You are on page 1of 21

The Secretary-General of the United Nations is the depositary of more than 560 multilateral treaties

which cover a broad range of subject matters such as human rights, disarmament and protection of
the environment (United Nations, 2018).

Principles and Practice
Treaties are the first and foremost source of International law. Whenever an International Court
has to decide an international dispute, its first endeavor is to find out whether there is an
international treaty on the point or not. In case there is an international treaty governing the
matter under dispute, the decision of the court is based on the provisions of the treaty.
International treaties occupy the same significant position in the field of international law as the
legislation occupies in the municipal law. Unlike municipal law, the various methods by which
rights and duties may be created in international law are relatively unsophisticated. States
transact a vast amount of work by using the device of treaty [1] . For instance, wars will be
terminated, disputes settled, territory acquired, special interests determined, alliances established
and international organizations created all by means of treaties. So treaties are a more direct and
formal method of international law creation. There lies the importance of treaties.

2. Definitions of Treaty

Prof. Oppenheim: “International treaties are agreements of a contractual character between States
or Organizations of States creating legal rights and treaties".

Prof. Schwarzenberger: “Treaties are agreements between subjects of international law creating a
binding obligation in international law".

McNair: “A written agreement by which two or more States or International organization create
or intend to create relations between themselves operating within the spheres of International

The term treaty has also been defined in the Vienna Convention on the Law of Treaties, 1969.
Article 2(1) (a) of the Convention defines treaty as “an international agreement concluded
between States in written form and governed by international law". The Vienna Convention on
the Law of Treaties came into force on 27th January, 1980.

3. Basis of the Binding Force of International Treaties

In the view of the Italian jurist, Anzilotti, the binding force of international treaty is on account
of the fundamental principle known as ‘Pacta Sunt Servanda’. According to this principle, States
are bound to fulfill in good faith the obligations assumed by them under treaties. The principle
was reaffirmed in Article 26 of the 1969 Convention, and underlies every international
agreement. “Every treaty in force is binding upon the parties to it and must be performed by
them in good faith" [2] .

Protocol: This signifies an agreement less formal than a treaty or convention proper. The term
covers the following instruments also; an instrument subsidiary to a convention, an ancillary
instrument to a convention, an altogether independent treaty, Process-Verbal.

Agreement: an instrument less formal than a treaty or convention proper, and generally not in
heads of state form.

Convention: This is the term ordinarily reserved for a proper formal instrument of a multi-lateral

Arrangement: The observations above as to Agreements apply here.

Process-Verbal: This term originally denoted the summary of the proceedings and conclusions of
a diplomatic conference, but is now used as well to mean the record of the terms of some
agreement reached between the parties.

Statute: A collection of constituent rules relating to the functioning of an international institution,

eg; the statue of I.C.J.

Declaration: An informal instrument appended to a treaty or convention interpreting or

explaining the provisions of the latter.

Modus Vivendi: an instrument recording an international agreement of a temporary or

provisional nature intended to be replaced by an arrangement of a more permanent and detailed

Exchange of notes (or letters): an informal method, very frequently adopted in recent years,
whereby states subscribe to certain understandings or recognize certain obligations as binding
them. Ratification is not usually required here.

General Act: is really a treaty but may be of a formal or informal character.

Final Act: is the title of the instrument which records the winding up of the proceedings of the
Conference summoned to conclude a convention.

5. Compartmentalization of Treaties

McNair has classified treaties under the following heads:

Treaties having the character of conveyances;

Treaty contracts;

Law-making treaties; and

Other treaties, such as, the treaty of Universal Postal Union.

6. Parties Competent to Make a Treaty

Generally, only Sovereign States are competent to make a treaty. In accordance with the
principle of sovereignty sovereign states have unlimited powers to make treaties. Those States
which are not completely sovereign are not competent to make it. The Permanent Court of
International Justice in Wimbledon case observed: “the capacity of entering into international
engagements is an attribute of state sovereignty".

7. Formation of a Treaty

The main steps in the formation of a treaty are:

7.1 Accrediting of persons who conduct negotiations on behalf of the contracting states (Arts.7 &
8 of Vienna Convention)

Once a state has decided to commence negotiations with another state or other states for a
particular treaty, the first step is to appoint representatives to conduct the negotiations. In
practice a representative of a state is provided with a very formal instrument given either by the
head of state or by the Minister of Foreign Affairs showing his authority in various regards. This
instrument is called the Full Powers or Pleins Pouvoirs.

7.2 Negotiation and adoption (Art.9)

The accredited persons of contracting parties enter into negotiations for the adoption of the
treaty. After the matters are settled, the treaty is adopted.

