CHAPTER 4

THE LAW OF TREATIES

The significance of treaties as a source of international law has already been discussed in Chapter 3. This chapter is concerned with the mechanics of treaties: how they are concluded, interpreted, observed, and terminated.

4.1Introduction

Prior to 1969, the law of treaties consisted of customary rules of international law. Many of the rules relating to treaties between states were codified in the Vienna Convention on the Law of Treaties 1969 (VCT 1969) which was concluded on 23 May 1969 and entered into force on 27 January 1980, following receipt of the 35th ratification. The VCT 1969 is an early and important example of the codifying work of the International Law Commission. Additionally of interest is the Vienna Convention on Succession of States in Respect of Treaties 1978 (VCS 1978), concluded on 23 August 1978 and not yet in force, and the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations 1986 (VCIO 1986), concluded on 21 March 1986, also not yet in force. The VCIO 1986 repeats most of the substantive rules contained in VCT 1969 and applies to those treaties which involve international organisations. In this chapter reference will generally only be made to the relevant provisions of the VCT 1969. The VCT 1969 is not retroactive and only applies to treaties concluded after 27 January 1980. The rules of customary law still have an important role and it is important to decide the extent to which the Vienna Conventions codify existing customary law and the extent to which they introduce new rules of law. When studying the law of treaties it is therefore important to be clear as to which rules are contained in the various Vienna Conventions and which rules are to be found in international custom.

At its first session in 1949, the International Law Commission included the law of treaties in its provisional list of topics selected for codification.1 The ILC then completed a special report on reservations to treaties in 1951,2 and participation in general multilateral treaties.3, 4

VIENNA CONVENTION ON THE LAW OF TREATIES5

The States Parties to the present Convention,

Considering the fundamental role of treaties in the history of international relations,

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1(1949) YBILC at p 281.

2(1951) YBILC ii at pp 125–131.

3(1963) YBILC ii at pp 217–223.

4See further on multilateral treaties UN Doc A/35/312. For ILC Draft Articles and commentary, see (1966) YBILC ii at pp 173–274. For VCIO Draft Articles see (1982) YBILC ii pt 2 at pp 9–77.

5UKTS No 58 (1980), Cmnd 7964; 1155 UNTS 331; (1969) 81 ILM 679; (1969) 63 AJIL 875. The Convention entered into force on 27 January 1980.

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Recognising the ever-increasing importance of treaties as a source of international law and as a means of developing peaceful co-operation among nations, whatever their constitutional and social systems,

Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognised,

Affirming that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law,

Recalling the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained,

Having in mind the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all states, of noninterference in the domestic affairs of states, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all,

Believing that the codification and progressive development of the law of treaties achieved in the present Convention will promote the purposes of the United Nations set forth in the Charter, namely, the maintenance of international peace and security, the development of friendly relations and the achievement of cooperation among nations,

Affirming that the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention,

Have agreed as follows:

PART I

INTRODUCTION

Article 1 Scope of the present Convention

The present Convention applies to treaties between states

Article 2 Use of terms

1For the purposes of the present Convention:

(a)‘treaty’ means 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;6

(b)‘ratification’, ‘acceptance’, ‘approval’ and ‘accession’ mean in each case the international act so named whereby a state establishes on the international plane its consent to be bound by a treaty;

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6Article 2(1) VCIO 1986 provides: ‘For the purposes of the present Convention:

(a)“treaty” means an international agreement governed by international law and concluded in written form:

(i)between one or more states and one or more international organisations; or

(ii)between international organisations,

whether that agreement is embodied in a single instrument or in two or more related instruments and whatever its particular designation.’

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(c)‘full powers’ means a 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;

(d)‘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 to modify the legal effect of certain provisions of the treaty in their application to that state;

(e)‘negotiating state’ means a state which took part in the drawing up and adoption of the text of the treaty;

(f)‘Contracting State’ means a state which has consented to be bound by the treaty, whether or not the treaty has entered into force;

(g)‘party’ means a state which has consented to be bound by the treaty and for which the treaty is in force;

(h)‘third state’ means a state not party to the treaty;

(i)‘international organisation’ means an intergovernmental organisation.

2The provisions in paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them, in the internal law of any state.

Article 3 International agreements not within the scope of the present Convention

The fact that the present Convention does not apply to international agreements concluded between states and other subjects of international law, or between such other subjects of international law, or to international agreements not in written form, shall not affect:

(a)the legal force of such agreements;

(b)the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention;

(c)the application of the Convention to the relations of states as between themselves under international agreements to which other subjects of international law are also parties.

Agreements not in writing may nonetheless be legally binding although not under the provisions of VCT – see US v Gonzales (1986) 80 AJIL p 653, where a telephone conversation created an arrangement with another government.

Article 4 Non-retroactivity of the present Convention

Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by states after entry into force of the present Convention with regard to such states.

Article 5 Treaties constituting international organisations and treaties adopted within an international organisation

The present Convention applies to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation without prejudice to any relevant rules of the organisation.

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PART II

CONCLUSION AND ENTRY INTO FORCE OF TREATIES

SECTION 1 CONCLUSION OF TREATIES

Article 6 Capacity of states to conclude treaties

Every state possesses capacity to conclude treaties.

Article 7 Full powers

1A person is considered as representing a state for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the state to be bound by a treaty if:

(a)he produces the appropriate full powers; or

(b)it appears from the practice of the states concerned or from other circumstances that their intention was to consider that person as representing the state for such purposes and to dispense with full powers.

2In virtue of their functions and without having to produce full powers, the following are considered as representing their state:

(a)Heads of state, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;

(b)heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting state and the state to which they are accredited;

(c)representatives accredited by states to an international conference or to an international organisation or one of its organs, for the purpose of adopting the text of a treaty in that conference, organisation or organ.

Article 8 Subsequent confirmation of an act performed without authorisation

An act relating to the conclusion of a treaty performed by a person who cannot be considered under Article 7 as authorised to represent a state for that purpose is without legal effect unless afterwards confirmed by that state.

Article 9 Adoption of the text

1The adoption of the text of a treaty takes place by the consent of all the states participating in its drawing up except as provided in paragraph 2.

2The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the states present and voting, unless by the same majority they shall decide to apply a different rule.

Article 10 Authentication of the text

The text of a treaty is established as authentic and definitive:

(a)by such procedure as may be provided for in the text or agreed upon by the states participating in its drawing up; or

(b)failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those states of the text of the treaty or of the Final Act of a conference incorporating the text.

Article 11 Means of expressing consent to be bound by a treaty

The consent of a state to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

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Article 12 Consent to be bound by a treaty expressed by signature

1The consent of a state to be bound by a treaty is expressed by the signature of its representatives when:

(a)the treaty provides that signature shall have that effect;

(b)it is otherwise established that the negotiating states were agreed that signature should have that effect; or

(c)the intention of the state to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.

2For the purposes of para 1:

(a)the initialing of a text constitutes a signature of the treaty when it is established that the negotiating states so agreed;

(b)the signature ad referendum of a treaty by a representative, if confirmed by his state, constitutes a full signature of the treaty.

Article 13 Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty

The consent of states to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:

(a)the instruments provide that their exchange shall have that effect; or

(b)it is otherwise established that those states were agreed that the exchange of instruments should have that effect.

Article 14 Consent to be bound by a treaty expressed by ratification, acceptance or approval

1The consent of a state to be bound by a treaty is expressed by ratification when:

(a)the treaty provides for such consent to be expressed by means of ratification;

(b)it is otherwise established that the negotiating states were agreed that ratification should be required;

(c)the representatives of the state has signed the treaty subject to ratification; or

(d)the intention of the state to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

2The consent of a state to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification.

Article 15 Consent to be bound by a treaty expressed by accession

The consent of a state to be bound by a treaty is expressed by accession when:

(a)the treaty provides that such consent may be expressed by that state by means of accession:

(b)it is otherwise established that the negotiating states were agreed that such consent may be expressed by that state by means of accession; or

(c)all the parties have subsequently agreed that such consent may be expressed by that state by means of accession.

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Article 16 Exchange or deposit of instruments of ratification, acceptance, approval or accession

Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a state to be bound by a treaty upon:

(a)their exchange between the Contracting States;

(b)their deposit with the depositary; or

(c)their notification to the Contracting States or to the depositary, if so agreed.

Article 17 Consent to be bound by part of a treaty and choice of differing provisions

1Without prejudice to Articles 19 to 23, the consent of a state to be bound by part of a treaty is effective only if the treaty so permits or the other Contracting States so agree.

2The consent of a state to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates.

Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force

A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a)it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b)it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

SECTION 2

RESERVATIONS

Article 19 Formulation of reservations

A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:

(a)the reservation is prohibited by the treaty;

(b)the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or

(c)in cases not falling under sub-paras (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

Article 20 Acceptance of and objection to reservations

1A reservation expressly authorised by a treaty does not require any subsequent acceptance by the other Contracting States unless the treaty so provides.

2When it appears from the limited number of the negotiating states and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

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3When a treaty is a constituent instrument of an international organisation and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organisation.

4In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:

(a)acceptance by another Contracting State of a reservation constitutes the reserving state a party to the treaty in relation to that other state if or when the treaty is in force for those states;

(b)an objection by another Contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving states unless a contrary intention is definitely expressed by the objecting state;

(c)an act expressing a state’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other Contracting State has accepted the reservation.

5For the purposes of paras 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a state if it shall have raised no objection to the reservation by the end of a period of 12 months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

Article 21 Legal effects of reservations and of objections to reservations

1A reservation established with regard to another party in accordance with Articles 19, 20 and 23:

(a)modifies for the reserving state in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and

(b)modifies those provisions to the same extent for that other party in its relations with the reserving state.

2The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.

3When a state objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving state, the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation.

Article 22 Withdrawal of reservations and of objections to reservations

1Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a state which has accepted the reservation is not required for its withdrawal.

2Unless the treaty otherwise provides, or it is otherwise agreed:

(a)the withdrawal of a reservation becomes operative in relation to another Contracting State only when notice of it has been received by that state;

(b)the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the state which formulated the reservation.

Article 23 Procedure regarding reservations

1A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the Contracting States and other states entitled to become parties to the treaty.

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2If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving state when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation.

3An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation.

4The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.

SECTION 3

ENTRY INTO FORCE AND PROVISIONAL APPLICATION OF TREATIES

Article 24 Entry into force

1A treaty enters into force in such manner and upon such date as it may provide or as the negotiating states may agree.

2Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states.

3When the consent of a state to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that state on that date, unless the treaty otherwise provides.

4The provisions of a treaty regulating the authentication of its text, the establishment of the consent of states to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text.

Article 25 Provisions application

1A treaty or a part of a treaty is applied provisionally pending its entry into force if:

(a)the treaty itself so provides; or

(b)the negotiating states have in some other manner so agreed.

2Unless the treaty otherwise provides or the negotiating states have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a state shall be terminated if that state notifies the other states between which the treaty is being applied provisionally of its intention not to become a party to the treaty.

PART III

OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES

SECTION 1

OBSERVANCE OF TREATIES

Article 26 Pacta sunt servanda

Every treaty is binding upon the parties to it and must be performed by them in good faith.

Article 27 Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.

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SECTION 2

APPLICATION OF TREATIES

Article 28 Non-retroactivity of treaties

Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.

Article 29 Territorial scope of treaties

Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.

Article 30 Application of successive treaties relating to the same subjectmatter

1Subject to Article 103 of the Charter of the United Nations, the rights and obligations of states parties to successive treaties relating to the same subjectmatter shall be determined in accordance with the following paragraphs.

2When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.

3When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.

4When the parties to the later treaty do not include all the parties to the earlier one:

(a)as between state parties to both treaties the same rule applies as in para 3;

(b)as between a state party to both treaties and a state party to only one of the treaties, the treaty to which both states are parties governs their mutual rights and obligations.

5Paragraph 4 is without prejudice to Article 41, or to any question of the termination or suspension of the operation of a treaty under Article 60 or to any question of responsibility which may arise for a state from the conclusions or application of a treaty, the provisions of which are incompatible with its obligations towards another state under another treaty.

SECTION 3

INTERPRETATION OF TREATIES

Article 31 General rule of interpretation

1A treaty shall be considered 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.

2The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a)any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b)any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

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3There shall be taken into account, together with the context:

(a)any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b)any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c)any relevant rules of international law applicable in the relations between the parties.

4A special meaning shall be given to a term if it is established that the parties so intended.

Article 32 Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusions, in order to confirm the meaning resulting form the application of Article 31, or to determine the meaning when the interpretation according to Article 31:

(a)leaves the meaning ambiguous or obscure; or

(b)leads to a result which is manifestly absurd or unreasonable.

Article 33 Interpretation of treaties authenticated in two or more languages

1When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

2A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

3The terms of the treaty are presumed to have the same meaning in each authentic text.

4Except where a particular text prevails in accordance with para 1, when a comparison of the authentic text discloses a difference of meaning which the application of Articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

SECTION 4

TREATIES AND THIRD STATES

Article 34 General rule regarding third states

A treaty does not create either obligations or rights for a third state without its consent.

Article 35 Treaties providing for obligations for third states

An obligation arises for a third state from a provision of a treaty if the parties to the treaty intend the provision to be the mans of establishing the obligation and third state expressly accepts that obligation in writing.

Article 36 Treaties providing for rights for third states

1A right arises for a third state from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third state, or to a group of states to which it belongs, or to all states, and the third state assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.

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2A state exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty.

Article 37 Revocation or modification of obligations or rights of third states

1When an obligation has arisen for a third state in conformity with Article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third state, unless it is established that they had otherwise agreed.

2When a right has arisen for a third state in conformity with Article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third state.

Article 38 Rules in a treaty becoming binding on third states through international custom

Nothing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third state as a customary rule of international law, recognised as such.

PART IV

AMENDMENT AND MODIFICATION OF TREATIES

Article 39 General rules regarding the amendment of treaties

A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide.

Article 40 Amendment of multilateral treaties

1Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs.

2Any proposal to amend a multilateral treaty as between all the parties must be notified to all the Contracting States, each one of which shall have the right to take part in:

(a)the decision as to the action to be taken in regard to such proposal;

(b)the negotiation and conclusion of any agreement for the amendment of the treaty.

3Every state entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended.

4The amending agreement does not bind any state already a party to the treaty which does not become a party to the amending agreement; Article 30, para 4(b), applies in relation to such state.

5Any state which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that state:

(a)be considered as a party to the treaty as amended; and

(b)be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement.

Article 41 Agreements to modify multilateral treaties between certain of the parties only

1Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:

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(a)the possibility of such a modification is provided for by the treaty; or

(b)the modification in question is not prohibited by the treaty and:

(i)does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;

(ii)does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

2Unless in a case falling under para 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.

PART V

INVALIDITY, TERMINATION AND SUSPENSION

OF THE OPERATION OF TREATIES

SECTION 1

GENERAL PROVISIONS

Article 42 Validity and continuance in force of treaties

1The validity of a treaty or of the consent of a state to be bound by a treaty may be impeached only through the application of the present Convention.

2The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty.

Article 43 Obligations imposed by international law independently of a treaty

The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any state to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.

Article 44 Separability of treaty provisions

1A right of a party, provided for in a treaty or arising under Article 56, to denounce, withdraw from or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties otherwise agree.

2A ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty recognised in the present Convention may be invoked only with respect to the whole treaty except as provided in the following paragraphs or in Article 60.

3If the ground relates solely to particular clauses, it may be invoked only with respect those clauses where:

(a)the said clauses are separable from the remainder of the treaty with regard to their application;

(b)it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole; and

(c)continued performance of the remainder of the treaty would not be unjust.

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4In cases falling under Articles 49 and 50 the state entitled to invoke the fraud or corruption may do so with respect either to the whole treaty or, subject to para 3, to the particular clauses alone.

5In cases falling under Articles 51, 52 and 53, no separation of the provisions of the treaty is permitted.

Article 45 Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty

A state may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under Articles 46 to 50 or Articles 60 and 62 if, after becoming aware of the facts:

(a)it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or

(b)it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be.

SECTION 2

INVALIDITY OF TREATIES

Article 46 Provisions of internal law regarding competence to conclude treaties

1A 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 law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

2A violation is manifest if it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith.

Article 47 Specific restrictions on authority to express the consent of a state

If the authority of a representative to express the consent of a state to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating states prior to his expressing such consent.

Article 48 Error

1A state may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that state to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty.

2Paragraph 1 shall not apply if the state in question contributed by its own conduct to the error or if the circumstances were such as to put that state on notice of a possible error.

3An error relating only to the wording of the text of a treaty does not affect its validity; Article 79 then applies.

Article 49 Fraud

If a state has been induced 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.

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Article 50 Corruption of a representative of a state

If the expression of a state’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating state, the state may invoke such corruption as invalidating its consent to be bound by the treaty.

Article 51 Coercion of a representative of a state

The expression of a state’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect.

Article 52 Coercion of a state by the threat or use of force

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.

Article 53 Treaties conflicting with a peremptory norm of general international law (jus cogens)

A treaty is void if, at the time of its conclusions, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised 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.

SECTION 3

TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES

Article 54 Termination of or withdrawal from a treaty under its provisions or by consent of the parties

The termination of a treaty or the withdrawal of a party may take place:

(a)in conformity with the provisions of the treaty; or

(b)at any time by consent of all the parties after consultation with the other Contracting States.

Article 55 Reduction of the parties to a multilateral treaty below the number necessary for its entry into force

Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force.

Article 56 Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal

1A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

(a)it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

(b)a right of denunciation or withdrawal may be implied by the nature of the treaty.

2A party shall give not less than 12 months’ notice of its intention to denounce or withdraw from a treaty under para 1.

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Article 57 Suspension of the operation of a treaty under its provisions or by consent of the parties

The operation of a treaty in regard to all the parties or to a particular party may be suspended:

(a)in conformity with the provisions of the treaty; or

(b)at any time by consent of all the parties after consultation with the other Contracting States.

