(b) Their deposit with the depositary; or
(c) Their notification to the contracting States or to the depositary,
if so agreed.
VCLOT, Article 17. CONSENT TO BE BOUND BY PART OF A
TREATY AND CHOICE OF DIFFERING PROVISIONS
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 be tween differing provisions is effective only if it is made
clear to which of the provisions the consent relates.
c. Binding Effect
i. Object and Purpose
VCLOT, Article 18. OBLIGATION NOT TO DEFEAT THE
OBJECT AND PURPOSE OF A TREATY PRIOR TO ITS ENTRY
INTO FORCE
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.
ii. Pacta sunt servanda
VCLOT, Article 26. "PACTA SUNT SERVANDA"
Every treaty in force is binding upon the parties to it and must be
performed by them in good faith.
GabCikovo-Nagymaros (Hungary v. Slovakia), Judgment, ICJ Rep
(1997)
Concepts: Pacta sunt servanda & Termination and Suspension
Disputing States: Hungary & Slovakia
Brief Facts: Hungary and Slovakia notified the International Court
of Justice of a Special Agreement they had entered into to submit
issues concerning violations of the 1977 Treaty concluded
between them in the said year. The 1977 Treaty contained
provisions on the implementation of the Gabcikovo-Nagymaros
System of Locks. This joint investment was essentially aimed at
10
the production of hydroelectricity, the improvement of navigation
on the relevant section of the Danube and the protection of the
areas along the banks against flooding. Due to environmental
concerns, Hungary suspended and eventually terminated the
effectivity of the Treaty over the objection of Slovakia. On its part,
Slovakia implemented “Variant C,” an alternative solution which
involved the unilateral implementation of the project.
Czechoslovakia began work to enable the Danube to be closed and
proceeded to the damming of the river. This resulted to a
deprivation of Hungary of its right to an equitable and reasonable
share of the natural resources of the Danube River. Hungary
contends that the implementation of Variant C was in breach of
the provisions of the 1977 Treaty, while Slovakia contends that
the suspension and eventual termination of the Treaty by
Hungary is likewise an internationally wrongful act.
Doctrine:
On the principle of Pacta sunt servanda
What is required in the present case by the rule pacta sunt
servanda, as reflected in Article 26 of the Vienna Convention of
1969 on the Law of Treaties, is that the parties find an agreed
solution within the cooperative context of the 1977 Treaty which
is still in force and consequently governs the relationship between
the Parties. Article 26 provides that: “Every treaty in force is
binding upon the parties to it and must be performed by them in
good faith.” It is the purpose of the Treaty, and the intentions of
the parties in concluding it, which should prevail over its literal
application. Although some provisions of the 1977 Treaty could no
longer be implemented, the parties should still respect the
objectives of said Treaty in seeking agreement as to modalities of
the execution of the judgment.
On termination and suspension
A determination of whether a convention is or is not in force, and
whether it has or has not been properly suspended or denounced,
is to be made pursuant to the law of treaties. On the other hand,
an evaluation of the extent to which the suspension or
denunciation of a convention, seen as incompatible with the law
of treaties, involves the responsibility of the State which
proceeded to it, is to be made under the law of State
Responsibility. (See Ratio for a detailed discussion)
FACTS:
1. The present case arose out of the signature, on September 16,
1977, by the Hungarian People’s Republic and the
Czechoslovakia People’s Republic of the 1977 Treaty
concerning the construction and operation of the
“Gabcikovo-Nagimaros System of Locks.” The treaty entered
into force on June 30, 1978.
2. 1977 Treaty:
- Provides for the construction and operation of a System
of Locks by the parties as a “joint investment.”