Authentication ,signature and exchange of instruments

When the final draft is agreed upon, the instrument is ready for signature. Unless there is an
agreement to dispense with signature, this is essential for a treaty, principally because it serves to
authenticate the text. This rule is stated in Article 10 of the Vienna Convention. The effect of
signature of a treaty depends on whether or not the treaty is subject to ratification, acceptance, or
approval. If the treaty is subject to ratification, acceptance, or approval, signature means no more
than that the delegates have agreed upon a text and are willing to accept it and refer it to their
governments for such action as those governments may choose to take in regard to the
acceptance or rejection of the treaty. Where a treaty is constituted by instruments exchanged by
representatives of the parties, such exchange may result in the parties becoming bound by the


The next stage is that the delegates who signed the treaty refer it back to their governments for
approval, if such further act of confirmation be expressly or impliedly necessary. Ratification
means the international act ….whereby a state establishes on the international plane its consent
to be bound by a treaty.

The power of refusing ratification is deemed to be inherent in state sovereignty, and accordingly
at international law there is neither a legal nor a moral duty to ratify a treaty.

Accessions and adhesions:

In practice when a state has not signed a treaty it can only accede or adhere to it. The practice of
the States shows that those states which have not signed the treaties may also accept it later on.
This is called accession. A treaty becomes a law only after it has been ratified by the prescribed
number of State parties. Even after the prescribed number of State parties have signed, the other
States may also accept or adhere to that treaty. This is called adhesion.

Entry into force

“The entry into force of a treaty depends upon the provisions of the treaty or upon what the
contracting states have otherwise agreed upon [3] ".

Registration and publication

Art.102 of the United Nations Charter provides that the registration and publication of every
international treaty entered into by the members is essential. It is made clear in this Article that if
an international treaty or agreement is not registered, it cannot be invoked before any organ of
the United Nations.

7.8 Application and enforcement

The final stage of the treaty – making process is the actual incorporation of the treaty provisions
in the municipal law of the state parties, and the application by such states these provisions, and,
also, any required administration and supervision by international organs.

8. Reservation of a Treaty

A state may be willing to accept most of the provisions of a treaty, but it may, for various
reasons, object to other provisions of the treaty. I n such cases states often make reservations
when they become parties to a treaty. The term “reservation" has been defined in Article 2(1) of
the Vienna Convention on the Law of Treaties, 1969. It runs as follows; “Reservation means a
unilateral statement …..Made by a State when signing, ratifying, accepting, approving or
acceding to a treaty, whereby, it purports to exclude or modify the legal effects of certain
provisions of the treaty in their application to the State".


A treaty can be terminated by (1) the operation of law and by the (2) act or acts of the state
9.1 By the Operation of Law:

It includes the following:

9.1.1 Expiry of time

If the treaty has been concluded for a fixed period of time, the expiration of the fixed term will
automatically terminate the treaty.

9.1.2 Fulfillment of object

In case of treaties imposing no continuous obligation, it may cease to operate on the fulfillment
of the object.

9.1.3 Extinction of the parties

If one of the parties is extinguished by annexation or merger, it may cease to operate. For e.g.:
the treaty between USA and Tripoli came to an end when the latter was annexed by Italy in

9.1.4 Outbreak of War

The treaties may be suspended or terminated at the outbreak of the war.

The treaties between the belligerent states for which general, political and good relations are
essential, cease at war.

Treaties relating to complete situations such as fixation of boundaries shall not cease.

The treaties relating to the rule of war remain in force and binding upon the parties.

Some multilateral treaties relating to health, service, protection of industrial property do not
completely end. They remain suspended and revived at the end of the war.

9.1.5 Impossibility of Performance

Article 61 of the Vienna convention stated that “the impossibility of performance is a valid
ground for the termination of the treaty".

9.1.6 Rebus Sic Standibus

When the fundamental or material circumstance under which a treaty is concluded or change, it
gives room for the termination of the treaty. There may be situations in which the continued
application of treaty may be both contrary to the shared expectations on the parties and an
intolerable burden on them.
9.1.7 Jus Cogens

A treaty may be declared void if it conflicts with a preemptory norm (jus cogens) of international
law. According to Article 53 of the Vienna Convention the treaty is void, if at the time of
conclusion it conflicts with peremptory norm of international law.

By The Act of State Parties

Consent of The Parties

According to Article 54 of the Vienna convention, it will be considered as terminated, if all the
parties to it conclude a subsequent treaty relating to the same subject matter.

Notice of Termination or by Act of Denunciation

If a state party wishes to withdraw from a treaty, it usually does so by notice of termination or by
denunciation. The term “denunciation’’ means notification by a state to the other state parties
that it intends to withdraw from the treaty. Ordinarily the treaty itself provides denunciation, or
state concerned may, with the consent of other parties, have reserved a right of denunciation.