Article 58 Suspension of the operation of a multilateral treaty by agreement between certain of the parties only

1Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty, temporarily and as between themselves alone, if:

(a)the possibility of such suspension is provided for by the treaty; or

(b)the suspension in question is not prohibited by the treaty and:

(i)does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;

(ii)is not incompatible with the object and purpose of the treaty.

2Unless in a case falling under para 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend.

Article 59 Termination or suspension of the operation of a treaty implied by conclusion of a later treaty

1A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and:

(a)it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or

(b)the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time.

2The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties.

Article 60 Termination or suspension of the operation of a treaty as a consequence of its breach.

1A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating or suspending its operation in whole or in part.

2A material breach of a multilateral treaty by one of the parties entitles:

(a)the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:

(i)in the relations between themselves and the defaulting state; or

(ii)as between all the parties;

(b)a party specially affected by the breach, to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting state;

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(c)any party other than the defaulting state to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligation under the treaty.

3A material breach of a treaty, for the purposes of this article, consists in:

(a)a repudiation of the treaty not sanctioned by the present Convention; or

(b)the violation of a provision essential to the accomplishment of the object and purpose of the treaty.

4The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.

5Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.

Article 61 Supervening impossibility of performance

1A party may invoke the impossibility of performing as treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility it temporary, it may be invoked only as a ground for suspending the operation of the treaty.

2Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

Article 62 Fundamental change of circumstances

1A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a)the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b)the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a)if the treaty establishes a boundary; or

(b)if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

3If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

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Article 63 Severance of diplomatic or consular relations

The severance of diplomatic or consular relations between the parties to a treaty does not affect the legal relations established between them by the treaty except in so far as the existence of diplomatic or consular relations is indispensable for the application of the treaty.

Article 64 Emergence of a new peremptory norm of general international law (jus cogens)

If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

SECTION 4

PROCEDURE

Article 65 Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty

1A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measures proposed to be taken with respect to the treaty and the reasons therefor.

2If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in Article 67 the measure which it has proposed.

3If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations.

4Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes.

5Without prejudice to Article 45, the fact that a state has not previously made the notification prescribed in para 1 shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation.

Article 66 Procedures for judicial settlement, arbitration and conciliation

If, under para 3 of Article 65, no solution has been reached within a period of twelve months following the date on which the objection was raised, the following procedures shall be followed:

(a)any one of the parties to a dispute concerning the application or the interpretation of Articles 53 to 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration;

(b)any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in Part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary General of the United Nations.

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Article 67 Instruments for declaring invalid, terminating, withdrawing from or suspending the operation of a treaty

1The notification provided for under Article 65, para 1 must be made in writing.

2Any act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of para 2 or 3 of Article 65 shall be carried out through an instrument communicated to the other parties. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the state communicating it may be called upon to produce full powers.

Article 68 Revocation of notifications and instruments provided for in Articles 65 and 67

A notification or instrument provided for in Articles 65 or 67 may be revoked at any time before it takes effect.

SECTION 5

CONSEQUENCES OF THE INVALIDITY, TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY

Article 69 Consequences of the invalidity of a treaty

1A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force.

2If acts have nevertheless been performed in reliance on such a treaty:

(a)each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed;

(b)acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty.

3In cases falling under Articles 49, 50, 51 or 52, para 2 does not apply with respect to the party to which the fraud, the act of corruption or the coercion is imputable.

4In the case of the invalidity of a particular state’s consent to be bound by a multilateral treaty, the foregoing rules apply in the relations between that state and the parties to the treaty.

Article 70 Consequences of the termination of a treaty

1Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

(a)releases the parties from any obligation further to perform the treaty;

(b)does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

2If a state denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that state and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.

Article 71 Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law

1 In the case of a treaty which is void under Article 53 the parties shall:

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(a)eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; and

(b)bring their mutual relations into conformity with the peremptory norm of general international law.

2In the case of a treaty which becomes void and terminates under Article 64, the termination of the treaty:

(a)releases the parties from any obligations further to perform the treaty;

(b)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.

Article 72 Consequences of the suspension of the operation of a treaty

1Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the operation of a treaty under its provisions or in accordance with the present Convention:

(a)releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension;

(b)does not otherwise affect the legal relations between the parties established by the treaty.

2During the period of the suspension the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty.

PART VI

MISCELLANEOUS PROVISIONS

Article 73 Cases of state succession, state responsibility and outbreak of hostilities

The provisions of the present Convention shall not prejudice any question that may arise in regard to a treaty from a succession of states or from the international responsibility of a state or from the outbreak of hostilities between states.

Article 74 Diplomatic and consular relations and the conclusion of treaties

The severance or absence of diplomatic or consular relations between two or more states does not prevent the conclusion of treaties between those states. The conclusion of a treaty does not in itself affect the situation in regard to diplomatic or consular relations.

Article 75 Case of an aggressor state

The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor state in consequence of measures taken in conformity with the Charter of the United Nations with reference to that state’s aggression.

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PART VII

DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION

Article 76 Depositaries of treaties

1The designation of the depositary of a treaty may be made by the negotiating states, either in the treaty itself or in some other manner. The depositary may be one or more states, an international organisation or the chief administrative officer of the organisation.

2The functions of the depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their performance. In particular, the fact that a treaty has not entered into force between certain of the parties or that a difference has appeared between a state and a depositary with regard to the performance of the latter’s functions shall not affect that obligation.

Article 77 Functions of depositaries

1The functions of a depositary, unless otherwise provided in the treaty or agreed by the Contracting States, comprise in particular:

(a)keeping custody of the original text of the treaty and of any full powers delivered to the depositary;

(b)preparing certified copies of the original text and preparing any further text of the treaty in such additional languages as may be required by the treaty and transmitting them to the parties and to the states entitled to become parties to the treaty;

(c)receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it;

(d)examining whether the signature of any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the state in question;

(e)informing the parties and the states entitled to become parties to the treaty of acts, notifications and communications relating to the treaty;

(f)informing the states entitled to become parties to the treaty when the number of signatures or of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited;

(g)registering the treaty with the Secretariat of the United Nations;

(h)performing the functions specified in other provisions of the present Convention.

2In the event of any difference appearing between a state and the depositary as to the performance of the latter’s functions, the depositary shall bring the question to the attention of the signatory states and the Contracting States or, where appropriate, of the competent organ of the international organisation concerned.

Article 78 Notifications and communications

Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any state under the present Convention shall:

(a)if there is no depositary, be transmitted direct to the states for which it is intended, or if there is a depositary, to the latter;

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(b)be considered as having been made by the state in question only upon its receipt by the state to which it was transmitted or, as the case may be, upon its receipt by the depositary;

(c)if transmitted to a depositary, be considered as received by the state for which it was intended only when the latter state has been informed by the depositary in accordance with Article 77, para 1(e).

Article 79 Correction of errors in texts or in certified copies of treaties

1Where, after the authentication of the text of a treaty, the signatory states and the Contracting States are agreed that it contains an error, the error shall, unless they decided upon some other means of correction, be corrected:

(a)by having the appropriate correction made in the text and causing the correction to be initialed by duly authorised representatives;

(b)by executing or exchanging the instrument or instruments setting out the correction which it has been agreed to make; or

(c)by executing a corrected text of the whole treaty by the same procedure as in the case of the original text.

2Where the treaty is one for which there is a depositary, the latter shall notify the signatory states and the Contracting States of the error and of the proposal to correct it and shall specify an appropriate time limit within which objection to the proposed correction may be raised. If, on the expiry of the time limit:

(a)no objection has been raised, the depositary shall make and initial the correction in the text and shall execute a procès-verbal of the rectification of the text and communicate a copy of it to the parties and to the states entitled to become parties to the treaty.

(b)an objection has been raised, the depositary shall communicate the objection to the signatory states and to the Contracting States.

3The rules in paras 1 and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the signatory states and the Contracting States agree should be corrected.

4The corrected text replaces the defective text ab initio, unless the signatory states and the Contracting States otherwise decide.

5The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations.

6Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procès-verbal specifying the rectification and communicate a copy of it to the signatory states and to the Contracting States.

Article 80 Registration and publication of treaties

1Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication.

2The designation of a depositary shall constitute authorisation for it to perform the acts specified in the preceding paragraph.

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PART VIII

FINAL PROVISIONS

Article 81 Signature

The present Convention shall be open for signature by all states Members of the United Nations or of any of the specialised agencies or of the international Atomic Energy Agency or parties to the Statute of the International Court of Justice, and by any other state invited by the General Assembly of the United nations to become a party to the Convention, as follows: until 30 November 1969, at the Federal Ministry for Foreign Affairs of the Republic of Austria, and subsequently, until 30 April 1970, at the United Nations Headquarters, New York.

Article 82 Ratification

The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary General of the United Nations.

Article 83 Accession

The present Convention shall remain open for accession by any state belonging to any of the categories mentioned in Article 81. The instrument of accession shall be deposited with the Secretary General of the United Nations.

Article 84 Entry into force

1The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession.

2For each state ratifying or acceding to the Convention after the deposit of the thirty-fifth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such state of its instrument of ratification or accession.

Article 85 Authentic texts

The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary General of the United Nations.

In witness whereof the undersigned Plenipotentiaries, being duly authorised thereto by their respective Governments, have signed the present Convention.

Done at Vienna, this twenty-third day of May, one thousand nine hundred and sixty-nine.

ANNEX

1A list of conciliators consisting of qualified jurists shall be drawn up and maintained by the Secretary General of the United Nations. To this end, every state which is a Member of the United Nations or a party to the present Convention shall be invited to nominate two conciliators, and the names of the persons so nominated shall constitute the list. The term of a conciliator, including that of any conciliator nominated to fill a casual vacancy, shall be five years and may be renewed. A conciliator whose term expires shall continue to fulfil any function for which he shall have been chosen under the following paragraph.

2When a request has been made to the Secretary General under Article 66, the Secretary General shall bring the dispute before a conciliation commission constituted as follows:

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The state or states constituting one of the parties to the dispute shall appoint:

(a)one conciliator of the nationality of that state or of one of those states, who may or may not be chosen from the list referred to in para 1; and

(b)one conciliator not of the nationality of that state or of any of those states, who shall be chosen from the list.

The state or states constituting the other party to the dispute shall appoint two conciliators in the same way. The four conciliators chosen by the parties shall be appointed within sixty days following the date on which the Secretary General receives the request.

The four conciliators shall, within sixty days following the date of the last of their own appointments, appoint a fifth conciliator chosen from the list, who shall be chairman.

If the appointment of the chairman or of any of the other conciliators has not been made within the period prescribed above for such appointment, it shall be made by the Secretary General within 60 days following the expiry of that period. The appointment of the chairman may be made by the Secretary General either from the list or from the membership of the International Law Commission. Any of the periods within which appointments must be made may be extended by agreement between the parties to the dispute.

Any vacancy shall be filled in the manner prescribed for the initial appointment.

3The Conciliation Commission shall decide its own procedure. The Commission, with the consent of the parties to the dispute, may invite any party to the treaty to submit to it its views orally or in writing. Decisions and recommendations of the Commission shall be made by a majority vote of the five members.

4The Commission may draw the attention of the parties to the dispute to any measures which might facilitate an amicable settlement.

5The Commission shall hear the parties, examine the claims and objections, and make proposals to the parties with a view to reaching an amicable settlement of the dispute.

6The Commission shall report within twelve months of its constitution. Its report shall be deposited with the Secretary General and transmitted to the parties to the dispute. The report of the Commission, including any conclusions stated therein regarding the facts or questions of law, shall not be binding upon the parties and it shall have no other character than that of recommendations submitted for the consideration of the parties in order to facilitate an amicable settlement of the dispute.

7The Secretary General shall provide the Commission with such assistance and facilities as it may require. The expenses of the Commission shall be borne by the United Nations.

4.2Definitions

VCT 1969 only applies to written agreements between states, VCIO 1986 deals with written agreements between states and International Organisations or between International Organisations. Although both Conventions only apply to

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written agreements, this should not be taken to mean that agreements not in writing have no effect in international law – such unwritten agreements will still be regarded as treaties and will be governed by the customary law on treaties – subject to difficulties of proof of content.

There is no precise nomenclature for international treaties: ‘treaty’, ‘convention’, ‘agreement’ or ‘protocol’ are all interchangeable. Furthermore the meaning of most of the terms used in the law of treaties is extremely variable, changing from country to country and from Constitution to Constitution; in international law it could even be said to vary from treaty to treaty: each treaty is, as it were, a microcosm laying down in its final clauses the law of its own existence in its own terms. The uncertainty in wording is a result of the relativity of treaties ...

Despite the terminological jumble, a definition is needed if only to delimit the scope of the rules to be discussed. The broader the definition, the fewer the rules applying to all cases it covers. It is precisely because the rules common to written agreements between states are comparatively numerous that the Vienna Convention dealt with them alone. In order to convey the general sense of the problem, a somewhat broader definition will be presented and discussed here, although the greater part of this study is restricted to the Vienna Convention, which covers the most homogeneous and richest part of the subject. The suggested definition is as follows: ‘A treaty is an expression of concurring wills attributable to two or more subjects of international law and intended to have legal effects under the rules of international law.’7

The restriction of the use of the term ‘treaty’ in the draft articles to international agreements expressed in writing is not intended to deny the legal force of oral agreements under international law or to imply that some of the principles contained in later parts of the Commission’s draft articles ... may not have relevance in regard to oral agreements.8

An example of an oral agreement is to be found in the case involving the Legal Status of Eastern Greenland (1933).9 The case arose from a dispute between Norway and Denmark over claims to sovereignty in Eastern Greenland. Denmark based its claim on the fact that during negotiations between government ministers, the Danish minister suggested to M Ihlen, the Norwegian Foreign Minister, that Denmark would raise no objection to Norwegian claims to Spitzbergen if Norway would not oppose Danish claims to Greenland at the Paris Peace Conference. A week after this conversation, in further negotiations, M Ihlen declared that Norway would ‘not make any difficulty’ concerning the Danish claim. The PCIJ found that the Spitzbergen question was interdependent on the Greenland issues and as such the Court found that a binding agreement existed between the two states.

4.2.1 Unilateral agreements

The matter was discussed in the Nuclear Tests cases (1974).10 The cases arose out of opposition by New Zealand and Australia to atmospheric nuclear testing

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7Paul Reuter, Introduction to the Law of Treaties, 1989, London; Pinter Publishers at p 23.

8(1966–II) YBILC at p 189.

9PCIJ Ser A/B, No 53 (1933).

10[1974] ICJ Rep at p 253.

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carried out by France in the South Pacific. Australia and New Zealand brought proceedings before the ICJ but before any decision was made France indicated its intention not to hold any further tests in the region. The ICJ found that in the light of the French declaration it was no longer appropriate for it to give a decision on the merits of the case. In the course of its judgment, the ICJ declared:

It is well recognised that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the state making the declaration that it should be bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the state being thenceforth legally required to follow a course of conduct consistent with the declaration.

4.2.2 Subjects of international law

Only those with international personality can be parties to treaties – effectively this means states and international organisations. Whilst the majority of treaties are concluded between states, it should already be clear that it is possible for international organisations to undertake treaty obligations. It is not possible under international law for private individuals or companies to enter into treaties. The nature and requirements of the subjects of international law are dealt with in detail in Chapter 5.

Agreements between states themselves create no problem here but a number of marginal cases are becoming increasingly common. Instead of states themselves the parties to an agreement may be other legal entities such as municipalities or public institutions. In such situations the question arises as to whether such bodies have the power to commit their state, and if they do not, the degree to which it can it be said that they have concluded a treaty. On the whole the problem is dealt with by application of the principles of agency and is resolved by looking at the extent to which the particular body can be implied to be acting as agent for the state concerned. Another problem arises in the case of agreements between states and entities which do not yet qualify as states (for example, national liberation organisations or provisional governments) but have been accorded some measure of international personality. In 1982 the Palestine Liberation Organisation issued a communication in which it purported to accede to the Geneva Conventions 1949 and additional Protocols dealing with the laws of war. Switzerland, as depository of the treaties, declined to accept the accession and sent a note to state parties declaring:

Due to the uncertainty within the international community as to the existence or the non-existence of a state of Palestine and as long as the issue has not been settled in an appropriate framework, the Swiss government, in its capacity as depository ... is not in a position to decide whether this communication can be considered as an instrument of accession ... The unilateral declaration of application of the four Geneva Conventions and of the additional Protocol I made on 7 June 1982 by the Palestine Liberation Organisation remains valid.11

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11Embassy of Switzerland, Note of Information sent to States Parties to the Convention and Protocol, 13 September 1989.

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While the Peace Treaty between Israel and Jordan (as in the case of the Camp David Agreements between Israel and Egypt) is clearly a treaty between states governed by international law in the sense of the 1969 Vienna Convention on the Law of Treaties, the legal nature of the agreements between Israel and the PLO is a matter of dispute. Some authors argue that ‘[t]he PLO’s lack of status as a state precludes characterisation of the Declaration as a treaty or international convention, and hence as a hard law instrument in the traditional sense’.12 It is suggested that it is ‘rather an agreement between the state of Israel and the PLO, ‘representing the Palestinian people’ and that ‘[b]ecause the Declaration of Principles accepts some, but not all, elements of Palestinian statehood, Palestine may be considered a ‘quasi-state’ for purposes of the agreement; that is an entity enjoying certain prerogatives ordinarily reserved to states, but not fulfilling all of the traditional prerequisites for statehood’.13 the same author concludes that, although the agreement is ‘a soft law document in the traditional sense’, it nevertheless is ‘an agreement with considerable binding force’ which ‘appears on close analysis to embody a solid, substantive accord’.14 Other authors have also expressed doubts (at least) on whether the Israel-PLO agreements are international instruments.15

In the above view there is some confusion on two different issues which need to be distinguished in the analysis. The first issue concerns the law to be applied to the agreement, in particular, whether it is an agreement concluded under international law. The second issue is whether, or to what extent it is a legally binding or non-binding agreement, and what the legal consequences are.

