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Treaties as a source of International Law

Treaties have been around as a concept of international law, since the dawn of time. One of the earliest instances of treaties can be traced back to 2100 BC, wherein an agreement was entered into between the kings of the cities of Umma and Lagash in Iraq. Through the treaty, they established a specified boundary between the two cities by inscribing the terms on a stone block.[1]

Thus, treaties have always held a prominent place in international law. They are considered as a means to ensure peaceful and amicable relations between different countries by helping international organizations organize, regulate and oversee their affairs. During the earlier days, treaties were mostly contracted through oral means and they were concluded with a ritual in which the participants swore an oath to God, which served as the treaty's binding force. Since then, its undergone notable changes, the process of concluding treaties became more organized and streamlined, consequently the treaties that are entered into these days, between countries, require to be in writing. It is also considered as legally enforceable.

Treaties essentially refer to contracts between nations. The primary purpose of creating a treaty is to establish legal relationships between parties in order to govern their relationship through a contract. The nature of the Treaty device, which provides for the rights and obligations of parties constituting part of the treaties, governs the majority of conduct between nations.

These agreements can be in the form of an extradition agreement or a defense pact. It can also be in the nature of a law that governs specific aspects of foreign relations or serve as the foundation for international organizations. Law making treaties may be those creating universal rules such as the UN charter or they could also be specifying general rules such as the Vienna Convention on the law of treaties. A contractual treaty on the other hand deals with specific issues affecting two or more states.

Conventions, pacts, charters, statutes, declarations, covenants, and agreements are all examples of international agreements that are referred to as "treaties."

Vienna Convention On The Law Of Treaties

The Vienna Convention on the Law of Treaties (VCLT) is the result of two protracted sessions of the 110-nation conference and also of the 15 years of preparatory work by the United Nations' International Law Commission (ILC). It is the first key component that has been exercised in the daunting challenge of codifying international law in accordance with Article 13[2] of the UN Charter, and is undoubtedly considered to be the principal authority dealing with the formation of treaties, drafted by the ILC and adopted on the 23rd of May, 1969. According to the VCLT, treaty refers to an international agreement concluded in writing between states regulated by international law, whether included in one instrument or two or more linked instruments. [3]

This convention, also referred to as the "treaty on treaties" establishes a system of rules that would control the crucial element in the conduct of international relations. It addresses the most significant aspects of international law regarding treaties entered into between different states. Before the convention could take effect, it needed to be ratified by 35 UN member nations which were obtained by the end of 1979. As of 2022, 116 countries have ratified the VCLT.[4]

The terms and scope of the agreement are dealt with in Part I of the convention. The 2nd part lays down the procedures for concluding and adopting treaties, emphasizing the importance of parties' consent to be bound by it and the drafting of reservations. The third part essentially describes how the treaties are be applied and interpreted.

The modification and amendment of treaties are dealt with under the fourth part. Part five of the convention, which is the most essential part, sets out the grounds for the "invalidity, termination, withdrawal and suspension" of treaties, and the consequences for the same. Further it also contains a clause which grants International Court of Justice (ICJ), the jurisdiction over possible disputes arising over the applicability or interpretation of the rules.[5]

The remaining parts cover the impacts of modifications in governance within a state, escalation of state-to- state conflicts, on treaties. It also specifies the rules for signing and ratification.

Treaties As A Source Of International Law

The Binding force of treaties has been a source of major controversy. One instance is the landmark ruling of ICJ in the Nottebohm case[6] which triggered arguments with respect to the citing of The Bancroft Treaties and the Pan-American Convention of 1906 as the only precedents.

Those dissenting the judgement reasoned that the treaties in question were bilateral treaties in which neither of the Nottebohm parties were involved. They further argued that these treaties were only binding on the contracting parties and thus will not have any bearing on the on the Nottebohm case. However, it is to be noted that Treaties have the potential to set precedents in general international law that would be binding even on non-signatories.[7]

The general view is that treaties can be accepted as a source of law. The maxim pacta tertiis nec nocent nec prosunt[8] elucidates that if a norm is repeated in a significant number of treaties, it becomes a customary law; similarly, when a major multilateral convention has been in force for a long time, its rules get incorporated into the customary international law.

