Chapter 9 (Law of the Treaties) Notes of Public International Law

Chapter 9

Law of the Treaties

a. Meaning, Types and Importance of International Treaties

1. Introduction

International treaties are essential instruments in international law, serving as legally binding agreements between states and other international entities. They regulate a wide array of matters, including trade, peace, environmental protection, and human rights. Treaties foster cooperation, resolve disputes, and maintain global stability.

2. Meaning and Definition of Treaties

Definition: According to Article 2(1)(a) of the Vienna Convention on the Law of Treaties (VCLT) 1969, a 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 in two or more related instruments and whatever its particular designation."

The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (VCLTIO) extends the definition to agreements involving international organizations.

In Qatar v Bahrain (1993), the ICJ ruled that even informal agreements such as exchange of notes could constitute binding treaties. Similarly, in Sovereignty over Eastern Greenland Case (1933), oral agreements were recognized as treaties under customary international law.

3. Historical Background

The first known treaties date back to 3100 BCE between Mesopotamian city-states.
The Treaty of Kadesh (1259 BCE) between Egypt and the Hittite Empire is the oldest surviving peace treaty.
Modern treaty law evolved with the Peace of Westphalia (1648), which laid the foundation for state sovereignty.
The Vienna Convention on the Law of Treaties (1969) marked the most significant codification of treaty law.

4. Types of Treaties

Treaties can be classified based on different criteria:

Ø On the basis of (who is the) subject of the treaty, treaties are of three kinds:

· an international agreement concluded between States in written form and governed by international law à Vienna Convention on Law of Treaties (VCLT)

· an international agreement concluded between states and international organization àof Vienna Convention on the Law of Treaties of International Organizations (VCTIO)

· an international agreement concluded between international organizations à VCTIO.

a) Based on Parties Involved

Bilateral Treaties: Agreements between two states (e.g., Nepal-India Peace and Friendship Treaty, 1950).
Multilateral Treaties: Agreements between three or more states (e.g., Paris Agreement, 2015).

b) Based on Subject Matter

Political Treaties: Focus on peace and security (e.g., NATO Treaty).
Trade Treaties: Regulate commercial relations (e.g., WTO Agreements).
Human Rights Treaties: Protect individual rights (e.g., ICCPR 1966).
Environmental Treaties: Address environmental issues (e.g., Kyoto Protocol 1997, Paris Agreement 2015).

c) Based on Legal Nature

Constitutive Treaties: Create new legal frameworks or institutions (e.g., UN Charter 1945).
Contractual Treaties: Create reciprocal obligations between parties (e.g., Extradition Treaties).
Law-Making Treaties: Codify general rules of international law (e.g., Geneva Conventions 1949).

5. Importance of Treaties

Source of International Law: Treaties are primary sources of international law under Article 38(1)(a) of the ICJ Statute.
Promote Cooperation: Facilitate global collaboration on common issues like climate change and human rights.
Dispute Resolution: Provide mechanisms for peaceful settlement of disputes (e.g., UNCLOS).
Global Stability: Create predictable frameworks for international relations.
Customary International Law: Treaties often reflect or give rise to customary international law.

International treaties play a fundamental role in governing relations between states and international organizations. They are vital tools for promoting cooperation, ensuring peace, and protecting global interests. The codification of treaty law under the Vienna Conventions has significantly contributed to the development of international legal frameworks, balancing state sovereignty with global obligations.

b. Conclusion of Treaties, Mode of Expression of State Consent (Signature, Ratification, Accession)

Conclusion of Treaties and Mode of Expression of State Consent

1. Introduction

The conclusion of treaties is a critical aspect of international law, as it formalizes agreements between states and international organizations. The process involves various stages and modes through which states express their consent to be bound by treaty obligations. This section explores the procedural steps and methods by which state consent is expressed, referencing key international instruments and case laws.

2. Stages of Treaty-Making Process

The treaty-making process typically follows these stages:

a) Drafting

The initial phase, where the content of the treaty is negotiated and formulated by state representatives.
The text is prepared by diplomatic representatives, often during international conferences.

b) Adoption

According to Article 9 of the VCLT (1969), adoption is the formal act by which the text of the treaty is established.
Adoption usually occurs through consensus or a two-thirds majority vote in international conferences.
Example: The Rome Statute of the International Criminal Court (1998) required at least 60 signatories for adoption.

3. Modes of Expression of State Consent

State consent to be bound by treaties is expressed through various methods, including signature, ratification, accession, and acceptance.

a) Signature

Article 12 of the VCLT (1969) provides that signing a treaty expresses consent to its final text but not necessarily to be bound by it.
It may indicate the state’s intention to seek ratification later.
Example: The Kyoto Protocol (1997) was signed by many states before they ratified it.

b) Ratification

Ratification is the formal act by which a state expresses its consent to be bound by a treaty after fulfilling its domestic constitutional processes.
Article 14 of the VCLT (1969) outlines the ratification process.
Case Law: In Cameroon v Nigeria (2002), the ICJ upheld that treaties ratified by both parties are binding despite Nigeria’s later objections.

c) Accession

Accession is the act by which a state becomes a party to a treaty it did not sign during the adoption phase.
Article 15 of the VCLT (1969) governs accession.
Example: Nepal acceded to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1991 without prior signature.

d) Acceptance

Acceptance functions similarly to ratification or accession and is often used in treaties involving international organizations.
Article 16 of the VCLT (1969) provides for acceptance.
Example: The Rotterdam Rules (2008) require acceptance of certain provisions in addition to ratification.