10. Interpretation of Treaties

With regard to the interpretation of treaties there are agencies to interpret the treaties.

Agencies of Interpretation

There may be courts such as International Court of Justice,

The Court of Justice of Three European Communities (The European Coal and Steel
Community, The European Economic Community (common market) and the European Atomic
Energy Community (EURATON)). They have the jurisdiction to interpret the Treaties of 18th
April 1951and 25th march 1957 establishing these three communities.

The other agencies which would interpret the treaties are the International Labour Office (for the
office’s interpretation of labour convention).

The various organs of UN recognized at the San Francisco Conference which in 1945 drew up
the UN Charter that each organ of UN’s would have largely to do its interpretation works.

Executive directors and board of governors of the Indian Monetary fund.

And also the reference of point to the Adhoc committee.

Instruments of Interpretation
The diplomatic conferences which adopt treaties are only conscious about the drafting defects.
To avoid the difficulties arising out of the construction of particular clauses or articles, an
instrument such as a protocol, or process-verbal or final act is often annexed to the main
convention containing detailed interpretation or explanation of the doubtful provisions.

Multilingual Treaties

The treaties are often drafted in two or more languages. Multilateral conventions, including
conventions of ILO are usually concluded in French and English and it is provided that both the
texts shall be authoritative. It may prevail in the event of conflict. The UN Charter of 1945 was
drawn in 5 languages such as English, French, Russian, Spanish and china. Article III of the UN
Charter stated, that all five texts are equally authentic.

The Article 33 of the Vienna Convention is dealing with the conditions for the authentications of
the treaties. They are the following:

If a treaty is authenticated in several languages, the text is equally authoritative in each language,
unless the treaty provides or the parties agree that one particular text is to prevail in case of

The terms of the treaty are presumed to have some meaning in each text.

A construction is to be given which best reconciles the texts having regard to object and purpose
of the treaty.

General Principles

There are numerous rules, canons and principles have been laid down international tribunals and
by writers to interpret the treaties. To serve it as useful, indeed measures, guidelines to the
drafting of treaty provisions. All these rules and canons are not absolute formulae but they are
related to particular text and to the particular problem. Their weight depends on cumulative
application of several, rather than the application of one singly.

Grammatical Interpretation and Intention of Parties

In treaties the words and phrases are to be construed according to their plain and natural
meaning. If a grammatical interpretation result in absurdity, or marked inconsistency with other
portions of treaty, it should not be adopted.

While interpreting the treaty the following things are to be noted:

The purpose or plan of the parties in negotiating the treaty.

It should not restrict unduly the rights intended to be protected by law.

The interpreter should look into the ostensible intention of parties mentioned in four corners of
the text.

Special meaning should be given to a particular term, if it is established that parties so intended.

Object and Content of Treaty

If particular words and phrases are doubtful, their construction should be governed by the
general object of treaty. Art 31, para 1 of the Vienna Convention stated that treaty should be
interpreted with reference to its object and purpose. For the interpretation it include preamble,
annexes to the treaty and related agreements or instruments made in connection with the
conclusion of the treaty.

Reasonableness and Consistency

The interpretation should be done in such a manner in which reasonable meaning of words and
phrases is preferred. By the term consistency, it means that it should be interpreted in the light of
the existing International law. If the state entering into a treaty is unwilling to limit their
sovereignty, ambiguous meaning should be given, which is least restrictive upon a party’s
sovereignty or in conflict between the special and general law. If there is a conflict between
general and special law the special law will prevail over the other.

Principle of Effectiveness

According to the PCIJ, the interpretation as a whole make the treaty ‘’most effective and
useful’’. The PCIJ applied this principle in US diplomatic and Consular staff in Tehran ICJ 1980.
The principle of effectiveness enabled the treaties to work and have appropriate effects. It is very
important in case of multilateral conventions containing the constituent rules of international
organizations. It warrants an interpretation which works a revision of a convention, or any result
contrary to the letter and spirit of treaties.

Recourse to Extrinsic Material

The international tribunal is limited to the context of treaty, provided that clear words are not
thereby contradicted. The following points are relevant:

Past history and historical usages

Preparatory work, i.e. preliminary drafts, records of conference discussion, draft amendments

Interpretation protocols, Resolutions, Committee reports.

The subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions (Article 31(3) of Vienna Convention).
The subsequent conduct of the state parties, intention of parties and their conception of the

Other treaties, in parimateria, in case of doubt.

Disputes Clause

The dispute clause is inserted in the multilateral conventions to settle the disputes arising as to
interpretation or application of convention. The methods used for such settlements are the
arbitration, conciliation and the judicial settlement.



