Handout 3

International Law and Municipal Law

With the rise and extension of international law, questions begin to arise paralleling the
role played by the state within the international system and concerned with the
relationship between the internal legal order of a particular country and the rules and
principles governing the international community as a whole. Municipal law governs the
domestic aspects of government and deals with issues between individuals, and between
individuals and the administrative apparatus, while international law focuses primarily
upon the relations between states. There are many instances where problems can emerge
and lead to difficulties between the two systems. In a case before a municipal court a rule
of international law may be brought forward as a defence to a charge.

A) The Theories

Positivism stresses the overwhelming importance of the state and tends to regard
international law as founded upon the consent of states. It is actual practice, illustrated
by custom and by treaty, which formulates the role of international law, and not
formalistic structures, theoretical deductions or moral stipulations. Accordingly, when
positivists such as Triepel and Strupp consider the relationship of international law to
municipal law, they do so upon the basis of the supremacy of the state, and the existence
of wide differences between the two functioning orders. This theory, known as dualism,
stresses that the rules of the systems of international law and municipal law exist
separately and cannot purport to have an effect on, or overrule, the other.

This is because of the fundamentally different nature of inter-state and intra-state

relations and the different legal structure employed on the one hand by the state and on
the other hand as between states. Where municipal legislation permits the exercise of
international law rules, this is on sufferance as it were and is an example of the supreme
authority of the state within its own domestic jurisdiction, rather than of any influence
maintained by international law within the internal sphere.

The monist approach tend to fall into two distinct categories: those who, like
Lauterpacht, uphold a strong ethical position with a deep concern for human rights, and
others, like Kelsen, who maintain a monist position on formalistic logical grounds. The
monists are united in accepting a unitary view of law as a whole and are opposed to the
strict division posited by the positivists.

The ‘naturalist’ strand represented in England by Lauterpacht’s works sees the primary
function of all law as concerned with the well-being of individuals, and advocates the
supremacy of international law as the best method available of attaining this. It is an
approach characterised by deep suspicion of an international system based upon the
sovereignty and absolute independence of states, and illuminated by faith in the capacity

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of the rules of international law to imbue the international order with a sense of moral
purpose and justice founded upon respect for human rights and the welfare of
individuals.

Law is regarded as constituting an order which lays down patterns of behaviour that
ought to be followed, coupled with provision for sanctions which are employed once an
illegal act or course of conduct has occurred or been embarked upon. Since the same
definition appertains within both the internal sphere and the international sphere, a
logical unity is forged, and because states owe their legal relationship to one another to
the rules of international law, such as the one positing equality, since states cannot be
equal before the law without a rule to that effect, it follows that international law is
superior to or more basic than municipal law.

A state is said to be monist when the international instruments that it has ratified are
applicable directly by domestic courts without going through parliament for
domestication. These international treaties and conventions are treated as domestic law
and in fact in some states they take precedence over the municipal laws. The monist
theory supposes that international law and national law are simply two components of a
single body of knowledge called 'law'. 'Law' is seen as a single entity of which 'national'
and 'international' versions are merely particular manifestation. In the case of conflicts
between the two systems, international law is said to prevail. Hans Kelsen presents this
explanation where he sees the superiority of international law as a direct consequence of
his "basic norm" of all law. This basic norm (fundamental principle from which all law
gains its validity) is that 'state should behave as they customarily have behaved'.
According to Kelsen therefore, as a consequence of this, International Law is representing
a higher legal order and as such supreme, because it is derived from the practice of states
and national law is derived from the states as established in international law.

Dualism

Dualist states do not apply international law directly in their domestic courts unless such
law has been domesticated. Where a country’s laws provide for a dualist approach to
treaty making, ratification requires the approval of the national legislature in order to
have the force of law. The effect of this process is to transform the international law into
a national one.
Dualist doctrine is based upon the perception of two quite distinct systems of law
operating separately, and holding that before any rule or principle of international law
can have any effect within the domestic jurisdiction, it must be expressly and specifically
transformed into municipal law.

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B) The Relationship between International Law and Municipal Law

Public international law leaves each country to decide on the relationship between
international law and its municipal law. In this respect, there are two main theories,
dualist and monist, that have influenced the constitutional law of each country as to the
application of international law by municipal courts and other domestic bodies.
• Dualism: according to dualism, international law and municipal law are two
independent and separate systems. Neither legal system has the power to create or alter
the rules of the other. However, as they may regulate the same subject matter a conflict
may arise in which case a municipal court will apply municipal law. Should this cause a
breach of international law then this would be a matter to be settled by means of
diplomatic protest or of a judgment of an international court.
• Monism. There are many varieties of monism but its main premise is that international
law and municipal law are part of the same legal order. As they may regulate the same
subject matter any conflict between the two would be solved in favour of international
law.

A third theory is that formulated by Sir Gerald Fitzmaurice. He argued that as the systems
of international and national law do not operate in common fields they can never come
into conflict, but what may occur is a conflict of obligations, in which case the domestic
law remains unaffected but a State will, on the international scene, incur liability for a
breach of an international obligation.

C) Municipal Law before International Courts and Tribunals

The rule is that in the event of a conflict between international law and national law,
international law prevails.

