DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW”

“INTERNATIONAL LAW OF TREATIES

”

SUBMITTED TO- SUBMITTED BY-

Mr. ABDULLAH NASIR SHIVANI SINGH
ASSISTANT PROFFESOR OF LAW ROLL NO- 127
DR. RMLNLU, LUCKNOW. B.A.LLB(HONS.)/SEM IV

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 TABLE OF CONTENTS

 Introduction……………………………………………………………..03
 Definition and conclusion of Treaties…………………………………..04
o 1. Negotiation………………………………………………………..05
o 2. Consent……………………………………………………………05
 Consent by Signature……………………………………………..05
 Consent by the exchange of Instruments…………………………06
o 3. Signature Followed By ratification………………………………..06
 Reservation……………………………………………………………....07
 Observance of treaties…………………………………………………....09
o a. Pacta sunt sarvanda………………………………………………...09
o b. The territorial scope of treaties…………………………………….09
o c.  Interpretation of treaties…………………………………………...09
o d. Treaties and the third state………………………………………….10
 Invalidity, termination and suspension of the treaty………………………11
o 1. Invalidity…………………………………………………………….11
 a.  Violation of an internal law………………………………………11
 b. Error……………………………………………………………….11
 c.  Fraud, Corruption and Coercion…………………………………..11
 d. Conflict with a peremptory norm………………………………….12
o 2. Termination……………………………………………………………12
o 3. Procedure and consequence of the termination………………………..13
 Conclusion………………………………………………………………….. 14
 References……………………………………………………………………15 

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 INTRODUCTION

Treaties have been the part of world community since time immemorial, they have been used
by various kings, princes, states as a way of establishing peaceful pacts. Article 38 of the ICJ
statute dictates treaties to be one of the important sources of International Law. Treaties are a
formal and direct source of International Law which regulates the behaviour and relationships
between nations. Majority of conduct between states are governed by the nature of the Treaty
device which provides for the rights and obligations of the parties forming part of the treaties.

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 DEFINITION AND CONCLUSION OF TREATIES

Treaties are nothing but an agreement between the states that are entered mutually, they can
also be referred to as agreement, convention, protocol, charter, Pact, Protocol or concordat.
An International Convention on the Law of Treaties was signed in 1969 and came into force
in 1980, while a Convention on Treaties between States and International Organisations was
signed in 1986. Definition of the term “Treaty” as given under Section 2(1)(a) of Vienna
convention on the law of treaties is that it means an international agreement concluded
between States in written form and governed by international law.

Vienna convention on the law of treaties, 1969 is commonly referred to as “treaty on

treaties,” that forms an essential part of customary International Law which provides for the
basic framework regarding the characteristics and behaviour of 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.

They can take various forms which have been confirmed by the ICJ in the Case Concerning
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar vs
Bahrain) where it explained the relationship between the “minutes of the meeting” and the
character of the treaty under Article 2(1) (a) of the VCLT. Treaties are binding in nature and
it provides the parties to follow their obligations in good faith. Treaties can be between two
parties that is Bilateral or more than two parties that is multilateral.

Treaties are binding but they do not create any legal obligation as to its each provision, their
main intention is to create legal relations between parties to regulate their relationship
through an agreement. Treaty is a formal document which goes through several steps before
its conclusion which are as follows:

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1. NEGOTIATION

The intention of the parties involved in dictating the terms of the treaty decides its nature,
these parties can be Government, States, Head of States or Government Departments. It often
undergoes several negotiations before it becomes a formal document. The duty to regulate the
formation of a treaty is handed over to the Executive branch of the state.  Article 8 of
VCLT states that any action relating to the making of a treaty by a person not authorised as
required will be without any legal effect unless the state involved afterwards confirms the act.

All the parties involved, negotiate and try to find common grounds for coming to an
agreement. It is also to be noted, that not only the parties involved in the negotiations form
part of the treaty, but other states can also enter the same later through “Accession.” After
negotiations, the next step requires the consent of all the parties which have their vested
interest in it.

