TREATIES

 Merger of wills of 2 or more international subjects – purpose of regulating interests by

international rules
 PCIJ – Certain German Interests inn Polish Upper Silesia: treaties only bind the parties to them
 Art. 35-36 VCLT: 3rd parties obligations in treaties arise only:
rights – assent presumed as long as contrary is not indicated
obligations – acceptance by writing
 In short, nothing can be done without will of sovereign state
 Traditional law = complete freedom of states to make treaties. Now, has been codified in VCLT
1969.
 Status of convention= to a large extent seen as codifying existing customary intl law on, or giving
rise to new rules of gen intl law.
 Political or social ideologies behind convention: 3 principles underlying it:
1. Restrictions on previously unferreted freedom of states, who must now respect core set of
intl values from which no country no matter how powerful may depart. (art. 53 and 64, jus
cogens)
2. Intl relations now democratized as opposed to prev. oligarchic structure of great powers (art.
52 & Declaration on Prohibition of Military, Political or Economic Coercion annex. - coercion on a
state no longer allowed)
3. Art. 31 on interpretation: less value given to state sovereignty
 This new law under VCLT hasn’t completely superseded the old yet:
art. 4 – convention applies only to treatied concljuded after the date of entry into force of
conventions. Treaties before that goverened by old law, or to the extent that VCLT codified cust.
Intl law.

Making of Treaties

 Full freedom on MODES of aagreement and formal rules

 2 main modalities emerged from ‘state practice’, completely upto states which form to choose
- treaties concluded in solemn form
- treaties concluded in simplified form
 Solemn forms:
written text agreed on and signed by plenipotentiaries/diplomats. Then submittied to relevant
national authorities for ratification (e.g. signing by parliament).
ratification: only a states expression of intent to be bound by the treaty, not ex post enodrsment
or conformation to being bound.
states not bound until entry into force of treaty (i.e. until minimum no. of ratifications achieved
for entry into force) , although it must refrain from doing stuff contrarty to object and purpose
of treaty (art 18)
 Simplified form: - executive agreements
negotiated by diplomats or senior civil servants, become legally binding as soon as themselves
or foreign ministers sign them. Obvious reason for this is expediency and economic viability and
regulation of matters that need less intervention by heads of state or parliaments. E.g. postal
agreements.
  Cases in which issues arose whether there had been an intrnational agreement proper, or
merely a political commitment:
- Aegean Sea Continental Shelf Case:
Communique not signed or initialed. Court said: whether or not the communique
constituted an agreement depends on the nature of the act to which the communique gives
expression. Simply referring to a form doesn’t settle the matter. Court must have regard to
actual terms and particular circumstances in which it was drawn up.
in this case it was not intended to be an internationally binding agreement.
- Maritime Delimination and Territorial Qs b/w Qatar and Bahrain case: minutes of a meeting
b/e foreign ministers, did constitute an internationally binding agreement, because they
included ‘a reaffirmation of obligations prev. entered into’. Minutes not simply a record of
meeting, but enumerate commitments to which the parties have consented and create
rights and obligations in intl law.

Reservations

 Reservations = unilateral statements to (a) exclude the application of one or more provisions on
a state or (b) place a certain interpretation on them
 Bilateral treaties: reservations in this case would amount for a new text for proposal and will
only produce legal affects if affected by the other party
 Multilateral treaties:
traditionally, was subject to the principle of unanimity: which favored integrity of the treaties –
i.e. reservation must be accepted by all parties to be binding. In practice = veto to all state
parties. This proved inadequate with increase in no. of states which were diff. from western
states.
 New regime: the liberal doctrine of ‘universality of treaties’
by the Advisory Opinion of ICJ: Reservations to the Convention on Genocide
and by the VCLT
 Reservations can be made: at ratification or accession, unless
(a) reservations are expressly prohibited by the treaty
(b) are incompatible with the object and purpose of the treaty
 Treaty comes into force as between reserving state and other parties as modified by the
reservation. Latter state may object to reservation within 12 months after its notification –
objection to reservation simply means that provisions of reservation do not apply as b/w the 2
states. sometimes objection = considerable legal affect: objecting state may oppose entry into
force of treaty b/w itself and reserving state
 When reservation places a certain interpretation on the treaty provision, if a state objects to it,
the treaty applies as b/w reserving and objecting state with the exception of provision covered
by the interpretative reservation (so that clause would apply originally).
 Advantage of this regime: allowing as many states as possible to take part in treaties even if they
include some provisions unacceptable to them.
disadvantage: impairs the integrity of multilateral treaties. In practice may boil down to a series
of bilateral agreements.
  Cassese: places great emphasis on the need for a quasi-judicial independent monitoring body
assumed by the treaty to adjudge when a reservation is in contravention of object and purpose,
as otherwise it allows for too much subjectivity and potential for disagreement.
- Points out that important innovations in this area area have been introduced by
ECtHR (cases: Belilos, Weber, Loizidou (preliminary objections))
UNHRC (General Comment 24/52 of 1994 and Rawle Kennedy case)
which are: when a state enters into a reservation, it does not mean that the provision reserved
doesn’t operate with regard to the reserving state, or that the state may not join the treaty. It
only follows that the reservation will be null and void if incompatible with object and purpose of
treaty. Thus, under this view, states by their reservations can not contravene basic human
rights standards incase there is a conflict between the two.
- major powers attack this view: e.g. USA, UK and France all object to view in g. comment 24/52

Grounds of Invalidity

 Preiously, grounds of invalidity were limited, and could only make a treaty voidable not null and
void, and only the party to a treaty was legally entitled to claim that the treaty was not valid.
These previous intl rules clearly played into the hands of the Great Powers.
 Under the VCLT there have been many changes.
Treaty will be null and void when:
- Art. 52 – coercion by threat or use of military force contrary to UN Charter
- Declaration on Prohibition of Military, Political or Economic Coercion: no military political or
economic coercion on states (above 2: foundations being valid for a cust. Rule on matter of
non-coercion in conclusion of treaties)
- Art 52 – null and void if contrary to peremptory norms/jus cogens
-
- Art. 51 – use of coercion against state representatives negotiating the treaty
 Distinction b/w absolute and relative grounds of nullity:
Absolute grounds of nullity:
- coercion against state rep, coercion against state, incompatibility with jus cogens violate it ex
tunc i.e. since the moment it was concluded.
- all state parties to the treaty can invoke invalidity of treaty
- Treaty can’t be divided into valid or invalid clauses, all of it will be void
- Possible acquiesce won’t render the treaty valid (art. 45) void ex tunc
- Whether, in absolute nullity,it may be invoked by a third party state:
art. 65 VCLT – only a party to the defective treaty may be

Relative grounds of nullity:

- corruption of officials (art 50), error (art 48), fraud (art. 49), manifest violation of internal law
(art 47)
- such defects may be cured by acquiesce or subsequent express consent by aggrieved part
- such grounds may vitiate only some provisions of treaty, not entire treaty
- bona

fide acts under such provisions may be still valid depending on circumstances
- also operate ex tunc, i.e. since the conclusion of treaty
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