Indian government as member of the world community has always played its role in quite an
effective manner by duly undertaking the implementation of the relevant international treaties.
Article 51(c) of the Constitution of the country speaks about fostering respect for international
law and treaty obligations in the dealings of organised people with one another. This project tries
to look into the efforts made by the different wings of the government towards maintaining an
international consciousness in the country and the mechanisms which are available as of now for
the said purpose.

Why should India ratify and adopt treaties

Prior to looking into the implementation mechanisms available in the country, it is necessary to
look into the reasons which would make such an implementation necessary.

The Courts of our country have opted for adopting principles from international treaties on the
event of insufficiency of the existing laws prevailing in the domestic scenario.

Owing to the high level of deliberations and issues addressing, international treaties guarantee a
great amount of knowledge regarding contemporary affairs across the world and the legal
protections ensuing.

It will help to supplement any national law making mechanisms which may have defects inherent
in themselves or which could not perform their responsibilities as expected or desired for reasons
best known to them.

Judiciary And International treaties

It is worth to be considered that India has been keen on ratifying those international treaties
which could be brought within the gamut of fundamental rights as is existing in the country.
Thus, Indian judiciary, executive and legislature have acted in favour of adopting principles of
human rights, laws of war, environmental rights etc into the system. In many situations, the
application of international principles into Indian scenario have appeared to be a less
cumbersome task, because of the open mindedness exhibited by the judiciary of the country.
Honourable Courts have tried to locate the provisions of many conventions and treaties within
the framework of already existing rights. This was considered to be the easiest way of
broadening the scope and ambit of fundamental rights. For example, in Visakha and Ors v. State
of Rajasthan and Ors [4] , right to work with human dignity and promotion of gender justice,
guaranteed under Convention on Elimination of Discrimination against Women at Work Places,
to which India is a party was read along with Articles 14, 15, 19(1) (g) and 21 of the Constitution
of India. Again in M.C. Mehta v. Union of India [5] , precautionary principle [6] and polluter
pays principle [7] was accepted as part of the Law of the Land through Article 21 of the
Constitution. In Sunil Batra v. Delhi Administration and Ors. etc [8] , the Supreme Court
referred to the international consciousness regarding human rights. In Rev. Mons. Sebastiao
Francisco Xavier dos Remedios Monteiro v. The State of Goa [9] , the court discussed the
concepts of annexation and occupation as is prevalent in international law and held that
Conventions Act of 1960 does not provide special remedy under domestic law but gives indirect
protection by providing for the penal repression of breaches of the Conventions. R. Kapur v.
State of Punjab [10] However, if a conflict arises between the municipal law and international
law, the former would prevail [11] .

Indian Status on ratifying International Treaties

India has been party to around 27 treaties on environment protection which includes the
convention on biological diversity, climate change etc and again has signed and ratified different
treaties pertaining to protection of wild life and migratory animals. As regards the
implementation of the International Covenant on Civil and Political Rights, India has exhibited
its dedication by submitting periodic national reports to the Human Rights Council reflecting the
national implementation mechanisms.

Legislations such as Human Rights Act 1993, Chemical Weapons Convention Act 2000 etc
prevalent in the country are the outcome of the efforts to implement the international obligations
and principles in the Indian scenario. Thus, in many ways the international treaties and other
instruments have worked as factors encouraging the nation to perform and protect the rights of
its citizens in a better manner.

As far as treaties on international humanitarian laws are concerned, India has ratified four main
treaties. However, it has not been a party to Additional Protocols I, II and III of the Geneva
Conventions 1949 till date. As regards International Human Rights regime is concerned, India is
party to the major ones like CEDAW, CRC, and Disability Rights Convention. On other areas
like Use of Weapons, Terrorism, International Criminal Law, Racial discrimination, Slavery,
Status of women etc., it has acceded to major treaties available at the international context. It has
also ratified to the SAARC Convention on Suppression of Terrorism, 1993 and its additional
protocol in 2004. India has ratified around 30 ILO conventions, as the status report of 2005
indicates. It has even ratified conventions during pre independence period which makes it very
clear that British India has always maintained a level of international consciousness. However, it
is not a party to many of the optional protocols accompanying to many of these conventions.
Whether this is to be attributed to intentional aloofment or reluctance to reduce the international
influence on the country or the way to protect the sovereignty of the country is to be checked.
But what could be inferred while cross examining the list of treaties ratified by India is that, the
Government has shown reluctance in ratifying treaties which may hinder its supremacy or those
which may confer more status to the individual in the international context. Likewise, it has not
signed treaties which work towards prevention of torture, ensuring rights to refugees. Similarly,
it has also not ratified the Rome Statute, 1998 resulting in the establishment of International
Criminal Court. More than the legal importance of these matters, the ratification of a treaty could
be considered as policy matters of the government. However, it is not a party to many of the
optional protocols accompanying to many of these conventions. Whether this is to be attributed
to intentional aloofment or reluctance to reduce the international influence on the country or the
way to protect the sovereignty of the country is to be checked.

