Public International Law

Chapter Seven
Law of Treaties
Adigrat University, 2016
School of Law
Mussie M. (LL.B, LL.M)
 Introduction
 All kinds of inter-State transactions are conducted through
treaties.
 Various international organizations are established by means of
treaties.
 Disputes between States are brought before international courts
by means of treaties.
 The treaty is the most important source of international law.
 The main reference in this area of the law is the Vienna
Convention on the Law of Treaties, 1969. [VCLT]
 Adopted on 23 May 1969 and entered into force on 27 January
1980.
 It is a combination of codification and progressive development
of international law.
 Definition of ‘Treaty’
 Oppenheim: “International treaties are agreements, of a
contractual character, between states, or organizations of states,
creating legal rights and obligations between the parties”.
 Article 2 of the VCLT, “treaty” is defined as an international
agreement concluded between states in written form and
governed by international law, whether embodied in a single
instrument or two or more related instruments and whatever its
particular designation;…
 Yet Article 3 of the VCLT says that the fact that the present
Convention does not apply to international agreements concluded
between states and other subjects of international law or between
such other subjects of international law, or to international
agreements not in written form, shall not effect: (a) the legal
force of such agreements; …
 Definitional Elements
 The definition of ‘treaty’ under Article 2 of the VCLT can be
distinguished in two respects from the traditional definition.
(1) It deals only with treaties concluded between states (this
is because there is a separate convention on the law of
treaties to which IOs are parties).
(2) The Convention is limited to ‘written treaties’ only.
However, it is not intended to deny the legal effect of oral
agreements under international law.
1) The definition in the VCLT is expressed to be for the
purposes of the Convention and is limited to treaties between
States.
 Article 6 of the Convention, which provides that states may
make treaties, reflects customary international law.
 States members of a federal union may possess a capacity to
conclude treaties if such capacity is admitted by the federal
constitution and within the limits there laid down”.
 Definitional Elements
 International Organizations—The 1969 VCLT, is limited to treaties
to which states are parties. It does not cover treaties to which public
international Organizations are parties. A special convention, the
Convention on the Law of Treaties Between States and International
Organizations or Between International Organizations, was signed in
1986.
 Individuals have never been recognized as having the capacity to
make treaties. Even transnational corporations (TNCs) have no such
capacity.
• Example, In the Anglo-Iranian Oil Company case, 1952 ICJ Rep. 93,
the ICJ held that a contract between Iran and the Anglo-Iranian Oil
Company was not a treaty. “ It is nothing more than a concessionary
contract between a government and a foreign company.”
 Definitional Elements
2) In written form—The Vienna Convention does not apply to oral
agreements, although such agreements are valid under customary
international law.
 Even though the traditional practice is for the original text of a treaty to
be typed or printed, there is no reason why a treaty should not be
contained in a telegram, telex, fax message or even e-mail, or, rather,
constituted by an exchange of such communications.
3) Governed by international law—There may be agreements between
states (e.g. agreements for the acquisition of premises for a diplomatic
mission or for some purely commercial transaction).
 They are regulated by the local law of one of the parties or by conflict of
laws principles.
 The notion of an “international agreement” for the purposes of the law of
treaties is confined to one the whole formation and execution of which is
governed by international law.
 Definitional Elements
4) Intention to create legal obligations—From practical point of view, the decisive
factor is whether the instrument is intended to create international legal rights
and obligations between the parties.
 This element of “intention to create legal obligations under international law” can
be found in the traditional definitions of ‘treaty’ by eminent writers but it is not
expressly mentioned in the definition of ‘treaty’ by the Vienna Convention.
 The ILC: The element of ‘intention’ is included in the phrase ‘governed by
international law’. Example, Aegean Sea Continental Shelf case.
5) Whether embodied in a single instrument or in two or more related instrument or
in two or more related instruments
 The classic form for a treaty is a single instrument. However, in modern practice
treaties are made in less formal ways, such as “exchanges of notes” or ‘exchange
of letters”. • An exchange of notes usually consists of an initial note (by one State)
and a reply note (by the other State).
 In other words, it consists of two related instruments. • The above phrase clearly
acknowledges the validity of the increasing use of such exchanges of notes and
letters in modern treaty practice.