With regard to the first issue, it is correct that the PLO is not a state in the sense of international law and that it also does not represent any existing state of ‘Palestine’. The establishment of a ‘state of Palestine’ was proclaimed with the Algiers Declaration of 15 November 1988 and it was recognised by many former communist states and developing countries which entered into diplomatic relations with the representatives of this state. However, this ‘state of Palestine’ does not fulfil one of the essential criteria under international law for the existence of a state because there is no effective sovereign control over the territory and population claimed to form the basis of the ‘state of Palestine’.

This does not mean that the Israel-PLO agreements cannot be treaties under international law. It is true that the 1969 Vienna Convention on the Law of Treaties only applies to treaties concluded between states. But that does not affect, as expressly acknowledged in Article 3 of the Convention, the legal validity of, and the application of international law rules on the law of treaties to, agreements concluded between states and other ‘subjects of international law’. Independently of the attitude taken by Israel towards the PLO in the past, in international practice the latter has become recognised as a national liberation movement with the right to self-determination, which, although it does not exercise effective territorial jurisdiction, is a partial subject of international law with the capacity to maintain diplomatic relations with states and international

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12‘The Israel-PLO Declaration of Principles: Prelude to a Peace?’ (1994) 34 Va J Int L 435–69 at p 452.

13Ibid, p 465.

14Ibid, p 467.

15See, for example, YZ Blum, ‘From Camp David to Oslo’ (1994) 28 Israel LR 211 at pp 212–13.

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organisations recognising it and to conclude treaties. As a partial subject of international law, the PLO is not equal to a state, but that does not affect the validity of a treaty it concludes with a state.

Yehuda Blum argues that, even if one would be prepared to recognise that national liberation movements could have the status as subjects under international law, ‘it does not necessarily follow that agreements entered by them become international agreements; partial and limited subjects of international law logically have only partial capacities under that law’.16 This argument is not convincing for the following reasons. If the Israel-PLO agreements are not international agreements under public international law, then they must be governed by some national legal system, as in the case of so-called ‘state contracts’ concluded by a host state and a foreign company (unless, as more frequently in the past, a reference in the contract is made to international law as the governing law, which does not necessarily elevate the contract to the level of a treaty in the international law sense). Quite apparently, this would lead to absurd results.

Moreover, there are two clear indications in the agreements themselves that the parties consider them to be international agreements. First, there is express reference in some provisions that certain action has to be taken ‘in accordance with international law’. Second ... the methods of disputes settlement provided for in the agreements are the typical ones of international law dispute settlement procedures. An additional argument can be found in the facts that the United Nations has endorsed the Israel-PLO Accord, that other states have signed as witnesses and that a multilateral international framework has been created in support of the Middle East peace process, all of which does not lend support to the view that the agreements are non-international ones. The agreements made between Israel and the PLO included the recognition by Israel of the PLO as the representative of the Palestinian people, and thereby are clearly governed by international law.

The second issue is: what kind of agreements are these under international law? Although the DOP is entitled ‘Declaration’ its content reveals that the parties did not want to enter into a mere ‘gentleman’s agreement’ or just intended a declaration of policy. There is, furthermore, no reason to consider the text could be qualified as non-binding on the grounds that it lacks precision, in the sense that Judge Lauterpacht argued in his declaration attached to the judgment of the International Court of Justice in the Sovereignty of Certain Frontier Land case, namely that ‘the ... provisions ... must be considered as void and inapplicable on account of uncertainty and unresolved discrepancy’.17 First, the view held by some authors that the vagueness of treaty provisions may lead to the conclusion that these provisions are not legally binding is in itself incorrect. If the parties intended to conclude a treaty, then it is binding as a whole, even if some parts contain broad or unclear language. Vague provisions may give the parties a broad margin of discretion, but as Bernhardt notes, that is not to say that they are without legal significance and binding substance.18 Secondly, even if one would like to take the contrary view, the detailed nature of many of the obligations laid down in the Israel-PLO agreements (especially after the DOP) clearly show that

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16YZ Blum, ‘From Camp David to Oslo’ (1994) 28 Israel LR 211 at p 213.

17[1959] ICJ Rep 209 at p 231.

18See R Bernhardt, ‘Treaties’ (1984) 7 EPIL 459–64 at p 461.

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the provisions are sufficiently clear and that the parties intended to enter into binding commitments and not merely concluded a non-binding agreement. This is less true with regard to the agreement to negotiate later on the permanent status. It is generally accepted that an obligation to take part in negotiations and to conduct them in good faith, may form the valid and practical object of an international undertaking.19, 20

4.2.3 An intention to produce legal effects

An analogy may be drawn with the requirement in municipal contract law of an intention to be bound. Agreements will not be legally enforceable as treaties if it can be shown that one or more of the parties did not intend that the agreement should create binding legal obligations. So, for example, the Final Act of the Helsinki Conference on Security and Co-operation in Europe 1975 provided that it was to be ‘not eligible for registration [as a treaty] under Article 102 of the Charter of the United Nations’ and throughout the conference it was understood by the participants that the Final Act would not be legally binding. Such agreements may create ‘soft law’ as discussed in Chapter 3.

4.2.4 Legal effects under public international law

Perhaps the most important requirement of a treaty is that it is an agreement ‘governed by international law’. In 1962 the ILC started a detailed study of the law of treaties and the Special Rapporteur, Sir Humphrey Waldock, stated in his first report to the ILC that:

The element of subjection to international law is so essential a part of an international agreement that it should be expressly mentioned in the definition. There may be agreements between states, such as agreements for the acquisition of premises for a diplomatic mission or for some purely commercial transaction, the incidents of which are regulated by the local law of one of the parties or by a private law system determined by reference to conflict of laws principles. Whether in such cases the two states are internationally accountable to each other at all may be a nice question; but even if that were held to be so – it would not follow that the basis of their international accountability was a treaty obligation.21

An illustration of this point is provided by the Anglo-Iranian Oil Co case (1952).22 In that case, which arose after Iran had nationalised the oil industry, the UK sought to rely on an agreement made in 1933 between the Anglo-Iranian Oil Co and the government of Iran. The UK argued that the agreement was a treaty and therefore was binding on Iran. The argument was rejected by the ICJ which found that the agreement was nothing more than a concessionary contract between a government and a foreign corporation.

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19Judge De Visscher in his dissenting opoinion to the ICJ’s Advisory Opinion of 11 July 1950 on South West Africa [1950] ICJ Rep 186 at p 188.

20P Malanczuk, ‘Some Basic Aspects of the Agrements between Israel and the PLO from the Perspective of International Law (1996) 7 EJIL 485 at pp 488–91.

21Sir Humphrey Waldock [1962] 2 Yearbook of the International Law Commission 32.

22[1952] ICJ Rep p 1.

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4.2.5 Designation

It should also be noted that the particular designation of the agreement does not govern its validity as a treaty – agreements may be entitled Conventions, Accords, Final Acts, Statutes, Exchange of Notes, Protocols – they are all to be regarded as treaties for these purposes. The designation given may however be of relevance in indicating the nature of the transaction. For example an ‘agreement’ is usually less formal than a ‘treaty’ and the term ‘convention’ will generally indicate a multilateral agreement.

4.3Conclusion and entry into force of treaties

4.3.1 Accrediting of negotiators

Once a state has decided to create a treaty, it is necessary to appoint representatives to conduct the negotiations. It is necessary that such representatives should be fully accredited and given sufficient authority to conduct negotiations, and conclude and sign the final treaty. As a general rule such authority is contained in a formal document known as ‘Full Powers’ or often ‘Pleins Pouvoirs’. Full Powers can be dispensed with if practice between the negotiating states shows an intention to consider them as read and a gradual reduction in the use of Full Powers by states can be identified in the recent conduct of international relations.

In the case of multilateral agreements which are generally concluded at international conferences, the practice is for a committee to be set up to investigate the validity of the accreditation of all delegates.

Article 7 of the VCT reflects the rules in customary international law and in the Legal Status of East Greenland case (1933) the special position of foreign ministers as representatives for the purpose of entering into international agreements was expressly recognised by the Permanent Court.

If an unauthorised person were to enter into an agreement, his/her actions would be without legal effect unless subsequently confirmed by the state. Article 8 of the VCT 1969 provides a further safeguard against abuse by enabling a state to denounce an agreement entered into by an unauthorised person.

4.3.2 Negotiation and adoption

Negotiations concerning a treaty are conducted either through pourparlers in the case of bilateral treaties or at a diplomatic conference in the case of multilateral treaties. The negotiators will maintain contact with their governments and usually, before actually signing a treaty, they will obtain a new set of instructions indicating the manner of signature. The procedure at diplomatic conferences runs to a standard pattern with the appointment of committees and rapporteurs to manage the conference as efficiently as possible.

The aim of negotiation is the production of an agreed text of a treaty. The text is adopted by the consent of the parties. Article 9 of the VCT 1969 provides that the adoption of a treaty text at an international conference requires a twothirds majority of those present and voting, unless a two-thirds majority decides otherwise. A common practice over recent years has been for the final text of

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multilateral treaties to be adopted by a meeting of the relevant international organisation, for example, the UN General Assembly.

4.3.3 Authentication, signature and exchange

When the text of the treaty has been agreed upon and adopted, the treaty is ready for signing. Signing the treaty, which is usually a formal occasion, serves to authenticate the text. Signing is, therefore, essential to the validity of the treaty unless other methods of authentication have been agreed.

4.3.4 Effect of signature

The effect of signature depends upon whether the treaty is subject to ratification, acceptance or approval. If this is the case, then the signature means no more than that the delegates have agreed a text and have referred it to their governments for approval and ratification. Thus in the North Sea Continental Shelf cases (1969), although the Federal Republic of Germany had signed the Continental Shelf Convention 1958 it was not bound by its provisions since it had not ratified it. For this reason, Denmark and Holland had to base their arguments on rules of customary international law. In keeping with the general requirement of good faith, Article 18 of the VCT 1969 provides that where a state signs a treaty which is subject to ratification there is an obligation to do nothing to defeat the object of the treaty until the state has made its intentions clear. Sometimes the treaty will provide that it is to operate on a provisional basis as from the date of signature.

If the treaty is not expressed to be subject to ratification or is silent on the matter the treaty is binding as from the date of signature (Article 12 of the VCT 1969).

4.3.5 Ratification

The next stage, if necessary, is for the delegates to refer the treaty back to their governments for approval. Ratification is the approval by the head of state or government of the signature to the treaty. Article 2 of the VCT 1969 defines ratification as the international act whereby a state establishes on the international plane its consent to be bound by a treaty. Ratification does not have retroactive effect, so states are only bound from the date of ratification, not the date of signature.

It used to be thought that ratification was always essential, but that is no longer the case. Nowadays, it is a question of the intention of the parties as to whether ratification is a mandatory requirement.

It should be noted that the method by which ratification is actually accomplished is a matter for individual states. In the UK, although treaties are signed and ratified under the royal prerogative without the need for reference to Parliament, the practice is to lay the text of any treaty before both Houses of Parliament for 21 days before ratification (this practice is known as the Ponsonby Rule).

Generally, ratification has no effect until some notice of it is given to the other parties to the treaty. In the case of bilateral treaties, ratifications are simply exchanged between the parties. This is clearly impractical in the case of multilateral treaties, so multilateral treaties usually provide for the deposit of all

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ratifications with one central body – in nearly all cases this function is performed by the Secretariat of the United Nations.

4.3.6 Accessions and adhesions

When a state has not signed a treaty it can only accede or adhere to it. Accession indicates that a state is to become a party to the whole treaty, whereas adhesion only involves acceptance of part of a treaty. Strictly speaking states can only accede or adhere to a treaty with the consent of all the existing parties. In practice, the consent of existing parties to accession is often implied.

4.3.7 Entry into force

When a treaty is to enter into force depends upon its provisions, or upon what the parties may otherwise have agreed. Treaties may be operative on signature, or on ratification. Multilateral treaties usually provide for entry into force only after the deposit of a specific number of ratifications, for example, Article 19 of the International Convention on the Elimination of all Forms of Racial Discrimination 1986 provides:

This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary General of the United Nations of the twenty-seventh instrument of ratification or instrument of accession.

VCT 1969 itself entered into force after the receipt by the Secretary General of the 35th ratification. Sometimes a precise date for the entry into force of a treaty is given irrespective of the number of ratifications received.

4.3.8 Registration and publication

Article 102 of the United Nations Charter provides that all treaties entered into by members of the United Nations shall ‘as soon as possible’ be registered with the Secretariat of the United Nations and be published by it. A similar provision was laid down in Article 18 of the League of Nations Covenant. Failure to so register and publish the treaty will mean that the treaty cannot be invoked in any UN organ. Most significantly this would mean that a state would be unable to rely on an unregistered treaty in proceedings before the ICJ. This provision was included to try to combat the use of secret treaties which were considered to have a detrimental effect on international relations. Article 80 of the VCT 1969 provides that treaties shall, after their entry into force, be transmitted to the Secretariat of the UN for registration or filing and recording, as the case may be, and for publication.

In fact a considerable proportion of treaties are not registered. Paul Reuter suggests that statistical research based on the League of Nations and the United Nations Treaty Series shows that 25% of treaties have not been registered. Although the effect of non-registration of treaties has been discussed on a number of occasions before the ICJ, it is not possible to draw any definite conclusions.

4.4Reservations

It can frequently happen that a state, while wishing to become a party to a treaty, considers that it can do so only if it can exclude or modify one or more particular provisions contained in the treaty. Ideally, such a state will be able to

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convince the other parties to amend the text of the treaty to incorporate its specific wishes. However, often this will not be possible and the regime of reservations allows a state, in certain circumstances, to alter the effect of the treaty in respect of its own obligations while preserving the original treaty intact as between the other parties.

4.4.1 Definitions

The growth of reservations to treaties coincides with the growth in multilateral conventions. With regard to bilateral treaties, the two parties to the treaty may disagree over the precise terms of the treaty which is to bind them. If this is the case, they may re-negotiate the terms until they achieve full agreement. There will be no treaty in existence until both sides agree on the terms. From this it follows that there can be no question of reservations to a bilateral treaty. In the case of multilateral treaties, it may not always be possible to get the full agreement of all the negotiating parties to every provision of the treaty. The general practice is for the text of such treaties to be adopted by two-thirds majorities. In the event of such a vote, those parties in the minority are in something of a dilemma: they can either refuse to become parties to the whole treaty, or they can accept the whole treaty even though they disagree with one or more of its provisions. The regime of reservations provides something of a compromise: those in the minority can become parties to the treaty without accepting all of the provisions therein.

Reservations should be distinguished from so-called ‘interpretative declarations’ whereby a state indicates the view which it holds about the substance of the treaty. Interpretative declarations are not intended as an attempt to derogate from the full legal effect of provisions of the treaty. In practice, the distinction between reservations and interpretative declarations may not always be clear cut. In Belios v Switzerland (1988) the European Court of Human Rights had to consider the nature of a declaration made by Switzerland when it ratified the European Convention on Human Rights. Switzerland argued against a finding of the Commission that the declaration was a mere interpretative declaration which did not have the effect of a reservation. The Court found that the declaration was a reservation and in the course of its judgment said:

The question whether a declaration described as ‘interpretative’ must be regarded as a ‘reservation’ is a difficult one ... In order to establish the legal character of such a declaration, one must look behind the title given to it and seek to determine the substantive content.

4.4.2 Validity of reservations

The formerly accepted rule for all kinds of multilateral treaty was that reservations were valid only if the treaty concerned permitted reservations and if all the other parties accepted the reservation. On this basis a reservation constituted a counter-offer which required the acceptance of the other parties, failing which the state making the counter-offer would not become a party to the treaty.

During the period of the League of Nations the practice with regard to multilateral conventions was inconsistent. In 1927 the Committee of Experts for

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the Progressive Codification of International Law, the League of Nations’ equivalent of the International Law Commission, adopted a policy based on the absolute integrity of treaties and argued that reservations to treaties would not be effective without the full acceptance of all parties. At the same time, the members of the Pan-American Union (the forerunner of the Organisation of American states) adopted a more flexible policy including the following key elements:

(a)as between states which ratify a treaty without reservations, the treaty applies in the terms in which it was originally drafted and signed;

(b)as between states which ratify a treaty with reservations and states which accept those reservations, the treaty applies in the form in which it may be modified by the reservations; and

(c)as between states which ratify a treaty with reservations and states which, having already ratified, do not accept those reservations, the treaty will not be in force.

A small number of states, principally from Eastern Europe, adhered to the view that every state had a sovereign right to make reservations unilaterally and at will, and to become a party to treaties subject to such reservations, even if they were objected to by other Contracting States.

Matters came to a head following the unanimous adoption of the Convention on the Prevention and Punishment of the Crime of Genocide by the UN General Assembly in 1948. Article 9 of the Convention provided that disputes or cases arising under the Convention should be compulsorily within the jurisdiction of the ICJ. A number of states wished, for reasons of their own, to avoid being subject to the ICJ’s compulsory jurisdiction, but the Convention contained no express provision allowing for reservations. The General Assembly therefore requested an advisory opinion from the ICJ on certain key questions:

1Could a reserving state be regarded as being a party to the Convention while still maintaining its reservation if the reservation is objected to by one or more of the parties to the Convention but accepted by others?

2If the answer to question 1 is in the affirmative, what is the effect of the reservation as between the reserving state and:

(a)the parties which object to the reservation?

(b)those which accept it?

The Court in the Reservations to the Convention on Genocide case (1951) ruled, by seven votes to five, in response to question 1 that a state which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention; otherwise, that state cannot be regarded as being a party to the Convention.

In response to question 2, again by a seven:five majority, the ICJ found that:

(a)if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can consider that the reserving state is not a party to the Convention;

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(b)if, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving state is a party to the Convention.

This judgment was not initially well-received. It was felt that the compatibility test was too subjective and that the result of the decision would be further uncertainty. The International Law Commission reported in 1951, after the Court had given its decision, and recommended a return to the traditional view that reservations required the unanimous consent of the parties to a treaty. However views did gradually change. By 1959 the UN General Assembly had adopted the ICJ’s position and in 1962 the International Law Commission decided in favour of the compatibility test. That position was the one adopted by the VCT 1969 and represents customary international law. The relevant provisions are found in Articles 19–23. Article 19 provides that, in general, reservations are always permitted except in three instances:

(a)when the treaty explicitly forbids reservations;

(b)when the treaty does not permit the type of reservation being made;

(c)when the reservation is incompatible with the object and purpose of the treaty.