4. Depositing Instruments of Consent

Treaties often require the depositing of instruments of consent with a designated depository, such as the UN Secretary-General.
Article 77 of the VCLT (1969) specifies the role of the depository.
Example: The UN Framework Convention on Climate Change (1992) designates the UN Secretary-General as the depository.

5. Legal Effects of Consent

Once a state expresses consent through one of the recognized methods, it is legally bound by the treaty.
The principle of Pacta Sunt Servanda (Article 26 VCLT) obliges states to perform their treaty obligations in good faith.
Case Law: The ICJ in Qatar v Bahrain (1993) confirmed that signed meeting minutes could constitute binding treaties.

The conclusion of treaties and the modes of expressing state consent are vital components of international law. These processes ensure the binding nature of treaties and promote the stability and predictability of international relations. The Vienna Conventions provide a unified framework for these procedures, enhancing the legitimacy and enforceability of international agreements.

c. Various Stages of Conclusion of Treaty

1. Introduction

The process of concluding treaties involves several stages that ensure the formalization of agreements between states or international organizations. Each stage plays a crucial role in securing mutual consent and defining the legal obligations of the parties. The Vienna Convention on the Law of Treaties (1969) provides a comprehensive framework for the conclusion of treaties.

2. Stages of Conclusion of Treaty

a) Negotiation

The first stage where parties discuss the terms and conditions of the treaty.
Negotiations may occur through diplomatic channels, conferences, or international organizations.
Example: Negotiations for the Paris Agreement (2015) involved numerous international conferences under the UNFCCC framework.

b) Drafting

The agreed terms from the negotiation stage are drafted into a formal legal document.
Legal experts often review the text to ensure clarity and consistency with international law.
Example: The Treaty of Versailles (1919) underwent extensive drafting to reflect the peace terms following World War I.

c) Adoption

Adoption signifies the formal agreement on the final text of the treaty.
Article 9 of the VCLT stipulates that adoption usually occurs by consensus or majority vote at international conferences.
Example: The Rome Statute of the International Criminal Court (1998) required adoption by a two-thirds majority.

d) Signature

Signing the treaty indicates the state’s preliminary agreement to the text but not necessarily its consent to be bound.
Article 12 of the VCLT outlines that signature represents consent to the treaty’s object and purpose.
Example: The Kyoto Protocol (1997) was signed by many countries before formal ratification.

e) Ratification

Ratification is the formal process by which a state expresses its consent to be legally bound by the treaty.
This requires internal approval through constitutional procedures such as parliamentary approval.
Article 14 of the VCLT governs the ratification process.
Case Law: Cameroon v Nigeria (2002) confirmed the binding nature of treaties ratified by both parties.

f) Accession

Accession allows states that did not participate in the initial negotiations to become parties to the treaty.
Article 15 of the VCLT regulates accession.
Example: Nepal acceded to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1991 without prior signature.

g) Acceptance or Approval

States may express their consent to be bound through acceptance or approval, which functions similarly to ratification.
Article 16 of the VCLT addresses acceptance and approval.
Example: The Rotterdam Rules (2008) require states to accept certain provisions alongside ratification.

h) Reservation

A reservation is a unilateral statement by a state to exclude or modify certain provisions of the treaty.
Articles 19-23 of the VCLT regulate reservations.
Example: The United States placed reservations on the ICCPR (1966) regarding the death penalty.

i) Depositing Instruments of Consent

The final stage where the state deposits its instrument of ratification, accession, or approval with the designated depository.
The treaty enters into force once the specified number of parties has deposited their instruments.
Example: The UN Framework Convention on Climate Change (1992) designates the UN Secretary-General as the depository.

3. Legal Effect of Conclusion

Once the treaty enters into force, parties are legally bound by its provisions under the principle of Pacta Sunt Servanda (Article 26 VCLT).
Case Law: The ICJ in Qatar v Bahrain (1993) confirmed that meeting minutes could constitute binding international agreements.

The various stages of concluding treaties ensure that states express their consent through a clear and transparent process. These stages protect the integrity of international agreements and provide a framework for mutual obligations. The Vienna Conventions have standardized these procedures, promoting stability and cooperation in international relations.

d. Reservation to Treaties

1. Introduction

Reservations to treaties are an essential aspect of international treaty law, allowing states to modify certain provisions of a treaty to suit their national interests without undermining the overall object and purpose of the treaty. The concept of reservations is governed primarily by the Vienna Convention on the Law of Treaties (1969) and has been elaborated through various case laws and advisory opinions.

2. Definition of Reservation

According to Article 2(1)(d) of the VCLT (1969):

"Reservation means 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 modify the legal effect of certain provisions of the treaty in their application to that State."

This definition highlights that reservations are unilateral declarations and allow states to limit or alter the legal obligations of specific treaty provisions.

3. Purpose of Reservation

The primary purposes of reservations include:

Allowing wider participation in multilateral treaties by accommodating national concerns.
Excluding or modifying specific legal obligations that conflict with domestic laws or policies.
Balancing the need for state consent and the universality of international agreements.

Example: Nepal made a reservation to Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), excluding its consent to the jurisdiction of the International Court of Justice in dispute settlement matters.

4. Legal Nature of Reservations

Reservations are unilateral in nature, meaning they are made by one state without requiring the consent of other parties. The ICJ Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) confirmed that reservations are permissible even without the consent of other states, provided they do not conflict with the object and purpose of the treaty.