 Definitional Elements
6) ‘Whatever its particular designation’
 ‘Treaty’ is the generic term to embrace all types of binding international
agreements. In practice, a number of terms are used to indicate an international
agreement. The term ‘Treaty’ itself is used to indicate formal agreements relating to
peace, or the cession of territory, extradition, or some other fundamental matter.
 Convention’ is the term used for a proper formal instrument of a multilateral
character. A ‘Protocol’ is an instrument which is subsidiary or ancillary to a
convention or is a supplementary treaty
 An ‘Exchange of Notes (or of letters)’ is an informal method, very frequently
adopted in recent years, whereby states reach to certain understanding or recognize
certain obligations as binding them.
 Memorandum of Understandings (MOUs)—The use of MOUs is now so
widespread in State practice that governments may use the MOUs as the more
usual form, a treaty being used only when it cannot be avoided. • The main reasons
for using MOUs in preference to treaties are confidentiality and convenience. As an
MOU is not a treaty, there is as a rule no domestic or international requirement to
publish it.
 Definitional Elements
 Are MOUs treaties?
 Generally speaking MOUs are not treaties and they are not
legally binding. An MOU can be a treaty in some cases but it
cannot be so in other cases. • Only by studying the terms of the
instrument can one determine its genuine status. The decisive
factor is whether there is an intention to create legal obligations. •
The actual practice of States is to indicate their intention to
conclude a treaty by employing terminology such as ‘shall
agree’, ‘undertake’, and ‘enter into force’.
 Oral undertakings?
 According to customary international law writing is not an
essential requirement of a treaty. • An agreement or undertaking
made orally between two states is as valid as a written treaty.
 Definitional Elements
 Legal Status of Eastern Greenland Legal Status of Eastern Greenland (Denmark
v Norway), (1933) PCIJ Series A/B, No. 53. A territorial dispute between
Denmark and Norway over Eastern Greenland. • During the official
conversation between M. Ihlen, Norwegian Foreign Minister, and the Danish
Minister accredited to Norway, the Danish Minister suggested that Denmark
would raise no objection to any claim Norway might want to make at the Paris
Peace Conference to Spitsbergen if Norway would not oppose the Danish claim
at the same conference to Greenland.
 M. Ihlen, in the course of further conversations with the Danish Minister,
declared that “the Norwegian Government would not make any difficulty
concerning the Danish claim”. [This is known as the Ihlen Declaration] •
Denmark argued before the ICJ that this undertaking was binding upon Norway.
 The Court considers it beyond all disputes that ‘a reply of this nature’ given by
the Minister of Foreign Affairs on behalf of his Government ‘in response to
request by the diplomatic representative of a foreign Power’, in regard to a
question falling within his province, is binding upon the country to which the
Minister belongs.
 The Conclusion of Treaties
Treaty-making capacity
Article 7 1. In virtue of their functions and without having to produce full
powers, the following are considered as representing their state: (a) Heads
of States, Heads of Governments and Ministers for Foreign Affairs; (b)
Heads of diplomatic missions, adopting the text of a treaty between the
accrediting state and the state to which they are accredited;…
Steps to be taken in the making of a treaty.
The various steps in the creation of a treaty are: (1) Negotiation; (2)
Adoption and authentication of the treaty; (3) The expression of consent to
be bound by the treaty (Signature, Ratification, Accession, etc.); (4) Entry
into force; and (5) Registration and publication
Consent to be bound by a treaty
Article 11 enumerates the ways in which a State can express its consent: (1)
by signature; (2) by exchange of instruments constituting a treaty; (3) by
ratification, acceptance or approval; or (4) by accession.
 The Conclusion of Treaties
(1) Signature: The effect of signature of a treaty depends on
whether or not the treaty is subject to ratification. If the treaty is
subject to ratification, signature means no more than an
authentication of its text. Yet, if the treaty is not subject to
ratification, or is silent on this point, the better opinion is that, in the
absence of contrary provision, the instrument is binding on
signature.
(2) Ratification: ‘final confirmation’. Why ratification is required?
