“Treaty

A-Introduction;
Treaties can be traced back as far as the early-recorded history of Mankind.
Evidence for their existence has been found throughout the history. Treaties have
been the major legal instruments for regulating relations between States. States
concluded treaties in every conceivable subject. Ten of thousand treaties have been
registered with the United Nations since 1946. Until 1980, treaties had been
governed by international customary law. In 1969, the Vienna Convention on the
Law of Treaties was signed, codifying and developing existing customary rules; it
came into force in 1980.

In the modern period International treaties have been the first and foremost source
of International law. – Oppenheim. Whenever, an International Court has to decide
an International dispute, its first endeavor is to find out whether there is an
International treaty on the point or not. International treaties occupy the same
significant position in the field of International law as the legislation occupies in
the municipal law.

Prior to 1969 the law of treaties consisted for the most part of customary rules of
The Vienna
International Law. Vienna Convention on the law of treaties concluded at Vienna Convention
on 23 May 1969. Entered into force on 27 January 1980. was not,
however,
Article 38(a) of ICJ Statute: intended as
In deciding disputes regarding international law. The countries shall prefer to international a complete
covenants..(treaties) code of
treaty law,
According to Oppenheim: and in the
International treaties are agreements of a contractual character between states or preamble it
organizations of states creating legal rights and duties. is in fact
affirmed
that rules
According to Schwarzea Berger: of
Treaties are agreements between subjects of IL creating binding obligation in IL. customary
IL will
According to Starke: continue to
In nearly all the cases the object of the treaty is to impose binding obligations on govern.
the states who
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are parties to it.

Article 2(1) (a) of the VCLT defines a treaty as;

“treaty” means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation.

The Vienna Convention on the Law of Treaties of 1969 (VCLT) is the main
instrument that regulates treaties. It defines a treaty and relates to how treaties are
made, amended, interpreted, how they operate and are terminated.

VCLT governs treaties irrespective of its subject matter or objectives – e.g.:

treaties to regulate conduct of hostilities (Geneva Conventions on 1949); treaties
setting up an international organization (UN Charter of 1945); and treaties
regulating matters between States and other parties on the law of the sea (UN
Convention on the Law of the Sea of 1982).

The VCLT relates only to treaties concluded between States who are parties to the
VCLT, and for treaties that entered into force after the VCLT came into force.

VCLT applied to treaties between States. This does not mean that treaties cannot
be concluded between other subjects of international law. As the International Law
Commission pointed out in its commentaries, Articles 1, 2(a) and 3 is not “in
anyway intended to deny that other subjects of international law, such as
international organizations and insurgent communities, may conclude treaties.”

The present Convention applies to any treaty which is the constituent instrument of
an international organization and to any treaty adopted within an international
organization without prejudice to any relevant rules of the organization. The
Commentary to Article 4.

In 1971, it was declared by the United States Department of State that the Vienna Convention was
recognized as the authoritative guide to current treaty law and practice.

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The term ‘treaty’ may be regarded as nomen generalissimum.

1- States transact a vast amount of work by using the device of the treaty,
in circumstances which underline the paucity of international law procedures
when compared with the many ways in which a person within
a state’s internal order may set up binding rights and obligations. For
instance, wars will be terminated, disputes settled, territory acquired, special interests
determined, alliances established and international organizations created, all by means of treaties.

2- A treaty is basically an agreement between parties on the international

scene. Although treaties may be concluded, or made, between states and
international organizations, they are primarily concerned with relations
between states.

3- 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.
4- It was reaffirmed in article 26 of the 1969 Convention,8 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.

B- Elements To Make A Valid Treaty

An International treaty must have;

i- International character; The treaty is to be concluded by an international legal

person who has capacity to enter into treaty. The international persons can be:
a) States (Article 6 of VCLT) which includes head of states, head of Govt, and
Minister of foreign affairs.

b) A treaty can be concluded between a state and another subject of International law
in an international organization. But an agreement between so called international
or multinational companies, or even between a state and such a company, is not a
treaty . e.g Anglo-Iranian Oil Company Case, 1952(United Kingdom vs Iran)

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ii- Inter-government Form; Treaties may be drafted as between states, or
governments, or heads of states, or governmental departments, whichever appears the
most expedient. The inter-government form is employed for technical or non-political
agreements.