Some treaties provide mechanisms for deciding on compatibility of reservations

– for example Article 20 of the Convention on the Elimination of Racial Discrimination 1966 provides that a reservation shall be considered incompatible if at least two-thirds of the state Parties to the Convention object to it.

Article 20 provides as follows:

1A reservation expressly authorised by a treaty does not require any subsequent acceptance by the other Contracting States unless the treaty so provides.

2When it appears from the limited number of negotiating states and the object and purposes of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

3When a treaty is a constituent instrument of an international organisation and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organisation.

4In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:

(a)acceptance by another Contracting State of a reservation constitutes the reserving state a party to the treaty in relation to that other state if or when the treaty is in force for those states;

(b)an objection by another Contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving states unless a contrary intention is definitely expressed by the objecting state;

(c)an act expressing a state’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other Contracting State has accepted the reservation.

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5For the purposes of paras 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a state if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

Article 21 spells out the legal effects of reservations and sets down three main rules:

1A reservation modifies the provisions of the treaty to which it relates as regards the reserving state in its relations with other parties and as regards the other parties in their relations with the reserving state.

2A reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.

3When a state objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving state, the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation.

Rule 3 was illustrated in the English Channel Arbitration (1979) between France and the UK. During the course of the arbitration it was necessary to consider the effect of reservations to Article 6 of the Continental Shelf Convention 1958 to which the UK had objected. VCT 1969 does not apply to the Continental Shelf Convention so the issue had to be decided in accordance with customary law. France argued that the combined effect of reservations and objections was to render Article 6 completely inapplicable as between Britain and France, whereas the UK sought to argue that the effect was to render the article applicable in toto. The Court of Arbitration rejected both arguments and held that the combined effect of the reservation and the objection to it was to render Article 6 ‘inapplicable as between the two countries to the extent, but only to the extent, of the reservations’.

VCT 1969 further provides that reservations and acceptances/objections to reservations must be in writing.

4.5Application of treaties

4.5.1 The observance of treaties

The doctrine of pacta sunt servanda, the rule that treaties are binding on the parties and must be performed in good faith, is a fundamental principle of international law. The rule is included in the VCT 1969 by Article 26 which provides that ‘every treaty in force is binding on the parties to it and must be performed in good faith’. As was mentioned in Chapter 1, the principle is derived from the jus gentium of the Roman legal system. There has been some discussion as to the question of whence the rule derives its authority and the precise status of the rule. The principle is certainly one of customary international law evidenced by widespread state practice and opinio juris. The fact that it is a recognised rule of customary international law enables the VCT 1969 itself to be binding. Arguably, pacta sunt servanda constitutes a higher rule of customary law since it is difficult to envisage how a system of international law could operate without it. In this sense it might be viewed as constituting

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one of the true sources of international law in the sense of a Grundnorm as identified by Kelsen. It could also be validly claimed to constitute a rule of jus cogens.

4.5.2 Non-retroactivity

Article 28 of the VCT 1969 reflects the customary rule of non-retroactivity of treaties. The provisions of a treaty do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the treaty entered into force for that state, unless a different intention appears from the treaty or is otherwise established. The rule applies to the VCT 1969 itself which has no application to any treaty entered into before the VCT 1969 came into force. Where treaties are the subject of ratification it is necessary to remember the rule expressed in Article 18 of the VCT 1969 which provides that states, having signed a treaty, should not act in any way to defeat the object and purpose of the treaty until it has made a clear final decision with regard to ratification. It should also be noted that treaties can apply to continuing situations. Although a situation may have arisen before a treaty came into force, it will be governed by the provisions of the treaty if it continues to exist after the treaty comes into force.

4.5.3 Territorial application

The general rule, reflected in Article 29 of the VCT 1969, is that, unless some other intention is made clear, a treaty applies to the entire territory of each party. The issue of territorial application arises where parties to a treaty have overseas territorial possessions, and the presumption is that a treaty applies to all the territory for which Contracting States are internationally responsible. Thus, unless the contrary is explicitly indicated, treaties to which the UK is a party apply to the British colonies and all territory for which the UK is internationally responsible, for example the Channel Islands and the Isle of Man.

4.5.4 Successive treaties

The problem of a later treaty inconsistent with an earlier one is a complex issue, but Article 30 of the VCT 1969 sets out general rules that deal with the majority of cases. As far as UN members are concerned, the UN Charter prevails over any other international agreement which conflicts with it. Otherwise, the basic rules are:

(a)a prior treaty prevails over a later one in any instance of apparent disagreement when the later one specifies that it is subject to, or not incompatible with, the earlier one;

(b)where all the parties to the earlier treaty are also parties to the later treaty, the earlier (if still in effect) applies only to the extent that its provisions are compatible with those of the later treaty;

(c)when the parties to the two treaties are not identical, the earlier applies between states that are parties to both only to the extent that the earlier is not incompatible with the later, while as between a state which is party to both treaties and a state which is a party to only one of the treaties, the treaty to which both are parties governs their mutual rights and obligations.

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4.5.5 Treaties and third parties

The general rule expressed in the maxim, pacta tertiis nec nocent nec prosunt, is that treaties cannot bind third parties without their consent. The rule is affirmed in Article 34 of the VCT 1969. However, situations in which the rights and duties of third parties are involved have occasionally been created by treaties which are said to establish objective regimes, creating rights and obligations valid universally (erga omnes). Erga omnes is not a term used in VCT 1969 but Article 36 does provide:

1A right arises for a third state from a provision of a treaty if the parties to the treaty intend the provision to accord that right to a third state, or to a group of states ...

The International Law Commission considered that this provided the legal basis for establishing rights valid erga omnes and did not propose any special provision on treaties creating so-called objective regimes such as the Antarctic Treaty 1959. Certainly there is less difficulty where a treaty creates rights for third parties than the situation where a treaty purports to impose obligations on non parties. The subject of erga omnes obligations will be considered in more detail in connection with human rights law and environmental protection in Chapters 15 and 17. There are a number of examples of treaties establishing rights for third parties particularly with respect to rights over territory. The Constantinople Convention 1888 was for a long time considered to give a right of passage through the Suez Canal to states that were not parties to the agreement, as did the Treaty of Versailles 1919 with respect to the Kiel Canal.

The Vienna Convention’s five articles dealing directly with treaties and third parties are narrowly drawn and limited in their application. Article 34 commences with a restatement of the classic pacta tertiis rule which underscores principles of sovereignty and equality. There is no concession to the various claimed exceptions, nor do the subsequent articles shed any light on possible inroads to the rule. ‘The principle enunciated in Article 34, namely that treaties did not have effects with respect to third states was thus absolute.’23 The decision not to enunciate any exceptions meant that there was also no attempt to provide a juridical basis for any such exceptions.

After the uncompromising stance of Article 34, the following articles deal separately with the imposition of obligations upon third states and the bestowal of rights. The connecting factors are the intentions of the parties and third party assent, which reinforce a narrow, contractual view of treaties. Articles 35 and 36 assume that the parties’ intentions and the third party’s consent can be accurately determined, and will coincide. If they do not, no obligation can have been imposed, nor right bestowed.

A distinction is drawn between rights and obligations for the purpose of the means of manifesting third party consent. A third party must expressly consent in writing to an obligation, but may impliedly consent to the acceptance of a right. However, as has been seen through the examination of many of the claims, rights and obligations cannot be treated as invariably distinct for they are often interrelated. Rights and obligations are interlocked in the formation of a bargain where all involved have duties to perform and expectations arising. Especially is

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23 P Reuter [1982] 1 YBILC 26.

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this so where conditions are attached to the claiming of a right. There is no logical reason for according primacy to either concept; rather they should be treated together.

The International Law Commission, and subsequently the Conference at Vienna, preferred a rigid construction of treaty law so as more easily to gain agreement on a text. The inflexibility is repeated in the subsequent Vienna Convention on International Organisations which, apart form the inclusion of international organisations as parties and third parties to treaties, adopts the same starting point. The narrowness of Articles 34–38 in both Conventions might give the impression that international law has receded from its earlier acceptance of exceptions to the general rule. In fact, a closer examination of both the Conventions, and of developments external to the law of treaties, demonstrates that this has not been the case.

...

The effect of treaties on third parties cannot be determined merely by the formal application of specified rules of treaty law. Indeed, in some instances these rules are inadequate for the changing claims of both parties and non-parties. Instead third party claims must be analysed to determine their relevant factual context, the appropriate policies, and the applicable law. Certain exceptions to the pacta tertiis rule can be summarised as falling under the following heads: acquiescence in the conduct of parties and non-parties; application of a special principle of law outweighing the general third party rule; the existence of some situation that displaces the application of treaty law. There is a realisation that the pacta tertiis rule should not be applied inflexibly to produce inequity. While the pacta tertiis rule formally applies to all states and produces an appearance of equality, in fact it favours stronger states. Such states could conclude (and have concluded) agreements in their own interests which were presented as being to further overall community goals and, as such, binding on weaker states. A number of peace settlements and other territorial arrangements in the 19th and early 20th centuries can perhaps be categorised in this way. At the same time the rule could be cited against weaker powers.

The manipulation of the pacta tertiis rule by stronger states and the recognition that one of the major exceptions to it worked primarily to their benefit, has perhaps led to a current tendency to ensure as many states as possible are included in a treaty relationship rather than having more powerful states in effect dictate settlements in the name of the public benefit. Sensitivity to the sovereignty of weaker states favours the inclusion of all interested parties in a treaty arrangement. An example is the package of treaties constituting the Afghanistan settlement.24 While the United States and the Soviet Union were parties to the arrangement through the Agreement on the Interrelationships for the Settlement of the Situation relating to Afghanistan, so too were Afghanistan and Pakistan. The settlement was not limited to the superpowers and imposed upon the others. The same is true of the Cambodia peace settlement. Devices to include as many parties as possible are also seen in widely phrased accession clauses, and in the use of Protocols allowing for adherence or accession. While presenting problems of juridical analysis, the aim is to provide certainty and stability by including interested or essential (state) participants in the treaty scheme. it may be that traditional treaty analysis which divides states into parties

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24 Geneva, 4 April 1988 (1988) 27 ILM 581.

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and non-parties will not work with these devices whose operation should not be frustrated by the technicalities of international law.

The mechanisms described above operate on the assumption of the pacta tertiis rule and use it to create interlocking treaty relationships. On the other hand this process disadvantages weaker states where stronger states refuse to accept the invitation to join a treaty regime. There is another development which impacts in the opposite way. There has been a growing use of less formal ways of creating international obligations, primarily through collective actions of international organisations as expressed through their resolutions. Although the formal position remains that General Assembly resolutions are not binding, it is now widely accepted that legitimate expectations as to future behaviour may be engendered by them, which only an unwise or excessively formalistic decisionmaker would ignore. The pacta tertiis rule has become less relevant with this change: if even those voting in favour of a resolution are not formally bound by it, then ‘third’ parties are that much further removed form any commitments. However, in a practical sense, it may be very difficult for those states which abstained or dissented form a resolution (third parties) to remain aloof from its consequences. Developing states have favoured the passing of resolutions expressing their interests through their voting majority in the General Assembly and support claims as to their normative effect. Thus there may be a claim that the principles enunciated in General Assembly resolutions relating to the existence of a common heritage of peoples have become opposable even to third parties to a treaty in which the concept is incorporated, for example, the United Nations Convention on the Law of the Sea. Subsequent state conduct and acquiescence may once again play a decisive role in determining obligations flowing from General Assembly resolutions. In considering the current status of the pacta tertiis rule exclusive consideration of treaty-making processes distorts the current international prescriptive process. There are instrumentalities for change and development of international law which may not satisfy rigorous application of the traditional criteria for determining normative effect, and which consequently cause juridical inconsistency, but which cannot be disregarded. Any analysis of the classic third party rule is inevitably entwined with this change in the prescriptive process.25

It should not be forgotten that the provisions contained in treaties might bind non-parties as rules of customary international law either in situations where the treaty is itself a codification of existing international law or where the treaty leads to the gradual development of new rules of custom.

4.6Amendment and modification

Prior to VCT 1969 the customary law rule was that a treaty could not be revised without the consent of all the parties, although there was evidence that by 1969 state practice had already begun to depart from the rule. The ILC, when considering the draft convention on treaties, noted the enormous increase in the number of multilateral treaties and the fact that obtaining the consent of all the parties would not always be possible (there are parallels here with the discussions about reservations). The VCT 1969 now draws a distinction between ‘amendments’ and ‘modifications’. Amendment, covered by Article 40, denotes

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25C Chinkin, Third Parties in International Law, 1993, Oxford: Clarendon Press, at pp 134–35, 142–44.

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a formal change in a treaty intended to alter its provisions with respect to all the parties. Modification, dealt with in Article 41, indicates an inter se agreement concluded between certain of the parties only, and intended to alter the provisions of the treaty between themselves alone. Modification is only allowed if:

(1)it is permitted by the treaty;

(2)it is not prohibited by the treaty;

(3)it does not affect the other parties to the treaty;

(4)it is not incompatible with the treaty.

More usually amendment or modification is achieved in the case of multilateral treaties by another multilateral treaty which comes into force only for those states which agree to the changes.

4.7Treaty interpretation

23 The Court recalls that, according to customary international law as expressed in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Under Article 32, recourse may be had to supplementary means of interpretation such as the preparatory work and the circumstances in which the treaty was concluded.26

4.7.1 Aims and goals of interpretation

There is a measure of disagreement among jurists as to the aims of treaty interpretation. There are those who assert that the primary, and indeed only, aim of treaty interpretation is to ascertain the intention of the parties – this is generally referred to as the subjective approach. On the other hand, there are those who start from the proposition that there must be a presumption that the intention of the parties are reflected in the text of the treaty which they have drawn up, and that the primary aim of interpretation is to ascertain the meaning of this text – generally referred to as the objective or textual approach. Finally, there are those who maintain that the decision-maker must first ascertain the object and purpose of a treaty and then interpret it so as to give effect to that object and purpose – the teleological or object and purpose approach.

It should be noted straight away that these three schools of thought are not mutually exclusive and a tribunal will probably draw on all three views to some extent when attempting to interpret a treaty. It should also be noted that some writers have argued that it is impossible to discern any general rules or principles governing treaty interpretation, instead what is found is a series of ex post facto rationalisations of decisions reached for other reasons.

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26Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) (Preliminary Objection) Judgment of ICJ of 12 December 1996.

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4.7.2 The Vienna Convention on the Law of Treaties 1969 Section 3

Section 3 of the VCT 1969 adopts a composite position. Article 31 states that treaties ‘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 their object and purpose’.

4.7.2.1 Good faith

The principle of good faith underlies the most fundamental norm of treaty law – pacta sunt servanda. If the parties to a treaty are required to perform the obligations of a treaty in ‘good faith’, it is logical to interpret the treaty in ‘good faith’.

4.7.2.2 Ordinary meaning

The ordinary meaning does not necessarily result from a strict grammatical analysis. In order to arrive at the ordinary meaning account will need to be taken of all the consequences which reasonably flow from the text. It is also clear that the ordinary meaning of a phrase cannot be ascertained divorced from the context the phrase has in the treaty as a whole. In the Employment of Women During the Night case (1932), Judge Anzilotti said:

I do not see how it is possible to say that an article of a convention is clear until the subject and aim of the convention have been ascertained, for the article only assumes its true import in this convention and in relation thereto. Only when it is known what the contracting parties intended to do and the aim that they had in view is it possible to say either that the natural meaning of terms used in a particular article corresponds with the real intention of the parties, or that the natural meaning of the terms used falls short of or goes further than such intention.27

This view can be contrasted with the decision of the ICJ given in the advisory opinion in the Competence of the General Assembly for the Admission of a State to the UN case (1950)28 where the Court said that:

the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur. If the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter.

4.7.2.3 Special meaning

Paragraph 4 of Article 31 provides that a special meaning shall be given to a term if it is established that the parties so intended. In the Eastern Greenland case, the PCIJ stated:

The geographical meaning of the word ‘Greenland’, ie the name which is habitually used in maps to denote the whole island, must be regarded as the ordinary meaning of the word. If it is alleged by one of the parties that some unusual or exceptional meaning is to be attributed to it, it lies on that party to establish its contention.29

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27PCIJ Ser A/B, No 50 (1932).

28[1950] ICJ Rep at p 8.

29PCIJ Ser A/B, No 53 (1933).

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4.7.2.4 The context and the object and purpose

The context, for the purposes of interpretation, includes the text, its preamble and annexes and any agreement relating to the treaty made between all the parties, or made by some of the parties and accepted by the other, in connection with the conclusion of the treaty. The text of the treaty must be read as a whole. The preamble to the treaty will often provide assistance in ascertaining the object and purpose of a treaty.

4.7.2.5 Supplementary means of interpretation

Although Article 32 talks of ‘supplementary means of interpretation’, in practice international tribunals do tend to blur any differences between Article 31 and Article 32 and the preparatory work often referred to by the French term travaux préparatoires is regarded as a considerable aid. In the Employment of Women case the PCIJ referred to the travaux préparatoires to confirm the clear meaning of the text. One possible restriction on the use of travaux préparatoires as an aid to interpretation arises where some of the parties to the dispute have not been involved in the preparatory work leading to the treaty. So, for example, in the River Oder case (1929) the PCIJ refused to allow reference to the preparatory work of the Treaty of Versailles 1919 on the grounds that several of the parties to the dispute had not taken part in the work of the Conference which had prepared the treaty.