Two reasons: (1) A state requires an opportunity of re-examining the
whole effect of the treaty upon their interests; May need to prepare
public opinion (or some times even referendum) for the obligation
the state is about to undertake. (2) According to the constitutional
law of many states, treaties are not valid without some kind of
consent on the part of Parliaments. (FDRE Constitution Art 55(12)).
 The Conclusion of Treaties
Procedure for ratification: Instrument of ratification is a document duly signed by
the Heads of States concerned, and/or their Secretaries for Foreign Affairs.
Ratification involves two steps: The first step is the signing and sealing of the
instrument of ratification.
The second step, in the case of a bilateral treaty, the exchange of the
instrument of ratification with the corresponding instrument produced by
the other party. In the case of a multilateral treaty, to deposit all
instruments of ratification in a central headquarters such as the Foreign
Office of the state where the treaty was signed. With regard to treaties
concluded under the auspices of the UN, the instruments of ratification
are to be deposited with the Secretary General of the UN.
(3) Accession: Accession is a traditional method whereby a state which
has not signed a treaty subsequently becomes a party to it. Treaties
frequently provide that they shall be open for signature for a certain
period, and that after the expiry of that period they shall become open for
accession.
 The Conclusion of Treaties
 Effect of a treaty before ratification or before entry into force entry
into force [Article 18] A state is obliged to refrain from acts which
would defeat the object and purpose of a treaty when: (a) it has
signed the treaty or exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have
made its intention clear not to become a party to the treaty; or (b) it
has expressed its consent to be bound by the treaty, pending the entry
into force of the treaty and provided that such entry into force is not
unduly delayed.
 According to the International Law Commission’s commentary, “that
an obligation of ‘good faith’ to refrain from acts calculated to
frustrate the object of the treaty attaches to a State which has signed a
treaty subject to ratification appears to be generally accepted.”
Example, Certain German Interests in Polish Upper Silesia case PCIJ
(1926) Series A, No. 7, p. 30.
 Reservations
 Definition
Article 2(1)(d) of the VCLT: “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.”
 Disguised reservations: (phrased or named). It is the substance that
matters, not the form.
 Interpretative declarations: (Purpose – to establish an interpretation
of the treaty which is consistent with the domestic law of the state).
It will be an element in the interpretation of the treaty (if it is not a
disguised reservation). If other parties do not make contrary
declarations or indicate their disagreement, they may be regarded as
having tacitly accepted it.
 Reservations
 When reservations can be made? [Article 19] A State may formulate
a reservation unless: (a) the reservation is prohibited by the treaty; (b)
the treaty provides that only specified reservations, which do not
include the reservation in question, may be made; or (c) in cases not
falling under sub-paragraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty. [‘compatibility
test’]
Compatibility Test
 Examples: (a) A reservation to the Convention against Torture (CAT)
which sought to exclude from it torture of suspected (or even
convicted) terrorists would be a clear case of incompatibility. (b)
Guatemala made a reservation that Article 27 of the VCLT (non-
invocation of internal law) would not apply in respect of the
Guatemalan Constitution. As the rule is so fundamental to the law of
treaties, the reservation clearly failed to pass the compatibility test.
 Reservations
Effects of reservations on participation in a treaty
 By making a reservation, a State is trying to modify the terms of the
treaty. A reservation can therefore be assimilated to the refusal of an
offer and the making of a fresh offer. In principle, this fresh offer must
obtain the assent of the other contracting States if it is to be effective.
 Therefore, the traditional view was that reservations to be effective
required the acceptance of all the contracting States. • However, that
view, although applicable to bilateral treaties, would not be appropriate,
without qualifications, to multilateral conventions.
 The ICJ in its advisory opinion on Reservations to the Genocide
Convention, introduces ‘compatibility’ test. A reservation may be made
unless the treaty prohibits it or it is incompatible with the object and
purpose of the treaty. • Articles 19, 20 and 21 of the Vienna Convention
are generally in line with the conclusions reached by the ICJ.
 Reservations
 Article 20 Acceptance and objections to reservations 1. A reservation
expressly authorized by a treaty does not require any subsequent
acceptance by the other contracting States …. 2. When it appears from
the limited number of the negotiating States and the object and purpose
of a treaty that the application of the treaty in its entirety between all
the parties is an essential condition of the consent of each one to be
bound by the treaty, a reservation requires acceptance by all the parties.