However, in the context of the emerging trade regime, India has expressed its willingness to go
by the policies of liberalization and globalization, which started in the early 90s and is a party to
major treaties on international trade, intellectual property rights etc. For example, India is a party
to the intellectual property treaties like WIPO, TRIPS, Patent Co-operation Treaty, Paris
Convention for the Protection of Industrial Property, Budapest Treaty etc. India has been a
founder member of GATT and also of its successor WTO since January 1, 1995.

The Vienna Convention on the Law of Treaties is the UN agreement that codifies the rules that
guide treaty relations between States. The Convention provides an international legal framework
for these relations in times of peace (the effect on treaties of the outbreak of hostilities between
States is explicitly excluded from the reach of the Convention). This framework includes the
rules on the conclusion and entry into force of treaties, their observance, application,
interpretation, amendment and modification, and rules on the invalidity, termination and
suspension of the operation of treaties. By providing this legal framework, the Convention
promotes the purposes of the UN set forth in its Charter, including the maintenance of
international peace and security, the development of friendly relations between states and the
achievement of cooperation among nations.

The Vienna Convention on the Law of Treaties 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’ (Article 2(1)(a)).

A treaty is an agreement between sovereign States (countries) and in some cases international
organisations, which is binding at international law. An agreement between an Australian State
or Territory and a foreign Government will not, therefore, be a treaty. An agreement between
two or more States will not be a treaty unless those countries intend the document to be binding
at international law.

Treaties can be bilateral (between two States) or multilateral (between three or more
States). Treaties can also include the creation of rights for individuals.
Treaties are commonly called 'agreements', 'conventions', `protocols' or `covenants' , and less
commonly `exchanges of letters'. Frequently, `declarations' are adopted by the UN General
Assembly. Declarations are not treaties, as they are not intended to be binding, but they may be
part of a process that leads ultimately to the negotiation of a UN treaty. Declarations may also be
used to assist in the interpretation of treaties.

Treaties can be referred to by a number of different names: international conventions, international

agreements, covenants, final acts, charters, protocols, pacts, accords, and constitutions for international
organizations. Usually these different names have no legal significance in international law. Treaties may
be bilateral (two parties) or multilateral (between several parties) and a treaty is usually only binding on
the parties to the agreement. An agreement "enters into force" when the terms for entry into force as
specified in the agreement are met. Bilateral treaties usually enter into force when both parties agree to
be bound as of a certain date (Buergenthal et al., 2007).

There are many sources for locating treaties and agreements. Listed below are some general
sources where treaties are published (for both bilateral and multilateral treaties).

Official country treaty series (e.g., Canada Treaty Series). These series can be identified by
using the List of Treaty Collections by the United Nations Office of Legal Affairs (New York:
United Nations, 1956) [UN Room]. Also check a country legal research guide or search under
the subject [country]--foreign relations--treaties. Official treaty series are usually slower in
publication than other treaty sources and not all countries have treaty series. These series are
especially important for locating bilateral treaties.

IGO treaty series, such as League of Nations Treaty Series (Geneva: League of Nations, 1919-
1945) [KJ178 .L434] or United Nations Treaty Series (New York: United Nations, 1946-) [North
Reading Room KJ179.U58 TS]. Locate these sets by using the subject treaties--collections or by
checking a bibliography or publications catalog for the IGO. These sets are usually slow in
publication -- the U.N. is about 10 or more years behind. An important source for locating
multilateral treaties.

Official gazettes -- often the first official source (e.g., Bundesgesetzblatt, Part II for Germany).
See Roberts, A Guide to Official Gazettes and Their Contents (Washington, DC: Law Library,
Library of Congress, 1985) [K20.A1 R62 1985] or do a subject search using gazettes--
[country]. See also Government Gazettes Online.

Statutory compilations (chronological) such as Statutes at Large of the United States. Search
under the country's name or check a legal research guide.

Looseleaf services. Find a service on the subject matter of the treaty using Legal Looseleafs in
Print (New York: InfoSources Pub., 1981-) [Reference Desk KF1 .L45] or a legal research
guide. The frequency of updating for looseleafs vary from every week to every year to every 2-3
years. A good source for recent treaties and agreements.
Electronic sources (web databases or CD-ROMs). To identify relevant electronic sources use
database directories, catalogs, and legal research guides. Electronic sources are good for locating
very recent treaties.