D) International Law before UK Courts

Two doctrines are of relevance to the status and treatment of customary international
law and treaties before UK courts: the doctrine of transformation and the doctrine of
incorporation.
Customary international law
• The doctrine of transformation states that customary international law only forms part
of English law to the extent that it has been made part of English law by Act of
Parliament, judicial decision or established usage.
• The doctrine of incorporation states that rules of customary international law are
automatically part of English law as long as they are not inconsistent with Acts of
Parliament or authoritative judicial decisions.

States are, of course, under a general obligation to act in conformity with the rules of
international law and will bear responsibility for breaches of it, whether committed by
the legislative, executive or judicial organs and irrespective of domestic law. Further,

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international treaties may impose requirements of domestic legislation upon states
parties, while binding Security Council resolutions may similarly require that states take
particular action within their jurisdictions. There is indeed a clear trend towards the
increasing penetration of international legal rules within domestic systems coupled with
the exercise of an ever-wider jurisdiction with regard to matters having an international
dimension by domestic courts. This has led to a blurring of the distinction between the
two previously maintained autonomous zones of international and domestic law, a
reevaluation of the role of international legal rules and a greater preparedness by
domestic tribunals to analyse the actions of their governments in the light of international
law.

It is part of the public policy of the United Kingdom that the courts should in principle
give effect to clearly established rules of international law. This does not, however, mean
that where a court is exercising a discretionary power, it is obliged to ensure that the
government acts compatibly with its international obligations and not in breach of them.
Various theories have been put forward to explain the applicability of international law
rules within the jurisdiction. One expression of the positivist–dualist position has been the
doctrine of transformation. This is based upon the perception of two quite distinct
systems of law, operating separately, and maintains that before any rule or principle of
international law can have any effect within the domestic jurisdiction, it must be
expressly and specifically ‘transformed’ into municipal law by the use of the appropriate
constitutional machinery, such as an Act of Parliament. This doctrine grew from the
procedure whereby international agreements are rendered operative in municipal law by
the device of ratification by the sovereign and the idea has developed from this that any
rule of international law must be transformed, or specifically adopted, to be valid within
the internal legal order.

Another approach, known as the doctrine of incorporation, holds that international law
is part of the municipal law automatically without the necessity for the interposition of a
constitutional ratification procedure. The best-known exponent of this theory is the
eighteenth-century lawyer Blackstone, who declared in his Commentaries that:
the law of nations, wherever any question arises which is properly the object of its
jurisdiction, is here adopted in its full extent by the common law, and it is held to be a
part of the law of the land.

English courts take judicial notice of international law, so that formal proof of a
proposition does not need to be demonstrated (unlike propositions of foreign law which
need to be proved as fact by evidence) and this itself has been a key factor in
determining the relationship between international law and domestic law.

Judges are deemed to know international law. In practice this means that judges and
lawyers trained in domestic law have had to grapple with the different sources of
international law and the difficulties of this task have percolated through the relationship
English courts take judicial notice of international law, so that formal proof of a

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proposition does not need to be demonstrated (unlike propositions of foreign law which
need to be proved as fact by evidence) and this itself has been a key factor in
determining the relationship between international law and domestic law.

The United States

As far as the American position on the relationship between municipal law and
customary international law is concerned, it appears to be very similar to British practice,
apart from the need to take the Constitution into account. The US Supreme Court in
Boos v. Barry emphasized that, ‘As a general proposition, it is of course correct that the
United States has a vital national interest in complying with international law. ’ However,
the rules of international law were subject to the Constitution.

An early acceptance of the incorporation doctrine was later modified as in the United
Kingdom. It was stated in the Paquete Habana case that international law is part of the
law and must be ascertained and administered by the courts of justice of appropriate
jurisdiction as often as questions of right depending upon it are duly presented for their
determination.

It has been noted that the political and judicial organs of the United States have the
power to ignore international law, where this occurs pursuant to a statute or ‘controlling
executive act’. However, it is now accepted that statutes supersede earlier treaties or
customary rules of international law.1 It has also been held that it would run counter to
the Constitution for a court to decide that a decision of the International Court of Justice
overrules a binding decision of the US Supreme Court and thus affords a judicial remedy
to an individual for a violation of the Constitution.

In the United States, on the other hand, Article VI Section 2 of the Constitution provides
that: all Treaties made or which shall be made with the authority of the United States,
shall be the supreme law of the land and the Judges in every state shall be bound
thereby, anything in the Constitution or Laws of any state to the contrary
notwithstanding. There is also a difference in the method of approval of treaties, for
Article II of the Constitution notes that while the President has the power to make
international agreements, he may only ratify them if at least two-thirds of the Senate
approve.

Civil Law Systems

The practice of those states which possess the civil law system, based originally on
Roman law, manifests certain differences. The Basic Law of the Federal Republic of
Germany, for example, specifically states in article 25 that ‘the general rules of public
international law are an integral part of federal law. They shall take precedence over the
laws and shall directly create rights and duties for the inhabitants of the federal territory.’
This provision, which not only treats international law as part of municipal law but

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regards it as superior to municipal legislation, has been the subject of a great deal of
controversy as writers and lawyers have tried to establish whether international legal
rules would invalidate any inconsistent municipal legislation and, indeed, whether
international rules could override the constitution. Similarly, the phrase ‘general rules of
public international law’ has led to problems over interpretation as it may refer to all
aspects of international law, including Civil Law Systems.