4.8Multilingual treaties

Treaties are often drafted in two or more languages. In the case of bilateral treaties, the normal practice is that the treaty texts should be drawn up in the two languages of the parties, both texts being equally authentic. Multilateral conventions may be concluded in many languages: conventions concluded under the auspices of the UN will be drawn up in Arabic, Chinese, English, French, Russian and Spanish; the treaty by which Greece became a member of the European Union was concluded in eight languages. A more common practice is to conclude a treaty in two or three widely spoken languages and for these two or three texts to be equally authentic, and for a number of official translations to be deposited with the signed original. If a number of texts are equally authentic, they may be read in conjunction in order to ascertain the meaning of the convention.

4.9Validity of treaties

The VCT 1969 represents both codification of existing rules of customary international law and also the progressive development of international law. Part V of the Convention which deals with invalidity, termination and suspension represents more a ‘progressive development’ of the law than simple codification. In looking at the grounds of invalidity contained in the VCT 1969, it should be borne in mind that the customary law rules on validity may well not be as rigid or as settled.

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4.9.1 Non-compliance with municipal law requirements

A state cannot plead a breach of its constitutional provisions as to the making of treaties as a reason for invalidating an agreement. For example, where the representative of the state has had her/his authority to consent on behalf of the state made subject to a specific restriction which is ignored, the state will still be bound by that consent except where the other negotiating states were aware of the restriction on authority prior to the expression of consent.

4.9.2 Error

Unlike the role of mistake in municipal contract law, the scope of error in international law is very limited. In practice, given the number of people and the character of states involved in the negotiation and conclusion of treaties, errors are not very likely to occur.

Article 48 declares that a state may only invoke an error in a treaty as invalidating its consent to be bound, if the error relates to a fact or situation which was assumed by that state to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound. The ground is not open to the state if it contributed to the error by its own conduct or the circumstances were such as to put it on notice of a possible error, or if the error related only to the wording of the text of the treaty.

4.9.3 Fraud and corruption

Where a state consents to be bound by a treaty as a result of the fraudulent conduct of another negotiating state, that state may under Article 49 of the VCT 1969 invoke the fraud as invalidating its consent to be bound. Fraud itself is not defined in the VCT 1969 and since there are no examples of treaties being invalidated as a result of fraud there is a lack of international precedents as to what constitutes fraudulent conduct.

If a state’s consent to a treaty has been procured through the corruption of its representative, directly or indirectly by another negotiating state, the former state is entitled to claim that the treaty is invalid under Article 50 of the VCT 1969.

4.9.4 Coercion

4.9.4.1 Coercion of state representatives

Article 51 of the VCT 1969 provides that the expression of a state’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him/her shall be without any legal effect. It has long been an accepted rule of customary international law that duress exercised against a representative concluding a treaty has been a ground for invalidating the treaty.

4.9.4.2 Coercion of a state

There was considerable discussion about Article 52. In the 19th century force had often been seen as a legitimate extension of diplomacy and treaties procured by force were not uncommon. The concept that a treaty may be void if its conclusion has been procured by threat or use of force is therefore of recent

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origin. At the Vienna Conference discussion centred on the exact definition of ‘force’. A group of 19 African, Asian and Latin American states sought to define ‘force’ as including any economic or political pressure. The vast majority of Western states opposed such a definition, arguing that it would seriously undermine the stability of treaty relations given the width of possible interpretations of pressure. In the event, the 19 states did not push the issue to a vote, although the Conference adopted a declaration which called upon states to refrain from economic and political coercion when negotiating and concluding treaties.

It should be noted that it is acceptance of the treaty that must be coerced. A peace treaty which is signed as a matter of choice between two independent states is valid even though its terms may have been influenced by a prior use of force.

There have been few recent examples of treaties brought about by the use of coercion. One of the best known cases involved the treaty between Germany and Czechoslovakia under which a German Protectorate was established in former Czechoslovakian territory. The treaty was signed by President Hacha of Czechoslovakia in Berlin at 2.00am after he had allegedly been subject to considerable personal threats and told that, if he did not sign, German bombers could destroy Prague within two hours.

4.9.5 Unequal treaties

Many non-Western states take the view that treaties not concluded on the basis of the sovereign equality of all parties are invalid. Thus, treaties between economically powerful states and much weaker states under which the latter grants extensive privileges or facilities to the former should be set aside. For example, the 19th century treaties between the UK and China under which China ceded Hong Kong Island and Kowloon and leased the New Territories to the UK was challenged by the Chinese government on the basis that they were not concluded between two equal states. On the whole, Western writers have regarded the concept of unequal treaties as too vague to be implemented.

4.9.6 Jus cogens

In the ILC’s preparation of the Vienna Convention considerable discussion took place about whether there were in international law certain rules so fundamental and of such universal importance that a state would not be entitled to derogate from them even by agreement with another state in a treaty. The ILC concluded that such rules did exist, for example, the prohibition on the unlawful use of force and the use of genocide.

Jus cogens

The concept that a treaty concluded in violation of a norm of jus cogens is null and void is highly controversial. Any analysis of the concept requires an investigation into the relevance in international law of private law analogies and into the extent to which, if at all, there exists an objective notion of international public policy consisting of legal rules from which states are not permitted to derogate by way of international agreement.

But first, you may ask, what is jus cogens? Suy defines it as ‘the body of those general rules of law whose non-observance may affect the very essence of the

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legal system to which they belong to such an extent that the subject of law may not, under pain of absolute nullity, depart from them in virtue of particular agreements’.30 From this definition it will be noted that the concept of jus cogens is wholly general in nature and applicable to any system of law. It is not a concept which has been specially developed within the framework of public international law; on the contrary, it derives from, and is deeply embedded in, particular systems of private law.

The origin of the notion of jus cogens has been traced back to Roman law. The maxim jus publicum privatorum pactis mutari non potest is to be found in the Digest. The jus publicum was to be understood in a wide sense as embracing not only public law in the strict sense (that is to say, the law governing relations between individuals and the state) but also rules from which individuals were not permitted to depart by virtue of particular agreements.

The pervading influence of this general notion can be recognised by the development of such concepts as ordre public and öffentliche Ordnung in French and German law respectively, and by the gradual establishment in common law of the principle that certain types of contract are, by their very nature, injurious to society and therefore contrary to public policy. The genesis of this principle in English law can be traced back to Elizabethan times, although it was only in the 18th century that its foundations were effectively laid in a series of decisions proclaiming, in somewhat vague and indeterminate language, the nullity of contracts injurious to the public good or contra bonos mores.31

It will, then, be seen that every developed national system of law has devised its own concept of public policy. In civil law jurisdictions the notion of ordre public is essentially variable and relative, evolving in accordance with the political, social and economic circumstances of the time. In English law it is less variable; certain defined heads of public policy have been established by the courts, and although these heads can be moulded to fit the new conditions of a changing world, it is rarely possible for the courts to establish new heads of public policy.32

Thus there has gradually evolved over the years, in practically all systems of municipal law, the principle that the will of the parties to conclude contracts is not unfettered but is subject to certain restraints essential to the continued existence of an ordered society. What the nature of these restraints is will vary according to the political, economic or social climate in the country concerned. Certain restraints may be imposed by statute, others may have been developed by the jurisprudence of the courts. So far as restraints imposed by statute are concerned, political and economic factors may lead to the imposition of new controls on the freedom of individuals to contract, thus in England, the Resale Prices Act 1964 rendered void (subject to an exemption procedure) any term or condition of a contract for the sale of goods by a supplier to a dealer in so far as it provided for the establishment of minimum prices for the resale of the goods.

Notwithstanding the close connection between jus cogens and public policy, the two concepts do not entirely coincide, at least if public policy is conceived of in the narrower sense as being confined to the circumstances in which the municipal courts will refuse to enforce a contract. Jus cogens is the sum of

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30Suy in The Concept of Jus Cogens in International Law, 18 (1967).

31Cheshire and Fifoot, Law of Contract, 8th edn, 1972, London: Butterworths at pp 318–25.

32Janson v Driefontein Consolidated Mines [1902] AC 484 at p 492; Fender v St John-Mildmay [1938] AC 1 at p 40; see, however, McCardie J in Naylor Benzon Ltd v Krainische Ind Ges [1918] 1 KB 331 at p 349 and Shaw v Director of Public Prosecutions [1962] AC 220.

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absolute, ordering, prohibiting municipal law proscriptions, in contrast to jus dispotivium, that is to say, legal prescriptions which can, and do, yield to the will of the parties.

...

It now remains to consider the most controversial aspect of them all: if, on the balance of conflicting considerations, one is constrained to admit the existence of jus cogens in international law, what is its content? What are these peremptory norms of general international law from which states are not permitted to derogate by treaty?

Let us begin by taking the more obvious candidates. I have already discussed the extreme case of a treaty which purports to abolish both retrospectively and prospectively the rule pacta sunt servanda between the contracting parties; however improbable such a treaty may be, it is difficult to see how its validity could be sustained. But leaving aside treaties whose object and purpose is to deny the fundamental principle underlying the law of treaties itself, what other categories of treaty could be regarded as being inconsistent with rules of jus cogens?

The Commission’s commentary gives three examples:

(a)A treaty contemplating an unlawful use of force contrary to the principles of the Charter.

(b)A treaty contemplating the performance of any other act criminal under international law.

(c)A treaty contemplating or conniving at the commission of acts, such as trade in slaves, piracy or genocide, in the suppression of which every state is called upon to co-operate.

There would be little disposition among jurists to deny the nullity of a treaty contemplating an unlawful use of force contrary to the principles of the Charter; but, given the pervasive influence of the modern propaganda machine designed to stand everything on its head, it is of course necessary to distinguish a treaty of this nature from a perfectly valid treaty for the organisation of collective selfdefence in the event of an armed attack or the threat of an armed attack.

The second example given by the Commission in part overlaps the first, since a treaty between states A and B for the initiation of a war of aggression against state C would, as already indicated, fall foul of both prohibitions. But the second example would presumably also cover the other instance cited by Fitzmaurice – that is to say, a treaty whereby two states agree not to take any prisoners of war and to execute all captured personnel, during future hostilities between them. In this connection, Schwelb aptly reminds us that the four Geneva Conventions of 1949 on the Protection of War Victims all contain denunciation clauses providing that each of the parties shall be at liberty to denounce the Convention; but the denunciation clauses specifically state that denunciation ‘shall in no way impair the obligations which the parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity and the dictates of the public conscience’. Schwelb concludes that this is a reference to something akin to jus cogens since, if a single state cannot release itself from their provisions by the act of denouncing the Conventions, it appears to follow that two or more states cannot derogate from these principles by agreements amongst themselves. In this he is probably right, given the particular content of the Geneva Conventions. But it does not follow that the inclusion of such a provision would constitute conclusive evidence of the jus cogens character of the rules embodied in

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that Convention since its purpose may be simply to preserve the operation of the rules as rules of customary international law. In the final analysis, it is the content of the rules which will be decisive in the determination of whether or not they have the attributes of jus cogens.

The third example given by the Commission opens up the floodgates of controversy. The majority of jurists would no doubt go along with the Commission in asserting that the rules prohibiting trade in slaves, piracy or genocide have become norms of jus cogens from which states are not free to derogate by treaty. But a word of caution is necessary here. It is right to recall that general multilateral Conventions (even those recently concluded) which prohibit or outlaw slavery and the slave trade and genocide contain normal denunciation clauses. If a state can release itself easily from the conventional obligations it has undertaken in these fields, can it be said that the prohibitions are in the nature of jus cogens? Of course, it may be said that the rule prohibiting slavery and the slave trade and the rule prohibiting genocide are rules of general international law which apply independently of the treaties embodying them. More to the point, it is clear that a treaty between two member states of the United Nations contemplating genocide or slavery would be wholly contrary to Articles 55 and 56 of the Charter and would therefore be unenforceable by virtue of Article 103, which provides that, in the event of conflict between the obligations of member states under the Charter and obligations under any other international agreement, Charter obligations prevail. The explanation for the existence of normal denunciation clauses in general multilateral conventions which contain asserted norms of jus cogens is, as Schwelb indicates, that ‘the idea of international jus cogens has not yet penetrated into the day-to-day thinking and action of governments’.33

Other examples have been suggested: Barberis mentions treaties contrary to the rules of international law relating to the white slave traffic.34 Verdross goes much wider in asserting that ‘all rules of general international law created for a humanitarian purpose’ constitute jus cogens.35 Apart from the difficulty of delimiting what is and what is not a humanitarian purpose, this seems to go much too far. It implies that all human rights provisions contained in international treaties have the character of jus cogens. Given that even the United Nations Covenant on Civil and Political Rights is geared only towards ‘achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means’,36 it would be unwise to take at face value the suggestion that jus cogens embraces all human rights provisions, despite the fact that, in the Commission’s commentary, certain members are recorded as having given treaties violating human rights as examples of treaties which would contravene a rule of jus cogens.37

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33Schwelb, ‘Some aspects of international jus cogens as formulated by the International Law Commission’ (1967) 61 AJIL at p 948.

34Berberis, ‘La liberté de traiter des états et le jus cogens’ (1970) ZaoRV pp 19–45 at p 35.

35Verdors, ‘Jus dispositivum and jus cogens in international law’ (1966) 60 AJIL pp 55–63 at p 59.

36Article 2(I).

37[1966] ILC Rep at p 77.

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Scheuner38 suggests three categories of norms of jus cogens: firstly, rules protecting the foundations of law, peace and humanity, such as the prohibition of genocide, slavery or the use of force; secondly, rules of peaceful co-operation in the protection of common interests, such as freedom of the seas; and thirdly, rules protecting the most fundamental and basic human rights (to which might, as Crawford suggests,39 be added the basic rules for the protection of civilians and combatants in time of war). There would be little dispute with the first and, subject to what is said above about human rights provisions, the third of these three categories; but the second category is, as Crawford implies, very doubtful.40 Jimenez de Arechaga would embrace within the first of Scheuner’s three categories rules prohibiting racial discrimination, terrorism or the taking of hostages;41 and Brownlie tentatively puts forward as candidate rules the principle of permanent sovereignty over natural resources and the principle of self-determination.42

Marek, in an attempt to find an underlying principle, advances the superficially attractive proposition that a treaty violative of jus cogens is any treaty in which two or more states undertake to commit acts which would be illegal if committed by a single state.43 But even this appears to go too wide; it would seem to exclude the possibility of inter se modification of a multilateral treaty, even although inter se modification is permissible under certain conditions.

...

Whatever their doctrinal point of departure, the majority of jurists would no doubt willingly concede to the sceptics that there is little or no evidence in positive international law for the concept that nullity attaches to a treaty concluded in violation of jus cogens. But they would be constrained to admit that the validity of a treaty between two states to wage a war of aggression against a third state or to engage in acts of physical or armed force against a third state could not be upheld; and, having made this admission, they may be taken to have accepted the principle that there may exist norms of international law so fundamental to the maintenance of an international legal order that a treaty in violation of them is a nullity.

Some (among whom may be counted your author) would be prepared to go this far, but would immediately wish to qualify this acceptance of the principle involved by sketching out the limits within which it may be operative in presentday international law. In the first place, they would insist that, in the present state of international society, the concept of an ‘international legal order’ of hierarchically superior norms binding all states is only just beginning to emerge. Ideological differences and disparities of wealth between the individual states

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38Scheuner, ‘Conflict of treaty provisions with a peremptory norm of general international law and its consequences’ (1967) Zeitschrift für ausländisches öffentliches Recht und Volkerrecht at p 526.

39Crawford, The Creation of States in International Law, 1979, Oxford: Oxford University Press at p 81.

40Ibid.

41Jimenez de Arechaga, ‘International law in the past third of a century’ (1978) 159 Recueil des Cours at p 64.

42Brownlie, Principles of Public International Law, 1979, Oxford: Oxford University Press at p 513. But note that there is considerable controversy over the content of these principles, even as jus dispositivum; the suggestion that they may constitute rules of jus cogens is accordingly farfetched.

43Marek, ‘Contribution à l’étude du jus cogens en droit international’ in Hommage à Paul Guggenheim, 1968, Geneva: Faculté de droit de l’Université de Genève pp 426–59 at p 452.

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which make up the international community, combined with the contrasts between the objectives sought by them, hinder the development of an overarching consensus upon the content of jus cogens. Indeed, it is the existence of these very differences and disparities which constitute the principal danger implicit in an unqualified recognition of jus cogens; for it would be only too easy to postulate as a norm of jus cogens a principle which happened neatly to serve a particular ideological or economic goal. In the second place, they would test any assertion that a particular rule constitutes a norm of jus cogens by reference to the evidence for its acceptance as such by the international community as a whole, and they would require that the burden of proof should be discharged by those who allege the jus cogens character of the rule. Applying this test, and leaving aside the highly theoretical case of a treaty purporting to deny the application of the principle of pacta sunt servanda, it would seem that sufficient evidence for ascribing the character of jus cogens to a rule of international law exists in relation to the rule which requires states to refrain in their international relations from the threat of force against the territorial integrity or political independence of any other state. There is ample evidence for the proposition that, subject to the necessary exceptions about the use of force in self-defence or under the authority of a competent organ of the United Nations or a regional agency acting in accordance with the Charter, use of armed or physical force against the territorial integrity or political independence of any state is now prohibited. This proposition is so central to the existence of any international legal order of individual nation states (however nascent that international legal order may be) that it must be taken to have the character of jus cogens. Just as national legal systems begin to discard, at an early stage of their development, such concepts as ‘trial by battle’, so also must the international legal order be assumed now to deny any cover of legality to violations of the fundamental rule embodied in Article 2(4) of the Charter.

Beyond this, uncertainty begins, and one must tread with considerable caution. The dictates of logic, and overriding considerations of morality, would appear to require that one should characterise as jus cogens those rules which prohibit the slave trade and genocide; but the evidence is ambivalent, since the treaties which embody these prohibitions contain normal denunciation clauses. Of course, it may be argued that the presence or absence of normal denunciaton clauses should not be taken as being decisive; denunciation clauses are regularly embodied in treaties for traditional, rather than practical, reasons. In any event, it is likely that the prohibitions may now be taken to form part of general international law binding all states regardless of whether they are parties to the treaties embodying them. The unenforceability of any treaty contemplating genocide or the slave trade is further assured by the fact that such a treaty would contravene the Charter of the United Nations, which prevails in the event of a conflict.