- The system was designed to attain the broad utilization
of the natural resources of the Bratislava-Budapest
section of the Danube river for the development of
water resources, energy, transport, agriculture and other
sectors of the national economy of the contracting
parties
- The joint investment was essentially aimed at the
production of hydroelectricity, the improvement of
navigation on the relevant section of the Danube and the
protection of the areas along the banks against flooding
- The contracting parties undertook to ensure that the
quality of water in the Danube was not impaired as a
result of the Project, and that compliance with the
obligations for the protection of nature arising in
connection with the project would be observed
3. The sector of Danube river with which this case is concerned
is a stretch of approximately 200 km between Bratislava in
Slovakia and Budapest in Hungary
- Below Bratislava, the river gradient decreases markedly,
creating an alluvial plain of gravel and sand sediment
- The boundary between the two states is constituted by
the main channel of the river
- Cunovo and Gabcikovo are situated in this sector of the
river on Slovak Territory, Cunovo on the right bank and
Gabcikovo on the left
- After the confluence of the various branches, the river
enters Hungarian territory
- Nagymaros lies in a narrow valley at a bend in the
Danube just before it turns south, enclosing the large
river island of Szentendre before reaching Budapest.
4. The 1977 Treaty describes the principal works to be
constructed in pursuance of the project
- It provided for the building of two series of locks, one at
Gabcikovo (in Czechoslovakia territory) and the other at
Nagymaros (in Hungarian territory), to constitute a
“single and indivisible operational system of works”
- The project was an integrated joint project with the two
contracting parties on an equal footing in respect of the
financing, construction and operation of the works
- The treaty was complemented by the Joint Contractual
Plan setting forth the objectives of the system and the
characteristics of the works. Hungary would have
control of the sluices at Dunakiliti (Do not kiliti. Lol)
and the works at Nagymaros, whereas Czechoslovakia
would have control of the works at Gabcikovo.
5. Work on the project started in 1978
6. May 13, 1989 – As a result of intense criticism which the
project had generated in Hungary, the Hungarian
Government decided to suspend the works at Nagymaros
pending the completion of various studies on its ecological
impact which were projected to be concluded before July 31,
1989
7. July 21, 1989 – The Hungarian Government extended the
suspension of the works at Nagymaros until Oct. 31, 1989 and
suspended works at Dunakiliti until the same date
8. Oct. 27, 1989 – Hungary decided to abandon the works at
Nagymaros and to maintain the status quo at Dunakiliti
9. Negotiations took place between the parties.
10. Czechoslovakia started investigating alternative solutions.
- Among its alternative solutions was “Variant C” which
entailed a unilateral diversion of the Danube by
Czechoslovakia on its territory some 10 km upstream of
Dunakiliti. On its final stage, Variant C included the
construction at Cunovo of an overflow dam and a levee
linking that dam to the south ban of the bypass canal
- This alternative solution was to be employed only if
Hungary fails to cooperate with the other proposed
solutions which involved their participation
11
11. No agreement was reached. So in 1991, the Slovak
Government decided to begin construction to put the
Gabcikovo Project into operation by the “provisional
solution”
12. Hungary transmitted to Czechoslovakia a Note terminating the
1977 Treaty effective May 1992.
13. Oct. 1992 – Czechoslovakia began work to enable the Danube
to be closed and proceeded to the damming of the river.
14. Hungary and Slovakia jointly notified the Court of a Special
Agreement they had entered into to submit the issues to the
Court for resolution.
ISSUES:
1. WON Hungary was entitled to suspend and subsequently
abandon the works on the Nagymaros Project and on the part
of the Gabcikovo Project (NO)
a. WON Hungary in fact suspended the application of the
1977 Treaty (YES)
b. WON the state of necessity, if established to exist, could
permit of the conclusion that, in 1989, it had acted in
accordance with its obligations under the 1977 Treaty or
that those obligations had ceased to be binding upon it
(NO)
c. WON there was , in 1989, a state of ecological necessity
which would have permitted Hungary, without
incurring international responsibility, to suspend and
abandon works that it has committed to perform in
accordance with 1977 Treaty (NO)
2. Whether the Czech and Slovak Federal Republic was entitled
to proceed to the provisional solution and put into operation
the damming up of the Danube on Czechoslovak territory
and resulting consequences on water and navigation course
(NO)
3. What are the legal effects of the notification of termination of
the 1977 Treaty by Hungary
4. WON the reciprocal wrongful conduct justify its termination
(NO)
5. What are the legal consequences of the judgment
RULING & RATIO:
1. Hungary is not entitled to suspend and subsequently abandon,
in 1989, the works on the Nagymaros Project and on the part
of the Gabcikovo Project for which the 1977 Treaty attributed
responsibility to it.