The practice of those states which possess the civil law system, based originally on
Roman law, manifests certain differences. The Basic Law of the Federal Republic of
Germany, for example, specifically states in article 25 that ‘the general rules of public
international law are an integral part of federal law. They shall take precedence over the
laws and shall directly create rights and duties for the inhabitants of the federal territory.’

This provision, which not only treats international law as part of municipal law but
regards it as superior to municipal legislation, has been the subject of a great deal of
controversy as writers and lawyers have tried to establish whether international legal
rules would invalidate any inconsistent municipal legislation and, indeed, whether
international rules could override the constitution. Similarly, the phrase ‘general rules of
public international law’ has led to problems over interpretation as it may refer to all
aspects of international law, including customary and treaty rules, or merely general
principles common to all, or perhaps only certain nations. German courts will seek to
interpret domestic law consistently with international law.

In 1993, South Africa adopted a new (interim) constitution, Section 231(4) states that ‘the
rules of customary international law binding on the Republic, shall, unless inconsistent
with this Constitution or an Act of Parliament, form part of the law of the Republic.

As far as treaties are concerned, the previous position whereby an Act of Parliament was
required in order to incorporate an international agreement has been modified. While
the negotiation and signature of treaties is a function of the President (section 82(1)i),
ratification is now a function of the Parliament. Section 231(3) provides that ‘such
international agreement shall be binding on the Republic and shall form part of the law
of the Republic, provided Parliament expressly so provides and such agreement is not
inconsistent with this constitution.

Any international agreement becomes domestic law when enacted into law by national
legislation, although a self executing provision of an agreement that has been approved
by Parliament is law in the Republic unless it is inconsistent with the Constitution or an
Act of Parliament. Section 232 provides that customary international law is law in the
Republic unless it is inconsistent with the Constitution or an Act of Parliament, while
section 233 stipulates that when interpreting any legislation, every court must prefer any
reasonable interpretation of the legislation which is consistent with international law
over any alternative interpretation that is inconsistent with international law.

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Kenya

Article 2(5) of the Constitution provides that ‘general rules of international law shall
form part of the law of Kenya’while article 2(6) states that ‘any treaty or convention
ratified by Kenya shall form part of the law of Kenya’. The implication is that a court can
recognize the so-called ‘general rules’ without having to look for justification outside the
Constitution. Article 2(6) in turn provides that ‘any treaty or convention ratified by
Kenya shall form part of the law of Kenya’.

The meaning of this is that ratification not only creates legal relations between Kenya and
other States Parties to the particular treaty, but it also, and more significantly so, binds
the State at the domestic level. Therefore, the process by which a treaty becomes ratified
under Kenyan law is significant.

Parliament enacted the Treaty Making and Ratification Act with the intention of ‘[giving]
effect to article 2(6) of the Constitution and to provide the procedure for the making
and ratification of treaties and connected purposes’. The Act provides for the procedure
of initiating and ratifying multilateral treaties and certain bilateral treaties. Generally, the
Executive has treaty making, negotiation and ratification powers except that that
mandate may be delegated to a relevant State Department. A treaty may be initiated by
either the National Executive or the relevant State Department and the proposal must be
submitted for approval by the Cabinet. In the case of ratification initiated by a Cabinet
Secretary of a relevant State Department, he should, in consultation with the Attorney
General, submit the text of the treaty, together with a memorandum, to the Cabinet for
approval. If approved, the Cabinet Secretary then submits the treaty, together with the
memorandum, to the Speaker of the National Assembly, who then tables it as a Bill,
which is then subjected to the usual rigours of legislation. The Act merely provides for the
process of ratification and does not purport to give Parliament the power to
‘domesticate’ treaties once ratified.

in Re The Matter of Zipporah Wambui Mathara [2010] eKLR, the applicant argued,
inter alia, that her detention was contrary to article 11 of the International Covenant on
Civil and Political Rights (ICCPR), which states that ‘[n]o one shall be imprisoned merely
on the ground of inability to fulfil a contractual obligation’. It seems to have been the
applicant’s suggestion that to the extent that the Civil Procedure Rules provided for
committal to civil jail as a method of execution, then they condoned imprisonment
‘merely on the ground of inability to fulfil a contractual obligation’, contrary to the
provisions of the ICCPR.

Impliedly therefore, the provisions of the Civil Procedure Rules were inferior to the
international law prohibition set in the ICCPR. Taking the supremacy analogy, the
argument was that international law applicable in Kenya had a higher normative value
than local law and that a conflict between the two would result in the former prevailing.
With regard to the status of article 11 of the ICCPR, the court took the view that
committal to civil jail on account of a judgment debt was akin to imprisoning a person
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merely for failing to perform a contractual obligation, which was contrary to the
International Covenant and hence unconstitutional. Thus the court effectively suggested
that applicable international law must trump contrary local legislation.