To sum up, there is a place for the concept of jus cogens in international law. Its growth and development will parallel the growth and development of an international legal order expressive of the consensus of the international community as a whole. Such an international legal order is, at present, inchoate, unformed and only just discernible. Jus cogens is neither Dr Jekyll nor Mr Hyde; but it has the potentialities of both. If it is invoked indiscriminately and to serve short-term political purposes, it could rapidly be destructive of confidence in the security of treaties; if it is developed with wisdom and restraint in the overall interest of the international community it could constitute a useful check upon the unbridled will of individual states.

This was the conclusion presented in the first edition of this book, published more than 10 years ago. It is a conclusion which the author considers is still valid.

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But he would wish to add the following. In the 14 years which have elapsed since the adoption of the Convention, there has been continued and continuing disputation among scholars as to the content and significance of jus cogens, not only in the context of the law of treaties, but also in other contexts. We have already seen how the notion of jus cogens has been used by way of analogy to sustain a distinction between so-called ‘international crimes’ and ‘international delicts’ within the framework of the law of state responsibility.44 The question has also been raised whether, and if so to what extent, jus cogens may, despite all the difficulties, be applicable to problems of territorial status – that is to say, whether an entity has been created or extinguished in circumstances of such illegality that international law may, exceptionally, treat an effective entity as not a state (or, conversely, a non-effective entity as continuing to be a state).45 There has also been speculation about how far, if at all, prescription can be operative if the norm violated is one of jus cogens;46 it is at any rate clear from the Convention (Article 45) that acquiescence is not admissible in the case of conflict of a treaty with an existing or emerging norm of jus cogens.

It is of course only right that there should be a thorough and sustained examination by scholars of the implications of jus cogens in the law of treaties and also in other branches of international law. What is, however, significant is that, during the past 14 years, there have been few, if any, instances in state practice where the validity of a treaty has been seriously challenged on the ground that it conflicted with a rule of jus cogens. The mystery of jus cogens remains a mystery. To borrow another analogy from English literature,47 it has some of the attributes of the Cheshire cat which had the disconcerting habit of vanishing and then reappearing to deliver further words of wisdom. Jus cogens will undoubtedly continue to exercise its influence on the development of international law in the foreseeable future. How far that influence will extend to the actual practice of states remains to be seen, although there must now be a consciousness among the legal advisers to foreign ministries that international law does impose certain limitations upon the freedom of states to enter into treaties regardless of their object or content.48

Jurists have from time to time attempted to classify rules, or rights and duties, on the international plane by use of terms like ‘fundamental’ or, in respect to rights, ‘inalienable’ or ‘inherent’. Such classifications have not had much success, but have intermittently affected the interpretation of treaties by tribunals. In the recent past some eminent opinions have supported the view that certain overriding principles of international law exist, forming a body of jus cogens.

The major distinguishing feature of such rules is their relative indelibility. They are rules of customary law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect. The least controversial examples of the class are the prohibition of the use of force,49

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44See Chapter 10.

45Crawford, The Creation of States in International Law, 1979, Oxford: Oxford University Press at p 82.

46Brownlie, Principles of Public International Law, 1979,Oxford: Oxford University Press at p 514.

47Lewis Carroll, Alice’s Adventures in Wonderland, 1978, London: Methuen, Chapter VI.

48IM Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn, 1984, Manchester: Manchester University Press at pp 202–03, 215–18, 222–24.

49McNair, Law of Treaties, 1961, Oxford: Clarendon Press at pp 214–15; Dept of State Memo (1980) 74 AJIL at p 418; judgment of the ICJ in the Case Concerning Military and Para-military Activities in and against Nicaragua (Merits) [1986] ICJ Reps 100–01 (para 190).

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the law of genocide, the principle of racial non-discrimination,50 crimes against humanity, and the rules prohibiting trade in slaves and piracy.51 In the Barcelona Traction case (Second Phase),52 the majority judgment of the International Court, supported by 12 judges, drew a distinction between obligations of a state arising vis-à-vis another state and obligations ‘towards the international community as a whole’. The Court said:

Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.

Other rules which probably have this special status include the principle of permanent sovereignty over natural resources53 and the principle of selfdetermination.54

The concept of jus cogens was accepted by the International Law Commission and incorporated in the final draft of the Vienna Convention on the Law of Treaties in 1966, Article 50, which provided that: ‘... a treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ The Commission’s commentary makes it clear that by ‘derogation’ is meant the use of agreement (and presumably acquiescence as a form of agreement) to contract out of rules of general international law. Thus an agreement by a state to allow another state to stop and search its ships on the high seas is valid, but an agreement with a neighbouring state to carry out a joint operation against a racial group straddling the frontier which would constitute genocide, if carried out, is void since the prohibition with which the treaty conflicts is a rule of jus cogens. After some controversy, the Vienna Conference on the Law of Treaties reached agreement on a provision (Art 53) similar to the draft article except that, for the purposes of the Vienna Convention on the Law of Treaties, a peremptory norm of general international law is defined as ‘a norm accepted and recognised by the international community of states as a whole and which can be modified only by a subsequent norm of general international law having the same character’. Charles de Visscher55 has pointed out that the proponent of a rule of jus cogens in relation to this article will have a considerable burden of proof.

Apart form the law of treaties the specific content of norms of this kind involves the irrelevance of protest, recognition, and acquiescence: prescription cannot

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50Judge Tanaka, diss op, South West Africa cases (Second Phase) [1966] ICJ Rep at 298; Judge Ammoun, sep op, Barcelona Traction case (Second Phase) [1970] ICJ Rep at 304; Judge Ammoun, sep op, Namibia opinion [1971] ICJ Rep at 78–81. The principle of religious nondiscrimination must have the same status as also the principle of non-discrimination as to sex.

51This statement in the third edition of the work (p 513) was quoted by the Inter-American Commission of Human Rights in the Case of Roach and Pinkerton, Decision of 27 March 1987 (OAS General Secretariat) 33–36.

52[1970] ICJ Rep at 3 at p 32. See also In re Koch, ILR 30, 496 at 503; Assessment of Aliens case, ILR 43, 3 at 8; Tokyo Suikosha case (1969) 13 Japanese Ann of IL 113 at 115.

53Declaration on Permanent Sovereignty over Natural Resources, Un GA Res 1803 (XVII) of 14 December 1962 adopted by 87 votes to 2 with 12 abstentions.

54Judge Ammoun, sep op, Barcelona Traction case (Second Phase) [1970] ICJ Rep at p 304.

55Théories et réalistes en droit international, 4th edn, 1970, Paris: Pedane at pp 295–96.

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purge this type of illegality. Moreover, it is arguable that jus cogens curtails various privileges, so that, for example, an aggressor state would not benefit from the rule that belligerents are not responsible for damage caused to subjects of neutral states by military operations. Many problems remain: more authority exists for the category of jus cogens than exists for its particular content, and rules do not develop in customary law which readily correspond to the new categories. However, certain portions of jus cogens are the subject of general agreement, including the rules to the use of force by states, self-determination, and genocide. Yet even here many problems of application remain, particularly in regard to the effect of self-determination on the transfer of territory. If a state uses force to implement the principle of self-determination, is it possible to assume that one aspect of jus cogens is more significant than another. The particular corollaries of the concept of jus cogens are still being explored.56

4.9.7 The effect of invalidity

Article 69 of the VCT 1969 provides that where the invalidity of a treaty is established, the treaty is void and its provisions have no legal effect. If acts have been performed in reliance on a void treaty then states may require other parties to establish, as far as possible, the position with regard to their mutual relations that would have existed if the acts had not been performed. Acts performed in good faith in reliance on a treaty before its invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty. Article 71 deals with the specific consequences arising where a treaty conflicts with jus cogens. In such a situation the parties to the void treaty are under an obligation to bring their mutual relations into conformity with the peremptory norm. Where the treaty becomes void and terminates as a result of the development of a new rule of jus cogens under Article 64, the parties are released from any obligations further to perform the treaty, but rights and obligations created through the treaty prior to its termination are unaffected provided that such rights or obligations do not themselves conflict with the new peremptory norm.

The answer to one question remains unclear: when a cause of invalidity arises, does it operate automatically, in the sense that anyone called upon to apply the treaty may judge whether or not it is valid, or is an international act of denunciation required on the part of the state that seeks to invoke the invalidity. The position at customary international law seems to be that where the invalidity results from error or fraud then an act of denunciation is required, but on questions of coercion or violation of jus cogens there seems to be no real agreement. In practice, however, it will usually be the case that the question of invalidity will arise when a party to the treaty wishes to absolve itself from the obligations contained in it. It is therefore likely that some public act of denunciation will occur. Article 65 of the VCT 1969 provides that a party which seeks to impeach the validity of a treaty must notify the other parties and, providing no objection is received within three months of giving notice, that party may consider the treaty as void. If objections are made there is a duty on the disputants to reach a peaceful settlement. The issue of peaceful settlement of disputes is dealt with in Chapter 12.

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56Brownlie, Principles of Public International Law, 4th edn, 1990, Oxford: Oxford University Press at pp 512–15.

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4.10Termination, suspension of and withdrawal from treaties

4.10.1 By consent

Articles 54 to 59 of the VCT 1969 provide for various situations where a treaty may be terminated or suspended or where a party may withdraw from a treaty by consent. The most straightforward situation will arise where the treaty either makes provision for termination, denunciation or withdrawal or where all parties consent to a change. Where a treaty makes no provision for termination, denunciation or withdrawal then the rule is that withdrawal and denunciation will not be allowed unless it is established that the parties intended to admit its possibility, or a right of termination and denunciation can be implied by the nature of the treaty. In such a case a party wishing to denounce or withdraw from a treaty should give a minimum of 12 months’ notice. The operation of a treaty may be suspended if provided for in the treaty or if all parties consent. In the case of multilateral conventions, two or more parties may conclude an agreement to suspend the treaty as between themselves provided such suspension is not prohibited by the treaty and provided that it is not incompatible with the object and purpose of the treaty. If such an agreement to partially suspend a treaty is concluded there is a duty on the two or more states to inform the other parties to the treaty.

4.10.2 Material breach

It has always been a rule of customary law that the breach of an important provision of a treaty by one party entitles the other parties to regard that agreement as at an end. The main question that arises is how important a breach needs to be before it will justify the termination of a treaty. A material breach will entitle the other parties to a treaty to terminate or suspend a treaty in whole or in part. In the case of multilateral treaties, those not in breach might decide to terminate or suspend the treaty only in respect of the party in breach. It is clear that a party responsible for a material breach cannot itself rely on that breach to terminate a treaty.

4.10.3 Supervening impossibility of performance

Article 61 of the VCT 1969 introduces a rule analogous to the doctrine of frustration in municipal contract law. If a treaty becomes impossible to perform as a result of the permanent disappearance or destruction of an object indispensable for the execution of the treaty, that impossibility may be invoked as a reason for terminating or suspending the treaty. Where the impossibility is only temporary, it may only be invoked as a ground for suspension of the treaty. An example of the operation of Article 61 would be the case of a treaty governing rights pertaining to a river. The treaty could be terminated if the river dried up permanently. The impossibility of performance cannot be invoked by a party, where the impossibility results form the conduct of that party.

Linked to impossibility of performance is the doctrine of force majeure. The doctrine will be discussed in more detail in Chapter 9 since it can provide a

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general defence to international responsibility. The requirements of force majeure are that it must be irresistible, unforeseeable and external to the party relying on it. It may therefore exist under conditions which fall short of absolute material impossibility of performance. At the Vienna Conference on the Law of Treaties Mexico proposed that force majeure should be included in Article 61 but the proposal was rejected. It therefore seems to be the case that although force majeure may provide a defence for states accused of breaching treaty obligations, it will not result in the termination of the treaty. However, since a material breach of a treaty can result in the termination of that treaty, it may be argued that the ultimate effect of force majeure will be the same as a material impossibility of performance.

4.10.4 Fundamental change of circumstances

A fundamental change of the circumstances existing at the time the treaty was concluded has traditionally been a ground for withdrawal or termination. The rule is often referred to as the doctrine of rebus sic stantibus. Before the First World War a number of treaties were brought to an end by states relying on fairly minor changes. Since that time the law has been tightened up and it is clear that any change must be such as to alter radically the circumstances on the basis of which a treaty was concluded. In the Fisheries Jurisdiction case (1973) the ICJ declared that:

... international law admits that a fundamental change in the circumstances which determined the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty. This principle, and the conditions and exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject ...57

The conditions and exceptions which are indicated by Article 62 are that the change of circumstances must not have been foreseen at the time of the conclusion of the treaty; the existence of the circumstances must have constituted an essential basis of consent and the effect of the change is to transform radically the nature and extent of the obligations still to be performed under the treaty. A fundamental change of circumstances may not be invoked with regard to a treaty establishing a boundary, nor if the change is the result of a breach of any international obligation owed to any other party to the treaty by the party invoking it.

4.10.5 Other possible grounds

Article 63 of the VCT 1969 provides that severance of diplomatic relations will not in itself affect treaty relationships, unless of course it amounts to a fundamental change of circumstances. There are a number of views as to the effect on a treaty of the outbreak of war. The VCT 1969 contains no provision relating to war, and it is certain that treaties governing war and peace, for

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57 [1974] ICJ Rep 3.

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example the UN Charter and the Geneva Conventions 1949 are not terminated or suspended by war. The most sensible view seems to be that expressed by the New York state Court of Appeals in Techt v Hughes (1920): ‘... treaty provisions compatible with a state of hostilities, unless expressly terminated, will be enforced, and those incompatible rejected’.

4.10.6 The effect of termination or suspension

Article 70 of the VCT 1969 provides that termination of a treaty releases the parties form any obligation further to perform the treaty but does not affect rights and obligations or situations created prior to termination. The effect of suspension is to release the parties from their obligations for the period of suspension.

CASE CONCERNING THE GABCIKOVO-NAGYMAROS

PROJECT (HUNGARY/SLOVAKIA)58

The case concerned a dispute between Hungary and Slovakia (successor state to Czechoslovakia) arising from a 1977 treaty between Hungary and Czechoslovakia which provided for the two states to undertake a joint project for the construction of a system of locks, flood protection schemes and hydroelectric plants on the river Danube. The project had the aims of improving navigation, producing of electricity and protecting against flooding. The parties also undertook to ensure that the quality of the water in the Danube was not impaired as a result of the project. Following the political changes in Eastern Europe and the growth of environmental concern, particularly in Hungary, the parties agreed to slow down the speed of work on the project in 1983. In 1989, Hungary decided to abandon all work on the project and the dispute commenced. In the course of its judgment the ICJ had to consider a number of important aspects of the law relating to treaties as well as issues of state responsibility and environmental protection.

92During the proceedings, Hungary presented five arguments in support of the lawfulness, and thus the effectiveness, of its notification of termination. These were the existence of a state of necessity; the impossibility of performance of the Treaty; the occurrence of a fundamental change of circumstances; the material breach of the Treaty by Czechoslovakia; and, finally, the development of new norms of international environmental law. Slovakia contested each of these grounds.

93On the first point, Hungary stated that, as Czechoslovakia had ‘remained inflexible’ and continued with its implementation of Variant C, ‘a temporary state of necessity eventually became permanent, justifying termination of the 1977 Treaty’.

Slovakia, for its part, denied that a state of necessity existed on the basis of what it saw as the scientific facts; and argued that even if such a state of necessity had existed, this would not give rise to a right to terminate the Treaty under the Vienna Convention of 1969 on the Law of Treaties.

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58Judgment of 25 September 1997 available at: http://www.icj-cij.org/idocket/ihs/ihsframe.htm.

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94Hungary’s second argument relied on the terms of Article 61 of the Vienna Convention, which is worded as follows:

Article 61 Supervening impossibility of performance

1A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.

2Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.’

Hungary declared that it could not be ‘obliged to fulfil a practically impossible task, namely to construct a barrage system on its own territory that would cause irreparable environmental damage’. It concluded that:

By May 1992 the essential object of the Treaty – an economic joint investment which was consistent with environmental protection and which was operated by the two parties jointly – had permanently disappeared, and the Treaty had thus become impossible to perform.

In Hungary’s view, the ‘object indispensable for the execution of the Treaty’, whose disappearance or destruction was required by Article 61 of the Vienna Convention, did not have to be a physical object, but could also include, in the words of the International Law Commission, ‘a legal situation which was the raison d’être of the rights and obligations’.

Slovakia claimed that Article 61 was the only basis for invoking impossibility of performance as a ground for termination, that para 1 of that Article clearly contemplated physical ‘disappearance or destruction’ of the object in question, and that, in any event, para 2 precluded the invocation of impossibility ‘if the impossibility is the result of a breach by that party ... of an obligation under the treaty’.

As to ‘fundamental change of circumstances’, Hungary relied on Article 62 of the Vienna Convention on the Law of Treaties which states as follows:

Article 62 Fundamental change of circumstances

1A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a)the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b)the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a)if the treaty establishes a boundary; or

(b)if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

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3If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

Hungary identified a number of ‘substantive elements’ present at the conclusion of the 1977 Treaty which it said had changed fundamentally by the date of notification of termination. These included the notion of ‘socialist integration’, for which the Treaty had originally been a ‘vehicle’, but which subsequently disappeared; the ‘single and indivisible operational system’, which was to be replaced by a unilateral scheme; the fact that the basis of the planned joint investment had been overturned by the sudden emergence of both states into a market economy; the attitude of Czechoslovakia which had turned the ‘framework treaty’ into an ‘immutable norm’; and, finally, the transformation of a treaty consistent with environmental protection into ‘a prescription for environmental disaster’.

Slovakia, for its part, contended that the changes identified by Hungary had not altered the nature of the obligations under the Treaty from those originally undertaken, so that no entitlement to terminate it arose from them.

96Hungary further argued that termination of the Treaty was justified by Czechoslovakia’s material breaches of the Treaty, and in this regard it invoked Article 60 of the Vienna Convention on the Law of Treaties, which provides:

Article 60 Termination or suspension of the operation of a treaty as a consequence of its breach

1A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.