It is to be noted that the idea of treaties as a source of law emerges from the time-honored and enduring principle of Pact servanda. The preamble of the VCLT clearly provides for clear rules stating that free consent and good faith are universally acknowledged. Anzillotti, an Italian jurist seems to be of the view that the binding power of treaty is established on the fundamental premise of pacta sunct servanda.

"The norm pacta sunct servanda which constituted since time immemorial the axiom postulate and categorical imperative of the science of international law", is unquestionably a positive rule under the international law. [9] This principle is what requires governments to obey treaties they have ratified, and it is the bedrock of a just system that governs sovereign nations on an equal footing.

Further, in addition to general principles, treaties are also acknowledged as a source of law in accordance with Article 38(1)[10] of ICJ's statute. The term "international conventions" referred to under this article focuses on treaties as a source of contractual obligation, at the same time it also acknowledges that a state may expressly accept the terms of a treaty to which It is not technically a party. They are also generally referred to as persuasive law.

The controversy as to whether a treaty could be an ispo facto law or simply a legal obligation is a separate issue. The evolution and history of usage of treaties reveal that Treaties became more important when the world began to settle into states. Treaties gained additional significance as a result of the establishment of international organizations. Then followed the Law of Treaties, which fully established treaties as a source of international law.

A treaty provision can also result in a rule of customary international law as was observed in the case of North Sea Continental Shelf Case[11] Further, the case of Portugal v. India[12] ( Right of Passage) exemplifies how a long-standing treaty clause can assume the role of a custom. The case demonstrates that when two States pursue a particular subject or practice repeatedly for a long period, it becomes a binding rule. The case, in addition to the asylum case established that local or regional custom that differs from general customary law is only obligatory on States that support it.

A treaty is enforceable on each party's full territory unless the treaty expressly provides for its limited application.[13]

There are different modes by which the state may choose to be bound by a treaty, the representative of the state may express its consent by the means of a signature or by exchange of instruments forming a treaty for instance, the Rush-Bagot treaty[14] for mutual disarmament on the Great Lakes. The other ways by which a state could express its consent could be by way of ratification, accession or by any other mode if so agreed.

Formation Of Treaties

  1. Accrediting of plenipotentiary/representatives on behalf of contracting parties
    The first step involved in the formation of a treaty is to authorize certain representatives, who will be granted the power by the Minister of foreign affairs to represent the state for ratification, adoption, negotiation etc. of a treaty.
     
  2. Negotiation & adoption of text
    The persons accredited are authorized to enter into negotiations or adoptions. This requires the agreement of all parties to the treaty. The treaty is adopted after all concerning matters are resolved. If the adoption is being done at an international conference, the acceptance of the text will require a two-thirds majority unless otherwise negotiated or agreed.[15]
  3. Signatures
    The next step involved is signature by the accredited representatives once the final draft of the treaty is prepared. The treaty thus comes into force once it is signed by the authorized representatives on behalf of the contracting states. It however becomes binding only after it is ratified by the states in question which is the next step.
     
  4. Ratification
    Ratification refers to the act of the parties to an international treaty adopting it. It implies the conformation of a treaty signed by the representatives of various states involved which is done by the head of the state by conforming to the provisions of the constitution. A state can declare its agreement to a treaty in a variety of ways. It can be expressed through signature, ratification, accession or exchange of instruments.

    Treaties can bind countries only if they consent to be bound by them and thus this is a very important step in the creation of treaties.

    However, ratification of a treaty may be withheld for the reasons listed below:
    • If the representative has acted in excess of his or her authority
    • If the representative has been subject to deception with respect to the matters of fact.
    • If it becomes difficult to fulfil the treaty requirements.
    • In the absence of consensus ad-idem
     
  5. Accession/Adhesion
    A non-party state that wasn't an original signatory can become a party to the treaty by accepting a treaty that has already been concluded. This is referred to as accession. On the other hand, adhesion is when a third-party state accepts or adheres to certain terms of a treaty that has already been signed. Due to the thin line of difference, these terms are used interchangeably. However, the distinction lies in the fact that in case of accession, the non-signatory state accepts all of the provisions contained in the treat, whereas in case of adhesion, the non-signatory accepts a few but not all of the provisions.
     
  6. Coming into force
    The next step is essentially the enforcement of treaty. This depends on the provisions contained in a treaty. it may include a specific clause regarding the date of applicability of the treaty. Further, certain treaties become binding immediately after it has been signed, while others may come into force only after it has been ratified by a prescribed number of states. A fundamental premise of international law is that only those parties are bound by a treaty that have consented to be bound by it, this is exemplified by the maxim "pacta terties nec noncent nec prosunt."
     
