The Law of Treaties: Vienna Convention on the Law of Treaties

Abstract:

The Vienna Convention on the Law of Treaties (VCLT) is a foundational instrument of international law, providing a comprehensive framework for the creation, interpretation, and application of treaties. This article examines the key provisions of the VCLT, including the definition of treaties, the processes of negotiation and adoption, and the rules for interpretation and modification. By providing a comprehensive legal structure, the VCLT enhances the stability and predictability of international relations, facilitating cooperation and conflict resolution among states in an increasingly interconnected world.

Introduction:

The treaty is the ubiquitous tool through which all kinds of international transactions are conducted. Prior to 1969, the law of treaties consisted for the most part of customary rules of international law. These rules are now codified and clarified in the Vienna Convention of May 23, 1969. The Convention also contains rules in the nature of progressive development of international law, like the provisions on jus cogens. In fact, it is a compound of codification and progressive development of customary international law whose jurisprudential value has been well-recognised.[1] The Convention, for the most part now, governs the law and practice of treaties. Nevertheless, it is not intended to be a complete code on treaty law and rules of customary international law continues to play a significant role. The preamble and Article 38 of the Convention Affirm that the rules of customary international law will continue to govern questions not regulated by the Convention.

Treaty:

            McNair defines treaty as “a written agreement by which two or more states or international organisations create or intend to create a relation between themselves, operating within the sphere of international law”.[2] The Vienna Convention (Art.2(1)(a))[3] describes treaty as “an international agreement concluded between States in written form and governed by international law”.

Thus, every treaty is an agreement, but not all agreements are treaties. The agreement must be measured by the following characteristics to be considered as a treaty:

1. It should be embodied in a written instrument between two or more entities;
2. Those entities should be endowed with international personality;
3. It should create or intend to create a legal relationship between the parties;
4. It should be governed by international law.

Types of Treaties:

Treaties have been classified into general and particular, as in done in Art.38(1)(a) of the Statute of the International Court of Justice. Conventions can be “general” due to the large number of states that have accepted them or to the universally significant nature of their contents; they can also be “particular” due to the small number of parties or the narrow scope of their subject matter.

On this basis, some jurists have further classified the treaties into “law-making treaties”, “treaty contracts” and “normative treaties”. Whereas the law-making treaties are a source of law, the treaty contracts merely purport to lay down special obligations between the parties and are not directly a source of law. Normative treaties are those which lay down the international norms for the States.

Formation of Treaties:

The making of treaties involves various steps: consultation, negotiation and adoption of the text, commencement of treaty, ratification, accession, adhesion, etc.

Negotiation and Adoption:

As a first step towards the conclusion of treaty is the negotiation and adoption of the text. Once the state decides to enter into a treaty relationship, it appoints the representatives to negotiate the text of the treaty. These representatives should be duly empowered through “full powers”.[4] Heads of State, head of governments, ministers for foreign affairs, heads of diplomatic mission and representatives accredited to international conferences or organisations are considered to represent the State ex officio and have not produce full powers (Art.7(2) of the Vienna Convention). Acts performed by a person who does not have the full powers, or exceeds full powers relating to the conclusion of a treaty, are without legal effect unless confirmed by the State subsequently (Art.8). The confirmation is considered to be done by implication if the State invokes the provisions of the treaty or otherwise acts in such a way as to appear to treat the act of its representative as effective.

 After consultation and negotiation, the treaty text is normally adopted by the unanimous consent of the parties (Art.9(1)). When a treaty is drawn up by an international conference, the text may be adopted by two-thirds of the States present and voting, unless by the same majority they decide to apply a different rule (Art.9(2)), including the rule of unanimity. The rule of unanimity is easier to follow in bilateral treaties or for treaties drawn up between few states.

Authentication of the text, after its adoption, is done in a manner as agreed by the parties amongst themselves. It can be done according to the procedure provided in the text of the treaty, or by signature, initialling or signature ad referendum (Art.10).

Commencement of the Treaty:

 According to Art.11, a State may express its consent to be bound by a treaty by following means:

1. Effect of Signature (Art.12): The signing of a treaty may be merely an authentication of its text, but if the treaty so provides or the parties otherwise agree, the signature of their representatives will signify their consent to be bound by the treaty.
2. Exchange of Instruments (Art.13): When the States agree to a treaty, they show their agreement by exchanging the documents. This exchange proves that they accept the treaty terms.
3. Ratification, Acceptance or Approval (Art.14): When negotiating states agree that ratification constitutes consent, or a treaty specifies ratification as a requirement, then ratification is a valid means of expressing consent. Similarly, approval or acceptance are also acceptable methods of expressing consent, provided the treaty or negotiating states stipulate these as valid.
4. Accession (Art.15): Accession, adhesion or adherence is a method by which a State becomes a party to a treaty of which is not a signatory.

Entry into Force of a Treaty:

Under Art.24, the entry into force of a treaty is entirely dependent upon the agreement between negotiating States. They may prescribe the manner and date for its coming into force. In the absence of any such clause or agreement, a treaty becomes operative as soon as all negotiating States have agreed to be bound by it. Unless the treaty specifies otherwise, if a State agrees to be bound by a treaty on a date after the treaty has become operative, the treaty becomes operative for that State on that date.[5]

Reservations:

Reservation means a unilateral statement made by a State when signing, ratifying, formally confirming, 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.[6] The rationale behind reservation is that a State is unable to fulfil its obligation under the treaty in totality because of certain constraints and instead of excluding it altogether from participating in the treaty, the State should be allowed to do so, even if in a limited way, provided that the reservation does not materially affect the basic provisions of the treaty.

