ZULKHANADYA

1503101010197
TREATY
THE LEGAL ADVICE FOR GANOMA’S GOVERNMENT
 The Fact of Case
1. The international community in 2009 has produced a convention of Fighting global
warming. The member is 150 state but, Sinumosa have not become the state member
of this convention yet.
2. In 2002, Sinumosa signed an agreement with Ganoma. Ganoma obliges to supply
Sinumosa with 100.000 metric ton timber. Sinumosa is a develop country maintain its
economic growth from exporting furniture to all over the world.
3. Ganoma is country located in the heart of Asia with its huge forest area. The bilateral
agreement contributed to both economic development.
4. Some activists argued that the bilateral treaty involving fraud during negotiation
process.
5. Bilateral treaty between Ganoma and Sinumosa never been amended or terminated.
6. In 2010, Ganoma decide to join the Fighting Global Warming Convention.
7. Obligation from the convention to maintain its forest by reducing the number of
lodging and combat the illegal lodging.
8. In 2011, after ratification of the convention into national law. Ganoma as mentioned
in the convention will received fund from other state members as compensation for
maintaining its forest.
 An Advice for Ganoma’s Government in Resolving Problem
According the fact of case in point 2, mention about Ganoma has signed the bilateral
agreement with Sinumosa in 2002. The Ganoma have the obligation from the agreement to
supply Sinumosa with 100.000 metric ton timber, based on also in point 6 of the fact of case ‘ the
Ganoma join to the Fighting Global Warming Convention. The agreement that has been signed
by the parties shall be bind them in good faith. In Section I part III in the Vienna Convention on
the law of Treaties 1969 particularly in Article 26 “Pacta Sunt Servanda” it mention “every
treaty in force is binding upon the parties to it and must be performed by them in good faith”. 1
From article 26 we know if the parties who want make the agreement (bilateral or multilateral)

1
See Vienna Convention on the law of Treaties 1969, Art. 26
and performed the agreement (consent to bound) shall apply in good faith because the main
principle of treaty, contract and other agreement is Pacta Sunt Servanda.
Based on fact of case in point 4, mention that the bilateral treaty involving the fraud
during the negotiation process. If the fraud really happens, so the bilateral treaty between the
Ganoma dan Sinumosa is invalidity. The principle about the invalidity mention in Vienna
Convention on the law of Treaties 1969 in article 46 until 53. That article talk us the agreement
invalidty if there are error, corruption, coercion and there is the agreement violation of a
provision of internal law. But about fraud the specially regulated in article 49, it said: “if a state
has been included 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” 2. That makes an
attachment to treaty invalid is fraud where the arrangement is contained in article 49. That mean,
if the fraud is really happen in treaty between Ganoma and Sinumosa, the Ganoma may not
fulfill its obligation to supply Sinumosa with 100.000 metric ton timber, because the treaty
containing the fraud is not binding and invalid as the treaty.
If the fraud in the bilateral treaty cannot be proven, the Ganoma’s Government can take
the step to withdrawal from the treaty. As we know the convention of Fighting global warming
has been ratified by Ganoma into ther national law, so the Ganoma shall fulfill the obligation of
the convention for maintaining its forest and reducing the number of lodging and combat the
illegal lodging. But, if the Ganoma did not withdrawal from the bilateral treaty absolutely the
obligation of the bilateral treaty violate the national law of Ganoma. The withdrawal the
Ganoma’s government can do is under the article 27, it said: “a party may not invoke the
provision of its internal law as justification for its failure to perform a treaty. This rule without
prejudice to article 46”3. That means the Ganoma cannot use the the reason to not perform the
convention and the bilateral treaty. So the Ganoma can do is withdrawal the bilateral treaty and
continue his obligation to fulfill the obligation of the convention. In the article 54 about the
termination or withdrawal from atreaty under its provisions or by consent of the parties, it said:”
the termination of the treaty or withdrawal of a party may take place: a. in conformity with the
provision of the treaty, or b. at any time by consent of all the parties after consultation with the

2
See Vienna Convention on the law of Treaties 1969, Art. 49
3
See Vienna Convention on the law of Treaties 1969, Art. 27
other contracting states.4 Termination or withdrawal of the treaty can be done by one of the
parties, as long as it has been agreed upon by the other parties. Ganoma to fulfill the good faith
to the bilateral treaty can inform/notify to the Sinumosa firstly with written form or verbal about
the intention of withdrawal of the treaty. In other word, the Ganoma to fulfill the good faith to
Sinumosa it make reservation to the bilateral treaty but the Ganoma did not do that. In this case
is the bilateral treaty, if one parties do the termination or withdrawal so their treaty will end.
The bilateral treaty between the Ganoma and Sinumosa is contradict with the convention
of Fighting global warming. That mean the Ganoma cannot fulfill the both treaty or convention
in the same time. According to fact of case in point 1 said about the Sinumosa have not become
the state member yet of the convention of Fighting global warming. So, that means the Sinumosa
does not have the obligation to follow the rule of the Convention of Fighting global warming. To
strengthen this argument we can see in Vienna Convention 1969 in article 2 point h, “third state
means a state not a party to the treaty”5. The Sinumosa did not have rights to follow the
convention because Sinumosa have not become the state member yet to the convention so that
means the Sinumosa is not the party of the convention. To complete the article 2 point h, in
Vienna Convention 1969 there is have article 34 about general rule regarding third states, it said:
“ a treaty does not create either obligation or rights for a third state without its consent”. 6 That
means the Sinumosa did not have obligation before the Sinumosa express the Consent to be
bound to the convention, could be given some rights or obligation after the consent and to show
the consent or acceptance to the convention the Sinomusa express in the written form. Based on
the reason the Ganoma can choice to fulfill the obligation of the convention .
The advice to the Ganoma’s Government in resolving the currently faced problems which
is obligation derived from bilateral agreement with Sinumosa and the obligation derived from the
convention the Ganoma is Withdrawal from the treaty and fulfill the obligation of the convention
because the Sinumosa not party to the convention so Sinumosa did have right tu fulfill the
obligation of the convention reducing the number of lodging and combat the illegal lodging and
if the Ganoma have certain provision that make the Ganoma disagreed to the convention the
Ganoma can do reservation to that certain provision or article.

4
See Vienna Convention on the law of Treaties 1969, Art. 54
5
See Vienna Convention on the law of Treaties 1969, Art 2 point (h)
6
See Vienna Convention on the law of Treaties 1969, Art 34