  7. Registration
    Following ratification, the treaty must be registered with the International Organization's headquarters. According to Article 102[16] of the UN Charter, registration and publication is essential and if this requirement isn't complied with then the treaty cannot be invoked before any organ of the UN charter. This doesn't however mean that the treaty would become invalid or be unenforceable. In addition to this provision, Article 18[17] of the covenant on league mandates that every treaty must be registered with the league secretariat and until it is so done, it won't be binding on any state. This further implies that in the event of a dispute, a non- registered treaty could not be relied upon.
     
  8. Enforcement & incorporation of treaties
    The final step is the enforcement of treaties where the treaty is incorporated into state law.

Interpretation Of Treaties

The term "interpretation" comes from the Latin word "interpretio," which means "to translate the meaning of a sentence from an unfamiliar language into a recognized one for the receiver." States Parties to the Treaty, international organizations, and doctrinaires are all capable of interpreting treaties.

The primary rules with respect to interpretation of treaties is contained under the 3rd part of VCLT, outlined in Articles 31 to 33 which can be summarized as follows:
  • Examining/analyzing the exact test of the treaty.
  • The contracting parties' intention while negotiating.
  • Consideration of purpose behind the formation of treaty.
Article 31(1)[18] of the VCLT states that "treaty shall be interpreted in accordance with good faith and in light of the ordinary meaning, object and purpose." Thus, the main condition that needs to be satisfied while interpreting is that the interpretation must be bona fide keeping in mind, the object behind the formation of treaty.

Article 31(2)[19] states that in addition to the text and preamble of treaty, any agreement or instrument made in relation to the treaty shall also be considered for the purposes of interpretation. Article 31(3)[20] further provides that any subsequent agreement concerning interpretation between contracting states, or any other practice in application of general rules or other rules of international law will also be considered. Sub section 4[21] also stipulates that if the parties intended for a phrase to have a special meaning, then it will be accorded that meaning.

"Travaux preparatories" and other supplemental ways of interpretation may be applied if the text is ambiguous. While interpreting the treaties, adopting a broader purpose approach is suggested. In circumstances where the treaty in question involves the constitution of an international organization, a purpose-oriented approach is usually taken.

Apart from this, there are certain general principles of interpretation[22] which can be summarized as follows:
  • Grammatical Interpretation
    The words and phrases as contained in the treaty, are analyzed in terms of their plain and actual meaning. This necessitates a legally binding worldwide standard for the interpretation of grammar rules on syntax, vocabulary and morphology.
     
  • Object and content
    If in case certain terms and phrases used in the treaty are uncertain and vague, they are required to be interpreted in light of the treaty's overall goal and context.
     
  • Reasonable interpretation/ Logical interpretation
    As mandated by the general law on treaties, the text must be interpreted in a reasonable manner. This essentially refers to a strategy for clarifying the content of a treaty through the application of logic, reasoning and arguments.
     
  • Historical Interpretation
    Teleological interpretation refers to interpreting the treaty by elucidating the terms used in the light of historical, political and social circumstances as well as the demands which led to the formation of the instrument in question.
     
  • Principle of effectiveness
    The general principles also direct that the interpretation should be done in such a manner so as to promote its usefulness and effectiveness.
     
  • Reliance on extrinsic Material
    Amidst a lot of controversy, the International Law Commission proposed that extrinsic material be used to interpret the treaty. As a result, it was decided that the treaty's preparatory work and the circumstances of its conclusion could be used.
     
The additional principles of interpretation as identified by Fitzmaurice[23] are as follows:
  • Actuality/ Textuality
    Treaties must be understood in their entirety and on the basis of their original wording.
     
  • Natural & ordinary meaning
    The principle of ordinary meaning can be deviated from only when the original interpretation would lead to an irrational conclusion. Extraneous means, like examining immediate circumstances or preparatory work involved, commonly referred to as travaux priparatoires, may be employed only if the language used is essentially unclear or ambiguous.
     
  • Integration
    The interpretation can be done by considering the treaty as a whole as well as by dividing the treaty into individual parts, chapters or sections.
     
  • Effectiveness "ut res magis valeat quam pereat"
     
  • Subsequent practice
    The use of subsequent practice of the parties in connection to the treaty in interpreting a text is acceptable, and may be desired.
     