Hungary’s contentions:
- Although it did suspend or abandon certain works, it never
suspended the application of the 1977 Treaty itself. To justify
its conduct, it relied essentially on a “state of ecological
necessity.”
- To justify its claim that a state of ecological necessity existed
in 189, it enumerated the principal ecological dangers which
would have been caused by this system:
(1) Nagymaros sector:
- If the works at Nagymaros had been carried out as
planned, the environment—and in particular the
drinking water resources—in the area would have
been exposed to serious dangers on account of
problems linked to the upstream reservoir on the
one hand and, on the other, the risks of erosion of
the riverbed downstream
(2) Gabcikovo sector:
- Hungary’s concern in this sector related to the
quality of the surface water in the Dunakiliti
reservoir, with its effects on the quality of the
groundwater in the region; and to the level,
movement, and quality of both the surface water
and the groundwater in the whole of Szigetkoz,
with their effects on the fauna and flora in the
alluvial plain of the Danube
Slovakia’s contentions:
- The state of necessity upon which Hungary relied did not
constitute a reason for the suspension of a treaty obligation
recognized by the law of treaties.
- It cast doubt upon whether “ecological necessity” or
“ecological risk” could, in relation to the law of State
Responsibility, constitute a circumstance precluding the
wrongfulness of an act
ICJ:
- A determination of whether a convention is or is not in force,
and whether it has or has not been properly suspended or
denounced, is to be made pursuant to the law of treaties.
- On the other hand, an evaluation of the extent to which the
suspension or denunciation of a convention, seen as
incompatible with the law of treaties, involves the
responsibility of the State which proceeded to it, is to be
made under the law of State Responsibility
a. WON Hungary suspended the Treaty (YES)
- The court rejects Hungary’s argument that it did not
suspend or reject the application of the Treaty.
o The conduct of Hungary at that time can only be
interpreted as an expression of its unwillingness to
comply with at least some of the provisions of the
Treaty. It rendered impossible the accomplishment
of the system of works expressly described as “single
and indivisible”
b. WON the state of necessity, if established to exist, could
permit of the conclusion that, in 1989, it had acted in
accordance with its obligations under the 1977 Treaty or that
those obligations had ceased to be binding upon it (NO)
- When Hungary invoked the state of necessity to justify
its conduct, Hungary chose to place itself within the
ambit of the law of State responsibility, thereby
implying that, in the absence of such circumstance, its
conduct would have been unlawful
- The state of necessity, even if it is established to exist,
could not permit of the conclusion that it had acted in
accordance with its obligations or that those obligations
had ceased to be binding upon it
- It would only permit the affirmation that under the
circumstances, Hungary would not incur international
responsibility by acting as it did.
c. WON there was , in 1989, a state of ecological necessity which
would have permitted Hungary, without incurring
international responsibility, to suspend and abandon works
that it has committed to perform in accordance with 1977
Treaty (NO)
- The Hungarian argument on the state of necessity could
not convince the court unless it was at least proven that a
real, “grave” and “imminent” “peril” existed in 1989 and
12
 that the measures taken by Hungary were the only
possible response to it.
- The Vienna Convention of 1969 on the Law of Treaties
confines itself to defining the conditions in which a
treaty may lawfully be denounced or suspended.
o “A state of necessity may not be invoked by a State
as a ground for precluding the wrongfulness of an
act of that State not in conformity with an
international obligation of the State unless:
(a) The act was the only means of safeguarding an
essential interest of the State against a grave an
imminent peril; and
(b) The act did not seriously impair an essential
interest of the State towards which the
obligation existed.