The judge stated as follows:

The provisions of the Constitution of Kenya 2010 [were] also invoked, and this ruling
would not be complete without a commentary on those submissions. Principally I agree
with counsel for the Debtor that by virtue of the provisions of section 2(6) of the
Constitution of Kenya 2010, International Treaties, and Conventions that Kenya has
ratified, are imported as part of the sources of the Kenyan Law. Thus the provision of
article 11 of the International Covenant on Civil and Political Rights which Kenya ratified
on 1st May 1972 is part of the Kenyan law.

In the case of Diamond Trust Ltd v Daniel Mwema Mulwa [2010] eKLR, the applicant,
Daniel Mwema Mulwa, sought to stay a warrant of arrest that had been issued on
account of a judgment debt he owed to Diamond Trust Ltd. He argued that, since the
warrant was issued in furtherance of a debt collection in a civil matter, it violated his
fundamental rights and freedoms as it went contrary to article 11 of the ICCPR. The court
considered the main issue as being ‘whether the warrant arrest issued … [was]
unconstitutional and violates the fundamental rights and freedom of the judgment
debtor.

The court found that the ICCPR enjoyed the rank of an Act of Parliament. This was not a
status that was akin to that of the Constitution. And yet it was not above that of an Act
of Parliament. In effect, an applicable treaty had to be treated the same way as an Act of
Parliament. In the event of a conflict, a court would not have to consider which of the
two was superior to the other. It is for this reason that, while the court found that there
was a conflict between section 40 of the Civil Procedure Act and article 11 of the ICCPR,
it held that the latter did not render the former unconstitutional because ‘for as long as
section 40 remains in the statute book, it is not unconstitutional for a judgment-debtor
to be committed to a civil jail upon his failure to pay his debts.

Since, however, section 40 is at variance with the provisions of an International

Convention which is part of the law of Kenya, it follows that we now have two
conflicting laws, none of which is superior to the other. That conflict calls for a re-
consideration of the probative value of section 40 in the light of the new Constitutional
dispensation. Only after a revaluation can it be determined whether to retain section 40
in the Civil Procedure Act, or to do away with it altogether in favour of article 11 of the
Convention on Civil and Political Rights. If it doesn’t find favour in the current climate of
Constitutional civil liberties, then section 40 should be repealed as being unconstitutional.

Until a decision is taken at a proper forum, section 40 of the Civil Procedure Act will
continue to haunt the liberal freedoms enshrined in the Constitution until it is repealed or
found to be unconstitutional at a proper forum. In my view, where a section of the law
takes away a right which is conferred by another section, the former section should itself
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be taken away. As we have two conflicting provisions of the law in force, it is correct to
say that both of them are applicable. In that event, if the applicant is jailed under section
40, and that section is later found to be out-dated in the current Constitutional order,
the Applicant’s rights will have been trampled on.

In the case of Beatrice Wanjiku and Another v Attorney General and Others. Petition 190
of 2011 , the petitioners were judgment debtors in other civil suits in which warrants of
arrest had been issued in pursuance of execution. They argued that a process that
allowed committal of an individual to civil jail on account of a civil debt was
unconstitutional because it violated article 11 of the ICCPR, which, on the basis of article
2 of the Constitution, was not only part of the law, but was also superior to the
impugned domestic statute. The issue thus was whether the entire process of committal
to civil jail, as a means of enforcing a civil debt, was contrary to article 11 of the ICCPR
and hence unconstitutional.

The court held that international legal provisionsare first of all ‘subordinate to and ought
to be in compliance withthe Constitution’. Secondly, and again, contrary to the
petitioners’submission, the court held that international law did not trump conflicting
domestic law. The Judge reasoned that to hold otherwise would be to suggest that
Kenyans surrendered their sovereignty to the international legal order in so far as
legislation was concerned; a view that would not comport with the intention of the
framers of the Constitution.

The Judge specifically opined that:

Although it is generally expected that the government through its executive ratifies
international instruments in good faith on the behalf of and in the best interests of the
citizens, I do not think the framers of the Constitution would have intended that
international conventions and treaties should be superior to local legislation and take
precedence over laws enacted by their chosen representatives under the provisions of
article. Article 1 places a premium on the sovereignty of the people to be exercised
through democratically elected representatives and a contrary interpretation would put
the executive in a position where it directly usurps legislative authority through treaties
thereby undermining the doctrine of separation of powers which is part of our
Constitutional set up.

Applying the above reasoning the court held that the provisions of the Civil Procedure
Act were not inconsistent with those of the ICCPR for allowing a process through which
an individual could be placed in civil jail on account of a civil debt. The ICCPR used the
term ‘merely’, indicating that the prohibition of imprisonment for civil debts was not
total. The court reasoned that the permissive language recognised that there were
circumstances when committal to civil jail was a legitimate method of enforcing
judgment debts. Such a conclusion could only be reached when the ICCPR was used as
‘an interpretative aid’. Thus, provisions of a treaty would not trump those of a
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conflicting legislation because international law did not enjoy any special status under the
Constitution.