Case Law:

Genocide Convention Advisory Opinion (1951): The ICJ held that reservations are acceptable as long as they are compatible with the object and purpose of the treaty (para. 39).
Belilos v Switzerland (1988): The ECtHR invalidated a Swiss reservation that was deemed incompatible with the European Convention on Human Rights.

5. Permissibility of Reservations

Reservations are permissible under the following conditions:

a) When Expressly Allowed by the Treaty

Treaties such as ICCPR, ICESCR, and CEDAW explicitly allow reservations.

b) When Expressly Prohibited by the Treaty

Certain treaties prohibit reservations to protect their integrity.
Example: The Rome Statute of the International Criminal Court and Convention on Biological Diversity (CBD) prohibit any reservations.

c) Selective Reservation Clauses

Some treaties allow reservations only on specific provisions.
Example: UNCLOS (1982) prohibits reservations on deep seabed mining but allows reservations on dispute settlement mechanisms.

d) When the Treaty is Silent

If the treaty is silent, Article 19(c) of the VCLT (1969) states that reservations are permissible unless they are incompatible with the object and purpose of the treaty.

Case Law: The Genocide Convention Advisory Opinion (1951) clarified that reservations are not permitted to the definition of genocide but are allowed on procedural matters such as dispute settlement.

6. Procedure for Making Reservations

Reservations can be made at various stages of the treaty-making process:

During signature (if the treaty permits).
During ratification, acceptance, or approval, reservations must be included in the instrument of ratification.
During accession – states can make reservations at the time of joining a treaty.

7. Objections to Reservations

Other state parties may object to reservations within 12 months of notification. According to Article 20-23 of the VCLT (1969):

An objection does not necessarily preclude the treaty’s entry into force between the objecting and reserving states unless the objecting state expressly declares otherwise.
Example: The Human Rights Committee’s General Comment No. 24 (1994) stated that reservations incompatible with the object and purpose of the ICCPR would be invalid.

8. Withdrawal and Modification of Reservations

States can withdraw reservations at any time unless the treaty provides otherwise (Article 22 VCLT).
Example: France withdrew its reservation to Article 27 of the ICCPR in 2010.

9. Legal Effect of Reservations

Accepted reservations modify the treaty obligations only between the reserving and accepting states.
Rejected reservations may limit the treaty's applicability between the reserving and objecting states.
Case Law: The Belilos v Switzerland (1988) case demonstrated how incompatible reservations could be declared invalid.

Reservations to treaties provide a flexible mechanism for states to participate in international agreements while accommodating their national interests. However, the permissibility and legal effects of reservations must balance state sovereignty with the object and purpose of the treaty. The Vienna Conventions, along with case laws and advisory opinions, offer a comprehensive framework for regulating reservations in international treaty law.

e. Entry into Force and Implementation of Treaties

1. Introduction

The entry into force and implementation of treaties are crucial steps that ensure treaties become legally binding and operational in the international legal system. These stages confirm the consent of the parties and outline the obligations that follow. The Vienna Convention on the Law of Treaties (VCLT) 1969 provides the primary legal framework governing these processes, along with customary international law and case laws.

2. Entry into Force of Treaties

a) Definition

The entry into force of a treaty refers to the moment when the treaty becomes legally binding on its parties. According to Article 24(1) of the VCLT (1969), a treaty enters into force in such a manner and upon such date as the treaty itself provides or as the negotiating states agree.

b) Conditions for Entry into Force

Specified Date: The treaty itself may specify the date of entry into force (e.g., Paris Agreement (2015) entered into force on November 4, 2016).
Minimum Number of Ratifications: Some treaties require a minimum number of ratifications before entering into force (e.g., Rome Statute (1998) required 60 ratifications).
Mutual Agreement of Parties: Treaties may provide that they will enter into force upon agreement of the negotiating states (e.g., UN Charter (1945)).

c) Case Law

Aegean Sea Continental Shelf Case (1978): The ICJ emphasized that entry into force occurs only when the formal requirements laid down by the treaty have been satisfied.
LaGrand Case (Germany v United States, 2001): The ICJ highlighted the binding nature of treaties upon their entry into force.

d) Depositary Role

According to Article 77 of the VCLT (1969), the depositary (often the UN Secretary-General or an international organization) plays a crucial role in notifying parties about the entry into force of treaties.

3. Implementation of Treaties

a) Definition

Implementation refers to the process through which states fulfill their treaty obligations within their domestic legal systems. It involves both legislative and administrative actions.

b) Methods of Implementation

Automatic Incorporation (Monist System): International law automatically becomes part of domestic law without requiring additional legislation (e.g., Netherlands, France).
Transformational Approach (Dualist System): International treaties must be incorporated into domestic law through legislative acts (e.g., Nepal, UK, India).

Case Law:

A v Secretary of State for the Home Department (2004, UKHL 56): The UK House of Lords affirmed that treaties require legislative incorporation under the dualist system.

c) Domestic Legal Framework

In Nepal, Section 9 of the Nepal Treaty Act, 1990 provides that treaties ratified by the state prevail over national laws in case of inconsistency.
Example: Nepal’s implementation of CEDAW through the Domestic Violence (Crime and Punishment) Act, 2009.

4. Monitoring and Compliance

Treaties often establish mechanisms to monitor compliance, including:

Treaty Bodies (e.g., Human Rights Committee for ICCPR).
Reporting Obligations (e.g., CEDAW Committee).
Dispute Settlement Mechanisms (Article 33 of the UN Charter).