  • Contemporaneity
    The terms contained must be interpreted in accordance with the current linguistic use of the terms.

In a case before ICJ[24], the ICJ stated that the tribunal's responsibility is to examine the treaty's ordinary meaning. The ICJ has also observed that interpretation is a judicial role and the main objective behind it is to discover the precise and accurate meaning of a provision, and the same cannot be modified. Analyzing the backdrop of a treaty's workings and its preparation efforts (travaux pr'eparatoires) can aid in the treaty's interpretation.

It is also to be noted that when a treaty has been concluded in more than one language, as is common with multilateral agreements and if there is a lack of consensus, or in the event of a difference of meaning that cannot be resolved through regular interpretation processes, Article 33[25] states that the meaning that best reconciles the passages, taking into account the treaty's object and purpose, shall be accepted.

Invalidity, Termination And Suspension Of A Treaty

The two primary ways by which a treaty can be terminated is by the operation of law or by the act of contracting parties. Listed below are the different reasons for which a treaty may be terminated by operation of law:
  1. Extinction of either contracting party
    With reference to a bilateral treaty, extinction of either party may result in termination.[26]
  2. Formation of a new treaty on the same subject matter
    In such a case, it will be implied that the previous treaty stands terminated, subject to the condition that states intend to be regulated by the provisions of the new treaty or if both the treaties are of such nature that their provisions cannot be applied simultaneously.
  3. Violation or breach of treaty
    A party to the treaty may be entitled to terminate or suspend a bilateral treaty in case of substantial or material breach by the other party. In the case of a multilateral treaty, a unanimous decision may be taken as to whether the treaty should be terminated or suspended either wholly or in part.
  4. Impossibility of performance
    The inability to meet the treaty's terms is deemed sufficient cause for a treaty's cancellation or suspension. The pact may be dissolved entirely in case of permanent impossibility. On the other hand, if the difficulty in fulfilling the terms is only temporary, the treaty may be suspended for such time period as may be considered necessary.
  5. Significant shift in circumstances
    The maxim Rebus sic stantibus states that if the basic or fundamental circumstances under which the treaty was signed, has changed, then either party shall have the right to terminate it. Unexpected developments that have a "fundamental" impact on the treaty may be enough to cause it to be terminated or revoked.
  6. In cases where the Relations between diplomats and consular officers are strained.
  7. Jus cogens[27]
Any treaty that violates a new jus cogens or peremptory rule of international law that emerges after worldwide assent is presumed to be terminated.

The consequence of such termination or invalidity, as provided under Article 70[28] and 71[29], is that unless the treaty expressly states differently or the parties agree otherwise and a treaty is terminated under its provisions or in line with the existing convention, the states shall be released from their obligation to fulfil the terms of the treaty, further this termination shall not have any bearing on any right or legal status that exists as a result of formation of treaty, prior to termination. In case of suspension, [30] the parties are relieved from their obligation to execute the treaty during the suspension period.

Some Important Treaties
  1. The Treaty of Versailles, 1919, signed at the end of world-war 1 at the peace conference in Paris formally ended the war between Germany and the Allies. The conference was considered also significant as it was dominated by the "big four." Clemenceau in particular intended to ensure that Germany would never represent a military danger to the rest of Europe, and the treaty included a number of clauses to ensure that this goal was achieved.[31]

    The treaty was presented to the Germans as a fait accompli. They objected to the severity of the clauses contained in the agreement especially the "war guilt" provision and the terms concerning reparation.[32] Some regard the treaty as not being part of the solution but rather a hasty and furious rebuke that only caused to prolong and exacerbate animosity while causing the same issues as before. The effects of the treaty are divided into three categories: economic, political and military. Despite that, the treaty of Versailles is a significant event in the world history.
     
  2. The Onís-Adams Treaty of 1819, otherwise known as the transcontinental treaty, addressed a territorial dispute between the United States and Spain. Through this agreement, The western bounds of the Louisiana Purchase were determined by the United States and Spain, and Spain relinquished its claims to the Pacific Northwest. In exchange, the US acknowledged Spanish control over Texas.
     
  3. The Tordesillas treaty, 1494, apparently split the new world between Portugal and Spain. The goal was to resolve disputes over newly discovered areas. It resulted in the establishment of a border west of the Cape Verde islands between the future possessions of Portugal and Spain and ultimately, the Portuguese were allowed to create a colony there while Spain took control of the rest of the Americas.
     