2A material breach of a multilateral treaty by one of the parties entitles:

(a)the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:

(i)in the relations between themselves and the defaulting state, or

(ii)as between all the parties;

(b)a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting state;

(c)any party other than the defaulting state to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.

3A material breach of a treaty, for the purposes of this article, consists in:

(a)a repudiation of the treaty not sanctioned by the present Convention; or

(b)the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

4The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.

5Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular

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to provisions prohibiting any form of reprisals against persons protected by such treaties.

Hungary claimed in particular that Czechoslovakia violated the 1977 Treaty by proceeding to the construction and putting into operation of Variant C, as well as failing to comply with its obligations under Articles 15 and 19 of the Treaty. Hungary further maintained that Czechoslovakia had breached other international conventions (among them the Convention of 31 May 1976 on the Regulation of Water Management Issues of Boundary Waters) and general international law.

Slovakia denied that there had been, on the part of Czechoslovakia or on its part, any material breach of the obligations to protect water quality and nature, and claimed that Variant C, far from being a breach, was devised as ‘the best possible approximate application’ of the Treaty. It furthermore denied that Czechoslovakia had acted in breach of other international conventions or general international law.

97Finally, Hungary argued that subsequently imposed requirements of international law in relation to the protection of the environment precluded performance of the Treaty. The previously existing obligation not to cause substantive damage to the territory of another state had, Hungary claimed, evolved into an erga omnes obligation of prevention of damage pursuant to the ‘precautionary principle’. On this basis, Hungary argued, its termination was ‘forced by the other party’s refusal to suspend work on Variant C’.

Slovakia argued, in reply, that none of the intervening developments in environmental law gave rise to norms of jus cogens that would override the Treaty. Further, it contended that the claim by Hungary to be entitled to take action could not in any event serve as legal justification for termination of the Treaty under the law of treaties, but belonged rather ‘to the language of self-help or reprisals’.

98The question, as formulated in Article 2, para 1 (c), of the Special Agreement, deals with treaty law since the Court is asked to determine what the legal effects are of the notification of termination of the Treaty. The question is whether Hungary’s notification of 19 May 1992 brought the 1977 Treaty to an end, or whether it did not meet the requirements of international law, with the consequence that it did not terminate the Treaty.

99The Court has referred earlier to the question of the applicability to the present case of the Vienna Convention of 1969 on the Law of Treaties. The Vienna Convention is not directly applicable to the 1977 Treaty inasmuch as both states ratified that Convention only after the Treaty’s conclusion. Consequently only those rules which are declaratory of customary law are applicable to the 1977 Treaty. As the Court has already stated above (see para 46), this is the case, in many respects, with Articles 60 to 62 of the Vienna Convention, relating to termination or suspension of the operation of a treaty. On this, the parties, too, were broadly in agreement.

100The 1977 Treaty does not contain any provision regarding its termination. Nor is there any indication that the parties intended to admit the possibility of denunciation or withdrawal. On the contrary, the Treaty establishes a long-standing and durable regime of joint investment and joint operation. Consequently, the parties not having agreed otherwise, the Treaty could be terminated only on the limited grounds enumerated in the Vienna Convention.

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101The Court will now turn to the first ground advanced by Hungary, that of the state of necessity. In this respect, the Court will merely observe that, even if a state of necessity is found to exist, it is not a ground for the termination of a treaty. It may only be invoked to exonerate from its responsibility a State which has failed to implement a treaty. Even if found justified, it does not terminate a treaty; the treaty may be ineffective as long as the condition of necessity continues to exist; it may in fact be dormant, but – unless the parties by mutual agreement terminate the Treaty – it continues to exist. As soon as the state of necessity ceases to exist, the duty to comply with treaty obligations revives.

102Hungary also relied on the principle of the impossibility of performance as reflected in Article 61 of the Vienna Convention on the Law of Treaties. Hungary’s interpretation of the wording of Article 61 is, however, not in conformity with the terms of that Article, nor with the intentions of the Diplomatic Conference which adopted the Convention. Article 61, para 1, requires the ‘permanent disappearance or destruction of an object indispensable for the execution’ of the Treaty to justify the termination of a treaty on grounds of impossibility of performance. During the conference, a proposal was made to extend the scope of the article by including in it cases such as the impossibility to make certain payments because of serious financial difficulties (Official Records of the United Nations Conference on the Law of Treaties, First Session, Vienna, 26 March–24 May 1968, Doc A/CONF.39/11, Summary records of the plenary meetings and of the meetings of the Committee of the Whole, 62nd Meeting of the Committee of the Whole at pp 361–65). Although it was recognised that such situations could lead to a preclusion of the wrongfulness of non-performance by a party of its treaty obligations, the participating states were not prepared to consider such situations to be a ground for terminating or suspending a treaty, and preferred to limit themselves to a narrower concept.

103Hungary contended that the essential object of the Treaty an economic joint investment which was consistent with environmental protection and which was operated by the two contracting parties jointly had permanently disappeared and that the Treaty had thus become impossible to perform. It is not necessary for the Court to determine whether the term ‘object’ in Article 61 can also be understood to embrace a legal regime as in any event, even if that were the case, it would have to conclude that in this instance that regime had not definitively ceased to exist. The 1977 Treaty and in particular its Articles 15, 19 and 20 actually made available to the parties the necessary means to proceed at any time, by negotiation, to the required readjustments between economic imperatives and ecological imperatives. The Court would add that, if the joint exploitation of the investment was no longer possible, this was originally because Hungary did not carry out most of the works for which it was responsible under the 1977 Treaty; Article 61, para 2 of the Vienna Convention expressly provides that impossibility of performance may not be invoked for the termination of a treaty by a party to that treaty when it results from that party’s own breach of an obligation flowing from that treaty.

104Hungary further argued that it was entitled to invoke a number of events which, cumulatively, would have constituted a fundamental change of circumstances. In this respect it specified profound changes of a political nature, the Project’s diminishing economic viability, the progress of environmental knowledge and the development of new norms and prescriptions of international environmental law (see para 95 above).

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The Court recalls that, in the Fisheries Jurisdiction case ([1973] ICJ Rep at p 63, para 36), it stated that:

Article 62 of the Vienna Convention on the Law of Treaties, ... may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances.

The prevailing political situation was certainly relevant for the conclusion of the 1977 Treaty. But the Court will recall that the Treaty provided for a joint investment programme for the production of energy, the control of floods and the improvement of navigation on the Danube. In the Court’s view, the prevalent political conditions were thus not so closely linked to the object and purpose of the Treaty that they constituted an essential basis of the consent of the parties and, in changing, radically altered the extent of the obligations still to be performed. The same holds good for the economic system in force at the time of the conclusion of the 1977 Treaty. Besides, even though the estimated profitability of the Project might have appeared less in 1992 than in 1977, it does not appear from the record before the Court that it was bound to diminish to such an extent that the Treaty obligations of the parties would have been radically transformed as a result.

The Court does not consider that new developments in the state of environmental knowledge and of environmental law can be said to have been completely unforeseen. What is more, the formulation of Articles 15, 19 and 20, designed to accommodate change, made it possible for the parties to take account of such developments and to apply them when implementing those treaty provisions.

The changed circumstances advanced by Hungary are, in the Court’s view, not of such a nature, either individually or collectively, that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the Project. A fundamental change of circumstances must have been unforeseen; the existence of the circumstances at the time of the Treaty’s conclusion must have constituted an essential basis of the consent of the parties to be bound by the Treaty. The negative and conditional wording of Article 62 of the Vienna Convention on the Law of Treaties is a clear indication moreover that the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases.

105The Court will now examine Hungary’s argument that it was entitled to terminate the 1977 Treaty on the ground that Czechoslovakia had violated its Articles 15, 19 and 20 (as well as a number of other conventions and rules of general international law); and that the planning, construction and putting into operation of Variant C also amounted to a material breach of the 1977 Treaty.

106As to that part of Hungary’s argument which was based on other treaties and general rules of international law, the Court is of the view that it is only a material breach of the Treaty itself, by a state party to that treaty, which entitles the other party to rely on it as a ground for terminating the Treaty. The violation of other treaty rules or of rules of general international law may justify the taking of certain measures, including countermeasures, by the injured state, but it does not constitute a ground for termination under the law of treaties.

107Hungary contended that Czechoslovakia had violated Articles 15, 19 and 20 of the Treaty by refusing to enter into negotiations with Hungary in order to

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adapt the Joint Contractual Plan to new scientific and legal developments regarding the environment. Articles 15, 19 and 20 oblige the parties jointly to take, on a continuous basis, appropriate measures necessary for the protection of water quality, of nature and of fishing interests.

Articles 15 and 19 expressly provide that the obligations they contain shall be implemented by the means specified in the Joint Contractual Plan. The failure of the parties to agree on those means cannot, on the basis of the record before the Court, be attributed solely to one party. The Court has not found sufficient evidence to conclude that Czechoslovakia had consistently refused to consult with Hungary about the desirability or necessity of measures for the preservation of the environment. The record rather shows that, while both parties indicated, in principle, a willingness to undertake further studies, in practice Czechoslovakia refused to countenance a suspension of the works at Dunakiliti and, later, on Variant C, while Hungary required suspension as a prior condition of environmental investigation because it claimed continuation of the work would prejudice the outcome of negotiations. In this regard it cannot be left out of consideration that Hungary itself, by suspending the works at Nagymaros and Dunakiliti, contributed to the creation of a situation which was not conducive to the conduct of fruitful negotiations.

108Hungary’s main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C. As the Court has found in para 79 above, Czechoslovakia violated the Treaty only when it diverted the waters of the Danube into the bypass canal in October 1992. In constructing the works which would lead to the putting into operation of Variant C, Czechoslovakia did not act unlawfully.

In the Court’s view, therefore, the notification of termination by Hungary on 19 May 1992 was premature. No breach of the Treaty by Czechoslovakia had yet taken place and consequently Hungary was not entitled to invoke any such breach of the Treaty as a ground for terminating it when it did.

109In this regard, it should be noted that, according to Hungary’s Declaration of 19 May 1992, the termination of the 1977 Treaty was to take effect as from 25 May 1992, that is only six days later. Both parties agree that Articles 65 to 67 of the Vienna Convention on the Law of Treaties, if not codifying customary law, at least generally reflect customary international law and contain certain procedural principles which are based on an obligation to act in good faith. As the Court stated in its Advisory Opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (in which case the Vienna Convention did not apply):

Precisely what periods of time may be involved in the observance of the duties to consult and negotiate, and what period of notice of termination should be given, are matters which necessarily vary according to the requirements of the particular case. In principle, therefore, it is for the parties in each case to determine the length of those periods by consultation and negotiation in good faith.’ ([1980] ICJ Rep at p 96, para 49.)

The termination of the Treaty by Hungary was to take effect six days after its notification. On neither of these dates had Hungary suffered injury resulting from acts of Czechoslovakia. The Court must therefore confirm its conclusion that Hungary’s termination of the Treaty was premature.

110 Nor can the Court overlook that Czechoslovakia committed the internationally wrongful act of putting into operation Variant C as a result of

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Hungary’s own prior wrongful conduct. As was stated by the Permanent Court of International Justice:

It is, moreover, a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open, to him. (Factory at Chorzow, Jurisdiction, Judgment No 8, PCIJ Ser A, No 9 p 31 (1927).)

Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still have been the case even if Czechoslovakia, by the time of the purported termination, had violated a provision essential to the accomplishment of the object or purpose of the Treaty.

111Finally, the Court will address Hungary’s claim that it was entitled to terminate the 1977 Treaty because new requirements of international law for the protection of the environment precluded performance of the Treaty.

112Neither of the parties contended that new peremptory norms of environmental law had emerged since the conclusion of the 1977 Treaty, and the Court will consequently not be required to examine the scope of Article 64 of the Vienna Convention on the Law of Treaties. On the other hand, the Court wishes to point out that newly developed norms of environmental law are relevant for the implementation of the Treaty and that the parties could, by agreement, incorporate them through the application of Articles 15, 19 and 20 of the Treaty. These articles do not contain specific obligations of performance but require the parties, in carrying out their obligations to ensure that the quality of water in the Danube is not impaired and that nature is protected, to take new environmental norms into consideration when agreeing upon the means to be specified in the Joint Contractual Plan.

By inserting these evolving provisions in the Treaty, the parties recognised the potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt to emerging norms of international law. By means of Articles 15 and 19, new environmental norms can be incorporated in the Joint Contractual Plan.

The responsibility to do this was a joint responsibility. The obligations contained in Articles 15, 19 and 20 are, by definition, general and have to be transformed into specific obligations of performance through a process of consultation and negotiation. Their implementation thus requires a mutual willingness to discuss, in good faith, actual and potential environmental risks.

It is all the more important to do this because as the Court recalled in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ‘the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’ ([1996] ICJ Rep at para 29; see also para 53 above).

The awareness of the vulnerability of the environment and the recognition that environmental risks have to be assessed on a continuous basis have become much stronger in the years since the Treaty’s conclusion. These new concerns have enhanced the relevance of Articles 15, 19 and 20.

113The Court recognises that both parties agree on the need to take environmental concerns seriously and to take the required precautionary

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measures, but they fundamentally disagree on the consequences this has for the joint Project. In such a case, third-party involvement may be helpful and instrumental in finding a solution, provided each of the parties is flexible in its position.

114Finally, Hungary maintained that by their conduct both parties had repudiated the Treaty and that a bilateral treaty repudiated by both parties cannot survive. The Court is of the view, however, that although it has found that both Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination. The Court would set a precedent with disturbing implications for treaty relations and the integrity of the rule pacta sunt servanda if it were to conclude that a treaty in force between states, which the parties have implemented in considerable measure and at great cost over a period of years, might be unilaterally set aside on grounds of reciprocal non-compliance. It would be otherwise, of course, if the parties decided to terminate the Treaty by mutual consent. But in this case, while Hungary purported to terminate the Treaty, Czechoslovakia consistently resisted this act and declared it to be without legal effect.

115In the light of the conclusions it has reached above, the Court, in reply to the question put to it in Article 2, para 1(c), of the Special Agreement (see para 89), finds that the notification of termination by Hungary of 19 May 1992 did not have the legal effect of terminating the 1977 Treaty and related instruments.

4.11Dispute settlement

One of the main purposes of international law is to provide a framework for the peaceful settlement of disputes and Article 33 of the UN Charter places an obligation on states to settle their disputes by peaceful means. Clearly this provision applies to disputes between parties to a treaty. Article 66 VCT 1969 deals with the specific question of disputes arising out of questions of validity, termination, withdrawal from or suspension of the operation of a treaty. If parties have not been able to settle the dispute themselves within a period of 12 months then two procedures come into operation. In the case of disputes about the application or interpretation of a rule of jus cogens the parties to the dispute may submit it to the ICJ for a decision. Disputes arising for other reasons are to be submitted to a conciliation procedure operated by the Secretary General of the UN and detailed in an annex to the VCT 1969.

4.12 State succession

State succession involves the replacement of one state by another in the responsibility for the international relations of territory and has been a particularly controversial and unsettled area of law. In 1978 the Vienna Convention on the Succession of States in Respect of Treaties was signed. The VCS has yet to enter into force, although the basic rules are thought to reflect customary international law. As far as newly independent states are concerned, the VCS operates the ‘clean slate’ rule. In other words, a newly de-colonised state:

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... is not bound to maintain in force, or become a party to, any treaty by reason only of the fact that at the date of the succession of states the treaty was in force in respect of the territory to which the succession of states relates.59

The only exception to this rule is in respect of treaties establishing boundaries or concerning other territorial matters, eg treaties establishing objective regimes. This reflects general international practice with regard to the sanctity of boundaries and is in line with Article 62(2) of the VCT 1969 which provides that a fundamental change of circumstances cannot be invoked as a ground for terminating a treaty that establishes a boundary.

Of course, successor states may wish to become parties to treaties which had been in force with respect to the territory in question. In such a situation, a successor state may become a party by giving notice of succession. This rule will not apply where the application of the treaty to the successor state would be incompatible with the object and purpose of the treaty.

VCS 1978 was adopted when questions of state succession mainly arose as a result of de-colonisation. Recent events in Central and Eastern Europe have raised new questions and it is not yet possible to identify clearly a body of common state practice. Generally, the problem has been dealt with during negotiations leading to recognition of new states and in the drafting of new constitutions. In the case of German unification, many of the problems were dealt with in the Unification Treaty 1990 between the Federal Republic of Germany and the German Democratic Republic. Under the terms of unification the GDR ceased to exist as a state and its territory was integrated into the FRG. As far as treaties to which the FRG is a party are concerned, the principle of moving treaty frontiers applies in that all treaties remain in force ‘unless it appears that application of the treaty to the new territory would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation’ (Article 15 of the VCS 1978). As far as treaties to which the GDR was a party are concerned the position is more difficult. In the case of a union between two states which results in a new successor state the VCS 1978 provides for the continuation of the treaties of both states to the extent that application of the treaties to the successor state is compatible with the object and purpose of the treaties, and does not radically change the conditions for its operation. Such treaties continuing in force shall in general only apply in respect of the part of the territory of the successor state in respect of which the treaty was in force at the date of succession. The situation envisaged here is exemplified by the short-lived union of Egypt and Syria in the United Arab Republic, where the two states continued, in practice, to live a separate existence. The rules applicable to that situation do not seem to apply easily to the German situation. The preferred view seems to be that when states become dissolved, prima facie, no treaties pass to the successor state. and this rule applies where formerly sovereign territory is integrated into an existing state. Thus treaties concluded by former sovereign parts of the Indian, American and Australian federal states have been discontinued. Clearly, the option remains for the successor state to choose expressly to be bound by such treaties, but succession is not regarded as automatic.

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59 Article 16 of the VCS 1978.