3. ….
 4. In cases not falling under the preceding paragraphs: (a) acceptance
by another contracting State of a reservation constitutes the reserving
State a party to the treaty in relation to that other State; (b) an objection
by another contracting State to a reservation does not preclude the entry
into force of the treaty as between the objecting and reserving States
unless a contrary intention is definitely expressed by the objecting
State; (c) ….
 5. … a reservation is considered to have been accepted by a state if it
shall have raised no objection to the reservation by the end of a period
of 12 months after it was notified of the reservation…
 Reservations
 There are three options for the other states—1) Acceptance
(expressly or impliedly); 2) Mere objection; 3) Objection
with a condition that the treaty shall not enter into force
between the reserving and objecting State.
 Example, there are three states: A, B, and C. State A made
a reservation to a treaty. State B raised no objection. States
C objected and at the same time stated expressly that it
precluded the treaty entering into force between it and
State A. State A may be a party to the treaty in relation to
State B, but not in relation to State C. There is no doubt
that State B and State C are mutually bound by the treaty
after its entry into force.
 Reservations
 Legal effects of reservations and objections [Article 21] 1. A reservation
established with regard to another party (established here means “not
prohibited and not objected to by other party”)…: (a) modifies for the
reserving state in its relations with that other party (non-objecting state) the
provisions of the treaty to which the reservation relates to the extent of the
reservation. (b) modifies those provisions to the same extent for that other
party in its relations with reserving state. [Reservation is effective between
reserving and non- objecting State.]
 [Art. 21(1): Principle of reciprocity]: An example of the operation of the
principle of ‘reciprocity’ in Art. 21(1) is found in the facts of the Libyan
People’s Bureau Incident (1984) (UK v Libya). • Libya made a reservation
to the VCDR permitting it to open a diplomatic bag if it had strong doubts
as to the legitimacy of its contents. UK did not object to that reservation. •
In accordance with Art. 21(1)(b), the obligation in the VCDR not to open
another State’s diplomatic bag was modified to the extent of the
reservation and would not have been prevented the UK opening the Libyan
bag. • Thus the Foreign Affairs Committee was advised that the UK could
respond by opening the Libyan diplomatic bags if it had strong doubts as
to their contents.
 Reservations
 Art. 21 [2]. The reservation does not modify the provisions of the treaty for the other
parties (Among those states apart from the reserving state) to the treaty inter se. (Among
themselves, they have to follow all the provisions of the treaty as if there is no
reservation). 3. When a state objecting to a reservation has not opposed the entry into
force of the treaty between itself and the reserving state, the provisions to which the
reservation relates do not apply as between the two states to the extent of the reservation.
An explanation to the application of Art. 21(3) can be found in an arbitral award.
 English Channel Arbitration (1984) (UK v France) • France had made reservations to Art.
6 of the 1958 Continental Shelf Convention: to prevent the UK from invoking the
provisions of Art. 6 except on the basis of conditions stated in the reservations. • UK
objected to these reservations. • The award: “The combined effect of the French
reservations and their rejection by the UK is neither to render Art. 6 inapplicable in to, as
France contends, nor to render it applicable in to, as the UK contends. It is to render the
Article inapplicable as between the two countries to the extent, but only to the extent, of
the reservations.” • [French reservation: “France will not accept that any boundary of the
continental shelf determined by application of the principle of equidistance shall be
invoked against it:--if it extends beyond the 200-metre.”] [It seems that the reservation is
effective and the provision (Art. 6) is applicable subject to the
 Entry into Force
 A treaty often provides that it shall enter into force
when it has been ratified or acceded to by a
specific number of states.
 Example, the Vienna Convention on the Law of
Treaties, 1969, provides for its entry into force
“on the 30th day following the date of the deposit
of the 35th instrument of ratification or accession’.
 The United Nations Convention on the Law of the
Sea, 1982, entered into force one year after the
60th ratification, namely on November 16, 1994.
 Application of Treaties
 Binding force of treaties “Pacta sunt servanda”
 (Article 26) Every treaty in force is binding upon the parties to
it and must be performed in good faith.