2. CONSENT

Treaties are binding in nature which creates rights and obligations for states in the
international community, therefore consent is a very important step as it may bind the states
to follow and uphold the said treaty. Article 9 of VCLT provides two ways by which a treaty
is adopted that is through consent which includes consent of all the parties participating in its
formation or adoption in international conferences which takes place by a vote of two-thirds
of the state’s present and voting unless by the same majority it is decided to apply a different
rule.

Treaties are a major document and there are various ways by which states can give consent so
that a treaty can come into existence, as per Article 11 of VCLT it includes, consent by
signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or
accession, or by any other means if so agreed.

 Consent by Signature:
It is to be noted as per Article 12 of the VCLT, three conditions have been laid out as
to when the signature to the treaty leads to consent which is as follows:

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 1. It is provided in the treaty itself that signature shall take effect.
2. It is agreed by the state during the negotiation that states signature shall take effect.
3. The intention of the State to give effect to the signature appears from the full
powers of its representation or during the negotiation.

The act of signing a treaty is a very significant step which needs to be conducted cautiously,
the duty shall be given to a proper formal authority like the head of the state or its
representatives to sign the same.

 Consent by the exchange of Instruments

According to Article 13 of the VCLT, in case of treaties which are expressed through
any instrument that is exchanged between the consenting parties, it may be expressed
by a declaration made in the instrument giving effect or otherwise establishing that
those states had agreed that the exchange of instruments should have that effect.

3. SIGNATURE FOLLOWED BY RATIFICATION

Once the consent is given to a treaty, the next step is its ratification which officially declares
that a treaty is in effect between the concerned parties. Ratification of a treaty leads to the
creation of formal obligations and rights. The signing of a treaty does not lead to its
automatic ratification, it should be acknowledged by proper authority. It is important to
understand the gap between the ratification and signature, it is there to encourage public
opinion as more time ensures that the treaty is also beneficial for the state in the eyes of the
public.

The process of ratifying a treaty differs from state to state however in Article 14 of the
VCLT certain conditions are given which leads ratification of a treaty which are as follows:

 When the treaty provides for the expression of consent by means of ratification.
 During the negotiation, the states agree for ratification
 The treaty is signed subject to ratification
 There is an intention to ratify the treaty by the representative of the state

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It is mainly up to the provisions of the treaty which dictates the status of the parties after its
ratification.

RESERVATION
Reservation to a treaty is given under Article 2(d) of VCLT defining ‘reservation’ as a 
unilateral statement, 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. 

Reservation allows states to have a way of consenting to those provisions which are
beneficial to them and reject other provision of the treaty. With the help of these, states have
a way of excluding the legal effects of those provisions of the treaty which it objects. A state
can exercise the privilege of reservation only before finalising the treaty, once a treaty is
signed it can be reserved later.

It promotes more participation from the states in the international community especially in
cases of the multinational treaty by giving them an opportunity to agree and disagree as to
their preferred obligations.

A test has been laid down to analyse the practice of reservation to a treaty which includes
determining the substance of the interpretative declaration given by the state that is, one has
to look into the declaration and interpret its word as to whether the intention behind it
includes reservation state.

In the Anglo-French continental shelf case, the arbitral tribunal adjudged that the acceptance
of France through an interpretive declaration to Article 6 of the Geneva Convention on the
Continental Shelf involved laying down of a specific condition. It, therefore, had the purpose
of seeking to exclude or modify the legal effect of certain treaty provisions about their
application by the reserving state and thus constituted a reservation.

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In another case adjudged by the European Court of Human Rights that is Belilos Case, it was
stated that substantive content of the declaration is necessary to understand the intention of
the state.

Therefore, in order to determine whether a unilateral statement made constitutes a reservation

or an interpretative declaration, it is necessary to interpret the ordinary meaning of the
statement. The consent of all the states participating in the treaty is necessary to be
considered before reserving to a treaty.