iii- Consent on Treaty by Signature;

A state may regard itself as having given its consent to the text of the treaty
by signature in defined circumstances noted by article 12, that is, where the
treaty provides that signature shall have that effect, or where it is otherwise
established that the negotiating states were agreed that signature should
have that effect, or where the intention of the state to give that effect to
the signature appears from the full powers of its representative or was
expressed during the negotiations.

iv- Consent on Treaty by Exchange of Instruments;

Article 13 provides that the consent of states to be bound by a treaty
constituted by instruments exchanged between them may be expressed
by that exchange when the instruments declare that their exchange shall
have that effect or it is otherwise established that those states had agreed
that the exchange of instruments should have that effect.

v- Ratification;
Ratification is a very important step in the formation of a treaty. Ordinarily, unless
and until a treaty is ratified it does not bind the States concerned. By ratification the
State confirms or approves the signature made by their authorized representatives on
the treaty. The state parties become bound by the treaty after ratification.

vi- Reservation to treaties;

A reservation is defined in article 2 of the Convention 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.

C-Different Names of a Treaty

1- Conventions;
This is the term ordinally reserved for a proper formal instrument
of a multilateral character. The term also includes the instruments
adopted by the organs of international institutions for example by
the International Labor Conference and the Assembly of the
international Civil Aviation Organization.
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 2- Protocol;
This signifies an agreement less formal than a treaty or convention
proper and which is generally never in the heads of State form.

3- Agreement;
4- Arrangement
5- Process-Verbal
6- Statute
7- Declaration
8- Modus vivendi
9- Exchange of Notes (or of Letters)
10- Final Act
11- General Act

D-Formation of Treaties
Following are steps towards formation of treaties;
i- Accrediting of persons on behalf of contracting parties;
The first step in the formation of treaty is the accrediting of
persons on behalf of the contracting parties. States authorize
some representatives to represent them for the negotiation,
adoption on and signature etc, of a treaty. Unless these
representatives are accredited of authorized, they cannot
participate in the Conference.

ii- Negotiation; The accredited persons of contracting parties

enter into negotiations for the adoption of the treaty. After
the matters are settled, the treaty is adopted.

iii- Signatures; After negotiation, next important step is the

signature of the accredited representatives of the contracting
parties. A state may regard itself as having given its consent
to the text of the treaty by signature in defined
circumstances noted by article 12, that is, where the treaty
provides that signature shall have that effect, or where it is
otherwise established that the negotiating states were agreed
that signature should have that effect, or where the intention
of the state to give that effect to the signature appears from

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 the full powers of its representative or was expressed during
the negotiations.

iv- Ratification; The next stage is that the delegates who signed
the treaty or convention refer it back to their Governments
for approval, if such further act of confirmation be expressly
or impliedly necessary. In theory, ratification is the approval
by the head of State or the Government of the signature
appended to the treaty by the duly appointed
plenipotentiaries. Article 2 of Vienna Convention defines
Ratification as: the international act whereby a State
establishes on the International plane its consent to be bound
by a treaty.
According to Lord Stowell: ratification was regarded as so
necessary that without it a treaty should be deemed
ineffective.
According to Judge J.B Moore in the Mavrommatis
Palestine Concessions Case, the doctrine that treaties may be
regarded as operative before they have been ratified is
‘obsolete, and lingers only as an echo from the past.

v- Accession And Adhesion; This is the normal method by

which a state becomes a party to a treaty it has not signed
either because the treaty provides that signature is limited to
certain states, and it is not such a state, or because a
particular deadline for signature has passed. Article 15 notes
that consent by accession is possible where the treaty so
provides, or the negotiating states were agreed or
subsequently agree that consent by accession could occur in
the case of the state in question. Important multilateral
treaties often declare that states or, in certain situations,
other specific entities may accede to the treaty at a later date,
that is after the date after which it is possible to signify
acceptance by signature.

vi- Entry into Forces; The entry into force of a treaty depends
upon its provisions, or upon what the contracting States have
otherwise agreed. (Vienna Convention, article 24)

