Chapter 3: The Law of Treaties
Introduction
Treaties are agreements between international entities (e.g.,
states, international organizations) that create binding obligations.
The principle of pacta sunt servanda (agreements must be kept)
is fundamental to treaty law.
The 1969 Vienna Convention on the Law of Treaties (VCLT) is
the primary legal framework governing treaties between states. It
largely reflects customary international law.
The 1986 Vienna Convention governs treaties involving
international organizations but is not yet in force.
The VCLT focuses on the form of treaties (e.g., signature,
ratification) rather than their substance (e.g., obligations,
enforcement).
Two Basic Principles
1. Free Consent:
o Treaties must be based on the free consent of states,
reflecting state sovereignty.
o Consent can be expressed through signature, ratification, or
accession.
2. Good Faith (Pacta Sunt Servanda):
o Once a treaty enters into force, parties must perform their
obligations in good faith (Article 26 VCLT).
o Domestic law cannot excuse a state from its treaty obligations
(Article 27 VCLT).
The Concept of Treaty
Definition: A treaty is a written agreement between states
governed by international law, regardless of its name (e.g., treaty,
convention, protocol, MoU).
Key Elements:
o Written form: The VCLT applies only to written treaties, but
oral agreements can still be binding under customary
international law.
o Governed by international law: Treaties must be subject to
international law, not domestic law.
o Designation: The name of the agreement (e.g., treaty, MoU)
does not determine its legal status, though some argue
that Memoranda of Understanding (MoUs) are not legally
binding.
Conclusion of Treaties
Who Can Conclude Treaties?:
o Heads of State, Heads of Government, and Foreign
Ministers can bind their states without special authorization.
o Other representatives (e.g., ambassadors) require full
powers (authorization from their state) to negotiate or sign
treaties.
Consent to be Bound:
o Signature: Can express consent to be bound (for less
significant treaties) or indicate agreement on the text (with
ratification required).
o Ratification: Formal confirmation of consent, often required
for significant treaties.
o Provisional Application: Treaties can be applied
provisionally before formal ratification (Article 25 VCLT).
Interim Obligation: States must not act in a way that defeats the
object and purpose of a treaty before it enters into force (Article 18
VCLT).
Reservations
Definition: A unilateral statement by a state to modify or exclude
certain provisions of a treaty.
Permissibility:
o Reservations are allowed unless the treaty prohibits them or
they are incompatible with the treaty’s object and purpose
(Article 19 VCLT).
o The ICJ’s Genocide Convention Advisory
Opinion established that reservations must be compatible
with the treaty’s object and purpose.
Responses to Reservations:
o Acceptance: The reservation is accepted by other parties.
o Silence: If no objection is made within 12 months, the
reservation is deemed accepted (Article 20(5) VCLT).
o Objection: A state can object to a reservation but still
maintain treaty relations with the reserving state.
o Rejection: A state can reject the reservation and refuse to
have treaty relations with the reserving state.
Interpretation of Treaties
General Rule (Article 31 VCLT):
o Treaties must be interpreted in good faith, according to the
ordinary meaning of the terms, in their context, and in light of
the treaty’s object and purpose.
o Supplementary Means: Preparatory work (travaux
préparatoires) can be used if the text is ambiguous or leads to
absurd results (Article 32 VCLT).
Approaches to Interpretation:
o Textual: Focuses on the ordinary meaning of the text.
o Historical: Focuses on the intent of the drafters.
o Teleological: Focuses on the treaty’s purpose and goals.
Subsequent Practice: The parties’ subsequent practice in
applying the treaty can inform its interpretation.
Application of Treaties
Temporal Application:
o Treaties generally do not have retroactive effect unless
explicitly stated (Article 28 VCLT).
Territorial Application:
o Treaties apply to the entire territory of a state unless specified
otherwise (e.g., colonial territories).
Conflict of Treaties:
o Lex Posterior: A later treaty prevails over an earlier one if
the parties are the same (Article 30 VCLT).
o Lex Specialis: A more specific treaty prevails over a general
one.
o UN Charter Priority: Obligations under the UN Charter
prevail over other treaty obligations (Article 103 UN Charter).
Treaty Revision
Amendment: Formal changes to a treaty that require the consent
of all parties (Article 40 VCLT).
Modification: Changes agreed upon by some parties, provided they
do not affect the rights of others (Article 41 VCLT).
Informal Change: Treaties can evolve through interpretation,
practice, or the implied powers of international organizations.
Validity and Invalidity
Grounds for Invalidity:
o Coercion: A treaty is void if procured by coercion of a state or
its representative (Articles 51–52 VCLT).
o Error: A treaty may be invalid if based on a fundamental error
(Article 48 VCLT).
o Fraud or Corruption: A treaty is void if procured through
fraud or corruption (Articles 49–50 VCLT).
o Jus Cogens: A treaty violating a peremptory norm (e.g.,
prohibition of genocide) is void (Article 53 VCLT).
Consequences of Invalidity: An invalid treaty has no legal effect,
and parties must restore the status quo ante.
Termination and Suspension
Termination by Agreement:
o Parties can agree to terminate a treaty or include an expiry
clause.
o A treaty can also be terminated by desuetude (disuse) if it is
no longer applied.
Unilateral Termination:
o Material Breach: A party can terminate a treaty if another
party commits a material breach (Article 60 VCLT).
o Supervening Impossibility: A treaty can be terminated if
performance becomes impossible (Article 61 VCLT).
o Fundamental Change of Circumstances (Rebus Sic
Stantibus): A treaty can be terminated if circumstances
change fundamentally, making performance radically different
(Article 62 VCLT).
Suspension: A treaty’s operation can be temporarily suspended
under similar grounds as termination.
Key Cases
Eastern Greenland Case (1933): Established that foreign
ministers can bind their states through statements.
Genocide Convention Advisory Opinion (1951): Set the
standard for permissible reservations.
Gabčíkovo-Nagymaros Case (1997): Discussed the doctrine of
fundamental change of circumstances.
Racke Case (1998): The CJEU upheld the suspension of a treaty
due to a fundamental change of circumstances.
Final Remarks
Treaties are often the result of disagreement reduced to writing,
and their interpretation and application remain highly political.
The VCLT provides a framework for treaty law, but many issues (e.g.,
reservations, termination) are resolved through state practice and
political negotiation.
Exam Tips
Focus on the VCLT articles (e.g., Articles 26, 31, 53, 60) and their
application in key cases.
Understand the difference between reservations, interpretation,
and termination.
Be prepared to discuss the political and legal challenges of
treaty-making and enforcement.
Review the key cases and their implications for treaty law.