THE LAW OF TREATIES

Cdric VAN ASSCHE

1. Introduction
1969 Vienna Convention on the Law of Treaties
1986 Vienna Convention on the Law of Treaties Between
States and I.O. or Between I.O.
2. Definition of treaty (Art. 2(1)(a))
International agreement
Concluded between subjects of international law (States and
I.O.) >< State contracts
In written form >< oral agreement
Governed by international law (shall)
>< MOU = political agreement (will)
>< governed by national law
Embodied in a single instrument or in two or more related
instruments
Whatever its particular designation
3. Conclusion of treaties
A. Internal aspects
Municipal law determines organ(s) having treaty-making
power
2. International aspects
Negotiations (full powers, Art. 7)
Adoption of the text (Art. 9)
Brussels School of International Studies
Law of Treaties (2005-2006)

Authentication of the text (Art. 10)

Expression of consent to be bound by a treaty : various means
of expressing consent (Art. 11) :
Signature (Art. 12)
Exchange of letters or notes (Art. 13)
Ratification, acceptance or approval (Art. 14)
Accession (Art. 15)
Entry into force (Art. 24)
Registration (Art. 80 and Art. 102 UN Charter)
4. Reservations

Definition (Art. 2(1)(d))

Reservation interpretative declaration
Universality versus integrity of the treaty
Admissibility of reservations (Art. 19) :
Question settled in treaty (prohibited/admitted)
Treaty is silent : test of compatibility of the
reservation with the object and purpose of the
treaty

Acceptance of and objection to reservations (Art. 20)

Legal effects of reservations and of objections to reservations
(Art. 21)
Withdrawal of reservations/objections (Art. 22)
5. Observance and application of treaties
Pacta sunt servanda de bona fide (Art. 26)
Non-invocation of internal law for justifying non
performance of treaty (Art. 27)
Principle of non-retroactivity of treaties (Art. 28)
Application of successive treaties relating to the same
subject-matter (Art. 59 & 30)

Brussels School of International Studies

Law of Treaties (2005-2006)

6. Treaty interpretation
General rule of interpretation (Art. 31)
Supplementary means of interpretation (Art. 32) : travaux
prparatoires (preparatory work) of the treaty and
circumstances of its conclusion
Interpretation of treaties authenticated in two or more
languages (Art. 33)
7. Third States
General rule : pacta tertiis nec nocent nec prosunt (a treaty
does not create either obligations or rights for a third State
without its consent) (Art. 34)
Treaties providing for obligations for third States (Art. 35)
Treaties providing for rights for third States (Art. 36)
8. Amendment and modification
Amendment (Art. 40)
Modification : modifying agreement inter se (Art. 41)
9. Invalidity of treaties : grounds of invalidity
A. Incapacity of a party (?)
States: Art. 6 of 1969 Vienna Convention (full capacity)
I.O.: Art. 6 of 1986 Vienna Convention (principle of
speciality). Quid Art. 46 (2)?
B. Vitiation of consent (defective intention)
Incompetence of an agent

Brussels School of International Studies

Law of Treaties (2005-2006)

Non-compliance with municipal law requirements

and acts ultra vires (exceeding full powers):
problem of imperfect ratification
Manifest violation of domestic rule of
fundamental importance regarding competence to
conclude treaties (Art. 46)
Violation of notified specific restrictions on
authority to express consent to be bound (Art. 47)

Error (Art. 48)

Fraud (Art. 49)
Corruption of a representative of a State (Art. 50)
Coercion
of a representative of a State (Art. 51)
of a State by the threat or use of armed force (Art.
52) >< political or economic coercion
C. Illegality of the object (jus cogens)

Treaty conflicting with a peremptory norm of general

international law (= jus cogens)
Definition (Art. 53) Concept of public international order
Examples of jus cogens : Prohibition of genocide, slavery,
aggression, torture, apartheid
D. No grounds of invalidity
Breach of substantial forms
Inequality of performances (validity of unequal or leonine
treaties) Cf. lesion
10. Characteristics, procedure & consequences of invalidity
1. Relative invalidity
Incompetence, error, fraud, corruption
Brussels School of International Studies
Law of Treaties (2005-2006)

Only contracting victim State may invoke the invalidity

Confirmation of treaty is possible (Art. 45)
Separability of treaty provisions (Art. 44 (3)(4))
2. Absolute invalidity
Coercion and jus cogens
Any interested State may invoke the invalidity
Competent tribunal or international organ must declare motu
proprio the invalidity of treaty
No confirmation of treaty is possible (Art. 45)
No separability of treaty provisions (Art. 44 (5))
3. Procedure
Articles 65-68
Conciliation, ICJ or arbitration (Art. 66)
4. Consequences
Treaty is invalid ab initio (retroactive effect ex tunc)
Articles 69 and 71
11. Termination of a treaty
Termination by treaty provision or explicit or implied consent
(Art. 54 & Art. 59)
Termination by unilateral will (Art. 56)
Material breach of a treaty (Art. 60)
Supervening impossibility of performance (Art. 61)
Fundamental change of circumstances (clausula rebus sic
stantibus) (Art. 62) Cf. hardship/frustration
Emergence of a new peremptory norm of general
international law (jus cogens superveniens) (Art. 64)
12. Procedure & consequences of termination or suspension
Brussels School of International Studies
Law of Treaties (2005-2006)

Procedure : Articles 65-68. Conciliation, ICJ or arbitration

(Art. 66)
Consequences : termination (Art. 70) or suspension (Art. 72)
of a treaty ex nunc
13. State succession in respect of treaties
Definition of succession of States : Replacement of one
State by another in the responsibility for the international
relations of territory
Succession of States succession of governments or regimes
=) principle of continuity of the State
State succession: principle of continuance or discontinuance
(clean slate or tabula rasa principle)
Exceptions to clean slate : treaties establishing boundaries
and territorial regimes
1978 Vienna Convention on the Succession of States in
Respect of Treaties
Different hypotheses :

Decolonization : principle of clean slate

Cession of territory : principle of territorial variability of
treaties
Absorption: principle of territorial variability of treaties
Merger: principle of continuance with territorial limitation
Dissolution : principle of continuance or discontinuance?1
Secession : principle of continuance or discontinuance?2
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The 1978 Vienna Convention on Succession of States in Respect of Treaties adopts the principle of continuance,
excepted if 1) the States concerned otherwise agreed (contrary agreement); 2) the application of the treaty in
respect of the successor State would be incompatible with the object and purpose of the treaty; or if 3) the
application of the treaty in respect of the successor State would radically change the conditions for its operation
(cf. rebus sic stantibus). However, State practice and the practice of depositaries adopt the principle of
discontinuance, excepted if the States concerned otherwise agreed (contrary agreement).
2
Idem.

Brussels School of International Studies

Law of Treaties (2005-2006)