Lecture 6.1 treaties Article 2(1) (a) of the 1969 Vienna convention defines a treaty 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 designations” Conclusion and entry into force. Adoption Article 9 of the 1969 Vienna Convention provides: 1) The adoption of a treaty takes place with the consent of all states participating in its drawing up except provided in para 2 2) The adoption of the text of the treaty at a international conference takes place by the vote 2/3 of states present and voting, unless by the same majority they shall decide to apply a different. The adoption of the text does not by itself create obligation. A treaty does not come into come into being until two or more state consent to be bound by it and the expression of such consent usually comes after the adoption of the text and is entirely a separate process.

Lecture 6.1 treaties 2 Consent to be bound by a treaty Article 11 of the Vienna Convention provides that “ the consent of a state to be bound by a treaty may be expressed by signature exchange of instruments consisting a treat, ratification, acceptance, approval or accession, or by any means agreed. This is done through signature, ratification or exchange of correspondence. A treaty enters into force as soon as all the negotiating states expressed their consent to be bound by it. When minimum number of required states have ratified the treaty it is only in force to those who have ratified it, it does not enter into force for the other states until they in turn also ratifies it. A state may be willing to accept most of the provisions of a treaty. In such cases states often make reservations when they became parties that treaty. The effect of a reservation depends on whether it is accepted or rejected by other states concerned.

Lecture 6.1 treaties 3 However this is dependent on the type of the treaty. In Genocide case ICJ rep 1951, 15 at 29 The ICJ said that the traditional theory was of “undisputed value” but was applicable to certain types of treaty. More specifically to convention on Genocide as it seeks to protect individuals rather than reciprocal rights on contracting states. Registration Article 102 (i) of the UN Charter provides that every treaty entered into by members of UN must register with the secretariat and published by it. But a treaty by non-member is not covered by article 102, but article 80 of the Vienna convention makes transmission the secretariat obligatory to all states.

Lecture 6.1 treaties 4 INVALID TREATIES Article 42 (1) of the Vienna convention provides “the validity of a treaty or consent of a state to be bound by a treaty may be impeached only through the application of the present convention” FIRST, Provision of municipal law regarding competence of the concluded treaty The constitution of a state provides that head of state may not conclude or ratify a treaty without the consent of a legislative organ. If it happens that he/she sign the treaty might be declared void. However, according to Article 46 of the Vienna convention: “ A state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal.”

Lecture 6.1 treaties 5 TWO, Treaties entered into by persons not authorised to represent the state According to the Vienna convention Article 7 (2) provides that heads of state, heads of government and ministers by virtue of their functions and without having to provide full powers are considered representatives of the state for the purpose of performing all acts relating to conclusion of the treaty. Thus it will be absurd to suppose that a state be bound by the acts of a junior clerk in the same way as it would for minister of foreign affairs.

Lecture 6.1 treaties 6 THREE, Specific restrictions on the authority of the a state Although an individual may have full authority to enter into an agreement there might be restriction imposed upon individual e.g. he may be instructed not to enter into a treaty unless it contains a particular provision to which his state attaches importance. FOUR, Coercion of the representative of state FIVE, Coercion of state by the threat or use of force Before WW1 it used to be legally to force a state into a treaty. But since WW2 acts of aggression are considered illegal and it follows that treaties imposed by an aggressor is void. Article 52 “ a treaty is void if its conclusion has been procured by threat or use of force in violation of principles of international law embodied in the Charter of the UN. However, defining force has been interpreted differently, whether it is armed force or other forms of coercion. Brazil’s attempt to include economic and political coercion was rejected in 1945.

Lecture 6.1 treaties 7 6) Fraud of another negotiating state. Article 49 by corruption of its representative by another negotiating state Article 5O. 7) a treaty is void if it conflicts with ius cogens. Article 5

Lecture 6.1 treaties 8 TERMINATION OF Treaties Thee termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the treaty. In other words, every treaty in force is binding upon parties to it and two state can withdrawn if it ever feels. Termination in accordance with the provision of a treaty Termination by consent of the parties. Article 54 of the Vienna convention may take place by consent of all the parties. Implied right of denunciation. If a treaty does not provide any framework for denunciation or withdrawal it should be taken that according to Article 56 Vienna convention “ a party shall give not less than twelve months notice of its intention to denounce or withdraw from a treaty. …REASONABLE NOTICE???????

Lecture 6.1 treaties 9 4) Termination or suspension of a treaty as a result of a breach. Article 60(1) of the Vienna convention provide “ a material breach of a bilateral treaty by one of the parties entitles the other to invoke a breach as a ground for terminating the treaty or suspending its operation”. However such is not automatic as this merely gives the injured party or parties an option to terminate a treaty as injured state may claim compensation. In a multilateral treaty article 60 (2) provides ground and members can agree on what to do with the breach. supervening impossibility of performance Article 61 states that a party may invoke impossibility of performing a treaty as ground for terminating or withdrawing from it. Fundamental change of circumstances (Rebus sic stantibus) Emergence of peremptory norm (ius cogens) Outbreak of war.