The Kenyan Court of Appeal in Rono v Rono (2008) 1 KLR stated as follows:
There has of course, for a long time, been raging debates in our jurisprudence about the
application of international laws within our domestic context. Of the two theories on
when international law should apply, Kenya subscribes to the common law view that
international law is only part of domestic law where it has been specifically
incorporated. In civil law jurisdictions, the adoption theory is that international law is
automatically part of domestic law except where it is in conflict with domestic law.
However, the current thinking on the common law theory is that both international
customary law and treaty law can be applied by State Courts where there is no conflict
with existing state law, even in the absence of implementing legislation.

Law of Treaties

A treaty is basically an agreement between parties on the international scene. Although

treaties may be concluded, or made, between states and international organisations, they
are primarily concerned with relations between states. 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 Organizations was signed in 1986.

The fundamental principle of treaty law is undoubtedly the proposition that treaties are
binding upon the parties to them and must be performed in good faith. This rule is
termed pacta sunt servanda and is arguably the oldest principle of international law. It
was reaffirmed in article 26 of the 1969 Convention, and underlies every international
agreement for, in the absence of a certain minimum belief that states will perform their
treaty obligations in good faith, there is no reason for countries to enter into such
obligations with each other.

a) The Main Features of the 1969 Vienna Convention on the Law of Treaties (VCLT)

The VCLT represents both the codification (i.e. of customary law and general principles)
and the progressive development of the law of treaties. It came into force on 27 January
1980 and as at 9 November 2009 had been ratified by 110 States. The VCLT applies to
treaties which satisfy the conditions set out in Article 2 VCLT. The VCLT has no
retrospective effect; it applies to treaties entered into by a State from the time of its entry
into force for that State. Article 4 VCLT provides that the rule on retrospective effect is,
however, without prejudice to the application of any rules in the VCLT to which treaties
would be subject under international law independently of those contained in the VCLT.
This means that the provisions of the VCLT which embody customary law will apply to
treaties concluded before the entry into force of the VCLT, or concluded subsequently
but before the VCLT entered into force for parties to those treaties. The VCLT confirms
that customary law will apply to issues not regulated by its provisions (Articles 39(a) and
4 and the eighth paragraph of the preamble). In fact, State practice and judgments of the
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International Court of Justice (ICJ) show that the VCLT, to a great extent, reflects the
rules of customary law and therefore applies, in effect, irrespective of whether a State has
ratified it or not. There will be no need for any reform of the VCLT as its built-in
safeguards ensure the necessary flexibility to take account of evolving State.

b) The Fundamental Principles of the Law of Treaties

The three fundamental principles of the law of treaties are: the principle of free consent,
the principle of good faith and the principle of pacta sunt servanda .

The principle of free consent

The principle of free consent means that a State cannot be bound by a treaty to which it
has not consented although there are some exceptions to this rule. Further, there is a
presumption that a State, not a party to a treaty, consents to a right which that treaty
confers on it (Articles 34–36 VCLT). Free consent is vital for initial adoption and
subsequent development of a particular treaty as it ensures that a State remains in control
of the commitments it has made under the relevant treaty.

The principle of pacta sunt servanda

Pacta sunt servanda, a Latin maxim which literally means that agreements must be kept,
is embodied in Article 26 VCLT, which states that: ‘Every treaty in force is binding upon
the parties to it and must be performed by them in good faith’. Therefore, a contracting
party will be held responsible for breach of a treaty.

The principle of good faith

The principle of good faith is fundamental to the law of treaties. It applies throughout
the life of a treaty, from its negotiation, through its performance to its termination.

c) The Definition of a Treaty under the VCLT

Article 2(1) VCLT defines a treaty as any agreement, whatever its appellation or other
characteristics, intended to create a legal obligation, concluded in writing between two
or more States and governed by international law. The VCLT does not affect:
• The validity of agreements concluded between States and non-State actors, or between
non-State actors;
• The validity of agreements concluded between States but not in writing;
• The application to the above agreements of any of the provisions of the VCLT to
which they would be subject under international law independently of the VCLT, e.g.
customary international law.

d) Conclusion of Treaties

Different stages can be identified in the process of conclusion of a treaty:

Negotiation
Representatives of States must have the necessary powers to engage in negotiations.
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Under Article 7 VCLT heads of State or of government and Foreign Ministers are ex
officio empowered to carry out acts necessary for the conclusion of treaties. Accredited
representatives are only empowered to represent a State for the purposes of concluding a
particular treaty.

Adoption of the text of a treaty

This is a formal act whereby the form and content of the proposed text are settled
(Article 9 VCLT).

Authentication of the treaty

During this stage the definitive text of the proposed treaty is established as correct,
authentic and not subject to alteration. The method of authentication of the adopted
text is usually by signing and initialling the relevant text.

Consent to be bound
A State may express its consent to be bound by the relevant treaty by signing it,
exchanging instruments constituting the treaty, ratifying, accepting, approving or
acceding to it, or by any other means if so agreed (Article 12 VCLT).