 Treaty versus municipal law (Article 27)—A party may not
invoke the provisions of its internal law as justification for its
failure to perform a treaty. This rule is without prejudice to
Article 46.
 Non-retroactivity of treaties (Article 28)—Unless a different
intention appears from the treaty or is otherwise established, its
provisions do not bind a party in relation to any act or fact
which took place or any situation which ceased to exist before
the date of the entry into force of the treaty with respect to that
party.
 Application of Treaties
 Application of successive treaties on the same subject matter subject
matter (Article 30)
 1. Subject to Article 103 of the Charter of the U N, the rights and
obligations of States parties to successive treaties … shall be
determined in accordance with the following paragraphs….
 When all the parties to the earlier treaty are parties also to the later
treaty … the earlier treaty applies only to the extent that its
provisions are compatible with those of the later treaty. • [If parties
are identical: Lex posterior derogat legi priori applies.]
 [If parties are not identical: Art. 30 (4) applies. It is actually based on
the rule pacta tertiis nec nocent nec prosunt. Therefore, as between a
State party to both treaties and a State party to only one of the
treaties, the treaty to which both States are parties govern their rights
and obligations. Art. 30 (4)(b)]
 Application of Treaties
 Art. 30 deals with hierarchy among treaties. • Art. 103 of the Charter: “In the
event of a conflict between the obligations of the Members of the UN under the
present Charter and their obligations under any other international agreements,
the obligations under the present Charter shall prevail.” • Art. 103 is known as
“clause paramount”. Obligations under the UN Charter have primacy over
obligations under any other treaty.
 Lockerbie case (provisional measures)1992 ICJ Rep., 3, 114.1992 ICJ Rep., 3,
114. • The Court refused to grant provisional measures to Libya because by virtue
of Art. 103, Libya’s obligation under the Charter (i.e., SC Resolution 748
requiring Libya to surrender the two suspects) prevailed over its obligation under
the Montreal Convention (i.e., Libya can either extradite or prosecute the two
suspects).
 Treaties and third States—Article 34: A treaty does not create either obligations
or rights for a third state without its consent. The general rule in Article 34, which
is known by the maxim pacta tertiis nec nocent nec prosunt, undoubtedly reflects
customary international law. Art. 35 (obligations for third states – must expressly
accept in writing). Art. 36 (rights for third states – consent can be presumed).
 Interpretation of Treaties
 According to Fitzmaurice, there are three traditional schools of treaty
interpretation: (1) “Textual school”– interpretation in accordance with the
ordinary meaning of the words of the treaty; (2) “Intention school” –
interpretation in accordance with the intention of the parties; (3) “Teleological
school”—interpretation in accordance with the aims and purposes of the treaty.
 General Rule of Interpretation [Article 31] 1. A treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose. … 2. The
context…shall comprise…text, preamble and annexes. 3. There shall be taken
into account, together with the context.. (a) any subsequent agreement; (b) any
subsequent practice.
 Three integrated principles in Art. 31(1): (1) Interpreted in good faith; (2) In
accordance with the ordinary meaning to be given to the terms of the treaty in
their context; (3) In the light of its object and purpose. • Object and purpose is
more for the purpose of confirming an interpretation. • Although Art. 31(1)
contains both the “textual” and “teleological” approaches, it gives precedence to
“textual”.
 Interpretation of Treaties
 Textual interpretation is the prevailing approach. • The general rule primarily
adopts the textual approach. • The ILC: the textual approach is the established
rule of customary international law. • The jurisprudence of the ICJ also
demonstrates that the textual interpretation is regarded by it as established law.
 The importance of subsequent practice • The way in which the treaty is
actually applied by the parties is a good indication of what they understand it
to mean. • E.g. Interpretation of Art. 27(3) of the Charter: Nine votes including
concurring votes of the permanent members; • According to the practice of the
members, “concurring” means “not objecting” (See, e.g. abstention form
voting).
 Principle of effectiveness—The parties are assumed to intend the provisions
of a treaty to have certain meaning, and not to be meaningless; ut res magis
valeat quam pereat (it is better for a thing to have effect than to be made void).