  4. The Treaty of Paris, which ended the Spanish-American War in 1898, gave the United States the Philippines, Guam, and Puerto Rico in exchange for Cuba's independence. This pact marked the beginning of American imperialism abroad, and it was ratified after a long and arduous process.

Conclusion
The concept of treaties has evolved as an essential source of International Law and are held in high regard in the International Justice system which can succeed if they express a high-value norm shared by all the international persons signing it. They are considered to be the most powerful and enforceable type of instrument since treaties mostly represent voluntary agreements between the countries that agree to be bound by them.

However, like all other sources of international law, treaties are not exhaustive in the formation of international law, it has its own flaws requiring country ratification and customs taking a long time to develop and evolve. Regardless, a combination of customs and treaties considerably lowers the shortcomings of any isolated source resulting in a far more effective source of law than its constituents.

End-Notes:
  1. Peter H Sand, Mesopotamia 2550 B.C.: The Earliest Boundary Water Treaty, Institute of International Law, University of Munich, Germany, (Jul 27, 2018), https://juniperpublishers.com/gjaa/GJAA.MS.ID.555669.php
  2. UN Charter, art 13, "The General Assembly shall initiate studies and make recommendations for the purpose of promoting international cooperation in the political field and encouraging the progressive development of international law and its codification"
  3. Vienna Convention on the Law of Treaties, 1969, Art 2 cl. a.
  4. https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII 1&chapter=23&Temp=mtdsg3&clang=_e
  5. Vienna Convention on the Law of Treaties, 1969, Art 66
  6. [1955] ICJ 1.
  7. Anthony D'Amato, Treaties As a Source of General Rules of International Law, Northwestern School of Law, (1962),https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1119&context=facultyworkingpapers
  8. https://blog.ipleaders.in/pacta-tertiis-nec-nocent-nec-prosunt/
  9. Josef L. Kunz, The Meaning and the Range of the Norm Pacta Sunt Servanda, Cambridge University Press, (Apr 25, 2017), https://www.cambridge.org/core/journals/american-journal-of-international-law/article/abs/meaning-and-the-range-of-the-norm-pacta-sunt
  10. Statute of The International Court of Justice, Art 38 cl. 1,
  11. (1969) ICJ Rep.3.
  12. ICJ Rep. 1960.
  13. Vienna Convention on the Law of Treaties, 1969, Art 29.
  14. Between Great Britain and the U.S.
  15. Vienna Convention on the Law of Treaties, 1969, Art 9.
  16. UN Charter, art 102, 1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. 2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations
  17. The Covenant of the League of Nations, art 18, "Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered"
  18. Vienna Convention on the Law of Treaties, art 31 cl. 1, "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
  19. Vienna Convention on the Law of Treaties, art 31 cl. 2, "general rules of interpretation"
  20. Vienna Convention on the Law of Treaties, art 31 cl. 3.
  21. Vienna Convention on the Law of Treaties, art 31 cl. 4, A special meaning shall be given to a term if it is established that the parties so intended
  22. Dr. S.K. Kapoor, International law and Human Rights, 481 (22nd ed. Central Law Agency, 2020).
  23. Jana Maftei et al, Interpretation of Treaties, Research Gate, (Aug 2012), https://www.researchgate.net/publication/231814719_Interpretation_of_Treaties
  24. General Assembly's Competence for the Admission of a State to the United Nations, https://www.icj-cij.org/en/case/9
  25. Vienna Convention on the law of treaties, art 33, Interpretation of treaties authenticated in two or more languages
  26. Dr. S.K. Kapoor, International law and Human Rights, 483 (22nd ed. Central Law Agency, 2020).
  27. Treaties conflicting with a peremptory norm of general international law
  28. Vienna Convention on the law of treaties, art 70, Consequences of the termination of a treaty
  29. Vienna Convention on the law of treaties, art 71, Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law
  30. Vienna Convention on the law of treaties, art 72, Consequences of the suspension of the operation of a treaty
  31. Adam Augustyn, Treaty of Versailles, Britanicca, https://www.britannica.com/event/Treaty-of-Versailles-1919
  32. Mohammad Khalid, The Treaty of Versailles, Research Gate, (June, 2015), https://www.researchgate.net/publication/302879940_The_Treaty_of_Versailles

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