A state of necessity may not be invoked by a State as
a ground for precluding wrongfulness:
(a) If the international obligation with which the
act of the State is not in conformity arises out
of a preemptory norm of general international
law; or
(b) If the international obligation with which the
act of the State is not in conformity is laid
down by a treaty which, explicitly or implicitly
excludes the possibility of invoking the state of
necessity with respect to that obligation; or
(c) If the State in question has contributed to the
occurrence of the state of necessity.”
- Hungary expressed, in 1989, its “uncertainties” as to the
ecological impact of putting in place the Gabcikovo-
Nagymaros barrage system, which is why it asked for
new scientific studies to be carried out
- The court considers that although these uncertainties
might have been serious, they could not establish the
existence of a “peril” in the sense of a component
element of a state of necessity.
- Peril certainly evokes the idea of “risk” but a state of
necessity could not exist without a peril duly established
at the relevant point in time
- The “extremely grave and imminent” peril must have
been a threat to the interest at the actual time
- Nagymaros sector:
o The dangers ascribed to the upstream reservoir
were mostly of a long-term nature and that they
remained uncertain
o The peril was not “imminent” at the time at which
Hungary suspended and then abandoned the works
relating to the dam
o With regard to the lowering of the riverbed
downstream of Nagymaros dam, the Court pointed
out that the bed of the Danube in the vicinity of
Szentendre had already been deepened prior to
1980 in order to extract building materials, and that
the river had from that time attained the depth
required by the 1977 Treaty. The peril invoked by
Hungary had thus already materialized to a large
extent for a number of years, so that it could not, in
1989, represent a peril arising entirely out of the
project
o Hungary had means available to it, other than the
suspension and abandonment of the works, of
responding to that situation.
o It could have proceeded regularly to discharge
gravel into the river downstream of the dam. It
could have supplied Budapest with drinking water
by processing the river water in an appropriate
manner.
- Gabcikovo sector:
o The damage that Hungary had apprehended had
primarily to be the result of some relatively slow
natural processes. It was not imminent
o Among others, Hungary could construct works
needed to regulate flows along the old bed of the
Danube and the side-arms
2. Czechoslovakia, in putting variant C into operation, was not
applying the 1977 Treaty, but violated certain of its express
provisions, and in so doing, committed an internationally
wrongful act.
Slovakia’s contentions:
- Proceeding to Variant C and putting it into operation did not
constitute internationally wrongful acts
- Hungary’s decision to suspend and abandon the construction
of works at Dunakiliti had made it impossible for
Czechoslovakia to carry out the works as initially
contemplated by the 1977 Treaty and that the latter was
therefore entitled to proceed with a solution which was as
close to the original project as possible.
- It invoked what it described as a “principle of approximate
application” to justify the construction and operation of
Variant C.
- This was the only possibility remaining to it of fulfilling the
purposes of the treaty and its continuing obligation to
implement it in good faith
- It was under a duty to mitigate the damage resulting from
Hungary’s unlawful actions. This is also an aspect of
“performance of obligations in good faith”
- These damages would have been immense given the
investments made and the additional economic and
environmental prejudice which would have resulted from the
failure to complete the works and put the system in operation
- In any case, Variant C could be justified as a countermeasure
Hungary’s contentions:
- Hungary denied having committed the slightest violation of
its treaty obligations which could have justified the putting
into operation of Variant C
- No such rule of “approximate application” of a treaty exists in
international law
- As to the argument derived from “mitigation of damages,” it
claimed that this has to do with the quantification of loss, and
could not serve to excuse conduct which is substantively
unlawful
- Variant C did not satisfy the conditions required by
international law for countermeasures, in particular, the
condition of proportionality
ICJ:
- It is not necessary to determine whether there is a principle
of “approximate application” because even if there was, it
could by definition only be employed within the limits of the
treaty
13
- Variant C does not meet that cardinal condition with regard
to 1977 Treaty
- The project is a joint investment constituting a single and
indivisible operational system of works
- By definition, all this could not be carried out by unilateral
action
- Despite having a certain external physical similarity with the
original project, Variant C thus differed sharply from it in its
legal characteristics
- As to the principle of “mitigation of damages,” while it might
provide a basis for calculation of damages, it could not justify
an otherwise wrongful act.
