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International Law

Law of Treaties

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 18-Feb-2025

Introduction 

  • The law of treaties stands as a cornerstone of international legal relations, providing the fundamental framework through which nations formalize their commitments and obligations to one another.  
  • Treaties, alongside customs, general principles of law, and judicial decisions, constitute the core sources of international law.  
  • These instruments have evolved from ancient diplomatic practices, with the Treaty of Kadesh representing the oldest surviving written treaty, to today's sophisticated international agreements.  
  • The modern understanding of treaties encompasses a wide variety of instruments, including Conventions, International Agreements, Pacts, General Acts, Charters, Declarations, and Covenants, all serving to establish binding relationships between sovereign states. 
  • The continued evolution of treaty law, particularly in response to emerging global challenges and human rights considerations, demonstrates its enduring relevance in international legal order.  
  • Despite occasional shortcomings in enforcement and interpretation, the treaty system remains an indispensable tool for promoting international cooperation and maintaining global order.

Comprehensive Analysis of Treaty Law 

The Scope and Power of Treaties 

  • Treaties serve multiple crucial functions in international relations. In the realm of human rights, treaties like Convention on the Elimination of All Forms of Discrimination Against Women, (CEDAW) (1979) establish binding obligations on member states to legislate for women's empowerment and gender equality.  
  • Historical examples demonstrate their power to conclude conflicts, as evidenced by the Paris Peace Treaties (1947) which formally ended World War II with minor Axis powers, not the entire war (the main peace treaties with Germany and Japan were separate) 
  • Treaties can definitively resolve territorial disputes, as shown by the 1970 Boundary Treaty between the United States and Mexico.  
  • The creation of new political entities can be legitimized through treaties, as demonstrated by the 1922 Treaty establishing the USSR.  
  • Furthermore, treaties facilitate international cooperation through alliances, such as the Triple Entente, and establish global governance structures, as exemplified by the United Nations Charter of 1945. 

Formation and Constitutional Requirements 

  • The process of treaty formation, while flexible in form, adheres to strict principles of international law.  
  • No prescribed format exists for creating a treaty, but the authority to enter into such agreements typically resides with heads of state or governmental authorities, as determined by domestic constitutional frameworks.  
  • In the United Kingdom, this power falls within the Crown's prerogative, while in the United States, it rests with the President, subject to Senate approval.  
  • The concept of full powers must be stringently observed, ensuring that signatories possess the necessary authority to bind their respective states. 

The Consent Regime in Treaty Law 

  • Consent forms the bedrock of treaty obligations. States can only be bound by their express agreement, manifested through a series of formal acts.  
  • The signature of a treaty represents a preliminary endorsement, while ratification constitutes the formal act through which a state signifies its intention to be legally bound.  
  • The process of accession, while achieving the same legal effect as ratification, offers an alternative path for states that did not initially sign the treaty. 

The Reservation System 

  • Reservations provide states with a mechanism to participate in treaties while maintaining certain exceptions to their obligations.  
  • Defined under Article 2(d) of the Vienna Convention on the Law of Treaties (VCLT), a reservation represents a unilateral statement that modifies or excludes specific treaty provisions in their application to that state.  
  • However, reservations must comply with strict limitations, particularly in human rights treaties, where they cannot contravene the fundamental purpose of the agreement. 

Vienna Convention on Law of Treaties, 1969 

    • Article 53 of Vienna Convention on the Law of Treaties, 1969  
      • Article 53 provides that a treaty is void if at the time of it’s conclusion it conflicts with a preemptory norm of general International Law.  
      • This Article provides that for the purposes of present Convention a preemptory norm:  
        • is a norm 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.  
    • Article 64 of Vienna Convention on the Law of Treaties, 1969  
      • Article 64 provides that if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.  
    • Article 72 Para 2 of Vienna Convention on the Law of Treaties, 1969  
      • Para 2 of Article 72 provides that in the case of a treaty which becomes void and terminates under article 64, the termination of the treaty:  
        • releases the parties from any obligation further to perform the treaty;  
        • does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination, provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law.  
    • The above provisions of Vienna Convention provide that it is essential for a treaty to be valid that it should be in conformity with the principles and the rules of International Law which are in the nature of jus cogens.

Fundamental Principles Governing Treaties 

  • Several cardinal principles govern treaty law.  
  • The principle of pacta sunt servanda establishes that agreements must be kept in good faith.  
  • The doctrine of pacta tertiis prevents treaties from creating obligations for non-party states.  
  • The concept of jus cogens recognizes certain peremptory norms that cannot be derogated from by any treaty. 

Interpretation of Treaties 

  • Treaty interpretation follows three primary approaches.  
  • The objective approach focuses on the actual text of the agreement.  
  • The subjective approach considers the parties' intentions when ambiguities arise.  
  • The teleological approach examines the treaty's object and purpose.  
  • These methods are complemented by principles of grammatical interpretation and consideration of subsequent practice. 

Grounds for Treaty Invalidity 

  • Treaties may be invalidated under specific circumstances.  
  • These include cases of treaty-making incapacity, fundamental error of fact, fraudulent conduct by negotiating states, corruption of state representatives, coercion of state representatives, and conflict with peremptory norms of international law (jus cogens). 

What is Jus Cogens?

    • Norms having character of jus cogens can practically be created only by a norm of general customary international law.   
    • Three types of jus cogens rules exist in International Law.  
      • Firstly, those exist in the common interest of whole international community.  
      • Secondly, those created for humanitarian purposes.  
      • Thirdly, those introduced by the UN Charter against the threat or use of force in international relations.  
    • However, it is difficult to formulate on the above basis as to what are jus cogens rule in International Law in the absence of precise definition of expressions like ‘common interest of international community’, ‘humanitarian purposes’ and ‘principles of the Charter’.   
    • It is difficult to say as to what the norms of jus cogens are. This concept draws it’s parallel with public policy of municipal law. No one can say with certainty what rules possess the character of jus cogens. 

Termination of Treaty Obligations 

  • Treaties may cease to bind parties through various mechanisms.  
  • These include operation of law (such as expiration or extinction of subject matter), outbreak of war between parties, impossibility of performance, fundamental change of circumstances (rebus sic stantibus), and acts of state parties including breaches or proper withdrawal. 

Conclusion 

The law of treaties represents a sophisticated system for managing international relations and obligations. While challenges exist, particularly regarding reservations and enforcement, the treaty system has proven remarkably effective in governing international relations. It provides a flexible yet structured framework that allows states to enter into binding commitments while protecting their essential interests.