5. Suspension and Termination of Treaties

Treaties may be suspended or terminated under certain conditions:

Article 60 VCLT: Termination for material breach.
Article 61 VCLT: Impossibility of performance.
Article 62 VCLT: Fundamental change of circumstances.

Case Law:

Gabcikovo-Nagymaros Project (Hungary/Slovakia, 1997): The ICJ ruled that fundamental changes in circumstances must be unforeseen and substantial to justify treaty termination.

6. Challenges in Implementation

Lack of political will.
Inadequate domestic legislation.
Resource constraints.
Conflicts between domestic and international obligations.

The entry into force and implementation of treaties are vital for the effectiveness of international law. The VCLT establishes clear rules for the entry into force, while domestic legal systems play a critical role in implementation. Ensuring compliance requires cooperation between international bodies and domestic institutions, balancing state sovereignty with international obligations.

f. Treaty interpretation

1. Introduction

Treaty interpretation is a fundamental aspect of international law that determines the meaning and scope of treaty provisions. The correct interpretation of treaties ensures the proper application of international obligations and fosters uniformity in international relations. The Vienna Convention on the Law of Treaties (VCLT) 1969 serves as the primary legal framework for interpreting treaties, alongside customary international law and judicial decisions.

2. General Rule of Interpretation

a) Ordinary Meaning (Plain Interpretation)

Article 31(1) of the VCLT (1969) provides the cornerstone rule for treaty interpretation:

"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."

This method requires the interpreter to consider the ordinary and plain meaning of the words used, without attempting to derive hidden meanings.

Case Law:

Korea – Procurement Case (WTO, 2000): The Appellate Body emphasized the importance of the ordinary meaning of treaty terms as the starting point of interpretation.
Oil Platforms Case (Iran v USA, ICJ, 2003): The ICJ reinforced that ordinary meaning must be based on the language of the treaty.

b) Contextual Interpretation

Article 31(2) of the VCLT specifies that the context includes:

The text, preamble, and annexes.
Agreements made between the parties relating to the treaty.
Instruments made by one or more parties in connection with the conclusion of the treaty.

Case Law:

Lithgow v United Kingdom (1986): The European Court of Human Rights held that the context includes the preamble and annexes of the treaty, as well as any subsequent agreements made by the parties.

c) Purposive or Teleological Interpretation

Under Article 31(1) of the VCLT, interpretation must take into account the object and purpose of the treaty.

This approach seeks to give effect to the treaty's aims and intentions, particularly when the plain meaning is ambiguous or unclear.

Case Law:

Gabcikovo-Nagymaros Project Case (Hungary/Slovakia, ICJ, 1997): The ICJ emphasized that the object and purpose of the treaty should guide its interpretation.

3. Supplementary Means of Interpretation

Article 32 of the VCLT permits the use of supplementary means of interpretation to confirm or clarify the meaning derived from Article 31. These means include:

The preparatory works of the treaty (travaux préparatoires).
The circumstances of the treaty's conclusion.

Case Law:

Ambatielos Case (1952): The ICJ relied on preparatory works to clarify the scope of a treaty's provisions.
Elettronica Sicula S.p.A (ELSI) Case (1989): The ICJ referred to the travaux préparatoires to confirm the meaning of treaty terms.

4. Special Rules of Interpretation

a) Best-Protection Approach in Human Rights Treaties

Human rights treaties are interpreted more liberally to provide the greatest protection to individuals.

Case Law:

Licensing of Journalists Advisory Opinion (Inter-American Court of Human Rights, 1985): The court ruled that in cases of ambiguity, the interpretation most favorable to the individual must prevail.
Tyrer v UK (1978): The ECtHR interpreted the European Convention on Human Rights dynamically to ensure evolving standards of human rights protection.

b) Evolutive Interpretation

Treaties, especially human rights treaties, may be interpreted dynamically to reflect societal developments.

Case Law:

Loizidou v Turkey (1995): The ECtHR adopted an evolutive interpretation of the right to property in light of changing social norms.

5. Conflict Resolution in Interpretation

When a treaty provision is ambiguous or conflicting, the following rules apply:

Lex specialis: The more specific provision prevails over the general one.
Lex posterior: Later treaties prevail over earlier ones when both are binding on the same parties.

Case Law:

Air Services Agreement Case (1978): The arbitration tribunal applied the principle of lex specialis.

6. State Practice and Judicial Decisions

Under Article 31(3) of the VCLT, subsequent agreements and practices of the parties are relevant in interpretation.

Case Law:

Kasikili/Sedudu Island Case (Botswana/Namibia, ICJ, 1999): The ICJ considered subsequent state practice in its interpretation of the treaty.

7. Interpretation by International Organizations

Certain treaties grant interpretive authority to international organizations, such as the WTO Appellate Body and UN Treaty Bodies.

Example:

The Human Rights Committee (ICCPR) issues authoritative interpretations through General Comments.

Treaty interpretation is a multifaceted process that balances ordinary meaning, context, and purpose to ascertain the true intentions of the parties. The VCLT provides a comprehensive framework, reinforced by case laws and judicial decisions. The special nature of human rights treaties demands a more liberal and purposive approach to ensure maximum protection of individual rights.

g. Condition of the Validity of Treaties

1. Introduction

The validity of treaties is a fundamental aspect of international law, ensuring that agreements between states are legally binding and enforceable. The Vienna Convention on the Law of Treaties (VCLT) 1969 provides comprehensive rules regarding the conditions that may affect the validity of treaties under Articles 46 to 53. These conditions are crucial in upholding the legitimacy of international agreements and preventing coercion, fraud, or violations of international norms.