Periodical literature (e.g., Beijing Review and ILM). Some periodicals regularly reprint major
treaties and others contain articles in which the text of a treaty being discussed might be

Other sources of treaty texts include proceedings of international conferences (sometimes, the
treaty is the "final act" of the conference); documents of international organizations and
national government bodies such as U.S. Congress (Senate Treaty Documents); monographic
subject compilations; newspapers (e.g., New York Times); governmental bodies (e.g., U.S.
State Dept. or foreign consulates); and press releases.

Some treaties are separately published (not part of a set)--these can be found by doing a title
search under the name of the treaty or the subject matter, to find compilations, add the word
"treaties" to a subject search as in taxation, double--united states--treaties. You may also try
other subject searches such as commercial treaties or european economic community
countries--commercial treaties.

Treaties & Agreements

 African Nuclear-Weapons-Free Zone Treaty

April 11, 1996

This treaty, also known as the Treaty of Pelindaba, ensures the denuclearization of

 Agreed Framework Between The United States of America And The Democratic People's
Republic of Korea

October 21, 1994

This framework between the United States and the DPRK resolves the nuclear issue on
the Korean Peninsula by replacing the DPRK’s graphite moderated reactors and related
facilities with other alternative energy arrangements.

 Anti-Ballistic Missile (ABM) Treaty

May 26, 1972

The United States and the Soviet Union agreed to each have only two ABM deployment
areas so restricted and located that the ABM areas cannot provide a nationwide defense
or become the basis for developing one.

 Arms Trade Treaty

June 3, 2013

This treaty establishes common international standards for regulating the international
trade in conventional arms, and seeks to prevent and eradicate the illicit trade in
conventional arms and prevent their diversion.

 Biological Weapons Convention (BWC)

April 10, 1972

This was the first multilateral disarmament treaty that banned the development,
production, and stockpiling of an entire category of weapons of mass destruction.

 Chemical Weapons Convention (CWC)

January 13, 1993

This is a multilateral treaty that requires, within a certain timeframe, the ultimate
destruction of chemical weapons and the prohibition of development, production,
stockpiling and use of chemical weapons.

 Comprehensive Test-Ban Treaty (CTBT)

September 24, 1996

This is a legally binding global ban on all nuclear explosive testing.

 Convention on Cluster Munitions

December 3, 2008

This treaty, through prohibition and a framework for action, addresses the humanitarian
consequences of civilians by cluster munitions.

 Intermediate-Range Nuclear Forces Treaty

December 8, 1987
This treaty between the United States and the Soviet Union requires destruction of
ground-launched ballistic and cruise missiles with certain ranges, and associated
equipment within three years of the Treaty entering into force.

 International Code of Conduct against Ballistic Missile Proliferation (ICOC)

November 25, 2002

This code is an agreement between states on how they should conduct their missile trade
and bolsters efforts to curb ballistic missile proliferation.

 Latin America Nuclear Weapons Free Zone Treaty (Treaty of Tlatelolco)

February 14, 1967

This treaty prohibits Latin American states from not only acquiring and possessing
nuclear weapons, but also from allowing the storage or deployment of nuclear weapons
on their territories by other states.

 Limited Test Ban Treaty (LTBT)

August 5, 1963

This prohibits nuclear weapons tests in the atmosphere, in outer space, under water, and
in any other environment if the explosions cause radioactive debris to be present outside
the territory of a responsible state.

 Mine Ban Treaty

December 3, 1997

This treaty seeks to eradicate landmines by prohibiting the use, stockpiling, production,
and transfer of antipersonnel mines.

 Missile Technology Control Regime (MTCR)

April 16, 1987

This limits the spread of ballistic missiles and other unmanned delivery systems used for
chemical, biological and nuclear attacks by encouraging its 35 member states to restrict
their exports of technologies capable of delivering any type of WMD.

 New Strategic Arms Reduction Treaty

April 8, 2010
A treaty between the Russian Federation and the United States with central standards on
further reduction and limitation of offensive arms to be met by February 5, 2018.

 Nuclear Nonproliferation Treaty (NPT)

July 1, 1968

This treaty is the basis of international cooperation on stopping the spread of nuclear
weapons by promoting disarmament, nonproliferation, and peaceful uses of nuclear

 Open Skies Treaty

March 24, 1992

This treaty establishes a regime of unarmed aerial observation flights over state territories
and enhances mutual understanding of and increase transparency in military forces and

 Outer Space Treaty

January 27, 1967

This prevented states from placing nuclear weapons or other WMD’s into Earth’s orbit,
and prohibited states from installing such weapons on the Moon or celestial bodies or
stationing them in outer space in any other manner.