When a treaty is open to two interpretations, one of which does and the other
does not enable the treaty to be effectively implemented, the former
interpretation should be adopted. This principle does not allow an
interpretation going beyond what the text of the treaty justifies.
 Interpretation of Treaties
 Interpretation of Peace Treaties case [1950 ICJ, 221]. The peace treaties
between the Allied Powers, on the one hand, and Bulgaria, Hungary
and Romania, on the other, provided for commissions to hear disputes
concerning the treaty. • The commissions were to consist of three
members. The two parties to the dispute were to appoint a member
each; the parties were then to agree upon a third. If they could not
agree, the third member was to be appointed by the SG of the UN.
 Disputes arose over the human rights guarantees in the treaties.
Bulgaria, Hungary and Romania refused to appoint members to the
commissions. The Allied powers wanted to establish the Commissions
with only two members: one appointed by them and the other
appointed by the SG of the UN. The question was brought before the
ICJ. The Court held that it was unlawful to establish Commissions with
only two members.
 The IJC in this case refused to apply the principle of effectiveness in
such a way as to override the clear meaning of the text (i.e. textual
interpretation). The duty of the court is to interpret the treaty, not to
revise it.
 Interpretation of Treaties
 Supplementary means of interpretation [Article 32] Recourse may be
had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion,
in order to confirm the meaning resulting from the application of
Article 31, or to determine the meaning when the interpretation
according to Article 31: (a) leaves the meaning ambiguous or obscure;
or (b) leads to a result which is manifestly absurd or unreasonable.
 Travaux preparatoires [Preparatory work]. It generally means the
record of the drafting of a treaty. It includes records of negotiations
between the states that participate in the drafting and, records of the
work of independent bodies of experts, such as the ILC.
 Admission of a State to the United Nations, (1948) ICJ Rep 57 “There
is no occasion to resort to preparatory work if the text of a convention
is sufficiently clear in itself”.
 Invalidity of Treaties
Six important grounds of invalidity: (1) Violation of internal law on
competence to conclude treaties; (2) Error; (3) Fraud (4) Corruption; (5)
Coercion of a State; and (6) Conflict with jus cogens.
1) Violation of internal law on competence to conclude treaties conclude
treaties. Article 46 allows a State, by way of exception, to invoke violation
of internal law as invalidating its consent, only when: (i) the internal law
relates to competence to conclude treaties; (ii) it concerns a rule of
fundamental importance; and (iii) the violation is so ‘manifest’ that the other
party (or parties) must be deemed to have been aware of it. [E.g. the State
organs and representatives may have exceeded their powers in concluding
such
2) Error (Article 48) 1. A state may invoke an error in a treaty as
invalidating its consent to be bound by the treaty if the error …formed an
essential basis of its consent to be bound by the treaty. 2. Paragraph 1 shall
not apply if the state in question contributed by its own conduct to the
error….
 Invalidity of Treaties
 Temple of Preah Vihear case 1962 ICJ Rep. 6. In 1904, the
boundary between Cambodia and Thailand in the area of Preah
Vihear was determined by a treaty The treaty stated that it was to
follow the watershed line and provided for the details to be
worked out by a Mixed Commission. A map was prepared by the
Commission. This clearly placed the Temple in Cambodia.
Cambodia relied upon the map. Thailand argued that the map
embodied a material error because it did not follow the
watershed line as required by the treaty.
 The Court rejected Thailand’s argument and stated: “It is an
established rule of law that the plea of error cannot be allowed as
an element vitiating consent if the party advancing it contributed
by its own conduct to the error, or could have avoided it….”
 Invalidity of Treaties
3) Fraud: Article 49: If a State has been induced to
conclude a treaty by the fraudulent conduct of another
negotiating State, the State may invoke the fraud as
invalidating its consent to be bound by the treaty.
 Example: The Ethiopian-Italian Wuchale Treaty, in which
the Italian version and Amharic version have different
content.
4) Corruption of a representative of a State [Art. 50]. If
the expression of a State's consent to be bound by a treaty
has been procured through the corruption of its
representative directly or indirectly by another negotiating
State, the State may invoke such corruption as invalidating
its consent to be bound by the treaty.