- As to whether Variant C could be considered as a
countermeasure, the Court ruled that Variant C does not
meet the requirement on proportionality
o Czechoslovakia, by unilaterally assuming control of a
shared resource, and thereby depriving Hungary of its
right to an equitable and reasonable share of the natural
resources of the Danube, failed to respect the
proportionality which is required by international law.
3. The notice of termination could not have validly terminated
the 1977 Treaty
Hungary’s contentions:
- Hungary presented 5 arguments in support of the lawfulness
and thus, effectiveness, of its notice of the termination:
(1) State of necessity (already discussed in first issue)
(2) Impossibility of performance of the Treaty – Hungary
declared that it could not be obliged to fulfill a
practically impossible task, namely to construct a barrage
system on its own territory that would cause irreparable
environmental damage
- Article 61 1 of the Vienna Convention of 1969 on
the Law of Treaties provides that a permanent
disappearance or destruction of an object
indispensable for the execution of a treaty is a
ground for terminating or withdrawing from it
- Under said Article, the “object indispensable for the
execution of the treaty,” whose disappearance or
destruction was required by said Article, did not
have to be a physical object, but could also include a
“legal situation which was the essence of the rights
and obligations”
(3) Occurrence of fundamental change of circumstances –
Hungary identified a number of “substantive elements”
present at the conclusion of the 1977 Treaty which it
said had changed fundamentally by the date of
notification of termination. These changes may be
grounds for terminating or withdrawing from a treaty
under Article 622 of the Vienna Convention of 1969 on
the Law of Treaties
1
Article 61. Supervening impossibility of performance
1. A party may invoke the impossibility of performing a treaty as a ground for terminating or
withdrawing from it if the impossibility results from the permanent disappearance or destruction of an
object indispensable for the execution of the treaty. If the impossibility is temporary, it may be
invoked only as a ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground for terminating,
withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach
by that party either of an obligation under the treaty or of any other international obligation owed to
any other party to the treaty.
2
Article 62 Fundamental change of circumstances
1. A fundamental change of circumstances which has occurred with regard to those existing at the
time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a
ground for terminating or withdrawing from the treaty unless:
- These included the notion of “socialist integration”
for which the Treaty had originally been a
“vehicle,” but which subsequently disappeared;
- The “single and indivisible operational system”
which was to be replaced by a unilateral scheme;
- The fact that the basis of the planned joint
investment had been overturned by the sudden
emergence of both States into a market economy;
- The attitude of Czechoslovakia which had turned
the “framework treaty” into an immutable norm;
and
- The transformation of a treaty consistent with
environmental protection into a “prescription for
environmental disaster”
(4) Material breach of the Treaty by Czechoslovakia –
Czechoslovakia violated the 1977 Treaty by proceeding
to implement Variant C
(5) Development of new norms of international
environmental law – subsequently imposed requirements
of international law in relation to protection of the
environment precluded performance of the Treaty. The
previously existing obligation not to cause substantive
damage to the territory of another State had evolved into
an erga omnes obligation of prevention of damage
pursuant to the “precautionary principle”
Slovakia’s contentions:
(1) State of necessity (already discussed in the first issue)
(2) Impossibility of performance of the Treaty – Article 61 of the
Vienna Convention clearly contemplated physical
“disappearance or destruction” of an object indispensable for
the execution of the treaty and that par. 2 of the same Article
precluded the invocation of impossibility if the impossibility
is the result of a breach by that party
(3) Occurrence of fundamental change of circumstances – changes
identified by Hungary had not altered the nature of the
obligations under the Treaty from those originally
undertaken, so that no entitlement to terminate it arose from
them
(4) Material breach of the Treaty by Czechoslovakia – Variant C,
far from being a breach, was devised as “the best possible
approximate application” of the Treaty
(5) Development of new norms of international environmental
law – none of the intervening developments in
environmental law gave rise to norms of jus cogens that
would override the Treaty
ICJ:
(1) State of necessity
- Even if a state of necessity is found to exist, it is not a
ground for the termination of a treaty
- It may only be invoked to exonerate from its
responsibility a State which has failed to implement a
treaty
(a) the existence of those circumstances constituted an essential basis of the consent of the parties to
be bound by the treaty; and (b) the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or
withdrawing from a treaty:
(a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by
the party invoking it either of an obligation under the treaty or of any other international obligation
owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a
ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for
suspending the operation of the treaty.