2. Classification of Grounds for Invalidity

The VCLT categorizes the grounds for invalidating treaties into two broad types:

a) Relative Grounds (Voidable Grounds)

Render a treaty voidable only at the insistence of an affected state.
Covered under Articles 46-50 of the VCLT.
Common in cases where the defect affects the state’s consent without violating fundamental international norms.

b) Absolute Grounds (Null and Void Grounds)

Automatically render a treaty invalid without the need for an affected state’s request.
Covered under Articles 51-53 of the VCLT.
Involves breaches of peremptory norms or use of force.

3. Relative Grounds (Articles 46-50 VCLT)

a) Violation of Internal Law on Competence to Conclude Treaties (Article 46)

If the consent to a treaty is given in violation of the state's internal law regarding competence to conclude treaties, the treaty is voidable.

Conditions:

The violation must be manifest.
It must concern a rule of fundamental importance.

Case Law:

Aegean Sea Continental Shelf Case (Greece v Turkey, ICJ, 1978): The ICJ rejected the claim that Greece’s consent was invalid due to internal constitutional requirements, as the violation was not manifest.

b) Restrictions on Treaty Representatives (Article 47)

If the representative of a state concludes a treaty without adhering to specific restrictions imposed by the state, the treaty may be voidable if the restrictions were notified to other negotiating states.

c) Error (Article 48)

A treaty is voidable if the state’s consent was based on an error of fact or situation essential to its consent.

Case Law:

Temple of Preah Vihear Case (Thailand v Cambodia, ICJ, 1962): Thailand claimed that a map indicating the boundary was erroneous. The ICJ ruled that the plea of error could not invalidate the treaty since Thailand contributed to the error by its conduct.

d) Fraud (Article 49)

A treaty is voidable if one of the negotiating states induced another to conclude the treaty through fraudulent conduct.

Example:

Historical disputes on fraudulent treaties during colonial rule.

e) Corruption of a Representative (Article 50)

If the consent of a state representative was procured through corrupt practices, the treaty is voidable.

Example:

Cases where corruption was used to bribe officials to conclude treaties (e.g., Arms Trade Agreements in Colonial Africa).

4. Absolute Grounds (Articles 51-53 VCLT)

a) Coercion Against a Representative (Article 51)

If the consent of a state representative was procured by threats or coercion, the treaty is automatically void.

Case Law:

Franco-Prussian Treaty (1871): Treaties signed under duress were later invalidated.

b) Coercion Against a State by Use of Force (Article 52)

A treaty is void if the consent was procured by threat or use of force in violation of the UN Charter.

Case Law:

Treaty of Brest-Litovsk (1918): The treaty was imposed on Soviet Russia by Germany under military coercion and later repudiated.
Kuwait-Iraq Border Agreement (1991): The agreement was deemed invalid as it was signed under Iraqi military occupation.

c) Conflict with Peremptory Norms (Article 53)

A treaty is void if it conflicts with jus cogens (peremptory norms of international law).

Examples of Peremptory Norms:

Prohibition of genocide.
Prohibition of slavery.
Prohibition of torture.
Prohibition of the use of force.

Case Law:

Genocide Convention Advisory Opinion (ICJ, 1951): The ICJ confirmed that the prohibition of genocide is a peremptory norm.
Gabcikovo-Nagymaros Project Case (Hungary/Slovakia, ICJ, 1997): The ICJ reaffirmed that treaties violating environmental norms could be invalidated if they conflict with peremptory norms.

5. Legal Consequences of Invalidity

According to Article 69 of the VCLT, when a treaty is invalid:

The treaty has no legal force.
Acts performed under the treaty must, as far as possible, be reversed.
Rights acquired under the treaty before its invalidity remain unaffected if done in good faith.

6. Burden of Proof

The burden of proof lies with the state invoking the ground of invalidity.
Courts assess the evidence carefully to avoid abuse of invalidity claims.

The conditions for the validity of treaties are fundamental to preserving the integrity of international agreements. The VCLT’s detailed provisions provide a balance between the need to respect state sovereignty and the necessity to uphold international legal principles. The distinction between relative and absolute grounds ensures that states cannot abuse technical errors while protecting against coercion, fraud, and violations of peremptory norms.

h. Termination of Treaties

1. Introduction

The termination of treaties is a significant aspect of international law that regulates how states can end their legal obligations under a treaty. The Vienna Convention on the Law of Treaties (VCLT) 1969 provides comprehensive guidelines on the termination of treaties under Articles 54 to 64. The termination process ensures that states cannot arbitrarily withdraw from their international commitments and protects the stability of international relations. This section discusses the grounds, procedures, and case laws associated with treaty termination.

2. Grounds for Termination of Treaties

Treaties can be terminated on two primary grounds:

a) Formal Grounds (Articles 54-59 VCLT)

Formal grounds refer to the termination of treaties in accordance with the terms of the treaty or by mutual consent of the parties.

· Article 54: Termination by consent or in accordance with treaty provisions.

Treaties may contain a final clause stipulating the circumstances under which they may be terminated (e.g., Kyoto Protocol ended to make way for the Paris Agreement).
Parties may terminate the treaty at any time by mutual agreement.