The procedure by which states can reserve to treaty is prescribed under Article 19 of the
VCLT, according to which it can be done by signing, ratifying, accepting, approving or
acceding to a treaty, but they cannot be made where the reservation is prohibited by the
treaty, or where the treaty provides that only specified reservations may be made and these do
not include the reservation in question, or where the reservation is not compatible with the
object and purpose of the treaty. 

Section 2 of the Vienna Convention on the law of treaties provides for the rules to be
followed during the reservation of a treaty, as per it the relationship of the contracting states
changes according to their reservation. It is also up to the treaty to allow for a reservation if it
does not allow the same it may depend upon the behaviour of the other states.

In the case of Human rights treaties, it has been noted that reservations are generally
impermissible to apply the full effects of the provisions of the treaties. Reservations to a
multilateral treaty may be withdrawn, subject to agreement to the contrary, only when the
other states to the treaty have received notification of that withdrawal.

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 OBSERVANCE OF TREATIES
Part 3 of the Vienna Convention of the law of treaties deals with the rules regarding the
observance of the treaty which comes up once the treaty has been finalised and ratified by the
states. Following rules are observed under the aforesaid section of the VCLT:

 Pacta sunt sarvanda

It is the customary rule of International law that treaties should be performed by the
states in good faith which is also evident in the United Nations Charter under Article
2 which states that Members are required to perform their obligations in good faith as
stated in the charter. The principle is based on the most fundamental rule of
International law that treaties are meant to be performed by the ratifying states and it
should be taken care that states do not take their international obligations lightly.

 The territorial scope of treaties

As provided under Article 29 of the VCLT a treaty is binding upon the entire territory
of each party unless it is provided under the treaty for its restricted application.

 Interpretation of treaties

Article 31 to Article 33 of the Vienna Convention of the law of treaties dictate the
rules regarding the interpretation of the treaties which can be summarized into three
rules that are:

1. Analysing the actual text of the agreement.

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 2. The intention of the parties negotiating on the treaty.
3. Consideration of the object and purpose of the treaty.

The international court of justice in the case of Competence of the General Assembly
for the Admission of a State to the United Nations noted that the duty of the tribunal is
to look into the ordinary meaning of the treaty. It has also been noted by the
international court that the process of interpretation ‘is a judicial function, whose
purpose is to determine the precise meaning of a provision, but which cannot change
it.’ Analysing the background of the workings of a treaty and its preparatory works
(travaux pr´eparatoires) can help in interpretation of the treaty.

Where a treaty is authenticated in more than one language, as often happens with multilateral
agreements, Article 33 provides that, in the absence of agreement, in the event of a difference
of meaning that the normal processes of interpretation cannot resolve, the meaning which
best reconciles the texts, having regard to the object and purpose of the treaty, shall be
adopted.

 Treaties and the third state

The general rule of treaties is that they are binding only to the states that are party to it
and not to any third member. Therefore, it cannot create an obligation on another state
however there is one major exception to this rule which covers the area of customary
international law that is if a treaty forms part of customary international law than it is
the duty of the states not to violate it.

As per Article 35 of the VCLT, an obligation may arise for the third state if the
provisions of the treaty on express written opinion of the parties to the treaty create an
obligation for another state and the state gives its consent for the same which has been
referred by the ICJ in the Free Zones case that it is the intention of the states that have
to be considered.

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INVALIDITY, TERMINATION AND SUSPENSION OF THE
TREATY
Vienna convention on the law of treaties provides a list of exhaustive rules under which a
treaty can be terminated however, it is necessary to distinguish between the rules of
termination and grounds for non-performance of a treaty. Following are the grounds for
termination of a treaty:

 Invalidity

Under article 42 the consent to abide by the treaty in force is presumed by the states
however there are certain grounds which can invoke its invalidity which are:

1. Violation of an internal law

It should be noted that a state may not invoke a provision of its internal law as a
justification for its failure to carry out an international obligation. This is a general
principle of international law but if it violates a fundamental law than as per Article
46 it can invalidate a treaty.

