Definition
A state which is not a party to a treaty will not be bound by it. Unless there is a domestic
law that somehow gives an international tribunal the power to enforce its fines within a
state, it will not be able to do so within the jurisdiction of the state.
In order for a state to be brought before the Courtand made liable for breach, it must have
accepted the compulsory jurisdiction of the ICJ.
Parties
It is incorrect to say that only states can be parties to treaties in general. The 1969 Vienna
Convention only applies to treaties between states (Art. 2(1)(a)), but non-state entities are
perfectly free to enter into treaty arrangements-they simply will not be covered under the
Vienna Convention (Art. 3).
Unilateral Undertaking/Declarations
Full powers
A person who is authorised to attend, but only as an observer (i.e. not meant to have
capacity to sign) might be said to have ‘full powers’ because the term as defined under
the VC allows such designation for persons not authorised to consent to a treaty. See Art.
2(1)(c). A high ranking official of the state may also be deemed to have full powers under
Art. 7(2)(a).
Consent
Art. 11 allows consent by means of signature, exchange of instruments, ratification,
acceptance, approval, accession, or other means if so agreed.
Art. 12 allows consent to be expressed by signature alone if the treaty so provides.
Adoption
Authentication
Duty not to defeat the object and purpose
The VC Art. 18 rule provides that states have an obligation not to defeat the object and
purpose of a treaty prior to its entry into force (which it already has), or prior to that state
making it clear that it does not intend to be a party to the treaty.
Registration
Entry into force
Reservations
Art. 2(1)(d) of the Vienna Convention defines the term "reservation" as:
"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."
Observance
Application
Reciprocity
This principle arises because states are not deemed to be susceptible to the jurisdiction of
international tribunals without their express consent (sovereignty of states). This position
is implicitly supported by Art.36(1) of the Statute of the International Court of Justice.
The rules in this area are as follows:
Norwegian Loans Case (France v. Norway)
Norway was allowed to use the terms of France’s declaration so as to exclude the
jurisdiction of the Court.
Interhandel Case (Switzerland v. US)
The US was not allowed to impose the terms of its declaration on Switzerland so as to
exclude the Court’s jurisdiction.
Both of the above cases involved states whose declarations contained self-judging clauses
(self-judging reservations).
The legality of such declarations has been challenged as a result of Art. 36(6) of the
Statute of the International Court of Justice - which provides that the International
Court of Justice is to have the competence to decide whether it has jurisdiction.
Illegality - self-judging reservations must be illegal because they allow a state to be the
only one capable of determining whether a dispute is a matter of national jurisdiction,
thus effectively precluding the Court from exercising one of the fundamental roles of any
Court of law: deciding when it has jurisdiction to hear a case.
This ICJ provision is reproduced in Art. 36(6) of the Treaty in our fact pattern. Since
Burning Fasil’s declaration is self-judging, the same arguments apply.
There are two possible options for a court when faced with a declaration containing a
clause which is illegal (because self-judging):
Judge Lauterpacht’s approach (Norwegian Loans Case) - striking out the entire
declaration, since the reservation is essential to the state’s acceptance of jurisdiction [Cf.
Harris, 1012];
Judge Klaestad’s approach (Interhandel Case) - striking out the bad part of the
reservation, on the assumption that the overwhelming intention of the state is to submit to
the Court’s jurisdiction (thus striking out the clause would uphold this intention).
Note: these two approaches parallel the Vienna Convention’s laws regarding separability
of treaty provisions (Art. 44). The Art. 44 test is stricter than Lauterpacht’s approach:
Article 44 (Separability of treaty provisions)
1. A 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.
…
3. If the ground relates solely to particular clauses, it may be invoked only with respect to
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.
If the Court decides to rule upon the illegality of the self-judging part of the declaration
then it may either:
(1) strike out the entire declaration
(2) remove the offending part.