· Article 56: Denunciation or Withdrawal

If a treaty does not have a termination clause, withdrawal is possible if:

The treaty provides for withdrawal.
It is established that the parties intended to allow withdrawal.

Example: ICCPR does not allow withdrawal due to its fundamental human rights nature, but the Optional Protocol allows denunciation.

· Article 59: Termination by Conclusion of a Later Treaty

When a new treaty between the same parties on the same subject matter is concluded, the earlier treaty is terminated (e.g., Treaty of Versailles terminated to make way for the UN Charter).

b) Material Grounds (Articles 60-62 VCLT)

Material grounds deal with situations where significant changes or breaches occur that undermine the treaty’s existence.

Article 60: Material Breach

A material breach of the treaty by one party may entitle the other party to terminate the treaty.
Material breach includes:

Violation of an essential provision.
Repudiation of the treaty.

Case Law:

· Gabcikovo-Nagymaros Project Case (Hungary/Slovakia, ICJ 1997): Hungary terminated the treaty citing Czechoslovakia’s breach of joint-operation clauses. The ICJ held that Hungary’s termination was premature because the breach occurred after Hungary’s notification.

· Rainbow Warrior Case (New Zealand v France, UN Arbitration 1990): France violated the 1986 agreement to confine its agents on a remote island, constituting a material breach. The tribunal ruled that New Zealand could suspend its treaty obligations.

· Article 61: Impossibility of Performance

If the object indispensable to the execution of the treaty is destroyed, the treaty may be terminated.

Case Law:

· Gabcikovo-Nagymaros Project Case: Hungary claimed that the construction of the bypass canal made it impossible to execute the treaty. The ICJ rejected this claim, stating that the Danube River was still flowing and the object of the treaty remained intact.

· Fisheries Jurisdiction Case (UK v Iceland, ICJ 1973): Iceland claimed that the collapse of fish stocks justified termination of its fisheries agreement with the UK. The ICJ held that while ecological changes were significant, they did not constitute a complete impossibility of performance.

· Article 62: Fundamental Change in Circumstances (Rebus Sic Stantibus)

A treaty may be terminated if there has been an unforeseen fundamental change in circumstances that radically alters the obligations of the parties.

Conditions:

The change must be unforeseen.
The change must affect the essential basis of consent.
The obligation must be radically transformed.

Case Law:

· Gabcikovo-Nagymaros Project Case: Hungary argued that the economic and political changes in the country made the project non-viable. The ICJ rejected this argument, stating that the change in profitability did not meet the threshold of fundamental change.

· Fisheries Jurisdiction Case (UK v Iceland, ICJ 1973): Iceland’s claim of changed economic and ecological circumstances was rejected because the changes did not fundamentally alter the obligations under the treaty.

· Article 64: Emergence of New Peremptory Norm (Jus Cogens)

A treaty becomes void if it conflicts with a new jus cogens norm.

Example:

Any treaty permitting slavery or genocide would be invalid under contemporary peremptory norms.

3. Other Grounds for Termination (Outside VCLT)

a) State of Necessity

Under Article 25 of the Draft Articles on State Responsibility, a state may terminate its treaty obligations if it is necessary to protect essential state interests.

Case Law:

· Gabcikovo-Nagymaros Project Case: Hungary claimed that the diversion of the Danube River posed environmental risks, invoking necessity as a ground for suspension. The ICJ rejected this claim, ruling that Hungary had alternative means to address the risks.

· Russian Fur Seals Arbitration (1893): The US terminated its sealing treaty with Russia, citing the necessity of preserving its fur seal population. The tribunal rejected the necessity argument, stating that alternative measures were available.

4. Procedure for Termination

Notification to all parties.
Observing any waiting periods specified in the treaty.
Depositing instruments of denunciation or withdrawal with the treaty depository.

Article 65 of the VCLT outlines the formal procedure for termination, requiring the notifying party to explain the reasons for termination.

5. Consequences of Termination

The treaty ceases to produce legal effects between the parties.
Acts performed under the treaty remain valid unless otherwise specified (Article 70 VCLT).
Rights acquired by third parties are not affected.

The termination of treaties is a highly regulated process under international law to preserve the stability of international relations. The VCLT provides a comprehensive framework for both formal and material grounds of termination. The Gabcikovo-Nagymaros Case highlights the importance of proper procedures, the threshold for fundamental changes, and the necessity doctrine. The addition of cases such as the Rainbow Warrior Case and the Fisheries Jurisdiction Case further illustrate the diverse grounds for termination under international law.

i. Treaties and Third States

1. Introduction

The relationship between treaties and third states is a fundamental principle of international law. The general rule, pacta tertiis nec nocent nec prosunt, stipulates that treaties neither impose obligations nor confer rights on third parties without their consent. This principle preserves the sovereignty of states and ensures that only those who have explicitly agreed to be bound by a treaty are affected by its provisions.

2. General Rule: Pacta Tertiis Nec Nocent Nec Prosunt

Definition: The Latin maxim pacta tertiis nec nocent nec prosunt translates to “agreements neither harm nor benefit third parties”.

This rule is codified under Article 34 of the VCLT 1969, which states: “A treaty does not create either obligations or rights for a third state without its consent.”

Case Law:

Free Zones of Upper Savoy and the District of Gex Case (France v Switzerland, PCIJ 1932): The Permanent Court of International Justice (PCIJ) affirmed that a treaty could not impose obligations on third parties without their consent.