Ratification
Ratification is the formal act whereby one State declares its acceptance of the terms of
the treaty and undertakes to observe them. It should be, however, noted that the word
‘ratification’ is used to describe two distinct procedural acts, one municipal and one
international.
• Ratification in municipal law. In municipal law ratification is the formal act of the
appropriate organ of the State effected in accord with national constitutional law. For
example, according to English law, ratification is effected in the name of the Crown.
• Ratification in international law. In international law ratification is a procedure which
brings a treaty into force for the State concerned by establishing its definitive consent to
be bound by the particular treaty. This can be effected in the various ways specified in
Article 14(1) of VCLT. International law is not concerned as to whether a State has
complied with the requirements of its constitutional law.
Despite the fact that a treaty may be ratified by nothing more than the signature of the
relevant State’s representative, in many case States insist upon a ratification procedure
consisting of more formal steps. There are several reasons for this:
• Historically the signing of a treaty followed by its ratification by the sovereign
constituted a means by which the sovereign was able to supervise his representatives,
i.e. to make sure that diplomats did not exceed their instructions.
• The delay between the time of signature and the completion of the ratification allows
a sovereign time to reconsider the matter and, if desired, allows time for the expression
of public opinion on the matter.
• Consent of the legislature may be required as part of the ratification procedure.
Article 14(1) VCLT provides:

The consent of a state to be bound by a treaty is expressed by ratification when:

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(a) The treaty provides for such consent to be expressed by 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 negotiations.

Thus, if a treaty should contain no express provision on the subject of ratification, Article
14 will regulate the matter by reference to the intention of the parties.
Performance of a treaty may constitute tacit ratification. If a State successfully claims
rights under an unratified treaty it will be estopped from alleging that it is not bound by
the treaty.

Accession
Accession or adherence or adhesion occurs when a State, which did not participate in the
negotiating and signing of the relevant treaty, formally accepts its provisions. Accession
may occur before or after the treaty has entered into force. It is only possible if it is
provided for in the treaty, or if all the parties to the treaty agree that the acceding State
should be allowed to accede (see Article 15 VCLT). Accession, therefore, has the same
effect as signature and ratification combined. The terms adherence or adhesion have the
same meaning as accession.

e) Reservations to Treaties

The historical evolution of the law on reservations

A reservation is defined in Article 2(1)(d) VCLT as a unilateral statement, however
phrased or named, made by a State, when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to exclude or to modify the legal effect of
certain provisions of the treaty in their application to that State. A reservation to a
multilateral treaty must:
• be in writing;
• contain, to the extent possible, the reason why it is being made;
• be communicated to the other contracting parties and entities who are entitled to
become a party to the treaty, so they can, within 12 months, accept or reject the
reservation.

Reservation may be withdrawn but such withdrawal must be formulated in writing and
communicated to the contracting parties.

Permissible and non-permissible reservations and their legal effect in the light of Articles
19 and 20 VCLT.

Article 19 VCLT distinguishes between permissible and non-permissible reservations.

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Permissible reservations are those which are expressly permitted by the relevant treaty
and those which are compatible with the object and purpose of that treaty. Reservations
operate on the basis of reciprocity and, if they are permissible, create the following
relationships between the reserving State and the other contracting States:
• Between a reserving State and a contracting State which has made no objection to a
reservation. The treaty will be modified in that the provision to which the reservation
relates will not apply between them, e.g. if State X made a reservation to provision A
and State Y accepted the reservation, the treaty will apply to States X and Y with the
exception of provision A.
• When a contracting party has objected to the reservation and opposed the entry into
force of the treaty; the treaty will not enter into force for the reserving State.
• When a contracting party has objected to the reservation but did not oppose the entry
into force of the treaty between itself and the reserving State. The treaty will apply
between both parties except for the provisions to which the reservation relates.
Non-permissible reservations are:
• Reservations prohibited by the relevant treaty.
• Reservations which are not included in the list of reservations expressly allowed under
the relevant treaty (so applying the Latin maxim expressio unius est exclusio alterius).
• Reservations which are incompatible with the object and purpose of the relevant
treaty.

Non-permissible reservations are invalid but views differ on whether they are ‘totally
invalid’, which means that the reserving State’s ratification is ineffective, or whether they
are ‘partially invalid’, which means that they are severed from the reserving State’s
declaration of consent to be bound by the relevant treaty with the consequence that the
treaty applies to the reserving State and the reservation is disregarded.

Current problems with the provisions of the VCLT relating to reservations. In 1993, the
ILC decided to revisit the provisions on reservations which are contained in the VCLT on
the grounds that they were too general and left a number of important matters unclear,
in particular:

• Whether the consequence of an impermissible reservation is ‘total invalidity’ or ‘partial

invalidity’ (this is still unresolved); and
• How to deal with reservations to human rights treaties. The position of the ILC on this
is that the rules embodied in the VCLT need not be changed because the majority of
human rights treaties have established monitoring bodies which are competent to
determine whether any particular reservation is compatible with the purpose and object
of the relevant treaty.

f) Entry into Force, Deposit, Registration and Publication of Treaties

Entry into Force

The conditions of the entry into force are normally specified by the relevant treaty.

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Otherwise, a treaty is presumed to enter into force as soon as all the negotiating States
have expressed their consent to be bound by it.