2. Error

Article 48 declares that a state may only invoke an error in a treaty as invalidating if
the error relates to a fact or situation which was assumed by that State to exist at the
time when the treaty was concluded and formed an essential basis of its consent to be
bound by the treaty. This restrictive approach is in harmony with the comments made
in a number of cases, including the Temple case by the ICJ where it noted that in view
of the character and qualifications of the persons who were involved on the Thai side
in examining the map, Thailand could not put forward a claim of error.

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3. Fraud, Corruption and Coercion

4. Conflict with a peremptory norm

VCLT Article 53 provides that a treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general international law (jus cogens). Further, a
treaty becomes void if it conflicts with a peremptory norm of general international
law established after the treaty comes into force.

 Termination

VCLT Part V Section 3 deals with termination and suspension of the operation of
treaties. A treaty may, of course, specify the conditions of its termination and may
provide for denunciation by the parties. Where a treaty contains no provisions
regarding its termination, the existence of a right of denunciation depends on the
intention of the parties, which can be inferred from the terms of the treaty and its
subject-matter, but, according to the VCLT, the presumption is that the treaty is not
subject to denunciation or withdrawal.

At least in certain circumstances, denunciation is conditional upon a reasonable period

of notice. Some important law-making treaties contain no denunciation clause. Treaty
of peace is not open to unilateral denunciation. Following are the grounds of the
termination and suspension of a treaty:

 Material breach
 Treaty provision and consent
 The fundamental change of circumstances.

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  Procedure and consequence of the termination

The consequences of invalidity, termination, and suspension will depend on the

grounds relied upon. Certain grounds of invalidity must be invoked by a party and so
the treaties concerned are not void but voidable. 

These grounds are incompetence under internal law, restrictions on the authority of
representative, error, fraud, and corruption of a representative.

The same is true of certain grounds of termination—material breach, impossibility and

fundamental change of circumstances. On the other hand, a treaty is void in case of coercion
of a state (invalidity), and conflict with an existing or emergent peremptory norm (invalidity
or termination). Consent to be bound by a treaty procured by the coercion of the
representative of a state ‘shall be without any legal effect’ (Article 51, invalidity).

The rules governing separability of treaty provisions (Article 44), that is, the severance of
particular clauses affected by grounds for invalidating or terminating a treaty, do not apply to
the cases of coercion of a representative, coercion of a state, or conflict with an existing
peremptory norm. Articles 69 to 72 deal with the consequences of invalidity, termination, or
suspension.

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 CONCLUSION 
Vienna Convention on the Law of Treaties is a comprehensive code that codifies the
relationship between the states and a treaty. It includes the framework regarding the
conclusion, observance and interpretation of the treaty. It also dictates various grounds for
terminating a treaty and the procedure to be followed that. Generally, it is considered that a
treaty may enter into force after it has been signed and ratified. Parties to a treaty may
exercise the right of the reservation to preserve their interest. The purpose of the Law of
Treaties is to expand and develop a friendly relationship between nations and achieve
cooperation amongst them.

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 REFERENCES

1. ICJ Reports, 1950, pp. 4, 8.

2. https://www.un.org/en/sections/un-charter/un-charter-full-text/

3. https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

4. https://www.icj-cij.org/files/case-related/9/1885.pdf

5. http://www.worldcourts.com/pcij/eng/decisions/1932.06.07_savoy_gex.htm

6. Draft guideline 1.3.1 of the ILC Guide to Practice, A/61/10, 2006, pp. 327 ff

7.  Y. Tyagi, ‘The Conflict of Law and Policy on Reservations to Human Rights

Treaties’, 71 BYIL, 2000, p. 181.

8. https://hudoc.echr.coe.int/eng?i=001-57434

9. Ruwanthika Gunaratne, Law of treaties: Vienna convention on the law of treaties

10. https://legal.un.org/riaa/cases/vol_XVIII/3-413.pdf

11. https://www.icj-cij.org/files/case-related/87/087-19940701-JUD-01-00-EN.pdf

12. https://www.icj-cij.org/files/case-related/45/045-19620615-JUD-01-00-EN.pdf

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