 Peaceful Nuclear Explosions Treaty (PNET)

May 28, 1976

This treaty between the United States and the Soviet Union prohibits peaceful nuclear
explosions not covered by the Threshold Test Ban Treaty, and verifies all data exchanges
and visits to sites of explosions through national technical means.

 Seabed Arms Control Treaty

February 11, 1971

This treaty sought to prevent the introduction of international conflict and nuclear
weapons in areas already free of them.

 South Pacific Nuclear Weapons Free Zone Treaty (Treaty of Rarotonga)

August 6, 1985
This prohibits the manufacture, possession, or control of nuclear explosives, the dumping
of radioactive wastes at sea within the defined zone, and the testing or stationing nuclear
explosive devices within state territories.

 Strategic Arms Limitation Talks (SALT I)

July 1, 1968

These negotiations between the United States and the Soviet Union slowed the arms race
in strategic ballistic missiles armed with nuclear weapons by curbing the manufacture of
strategic missiles capable of carrying nuclear weapons.

 Strategic Arms Limitation Talks II (SALT II)

June 18, 1979

This treaty between the United States and the Soviet Union replaced the Interim
Agreement with a long-term comprehensive treaty that provided broad limits on strategic
offensive weapons systems.

 Strategic Arms Reduction Treaty I (START I)

July 31, 1991

This treaty between the United States and the Soviet Union/Russian Federation was the
first to call for reductions of U.S. and Soviet/Russian strategic nuclear weapons and
served as a framework for future, more severe reductions.

 Strategic Arms Reduction Treaty II (START II)

January 3, 1993

This treaty between the United States and the Russian Federation implemented reductions
in two phases in order to meet the established limit on strategic weapons for both states.

 Strategic Offensive Reductions Treaty (SORT)

May 24, 2002

This treaty required the United States and the Russian Federation to reduce their
deployed strategic nuclear forces. It took effect and expired on Dec. 31, 2012. Both could
then change the size of their deployed strategic nuclear forces.

 Threshold Test Ban Treaty (TTBT)

July 3, 1974
This treaty between the United States and the Soviet Union established a nuclear
threshold through the prohibition of the testing of new or existing nuclear weapons with a
yield exceeding 150 kilotons.

 Treaty on the Prohibition of Nuclear Weapons

July 17, 2017

This treaty prohibits the use, threat of use, development, production, manufacturing,
acquisition, possession, stockpiling, transfer, stationing and installment of nuclear
weapons or assistance with any prohibited activities.

An introduction to the Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties of 1969 (VCLT) is the main instrument that
regulates treaties. It defines a treaty and relates to how treaties are made, amended, interpreted,
how they operate and are terminated. It does not aim to create specific substantive rights or
obligations for parties – this is left to the specific treaty (i.e. the Vienna Convention on
Diplomatic Relations creates rights and obligations for States in their diplomatic relations).

VCLT governs treaties irrespective of its subject matter or objectives – e.g.: treaties to regulate
conduct of hostilities (Geneva Conventions on 1949); treaties setting up an international
organisation (UN Charter of 1945); and treaties regulating matters between States and other
parties on the law of the sea (UN Convention on the Law of the Sea of 1982).

VCLT is a “treaty on treaties”.

What is a treaty?

Article 2(1) (a) of the VCLT defines a treaty as:

“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;

Lets analyse this definition.

(1) International agreement concluded between States governed by international law

The VCLT relates only to treaties concluded between States who are parties to the VCLT, and
for treaties that entered into force after the VCLT came into force (The VCLT came into force in
1980. See Article 4 of the VCLT). NB: this does not prevent a provision of the VCLT that
reflects customary international law from applying to a treaty even if it does not meet the above
requirements. In the Kasikili/Sedudu Island Case the ICJ held that Article 31 of the VCLT on
treaty interpretations reflected customary international law and that therefore applied despite the
fact that both Botswana and Namibia were not parties to the VCLT and the treaty in question
entered into force in 1890. See para 18.

VCLT applied to treaties between States. This does not mean that treaties cannot be concluded
between other subjects of international law. As the International Law Commission pointed out in
its commentaries, Articles 1, 2 (a) and 3 is not “in anyway intended to deny that other subjects of
international law, such as international organisations and insurgent communities, may conclude
treaties.” See Articles 3 and 4 of the VCLT. The latter says:

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. ✐Read the Commentary to Article 4.

✐See also Convention on Treaties between States and International Organisations of 1986,
which regulated treaties between international organisations themselves and between them and
States (for a background on negotiations click here).