Deposit
A depository is designated by the contracting parties to a treaty. He is the custodian of
the treaty and performs administrative tasks relating to it (Articles 76–80 VCLT).
However, he is not entitled to determine the legal effect of any instrument or
communication received from a party. This task is within the competence of the
contracting parties.

Registration
In order to ensure transparency in the conduct of international relations Article 102 UN
Charter requires all treaties and all agreements entered into by any member of the UN to
be registered with the UN Secretariat. However, failure to register a treaty has no effect
on its validity.

Publication
Subsequent to registration, a treaty will be officially published in the UN Treaty Series
‘UNTS’, so that anyone can consult it.

g) Validity of Treaties

Article 42(1) of VCLT sets out the only grounds on which a State can rely to nullify a
treaty. The VCLT makes a distinction between grounds of nullity which:
• concern the lack of consent of a party to a treaty with the consequence that a treaty
will still be valid (but not for a bilateral treaty) for all parties except for the State which
did not consent to it. The vitiating factors are mentioned in Articles 8, 46–49 VCLT;
• lead to nullity of a treaty for all parties on the grounds either that it was concluded in
violation of a jus cogens rule (Article 53 VCLT) or that it is in conflict with a jus cogens
rule which emerged after its conclusion (Article 64 VCLT).

Grounds of nullity affecting the consent of a party to a treaty

Grounds of nullity which affect the consent of a contracting party and which, if
successfully relied upon, result in the relevant treaty being invalid for the claimant State
are:
• manifest violation of its internal law (Article 46 VCLT). In order to succeed the alleged
violation of a domestic law must concern fundamental provisions which relate to the
State’s treaty-making power and must be evident to any State acting by normal practice
and in good faith;
• Violations of restrictions on the competence of the representative of a State (Article 47
VCLT). In order to succeed the restrictions on the competence must have been notified to
the other parties;
• Essential error (Article 48 VCLT). In order to succeed, an error, whether unilateral or
mutual, must neither concern a question of law nor the wording of text of a treaty
agreed by the parties. It must relate to a fact or a situation which was assumed at the
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time when a treaty was concluded and formed an essential basis of its consent. Further, a
State will not be able to claim error if by its own conduct it contributed to it;
• Fraud (Article 49 VCLT). This is rarely invoked;
• Corruption of a representative (Article 50 VCLT). In order to succeed the ‘corruption’
must be a ‘substantial influence’. A small courtesy or favour shown to a representative
will be insufficient;
• Coercion of a representative (Articles 51 VCLT). In order to succeed coercion must be
directed at the representative personally (e.g. blackmailing threats or threats against the
representative’s family) and not at coercion of him through a threat of action against his
State;
• Coercion of a State (Article 51 VCLT). In order to succeed, it must be shown that the
conclusion of a treaty has been procured by the threat or use of force in violation of the
principles of international law embodied in the UN Charter. Grounds of nullity affecting
the consent of a party to a treaty Grounds of nullity which affect the consent of a
contracting party and which, if successfully relied upon, result in the relevant treaty being
invalid for the claimant State are:
• manifest violation of its internal law (Article 46 VCLT). In order to succeed the alleged
violation of a domestic law must concern fundamental provisions which relate to the
State’s treaty-making power and must be evident to any State acting by normal practice
and in good faith;
• Violations of restrictions on the competence of the representative of a State (Article 47
VCLT). In order to succeed the restrictions on the competence must have been notified to
the other parties;
• Essential error (Article 48 VCLT). In order to succeed, an error, whether unilateral or
mutual, must neither concern a question of law nor the wording of text of a treaty
agreed by the parties. It must relate to a fact or a situation which was assumed at the
time when a treaty was concluded and formed an essential basis of its consent. Further, a
State will not be able to claim error if by its own conduct it contributed to it;

Grounds of nullity which lead to nullity of a treaty for all contracting parties
Grounds of nullity which, if successful, will nullify the treaty as a whole (i.e. for all
contracting parties) are based on violations of a jus cogens rule. This may occur in two
situations:
• Under Article 53 VCLT a treaty is void if, at the time of its conclusion, it conflicts with
a rule of jus cogens;
• Under Article 64 VCLT, if a new jus cogens rule emerges, any existing treaty which is in
conflict with that rule becomes void and terminates.

h) Application of Treaties

Territorial application of treaties

Under Article 29 VCLT, in the absence of any territorial clause or other indication to the
contrary, a treaty is presumed to apply to all the territories for which the contracting
States are internationally responsible.

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Conflict between treaties
A conflict between treaties is resolved either on the basis of a conflict clause contained in
one or both treaties or upon interpretation, aided by reference to maxims such as the lex
posteriori and the lex specialis.

Effect of treaties on a third party

The fundamental rule is that a treaty applies only between the parties to it. This is known
by the maxim pacta tertiis nec nocent nec prosunt and is contained in Article 34 VCLT.
There are, however, some exceptions:
• If a treaty provision imposes an obligation on a third party, that treaty provision may
become binding on that party but only if and when it becomes a part of international
customary law.
• If a treaty provision confers a right on a third party, that third party must, in order to
take benefit of the right, consent to it (but this is presumed so long as the contrary is not
indicated) and the contracting parties must have expressly or by implication, intended to
create the right for the third party.