 Invalidity of Treaties
5) Coercion of a State Art 52. A treaty is void if its conclusion has
been procured by the threat or use of force in violation of the principles
of int’l law embodied in the Charter of the UN. Art 52 clearly refers to
Art 2(4) of the UN Charter which prohibits the threat or use of force
against territorial integrity or political independence of State.
 Fisheries Jurisdiction (Jurisdiction) case (U K v Iceland), 1973 ICJ
Rep. 14. Iceland argued that the 1961 Exchanges of Notes took
place when the British Navy had been using force to oppose the 12-
mile fishery limit of Iceland and that they were void ab initio. The
Court rejected the argument because there was no concrete evidence
of use of force and stated: “The 1961 Exchange of Notes were freely
negotiated by the interested parties on the basis of perfect equality
and freedom of decision on both sides. …”
 Invalidity of Treaties
6) Conflict with Jus Cogens. Since states are sovereign, there is no sovereign political
authority above the States. To enable inter-State relations, States voluntarily surrender
a certain portion of their sovereignty and that is int’l law. Therefore, int’l Law is
consensual in nature. Its existence depends entirely on consent of States. Rules of
international law are normally voluntary rules: “jus dispositivum”. They can at any
time be amended or abolished by consent of States, i.e., by entering into new treaties.
 However, a new concept crystallized in the late 1960s, i.e., the concept of “jus
cogens”. Many States have come to accept that there are certain rules of general
int’l law which are so important for the existence of the int’l community that they
are peremptory norms from which no derogation is permitted; they are jus cogens
(compelling law) as opposed to jus dispositivum (voluntary law). States can not
contract out of them.
 Article 53 A treaty is void, if, at the time of its conclusion, it conflicts with a
peremptory norm of general int’l law. For the purposes of the present Convention, a
peremptory norm of general int’l law is a norm accepted and recognized by the int’l
community of States as a whole as a norm from which no derogation is permitted
and which can by modified only by a subsequent norm of general int’l law having
the same character.
 Invalidity of Treaties
Consequences of invalidity. The main difference between the two
groups of grounds for invalidity: The relative grounds (violation of
internal law on treaty-making, error, corruption) invalidate only the
consent of a State to be bound by the treaty. The absolute grounds
(coercion and jus cogens) invalidate the treaty itself and render it void
ab initio.
 However, the legal consequences will depend on whether the treaty is
bilateral or multilateral. In the case of bilateral treaties, the legal
effect of establishing a relative ground is the same as that of
establishing absolute invalidity: the treaty falls.
 In the case of multilateral treaties, however, establishing an absolute
ground means that the treaty is null and void and without legal effect,
whereas establishing a relative ground does not affect the validity of
the treaty as a whole as between the other remaining parties.
Termination of the Operation of Treaties
Internal and external grounds for termination
 Internal ground: The general rule in Article 54: “the termination of a treaty or
the withdrawal of a party may take place: (1) in conformity with the provisions
of the treaty; or (2) at any time by consent of all the parties after consultation
with other parties”. In practice, the majority of modern treaties contain
provisions for termination or withdrawal. Sometimes: “The treaty shall come to
an end automatically after a certain time”. Other treaties merely give each party
an option to withdraw, usually after giving a certain period of time.
 External grounds: There are three external grounds: (1) Material breach (Art.
60); (2) Supervening impossibility of performance (Art. 61); and (3)
Fundamental change of circumstances (Art. 62).
 1) Material Breach Art. 60. The general rule is that a right to terminate does
not arise unless the breach is a material (that is, serious) one. Article 60(3)
defines a ‘material breach’ as (a) a repudiation of the treaty not sanctioned by
the present Convention; or (b) the violation of a provision essential to the
accomplishment of the object and purpose of the treaty.
Termination of the Operation of Treaties
 Breach of a bilateral treaty. In a bilateral treaty, such a material breach
enables the injured party to terminate or suspend the treaty at its discretion.
Art. 60 (1). The injured party’s right to terminate or suspend a treaty is one
of the main sanctions for breach of a treaty, but it is not the only one. There
is nothing to prevent the injured State claiming compensation instead of, or
in addition to, exercising its right under the Convention.