14
(2) Impossibility of performance
- It is not necessary to determine whether the term
“object” in Article 61 of the Vienna Convention of 1969
on the Law of Treaties can also be understood to
embrace a legal regime as in any event, even if that were
the case, it would have to conclude that in this instance
that regime had not definitively ceased.
- The 1977 Treaty actually made available to the parties
the necessary means to proceed at any time, by
negotiation, to the required readjustments between
economic imperatives and ecological imperatives
(3) Fundamental change of circumstances
- The changed circumstances advanced by Hungary are
not of such a nature that their effect would radically
transform the extent of the obligations still to be
performed in order to accomplish the project
- The prevalent political conditions or economic system in
force in 1977 were not so closely linked to the object and
purpose of the Treaty that they constituted an essential
basis of the consent of the parties and, in changing,
radically altered the extent of the obligations still to be
performed
- New developments in the state of environmental
knowledge and of environmental law cannot be said to
have been completely unforeseen
- There are provisions in the Treaty designed to
accommodate change
(4) Material breach of the Treaty
- Czechoslovakia only violated the Treaty when it
diverted the waters of the Danube into the bypass canal
in October 1992
- In constructing the works which would lead to the
putting into operation of Variant C, Czechoslovakia did
not act unlawfully
- The notification of termination on May 1992 was
premature
- No breach of Czechoslovakia had yet taken place and
consequently Hungary was not entitled to invoke any
such breach of the Treaty as ground for terminating it
when it did
(5) Development of new norms of international environmental
law
- The parties could, by agreement, incorporate the newly
developed norms of environmental law into its Treaty
- There are provisions in the Treaty requiring the parties
to ensure that the quality of water in Danube is not
impaired and that nature is protected; hence,
incorporation of the environmental laws may be given
effect
5. The parties will have to seek agreement on modalities of the
execution of the judgment in the light of its determination, as
they agreed to do in the Special Agreement submitted to the
court
- What is required in the present case by the rule pacta
sunt servanda, as reflected in Article 26 of the Vienna
Convention of 1969 on the Law of Treaties, is that the
parties find an agreed solution within the cooperative
context of the 1977 Treaty which is still in force and
consequently governs the relationship between the
Parties
- Article 26 provides that:
“Every treaty in force is binding upon the parties to it
and must be performed by them in good faith”—two
elements: (1) binding force of treaties; and (2)
performance of them in good faith
- It is the purpose of the Treaty, and the intentions of the
parties in concluding it, which should prevail over its
literal application
- The principle of good faith obliges the parties to apply it
in a reasonable way and in such a manner that its purpose
can be realized
- Under the terms of the 1977 Treaty, the joint regime is a
basic element. Unless the parties agree otherwise, such a
regime should be restored
- Variant C, which operates in a manner incompatible
with the Treaty, should be made to conform to it
- The reestablishment of the joint regime will also reflect
the concept of common utilization of shared water
resources for the achievement of the several objectives
mentioned in the Treaty
- As to damages, both parties are entitled to receive
reparation and are obliged to give reparation.
Compensation is encouraged.
Digest by: Fra

4. Although the court found that both Hungary and

Czechoslovakia failed to comply with their obligations under
the 1977 Treaty, this reciprocal wrongful conduct did not
bring the Treaty to an end nor justify its termination
- The court would set a precedent with disturbing
implications for treaty relations and the integrity of the
rule pacta sunt servanda if it were to conclude that a
treaty in force between states might be unilaterally set
aside on grounds of reciprocal non-compliance. It would
be otherwise if the parties decided to terminate the
Treaty by mutual consent
- In this case, while Hungary purported to terminate the
Treaty, Czechoslovakia resisted this act and declared it
to be without legal effect
15