K) Amendment and Modification of Treaties

Amendment
The principle of pacta sunt servanda requires the unanimous consent of all parties to the
relevant treaty to amend it. If this cannot be achieved, Article 40(4) VCLT provides that
amendments will not be binding on a party which has not accepted them.
However, some treaties provide that amendments adopted by a specified majority will
be binding on all contracting States (e.g. the UN Charter).

Modification
This occurs when some of the parties to a treaty formally agree to modify the effects of
the treaty amongst themselves, while continuing to be bound by the treaty in their
relations with the other parties (Article 41 VCLT). A consistent practice, if it establishes
common consent of the parties to be bound by a different rule from that laid down in
the treaty, will have the effect of modifying a treaty.

I) Interpretation of Treaties

The VCLT endorses the textual, systematic, teleological and historical methods of
interpretation (Articles 31 and 32 VCLT). Views differ as to whether the VCLT establishes
any hierarchy of methods of interpretation of treaties.

J) Jus Cogens

Article 53 of the Convention provides that:

[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the present Convention, a peremptory
norm of general international law is a norm accepted and recognised by the international
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community of states as a whole as a norm from which no derogation is permitted, and
which can be modified only by a subsequent norm of general international law having
the same character.
Article 64 declares that ‘[i]f a new peremptory norm of general international law
emerges, any xx existing treaty which is in conflict with that norm becomes void and
terminates’.

L) Termination and Suspension of Treaties

The difference between suspension and termination is that:

• When a treaty is suspended it is still valid but its operation is suspended temporarily,
either for all parties or for some of them;
• When a treaty is terminated it is no longer in force as it has ended its existence.

Suspension of a treaty

The circumstances in which a contracting party may suspend the operation of a treaty
may be laid down by the relevant treaty, or, in the absence of any clause to that effect,
are set out in Article 42 VCLT. Article 57(a) VCLT identifies six situations in which
suspension of a treaty may take place. Two of these are:
• Where all contracting parties agree to suspend its operation, or some of its provisions;
• where two or more parties agree to suspend its operation temporarily between
themselves, provided that suspension does not impair the enjoyment by other parties of
their rights deriving from the relevant treaty, does not affect the performance of their
obligations and is compatible with the object and purpose of the relevant treaty.

The remaining grounds are set out in Articles 59 to 62 VLCT. These are the same as for
termination of a treaty. Accordingly, they are examined below.

Termination of a treaty

Articles 65 to 72 VLCT contain provisions dealing with procedures to be followed and

the consequences of termination or suspension. A treaty may be terminated in the
following circumstances:

• When it contains an express provision to this effect and a contracting party acts in
conformity with that provision;
• When there is no provision for termination or withdrawal, Article 56(1) VCLT allows it
if:
_ It is established that the parties intended to admit the possibility of denunciation or
withdrawal, or
_ A right of denunciation or withdrawal can be implied by the nature of the treaty;
• When all contracting parties agree (Article 62(2)(b) VCLT);
• When a new rule of jus cogens has emerged and an existing treaty is in conflict with it,
that treaty becomes void and is terminated.
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Depending upon the circumstances of a particular case, a contracting party may choose
either to terminate or to suspend the operation of a treaty. This choice can be exercised
in the following situations:
• Where all contracting parties to an earlier treaty are also parties to a later treaty and
the two treaties relate to the same subject matter (Article 59(1) VCLT);
• Where another party is in breach of a treaty obligation. However, the breach must be
a ‘material breach’. Whether a breach is ‘material’ will depend on the circumstances of
each case, but Article 60(3) VCLT defines a material breach
as:
_ a repudiation of the treaty not sanctioned by the VCLT;
_ the violation of a provision ‘essential to the accomplishment of the object and purpose
of the treaty’;
• Where it is impossible for a party to perform its obligations, e.g. the object which is
indispensable for the existence of a treaty disappears or is destroyed.
However, impossibility of performance cannot be relied on by a party if it is a result of
breach by that party either of an obligation under the treaty or of any other
international obligation owed to any party to that treaty (Article 61(2)
VCLT);
• Where there has been a fundamental change of circumstances since the treaty was
concluded (this is referred to as the rebus sic stantibus clause). Article 61(1) VCLT defines
strict conditions under which a change of circumstances may be claimed. These are:
_ the change must be of circumstances existing at the time of the conclusion of the treaty;
_ the change must be fundamental;
_ the change must have not been foreseen by the parties at the time of conclusion of the
treaty;
_ the existence of the original circumstances must have constituted ‘an essential basis of
the consent of the parties to be bound by the treaty’;
_ the change must radically transform the extent of the obligations still to be performed
under the treaty.

The above conditions are cumulative and a party cannot rely on the rebus sic stantibus
clause if the change results from its own breach of either an obligation under the treaty
or of any other international obligation owed to any other party to the treaty. In order
to avoid threats to the peace Article 62(2)(a) VCLT excludes treaties fixing boundaries
from the operation of the rebus sic stantibus clause.

M) Settlement of Disputes

Articles 65 and 66 VCLT provide the procedure to be followed with respect to invalidity,
termination, withdrawal from or suspension of

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