3. Exceptions to the General Rule

Despite the general principle, there are four key exceptions where treaties can affect third states or third parties.

a) Express Consent of Third States (Article 35 VCLT)

A third state may expressly accept the obligations of a treaty in writing if the parties to the treaty intend to create such obligations.

Example:

Declarations under the Rome Statute (International Criminal Court): Non-state parties can accept the ICC’s jurisdiction on an ad hoc basis under Article 12(3).

b) Objective Regimes

Certain treaties create legal regimes that apply to all states due to their nature and subject matter.

Examples:

UNCLOS (1982): Freedom of navigation on the high seas applies to all states, including non-parties.
Treaties establishing international waterways (e.g., the Danube River Convention) impose obligations on all riparian states regardless of their participation in the treaty.

c) Customary International Law

When treaty provisions reflect customary international law, they bind all states, including non-parties.

Case Law:

North Sea Continental Shelf Cases (Germany v Denmark and Netherlands, ICJ 1969): The ICJ held that certain treaty provisions related to the continental shelf had become customary international law, binding on non-signatories.

d) UN Security Council Resolutions

Under Article 25 of the UN Charter, all UN Member States are bound by decisions of the Security Council. Even non-member states may be bound if the Security Council’s decision is necessary to maintain international peace and security.

Example:

UN Security Council Resolution 1373 (2001): This resolution required all states, including non-members, to adopt counter-terrorism measures following the 9/11 attacks.

4. Rights Conferred on Third States (Article 36 VCLT)

Treaties may confer rights on third states without their explicit consent, provided that the third state does not object.

Example:

Polish Nationals in Danzig Case (PCIJ 1932): The court held that treaties between Poland and the Free City of Danzig conferred rights on Polish nationals residing in Danzig without requiring their consent.

5. Revocation of Third Party Rights (Article 37 VCLT)

A third party’s rights under a treaty may be revoked or modified if the treaty so provides and the third party consents.

Example:

Treaties granting transit rights across a territory may be revoked if the treaty stipulates and the third state agrees.

6. Treaty Provisions Binding Erga Omnes

Certain treaties create obligations erga omnes, which bind all states due to their fundamental nature.

Examples:

The Genocide Convention (1948) binds all states as genocide is a crime under customary international law.
Humanitarian rules of the Geneva Conventions (1949) are binding on all states.

7. Protective Power of the UN (Article 25 UN Charter)

The UN Charter empowers the Security Council to enforce its resolutions against both member and non-member states if necessary for the maintenance of international peace and security.

Example:

UN Security Council Resolution 1373 (2001): Mandated counter-terrorism measures that applied globally.

The principle that treaties bind only their parties is a cornerstone of international law. However, exceptions such as third-party consent, objective regimes, customary international law, and UN Security Council resolutions demonstrate that treaties can sometimes have broader implications. The framework provided by the VCLT, reinforced by case law, ensures that these exceptions are applied consistently and in a manner that respects state sovereignty.

j. Treaties and Jus Cogens

1. Introduction

Jus cogens, or peremptory norms of international law, represents the highest-ranking rules in the hierarchy of international legal norms. These norms are considered fundamental principles from which no derogation is permitted. The interaction between treaties and jus cogens is one of the most significant aspects of public international law, as treaties that conflict with these norms are considered void. The Vienna Convention on the Law of Treaties (VCLT) 1969 extensively addresses this relationship under Articles 53 and 64.

2. Definition of Jus Cogens

Article 53 of the VCLT defines jus cogens as:

"A peremptory norm of general international law accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."

Jus cogens norms are universal and binding on all states, regardless of whether they have explicitly consented to them.

3. Characteristics of Jus Cogens

Universal application.
No derogation allowed.
Can only be modified by another jus cogens norm.
Recognized by the international community as a whole.
Protects fundamental interests of the international community.

Examples of jus cogens norms include:

Prohibition of genocide.
Prohibition of slavery.
Prohibition of torture.
Prohibition of aggression.
Prohibition of crimes against humanity.

4. Relationship between Treaties and Jus Cogens

The relationship between treaties and jus cogens is governed by two key provisions of the VCLT:

a) Article 53 – Treaties Conflicting with Jus Cogens

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of international law.

Example:

Treaties that allow or promote slavery or genocide would automatically be void under Article 53.

Case Law:

Genocide Convention Advisory Opinion (ICJ 1951): The ICJ confirmed that the prohibition of genocide is a peremptory norm from which no derogation is allowed.

b) Article 64 – Emergence of New Jus Cogens Norms

If a new peremptory norm of international law emerges, any existing treaty conflicting with that norm becomes void and terminates.

Example:

Treaties permitting racial discrimination would become void after the acceptance of the International Convention on the Elimination of All Forms of Racial Discrimination (1965) as reflecting a jus cogens norm.

5. Case Laws on Treaties and Jus Cogens

a) Barcelona Traction Case (Belgium v Spain, ICJ 1970)

The ICJ recognized that obligations erga omnes (owed to the international community as a whole) arise from norms such as the prohibition of genocide, slavery, and racial discrimination.

b) East Timor Case (Portugal v Australia, ICJ 1995)

The ICJ affirmed that the right to self-determination is a jus cogens norm.

c) Furundzija Case (ICTY 1998)

The International Criminal Tribunal for the Former Yugoslavia (ICTY) confirmed that the prohibition of torture is a jus cogens norm.

d) Al-Adsani v United Kingdom (ECtHR 2001)

The European Court of Human Rights held that the prohibition of torture is a peremptory norm, overriding state immunity claims.