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With regard to those states which were formerly part of the Soviet Union, Russia has been regarded as a continuation of the Soviet Union and the other former Soviet republics have been regarded as successor states, except in the case of the Baltic republics of Latvia, Estonia, and Lithuania, which are regarded as the continuation of states which existed up until Soviet annexation in 1940. The Baltic states do not regard themselves as bound by treaties entered into by the former Soviet Union. The treaty obligations of the other former Soviet republics have been dealt with on a case-by-case basis. The same formula has been used in relation to the division of the former Czechoslovak Republic into the Czech Republic and the Republic of Slovakia and in the case of the break-up of the former Socialist Republic of Yugoslavia. The problem is complicated with regard to Yugoslavia since while the Belgrade regime of Serbia and Montenegro considers itself to be the continuation of former Yugoslavia and refers to itself as the Republic of Yugoslavia, this claim is not recognised by the rest of the international community. The issue of succession to treaties is currently being considered by the ICJ in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, in which proceedings have been brought by the government of Bosnia and Herzegovina against Serbia and Montenegro. Both parties regard themselves as parties to the Genocide Convention although Serbia and Montenegro has not deposited an instrument of succession. There have recently been discussions within the Council of Europe on the whole question of treaty succession and it has been suggested that matters could be clarified if there was an obligation on the depositories of treaties to contact successor states to ascertain their position with regard to the treaty obligations of those formerly responsible for the territory.

17The proceedings instituted before the Court are between two states whose territories are located within the former Socialist Federal Republic of Yugoslavia. That Republic signed the Genocide Convention on 11 December 1948 and deposited its instrument of ratification, without reservation, on 29 August 1950. At the time of the proclamation of the Federal Republic of Yugoslavia, on 27 April 1992, a formal declaration was adopted on its behalf to the effect that:

The Federal Republic of Yugoslavia, continuing the state, international legal and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the Socialist Federal Republic of Yugoslavia assumed internationally.

This intention thus expressed by Yugoslavia to remain bound by the international treaties to which the former Yugoslavia was party was confirmed in an Official Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations, addressed to the Secretary General. The Court observes, furthermore, that it has not been contested that Yugoslavia was party to the Genocide Convention. Thus, Yugoslavia was bound by the provisions of the Convention on the date of the filing of the Application in the present case, namely, on 20 March 1993.

18For its part, on 29 December 1992, Bosnia-Herzegovina transmitted to the Secretary General of the United Nations, as depositary of the Genocide Convention, a Notice of Succession in the following terms:

The Government of the Republic of Bosnia and Herzegovina, having considered the Convention on the Prevention and Punishment of the

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Crime of Genocide, of 9 December 1948, to which the former Socialist Federal Republic of Yugoslavia was a party, wishes to succeed to the same and undertakes faithfully to perform and carry out all the stipulations therein contained with effect from 6 March 1992, the date on which the Republic of Bosnia and Herzegovina became independent.

On 18 March 1993, the Secretary General communicated the following Depositary Notification to the parties to the Genocide Convention:

On 29 December 1992, the notification of succession by the Government of Bosnia and Herzegovina to the above-mentioned Convention was deposited with the Secretary General, with effect from 6 March 1992, the date on which Bosnia and Herzegovina assumed responsibility for its international relations.

19Yugoslavia has contested the validity and legal effect of the Notice of 29 December 1992, contending that, by its acts relating to its accession to independence, the Republic of Bosnia-Herzegovina had flagrantly violated the duties stemming from the ‘principle of equal rights and self-determination of peoples’. According to Yugoslavia, Bosnia-Herzegovina was not, for this reason, qualified to become a party to the convention. Yugoslavia subsequently reiterated this objection in the third preliminary objection which it raised in this case.

The Court notes that Bosnia-Herzegovina became a Member of the United Nations following the decisions adopted on 22 May 1992 by the Security Council and the General Assembly, bodies competent under the Charter. Article XI of the Genocide Convention opens it to ‘any member of the United Nations’; from the time of its admission to the Organisation, BosniaHerzegovina could thus become a party to the Convention. Hence the circumstances of its accession to independence are of little consequence.

20It is clear from the foregoing that Bosnia-Herzegovina could become a party to the Convention through the mechanism of state succession. Moreover, the Secretary General of the United Nations considered that this had been the case, and the Court took note of this in its Order of 8 April 1993 ([1993] ICJ Rep at p 16, para 25).

21The Parties to the dispute differed as to the legal consequences to be drawn from the occurrence of a state succession in the present case. In this context, Bosnia-Herzegovina has, among other things, contended that the Genocide Convention falls within the category of instruments for the protection of human rights, and that consequently, the rule of ‘automatic succession’ necessarily applies. Bosnia-Herzegovina concluded therefrom that it became a party to the Convention with effect from its accession to independence. Yugoslavia disputed any ‘automatic succession’ of Bosnia-Herzegovina to the Genocide Convention on this or any other basis.

22As regards the nature of the Genocide Convention, the Court would recall what it stated in its Advisory Opinion of 28 May 1951 relating to the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide.

In such a convention the Contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to states, or of the

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maintenance of a perfect contractual balance between rights and duties. ([1951] ICJ Rep at p 23.)

The Court subsequently noted in that Opinion that:

The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of the states which adopted it that as many states as possible should participate. The complete exclusion from the Convention of one or more states would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis. (Ibid, p 24.)

23Without prejudice as to whether or not the principle of ‘automatic succession’ applies in the case of certain types of international treaties or conventions, the Court does not consider it necessary, in order to decide on its jurisdiction in this case, to make a determination on the legal issues concerning state succession in respect to treaties which have been raised by the Parties. Whether Bosnia-Herzegovina automatically became party to the Genocide Convention on the date of its accession to independence on 6 March 1992, or whether it became a party as a result, retroactive or not, of its Notice of Succession of 29 December 1992, at all events it was a party to it on the date of the filing of its Application on 20 March 1993. These matters might, at the most, possess a certain relevance with respect to the determination of the scope ratione temporis of the jurisdiction of the Court, a point which the Court will consider later (paragraph 34 below).

24Yugoslavia has also contended, in its sixth preliminary objection, that, if the Notice given by Bosnia-Herzegovina on 29 December 1992 had to be interpreted as constituting an instrument of accession within the meaning of Article XI of the Genocide Convention, it could only have become effective, pursuant to Article XIII of the Convention, on the 90th day following its deposit, that is, 29 March 1993.

Since the Court has concluded that Bosnia-Herzegovina could become a party to the Genocide Convention as a result of a succession, the question of the application of Articles XI and XIII of the Convention does not arise. However, the Court would recall that, as it noted in its Order of 8 April 1993, even if Bosnia-Herzegovina were to be treated as having acceded to the Genocide Convention, which would mean that the Application could be said to be premature by nine days when filed on 20 March 1993, during the time elapsed since then, Bosnia-Herzegovina could, on its own initiative, have remedied the procedural defect by filing a new Application. It therefore matters little that the Application had been filed some days too early. As will be indicated in the following paragraphs, the Court is not bound to attach the

same degree of importance to considerations of form as they might possess in domestic law.60

117The Court must first turn to the question whether Slovakia became a party to the 1977 Treaty as successor to Czechoslovakia. As an alternative argument, Hungary contended that, even if the Treaty survived the notification of termination, in any event it ceased to be in force as a treaty on 31 December 1992, as a result of the ‘disappearance of one of the parties’. On that date

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60Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugolslavia) (Preliminary Objections) Judgment of 11 July 1996.

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Czechoslovakia ceased to exist as a legal entity, and on 1 January 1993 the Czech Republic and the Slovak Republic came into existence.

118According to Hungary, ‘there is no rule of international law which provides for automatic succession to bilateral treaties on the disappearance of a party’ and such a treaty will not survive unless another state succeeds to it by express agreement between that state and the remaining party. While the second paragraph of the Preamble to the Special Agreement recites that ‘the Slovak Republic is one of the two successor States of the Czech and Slovak Federal Republic and the sole successor State in respect of rights and obligations relating to the Gabcikovo-Nagymaros Project’, Hungary sought to distinguish between, on the one hand, rights and obligations such as ‘continuing property rights’ under the 1977 Treaty, and, on the other hand, the Treaty itself. It argued that, during the negotiations leading to signature of the Special Agreement, Slovakia had proposed a text in which it would have been expressly recognised ‘as the successor to the Government of the CSFR’ with regard to the 1977 Treaty, but that Hungary had rejected that formulation. It contended that it had never agreed to accept Slovakia as successor to the 1977 Treaty. Hungary referred to diplomatic exchanges in which the two parties had each submitted to the other lists of those bilateral treaties which they respectively wished should continue in force between them, for negotiation on a case-by-case basis; and Hungary emphasised that no agreement was ever reached with regard to the 1977 Treaty.

119Hungary claimed that there was no rule of succession which could operate in the present case to override the absence of consent.

Referring to Article 34 of the Vienna Convention of 23 August 1978 on Succession of States in respect of Treaties, in which ‘a rule of automatic succession to all treaties is provided for’, based on the principle of continuity, Hungary argued not only that it never signed or ratified the Convention, but that the ‘concept of automatic succession’ contained in that Article was not and is not, and has never been accepted as, a statement of general international law.

Hungary further submitted that the 1977 Treaty did not create ‘obligations and rights ... relating to the regime of a boundary’ within the meaning of Article 11 of that Convention, and noted that the existing course of the boundary was unaffected by the Treaty. It also denied that the Treaty was a ‘localised’ treaty, or that it created rights ‘considered as attaching to [the] territory’ within the meaning of Article 12 of the 1978 Convention, which would, as such, be unaffected by a succession of States. The 1977 Treaty was, Hungary insisted, simply a joint investment. Hungary’s conclusion was that there is no basis on which the Treaty could have survived the disappearance of Czechoslovakia so as to be binding as between itself and Slovakia.

120According to Slovakia, the 1977 Treaty, which was not lawfully terminated by Hungary’s notification in May 1992, remains in force between itself, as successor State, and Hungary.

Slovakia acknowledged that there was no agreement on succession to the Treaty between itself and Hungary. It relied instead, in the first place, on the ‘general rule of continuity which applies in the case of dissolution’; it argued, secondly, that the Treaty is one ‘attaching to the territory’ within the meaning of Article 12 of the 1978 Vienna Convention, and that it contains provisions relating to a boundary.

121In support of its first argument Slovakia cited Article 34 of the 1978 Vienna Convention, which it claimed is a statement of customary international law,

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and which imposes the principle of automatic succession as the rule applicable in the case of dissolution of a state where the predecessor state has ceased to exist. Slovakia maintained that state practice in cases of dissolution tends to support continuity as the rule to be followed with regard to bilateral treaties. Slovakia having succeeded to part of the territory of the former Czechoslovakia, this would be the rule applicable in the present case.

122Slovakia’s second argument rests on ‘the principle of ipso jure continuity of treaties of a territorial or localised character’. This rule, Slovakia said, is embodied in Article 12 of the 1978 Convention, which in part provides as follows:

Article 12 Other territorial regimes

2A succession of states does not as such affect:

(a)obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of a group of states or of all states and considered as attaching to that territory;

(b)rights established by a treaty for the benefit of a group of states or of all states and relating to the use of any territory, or to restrictions upon its use, and considered as attaching to that territory.

According to Slovakia, ‘[this] article [too] can be considered to be one of those provisions of the Vienna Convention that represent the codification of customary international law’. The 1977 Treaty is said to fall within its scope because of its ‘specific characteristics ... which place it in the category of treaties of a localised or territorial character’. Slovakia also described the Treaty as one ‘which contains boundary provisions and lays down a specific territorial regime’ which operates in the interest of all Danube riparian States, and as ‘a dispositive treaty, creating rights in rem, independently of the legal personality of its original signatories’. Here, Slovakia relied on the recognition by the International Law Commission of the existence of a ‘special rule’ whereby treaties ‘intended to establish an objective regime’ must be considered as binding on a successor state (Official Records of the United Nations Conference on the Succession of States in respect of Treaties, Vol III, Doc A/CONF.80/16/Add.2 at p 34). Thus, in Slovakia’s view, the 1977 Treaty was not one which could have been terminated through the disappearance of one of the original parties.

123The Court does not find it necessary for the purposes of the present case to enter into a discussion of whether or not Article 34 of the 1978 Convention reflects the state of customary international law. More relevant to its present analysis is the particular nature and character of the 1977 Treaty. An examination of this Treaty confirms that, aside from its undoubted nature as a joint investment, its major elements were the proposed construction and joint operation of a large, integrated and indivisible complex of structures and installations on specific parts of the respective territories of Hungary and Czechoslovakia along the Danube. The Treaty also established the navigational regime for an important sector of an international waterway, in particular, the relocation of the main international shipping lane to the bypass canal. In so doing, it inescapably created a situation in which the interests of other users of the Danube were affected. Furthermore, the interests of third states were expressly acknowledged in Article 18, whereby the parties undertook to ensure ‘uninterrupted and safe navigation on the international fairway’ in accordance with their obligations under the Convention of 18 August 1948 concerning the Regime of Navigation on the Danube.

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In its Commentary on the Draft Articles on Succession of States in respect of Treaties, adopted at its 26th session, the International Law Commission identified ‘treaties of a territorial character’ as having been regarded both in traditional doctrine and in modern opinion as unaffected by a succession of states (Official Records of the United Nations Conference on the Succession of States in respect of Treaties, Vol III, Doc A/CONF.80/16/Add.2 at p 27, para 2). The draft text of Article 12, which reflects this principle, was subsequently adopted unchanged in the 1978 Vienna Convention. The Court considers that Article 12 reflects a rule of customary international law; it notes that neither of the parties disputed this. Moreover, the Commission indicated that ‘treaties concerning water rights or navigation on rivers are commonly regarded as candidates for inclusion in the category of territorial treaties’ (ibid, p 33, para 26). The Court observes that Article 12, in providing only, without reference to the Treaty itself, that rights and obligations of a territorial character established by a treaty are unaffected by a succession of States, appears to lend support to the position of Hungary rather than of Slovakia. However the Court concludes that this formulation was devised rather to take account of the fact that, in many cases, treaties which had established boundaries or territorial regimes were no longer in force (ibid, pp 26–37). Those that remained in force would nonetheless bind a successor State.

Taking all these factors into account, the Court finds that the content of the 1977 Treaty indicates that it must be regarded as establishing a territorial regime within the meaning of Article 12 of the 1978 Vienna Convention. It created rights and obligations ‘attaching to’ the parts of the Danube to which it relates; thus the Treaty itself cannot be affected by a succession of states. The Court therefore concludes that the 1977 Treaty became binding upon Slovakia on 1 January 1993.

124It might be added that Slovakia also contended that, while still a constituent part of Czechoslovakia, it played a role in the development of the Project, as it did later, in the most critical phase of negotiations with Hungary about the fate of the Project. The evidence shows that the Slovak government passed resolutions prior to the signing of the 1977 Treaty in preparation for its implementation; and again, after signature, expressing its support for the Treaty. It was the Slovak Prime Minister who attended the meeting held in Budapest on 22 April 1991 as the Plenipotentiary of the Federal Government to discuss questions arising out of the Project. It was his successor as Prime Minister who notified his Hungarian counterpart by letter on 30 July 1991 of the decision of the government of the Slovak Republic, as well as of the government of the Czech and Slovak Federal Republic, to proceed with the ‘provisional solution’ (see para 63 above); and who wrote again on 18 December 1991 to the Hungarian Minister without Portfolio, renewing an earlier suggestion that a joint commission be set up under the auspices of the European Communities to consider possible solutions. The Slovak Prime Minister also wrote to the Hungarian Prime Minister in May 1992 on the subject of the decision taken by the Hungarian government to terminate the Treaty, informing him of resolutions passed by the Slovak government in response.

It is not necessary, in the light of the conclusions reached in para 123 above, for the Court to determine whether there are legal consequences to be drawn from the prominent part thus played by the Slovak Republic. Its role does, however, deserve mention.

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In the absence of consistent state practice, state succession in respect of treaties has long been a rather uncertain field of international law. For example, while the 1978 Vienna Convention on Succession of States in Respect of Treaties provided, in accordance with the advice given by the International Law Commission, that a new state is bound by the international agreements binding on the predecessor state,61 the 1987 Restatement (Third) of the Foreign Relations Law of the United States took the opposite view. Meanwhile scholars involved in the drafting of these instruments readily acknowledge that these standards were very open to criticism.62 One of the foremost authorities on the subject even observed that ‘state succession is a subject altogether unsuited to the process of codification’.63

State practice during the 1990s strongly supports the view that obligations arising from a human rights treaty are not affected by the succession of states.64 This applies to all obligations undertaken by the predecessor state, including any reservations, declarations and derogations made by it. The continuity of these obligations occurs ipso jure. The successor state is under no obligation to issue confirmations to anyone.65 Consent from other states is not required. Individuals residing within a given territory therefore remain entitled to the rights granted to them under a human rights treaty. They cannot be deprived of the protection of these rights by virtue of the fact that another state has assumed responsibility for the territory in which they find themselves. It follows that human rights treaties have a similar ‘localised’ character as treaties establishing boundaries and other territorial regimes.66

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61Article 34(1) of the Vienna Convention on Succession of States in Respect of Treaties, adopted 22 August 1978, not yet in force.

62See, eg I Sinclair, ‘Some Reflections on the Vienna Convention on Succession of States in Respect of Treaties’, in Essays in Honour of Erik Castren, 1979, 149, 153.

63DP O’Connell, ‘Reflections on the State Succession Convention’ (1979) 39 ZAoRV at p 725.

64For a more cautious conclusion see MN Shaw, ‘State Succession Revisited’ (1994) 5 Finnish Yearbook of International Law 34, 38 (‘one is on the verge of widespread international acceptance of the principle that international human rights treaties continue to apply within the territory of a predecessor state irrespective of a succession’). Disagreeing, Bosw, ‘State Succession with Regard to Treaties’ (1995) 111 Mededelingen van de Nederlandse voor International Recht 18.

65As a matter of fact, while a notification of continuing adherence to a human rights treaty may not be strictly required, in practice such a step may be gratefully accepted by the depository and the other state parties because it resolves any ambiguities that exist.

66Menno T Kamminga, ‘State Succession in Respect of Human Rights Treaties’ (1996) 7 EJIL 469 at pp 469, 482.

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