The States may consent to the reservation by expressly providing so in the treaty or authorising for the same (Article 19, 21(1)(2)). Thus, a State cannot make reservation if the treaty prohibits the reservation or prohibits certain kinds of reservation or the reservation is not compatible with the object and purpose of the treaty.

Termination and Suspension of Treaties:

Termination and suspension of treaties can be done either in accordance with the will of the parties or by operation of law.

By Will of the Parties:

The termination of a treaty or withdrawal by a party may be in accordance with the terms of the treaty or at any time by the consent of all the parties (Art. 54). The operation of a treaty may be suspended for all the parties or for a particular party according to the express stipulations of the treaty or by mutual consent of all the parties at any time (Art. 57). Most treaties contain clauses limiting the duration of the treaty after which it comes to an end.

1. Treaties Without a Provision on Termination or Denunciation: Where a treaty is silent on the matter of termination, withdrawal or denunciation, normally no denunciation or withdrawal is possible. This is also in accordance with the basic tenet of pacta sunt servanda of international law and a State cannot get rid of its obligations under a treaty without the consent of all the parties to the treaty, expressly or by implication. Unless it is established that the parties intended to admit the possibility of denunciation or withdrawal, or the right of denunciation or withdrawal may be implied by the nature of the treaty, it is not permissible (Art. 56).
2. Conclusion of a Subsequent Treaty: A treaty may be “impliedly repealed” if all the parties to it conclude a new treaty relating to the same subject matter and it appears from the later treaty or is otherwise established that the parties intended that the matter be governed by the new treaty, or its provisions are incompatible with the earlier treaty and the two are not capable of being applied at the same time (Art.59).

By Operation of Law:

1. Breach of Treaty by Party: A material breach of a bilateral treaty by one party may vest the other party to terminate the treaty. However, a party may lose its right to invoke the breach if, after becoming aware of the facts, it expressly or impliedly agrees that the treaty remains in force or continues in operation (Art.60).
2. Supervening Impossibility of Performance: A party to a treaty may be discharged from its obligations, or a treaty may be terminated due to a supervening impossibility resulting from “the permanent disappearance or destruction of an object indispensable for the execution of the treaty” (Art. 61(1)). If the impossibility is the result of some default of the invoking party, it will not be a ground for termination, suspension of, or withdrawal from the treaty (Art. 61(2)).
3. Fundamental Change of Circumstances (Rebus sic standibus): A fundamental change of circumstances which was unforeseen by the parties may be invoked as a ground for termination or suspension of a treaty when the the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty and the effect of the change is radically to transform the extent of obligations still to be performed under the treaty (Art.62).
4. Emergence of Jus Cogens Norms: An existing treaty which is in conflict with a new peremptory norm becomes void and terminates (Art. 64). Thus, a treaty is void if it is in contravention with the existing or new jus cogens.

Conclusion:

In conclusion, the Vienna Convention on the Law of Treaties stands as a pivotal instrument in the landscape of international law, providing a robust framework for the negotiation, interpretation, and enforcement of treaties. Its principles not only promote legal certainty and stability in international relations but also reflect the evolving norms and practices of states in a globalized world. By establishing clear guidelines for treaty formation, implementation, and resolution of disputes, the VCLT facilitates diplomatic engagement and cooperation among nations. Ultimately, the enduring relevance of the VCLT highlights its role not just as a legal instrument, but as a cornerstone for peaceful coexistence and collaboration among diverse nations.

Reference(s):

1. Vienna Convention on the Law of Treaties, 1969.
2. K. Verma, An Introduction to Public International Law, Second Edition: 2012, New Delhi: Satyam Law International.
3. Ratner, Steven R., International Law Rules on Treaty Interpretation, In The Law and Practice of the Northern Ireland Protocol, 80-91. Cambridge: Cambridge University Press, 2022, accessed on October 17, 2024.
4. Mehak Jain, Concept of Treaties in International Law, Ipleaders (June 23, 2020), https://blog.ipleaders.in/concept-treaties-international-law/, accessed on October 17, 2024.
5. Tanya Agarwal, International Law on Treaties: Basis, Observance and Reservation, Ipleaders (January 4, 2020), https://blog.ipleaders.in/treaties/, accessed on October 18, 2024.
6. Vienna Convention On The Law Of Treaties Signed At Vienna, 23 May 1969, https://www.oas.org/legal/english/docs/Vienna%20Convention%20Treaties.htm#:~:text=A%20treaty%20shall%20be%20interpreted,of%20its%20object%20and%20purpose, accessed on October 18, 2024.

[1] The ICJ has placed reliance on the Convention in the Namibia case (1971) ICJ Rep., p.16; Fisheries Jurisdiction case (1974) ICJ Rep., p.3; Nicaragua case (1986) ICJ Rep., p.14.

[2] Lord McNair, The Law of Treaties(Clarendon Press, Oxford), 1961,p.2.

[3] Vienna Convention on the Law of Treaties,1969.

[4] “Full powers” is a formal document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty, see Art.2(1)(c) of the Vienna Convention.

[5] Article 24(3) of the Vienna Convention on the Law of Treaties,1969.

[6] Article 2(1)(d) of the Vienna Convention on the Law of Treaties,1969.