VCLT relates only to treaties that are governed by international law. There are treaties
concluded between States that the national law of

Treaty of Waitangi was signed by the Māori and British Crown in New Zealand in 1840.
Remember that the use of the term ‘treaty’ does not itself mean that it comes under the VCLT.
See Cameroon vs Nigeria on ‘treaties’ signed with representatives of indigenous peoples during
the colonial period giving protectorate or territorial or sovereignty rights to the colonial power.

one of the parties or by some other national law system chosen by parties regulates, for example,
commercial contracts. These are international agreements, but they do not fall within the VCLT.
(Dixon speaks of concessionary contracts that could be regarded as “internationalized”). ✐Read
also the Anglo-Iranian Oil Case, ICJ, on developing and exploiting natural resources.

Unlike in domestic law, a treaty does not need reciprocity (consideration) before it becomes a
legally binding agreement. ✐See for example the 1984 Agreement of UK and China on Hong
Kong and ICJ’s judgement on the Nuclear Tests Case (see next lesson).

(2) Written agreements embodied in a single instrument or in two or more related instruments

VCLT relates only to written treaties, whether it is embodied in a single instrument or more than
one instrument (for example, exchange of notes are invariably found in two or more
instruments). The ILC clarifies that the word “written” does not mean that oral and tacit
agreements under international law have no legal force or that the substance of the VCLT articles
may not be relevant to them – it merely means that they are not dealt under the VCLT. Relevant
customary law provisions of the VCLT continue to apply to all treaties, regardless of whether it
is codified or not. On binding unilateral declarations, see next lesson.

(3) Whatever its particular designation

The law of treaties cover both formal agreements (treaties, convention, protocols, charter,
covenant, pact, act, statute) and informal agreements (agreed minutes, exchange of notes or
letters, memorandum of understanding).

In Bangladesh vs Myanmar, ITLOS discussed whether the “agreed minutes” of 1974 was a
legally binding agreement within the meaning of Article 15 of UNCLOS. In determining that it
was not a legally binding agreement the tribunal considered:

the substance of the minutes – the minutes reflected the fact that “Minutes are a record of the
conditional understanding during the course of negotiations and not an agreement within the
meaning of Article 15 of the Convention”

the circumstances surrounding the adoption – “From the beginning of the discussions Myanmar
made it clear that it did not intend to enter into a separate agreement on the delimitation of the
territorial sea and it wanted a comprehensive agreement covering the territorial sea, the
exclusive economic zone and the continental shelf”.

the authority to conclude a legally binding agreement – “the head of the Burmese Delegation was
not an official who, in accordance with article 7, paragraph 2, of the Vienna Convention could
engage his country without having to produce full powers… no evidence was provided that the
Burmese representatives were considered as having the necessary authority to engage the
country pursuant to article 7, paragraph 1, of the Vienna Convention.”

internal acceptance as a treaty – “the fact that the Parties did not submit the 1974 Agreed
Minutes to the procedure required by their respective constitutions for binding international
agreements is an additional indicator that the Agreed Minutes were not intended to be legally
binding.” ✐How would you reconcile this statement with Article 27 of the VCLT?

See also the Case Concerning Maritime Delimitation and Territorial Question between Qatar and
Bahrain (Qatar vs Bahrain) (Jurisdiction and Admissibility). In this case, the Court held that
the 1990 minutes of meeting constituted a legally valid agreement because:

“…international agreements may take a number of forms and be given a diversity of names”; i.e
the fact that this is called “minutes of meeting”, in itself, does not deny it of its character as a
treaty under Article 2(1) (a) of the VCLT.

the terms of the agreement and the particular circumstances in which it was drawn up indicates
that these minutes do not “…merely give an account of discussions and summarise points of
agreement and disagreement. The enumerate commitments to which the parties have consented.
Thus they create rights and obligations for parties under international law.”

The intention of the Bahrain Foreign Minister, at the signing of the document, that the minutes
are to be considered only a “statement recording a political understanding” and not a legal
agreement – is irrelevant.

The fact that the minutes were not registered or registered late, as a treaty, according to Article
102 of the UN Charter does not deprive it of its legal validity.

“Nor is there anything in the material before the Court which would justify deducing from any
disregard by Qatar of its constitutional rules relating to the conclusion of treaties that it did not
intend to conclude, and did not consider that it had concluded, an instrument of that kind; nor
could any such intention, even if shown to exists, prevail over the actual terms of the instrument
in question.” ✐How would this differ from Bangladesh vs Myanmar?

In conclusion, irrespective of what it is called, an instrument will be a treaty if it creates rights

and duties that are enforceable under international law. The latter is to be judged based on the
nature of the agreement (see next lesson), actual terms of the agreement and the circumstances in
which the said agreement was created.