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 vii- Registration and Publication; The United Nations Charter
1945, provides by Article 102 that all treaties and
International agreements enter into by members of the
United Nations Organization, shall as soon as possible be
registered with the Secretariat of the Organization and be
published by it. No party to a treaty or agreement not
registered in this way may invoke that treaty or agreement
before any organ of the United Nation. This means that a
State party to such an unregistered treaty or agreement
cannot rely upon it in proceedings before the International
Court of Justice or in meetings of the General Assembly or
Security Council.

viii- Application and Enforcement; The final stage of the

treaty-making process is the actual incorporation, where
necessary, of the treaty provisions in the municipal law of
the State parties, and the application by such States of these
provisions, and, also, and required administration and
supervision by International organs. This is the last step of
the formation of treaty. After a treaty is ratified, publish
and registered, it is applied and enforced.

E- Termination, and Suspension of The Treaties

1- Termination of treaties by operation of law;
i- Extinction of either party to a bilateral treaty, or of the
entire subject-matter or a treaty may discharge the
instrument. In connection with the former case, questions
of state succession may arise whether the territory of the
extinguished state comes under the sovereignty of
another state.
ii- Treaties may cease to operate upon the outbreak of war
between the parties. In some instance suspension of the
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 treaty, rather than actual termination may be the result of
such a war.

2- Termination by treaty provision or consent;

A treaty may be terminated or suspended in accordance with a

specific provision in that treaty, or otherwise at any time by
consent of all the parties after consultation. Where, however, a
treaty contains no provision regarding termination and does not
provide for denunciation or withdrawal specifically, a state may
only denounce or withdraw from that treaty where the parties
intended to admit such a possibility or where the right may be
implied by the nature of the treaty.

3- Material breach;
There are two approaches to be considered. First, if one state
violates an important provision in an agreement, it is not unnatural
for the other states concerned to regard that agreement as ended by
it. It is in effect a reprisal or countermeasure, a rather unsubtle but
effective means of ensuring the enforcement of a treaty. The fact
that an agreement may be terminated where it is breached by one
party may act as a discouragement to any party that might
contemplate a breach of one provision but would be unwilling to
forgo the benefits prescribed in others. On the other hand, to render
treaties revocable because one party has acted contrary to what
might very well be only a minor provision in the agreement taken
as a whole, would be to place the states participating in a treaty in
rather a vulnerable position. There is a need for flexibility as well
as certainty in such situations. Customary law supports the view
that something more than a mere breach itself of a term in an
agreement would be necessary to give the other party or parties the
right to abrogate that agreement.

4- Supervening impossibility of performance;

Article 61 of the Convention217 is intended to cover such
situations as the submergence of an island, or the drying up of a
river where the consequence of such events is to render the
performance of the treaty impossible. Where the carrying out of
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 the terms of the agreement becomes impossible because of the
‘permanent disappearance or destruction of an object
indispensable for the execution of the treaty’, a party may
validly terminate or withdraw from it.

5- rebus sic stantibus;

Thedoctrineof rebus sic stantibus is a principle in customary
international law providing that where there has been a
fundamental change of circumstances since an agreement was
concluded, a party to that agreement may
withdraw from or terminate it. It is justified by the fact that
some treaties may remain in force for long periods of time,
during which fundamental changes might have occurred. Such
changes might encourage one of the parties to adopt drastic
measures in the face of a general refusal to accept an alteration
in the terms of the treaty. However, this doctrine has been
criticized on the grounds that, having regard to the absence of
any system for compulsory jurisdiction in the international
order, it could operate as a disrupting influence upon the
binding force of obligations undertaken by states. It might be
used to justify withdrawal from treaties on rather tenuous
grounds. For example; The declaration of The International
Court in case of Fisheries Jurisdiction.

6- Jus Cogens, or emergence of new peremptory norm

of International Law.
Article 64 of Vienna Convention provides that if a new
peremptory norms of jus cogens emerges any existing treaty
which is in conflict with that norm becomes void and
terminates.

Article 42 states that the validity and continuance in force of a treaty may only be
questioned on the basis of the provisions in the Vienna Convention. Article 44
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provides that a state may only withdraw from or suspend the operation of a treaty
in respect of the treaty as a whole and not particular parts of it, unless the treaty
otherwise stipulates or the parties otherwise agree.

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