6. Role of Jus Cogens in Treaty Interpretation

Under Article 31(3)(c) of the VCLT, treaty provisions must be interpreted in light of any relevant rules of international law, including jus cogens norms.

Example:

In Prosecutor v Furundzija (ICTY 1998), the tribunal held that any treaty authorizing torture would be void as it conflicts with jus cogens.

7. Jus Cogens and State Consent

One of the unique aspects of jus cogens norms is that they apply irrespective of state consent. Even if all parties to a treaty agree to a provision violating jus cogens, the provision remains void.

Case Law:

Nottebohm Case (Liechtenstein v Guatemala, ICJ 1955): The ICJ emphasized that international obligations cannot be derogated by agreements between two states if they violate fundamental principles.

8. Customary International Law and Jus Cogens

Many jus cogens norms are codified in treaties but derive their binding force from customary international law.

Example:

The prohibition of torture is found in the Convention against Torture (1984) but applies universally as a peremptory norm.

9. Challenges in Identifying Jus Cogens Norms

Lack of a definitive list of peremptory norms.
Differences in state practice and opinio juris.
Political considerations in recognizing new norms.

Jus cogens norms represent the highest standard of international legal obligations, binding all states regardless of consent. The Vienna Convention on the Law of Treaties provides a robust framework to ensure that no treaty provision can violate these norms. The role of international courts and tribunals in affirming the supremacy of jus cogens further strengthens the legal architecture of the international community.

k. Treaty Provision Under the Constitution of Nepal, 2063 and Nepal Treaty Act, 1990

1. Introduction

Treaties play a vital role in Nepal's legal framework by regulating the country’s international obligations. The legal provisions governing the conclusion, ratification, and implementation of treaties in Nepal are primarily laid down in the Constitution of Nepal, 2015 and the Nepal Treaty Act, 1990. These legal instruments establish the procedure for making treaties, the hierarchy of treaties in domestic law, and the obligations of the government to uphold international agreements.

2. Constitutional Provisions on Treaties in Nepal

a) Constitutional Framework

The Constitution of Nepal, 2015 provides the supreme legal framework for the governance of treaties and international agreements. The relevant provisions are:

Article 279 (1): The Government of Nepal may enter into treaties or agreements with foreign states and international organizations.
Article 279 (2): Any treaty that requires the amendment of existing laws or the enactment of new laws to be implemented shall require the ratification, acceptance, approval, or accession by a two-thirds majority of the members of the federal parliament.
Article 279 (3): Treaties that do not require amendments to existing laws or new legislation can be concluded by the Government without parliamentary ratification.
Article 279 (4): Information on all treaties concluded by the Government shall be submitted to the federal parliament within a specified period.
Article 51 (b): One of the directive principles of the state is to conduct foreign relations based on mutual respect, equality, and adherence to international law.

b) Hierarchy of Treaties under the Constitution

The Constitution establishes that treaties requiring parliamentary ratification have the same status as domestic law once they are ratified. However, the relationship between treaties and domestic laws is clarified by the Nepal Treaty Act, 1990.

3. Nepal Treaty Act, 1990

The Nepal Treaty Act, 1990 is the primary legislation that regulates the implementation of international treaties in Nepal. The Act provides detailed provisions on the domestic application of treaties.

a) Incorporation of Treaties into Domestic Law

Section 9(1): If any provisions of a treaty ratified by Nepal conflict with the provisions of existing laws, the provisions of the treaty shall prevail to the extent of the inconsistency.
Section 9(2): This provision applies only to treaties that have been ratified, accepted, approved, or acceded to by the Parliament.

b) Procedure for Ratification

Section 4: Treaties that require parliamentary approval must be submitted to the Parliament for ratification within a specified period.
Section 5: The Government of Nepal must deposit the instrument of ratification to the relevant international organization or treaty depository after parliamentary approval.

c) Implementation

The Act obliges the Government to take necessary steps to implement the treaty through administrative or legislative measures.
Section 10: The Government may enact rules and regulations to implement the treaty’s provisions.

4. Priority of Treaties over Domestic Laws

Nepal follows the monist system under Section 9 of the Nepal Treaty Act, 1990, meaning that ratified treaties automatically become part of domestic law and prevail over conflicting national laws.

Case Law:

Hariharanath Shrestha v. HMG, NKP 2047, Vol. 5: The Supreme Court of Nepal upheld the supremacy of treaties over conflicting domestic laws concerning the International Covenant on Civil and Political Rights (ICCPR).

5. Reporting Obligations and Compliance

Nepal, as a party to various human rights treaties such as the ICCPR and CEDAW, has the obligation to submit periodic reports to treaty monitoring bodies. The Ministry of Law, Justice, and Parliamentary Affairs coordinates the submission of these reports.

6. Challenges in Implementation

Lack of political will.
Inadequate domestic legislation to implement treaty provisions.
Resource constraints in fulfilling treaty obligations.
Delays in reporting obligations to treaty bodies.

Nepal’s legal framework for treaties combines constitutional principles with statutory regulations to ensure the country’s compliance with international obligations. The Nepal Treaty Act, 1990 grants supremacy to ratified treaties over conflicting domestic laws, reinforcing Nepal’s commitment to international cooperation. However, effective implementation requires robust domestic laws, institutional capacity, and consistent political will.