 Breach of a multilateral treaty. The problem is more complicated if the
treaty is multilateral. It is obvious that breach by a State party cannot
entitle the injured party to denounce the treaty, because that would not be
fair to other parties. Art. 60 (2): Therefore, a material breach of a
multilateral treaty enables all the parties by unanimous decision to
terminate the treaty altogether or to terminate it for the defaulting State
only. Art. 60(2): Likewise, a single State, which is specially affected by a
material breach, may suspend the treaty between itself and the defaulting
State.
Termination of the Operation of Treaties
Gabcikovo Nagymaros Project case (Hungary/Slovakia),
(1997) ICJ Rep 7. Hungary argued that it was entitled to
terminate the relevant treaty because of a prior breach of
treaty by Czechoslovakia (for whose actions Slovakia was
now responsible). The Court held that: “It is only material
breach of the treaty itself, by a State party to that treaty,
which entitles the other party to rely on it as a ground for
terminating the treaty. According to the facts, the Court
found that Hungary could not rely on a material breach by
Czechoslovakia because Czechoslovakia’s alleged breach
did not amount to a breach but was a legitimate response
(countermeasure) to Hungary’s earlier breaches.
Termination of the Operation of Treaties
2) Supervening Impossibility of Performance. Art 61 of the Vienna
Convention limits this ground to the ‘permanent disappearance or destruction
of an object indispensable for the execution of the treaty’. It cannot be invoked
by a party that was itself instrumental in causing these circumstances to come
about by the breach of its treaty obligations.
 Gabcikovo-Nagymaros Project case. Hungary and Czechoslovakia concluded a treaty
in 1977 to facilitate the construction of dams on the Danube River. Hungary later
suspended works, arguing that to establish a joint economic investment as required
by the treaty was inconsistent with environmental considerations. Czechoslovakia
carried out certain unilateral measures in response to Hungary’s failure to perform the
treaty. Hungary then claimed the right to terminate the treaty on the basis inter alia of
Article 61 (impossibility of performance), stating that the essential object of the
treaty was the joint economic investment which had ceased to exist. The Court stated
that since Hungary did not carry out most of the works for which it was responsible,
the impossibility resulted from Hungary’s own breach of an obligation flowing from
the treaty. Referring to Article 61(2) of the Vienna Convention, it was held that it was
not unlawful for Hungary to terminate the treaty.
Termination of the Operation of Treaties
3) Fundamental Change of Circumstances. Art. 62, It is better to be
cautious in referring to this doctrine. Stability of treaty relations is so
important and a balance must be struck. According to modern int’l law, the
rule ‘fundamental change of circumstances’ applies only in the most
exceptional circumstances; otherwise it could be used as an excuse to evade
all sorts of inconvenient treaty obligations.
 Article 62 of the Vienna Convention confines the rule within very narrow
limits. Art. 62 (1): A fundamental change of circumstances not foreseen by
the parties; the existence of those circumstances must constitute an
essential basis of the consent to be bound; the effect of the change is
radically to transform the extent of the obligation still to be performed
under the treaty. Art. 62 (2): (1) It may not be invoked in relation to a treaty
establishing a ‘boundary’; and (2) as with Art 61, a State may not invoke
article 62 if the change was caused by a breach of its own int’l obligations,
either under the treaty in question or any other int’l agreement.
Termination of the Operation of Treaties
 Fisheries Jurisdiction case (1974) ICJ Rep. 3. The 1961 exchange of notes
between the UK and Iceland provided that either party could refer a dispute
concerning Iceland’s extension of its fishing zone to the ICJ. The UK relied
on the exchange of notes and submitted the dispute to the Court. Iceland
sought to have that treaty terminated by reason of, among others, a
fundamental change of circumstances affecting fisheries and fishing
techniques. The Court held that the alleged changes could not affect the only
provision in the agreement with which the Court was concerned, namely,
providing for submission of disputes to the Court.
 The Court stated “in order that a change of circumstances may give rise to a
ground for invoking the termination of a treaty it is also necessary that it
should have resulted in a radical transformation of the extent of the
obligations still to be performed. The change must have increased the burden
of the obligations to be executed to the extent of rendering the performance
something essentially different from that originally undertaken.” The Court
did not regard that condition as satisfied.