Interpretation
Amendment and modification
Invalidity
Challenges to Enforceability of Treaty
Article 62(1) sets out the two conditions that need to be fulfilled before a fundamental
change of circumstances may be invoked as a ground for terminating or withdrawing
from a treaty:
where "the existence of those circumstances constituted an essential basis of the consent
of the parties to be bound by the treaty; and"
"the effect of the change is radically to transform the extent of obligations still to be
performed under the treaty."
Where the obligations to be performed have not changed, a change in a state’s ability to
satisfy them may not suffice. Re: the Fisheries Jurisdiction Case (Jurisdiction Phase).
Invalidation of Consent
Art. 27 of the VC provides that a state cannot invoke incompatibility with an internal law
as an excuse for failure to perform a treaty.
(There is a presumption in favour of validity of treaties in the VC: Art. 42.)
Nonetheless, Art. 27 is subject to Art. 46.
Art. 46 invalidates the consent of a state to be bound by a treaty that violates a provision
of its internal law regarding competence to conclude treaties. Art. 46 only allows a state
to invalidate such consent if the violation of the internal law was manifest (obvious), and
the rule was one of "fundamental importance." In other words, if there is some rule in a
state’s constitutional system that would negate their competence to conclude such a
treaty, and the violation of this rule is "manifest and concerned a rule of internal law of
fundamental importance" then the state’s consent may be invalidated. This violation must
be "objectively evident to any State … in accordance with normal practice and in good
faith."
Art. 47-restriction on authority-a restriction on the representative may be invoked as a
ground for invalidating consent if the other states were notified about this restriction prior
to the expression of consent.
Art. 65 of the VC - if a state is able to raise issues regarding the invalidity of its consent
to the treaty, it cannot immediately and automatically escape its provisions. Rather, it
must notify the other parties and either gain their approval or settle the issue under
various procedures…
Art. 69 - if the consent is shown to be invalid, the treaty will be void as between that state
and all other parties.
Suspension
Termination
The consequence of termination, however, is to preserve pre-existing obligations and
merely release the parties from future compliance: Art. 70. This is unlike invalidity,
which tends to attempt to remove the actions performed under the treaty.
1. Breach:
If a treaty includes a provision expressly contemplating an act (Art. 42), then it might be
hard to say that act would constitute a material breach (i.e., under Art. 60 of the VC).
Material Breach (Art. 60)
Art. 60 of the Vienna Convention on the Law of Treaties provides that either (1) an
unlawful repudiation or (2) a "violation of a provision essential to the object and purpose
of the treaty" will amount to a material breach.
If a state materially breaches a treaty, then upon such a determination by the ICJ, the
other parties may be authorised to suspend their treaty obligations with respect to that
delinquent state (Art. 72), or even terminate the treaty with respect to it or with respect to
all parties (Art. 70). Termination of treaties allows rights and obligations created under
the treaties to continue (unlike invalidity, which in most cases will require states to return
things to their earlier status).
2. Supervening Impossibility
Art. 61 of the VC, requires the "permanent disappearance or destruction of an object
indispensable for the performance of the treaty". If the impossibility is temporary the
treaty may only be suspended.
3. Fundamental Change of Circumstances
(rebus sic stantibus).
The general rule is that a fundamental change of circumstances is not a ground for
terminating or withdrawing from a treaty:
A 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.
Thus Article 62(2) sets out specific cases where it cannot be invoked:
(a) where the treaty establishes a boundary, or
(b) if the fundamental change has been produced by the party seeking it use it, by
breaching an obligation under the treaty.
Where a treaty expressly contemplates a change such a change may not amount to a
fundamental change of circumstances.
If a fundamental change is found, Article 62(3) allows parties to merely suspend the
operation of a treaty rather than to terminate or withdraw from it.
Fisheries Jurisdiction Case.
In this case Iceland and the UK had entered into a treaty-arrangement-a 1961 ‘exchange
of notes’-to bring fisheries disputes before the International Court of Justice. Iceland
argued that since fisheries techniques had changed so radically from the time of the
‘exchange of notes’, a fundamental change of circumstances had occurred and Iceland no
longer had to submit to the jurisdiction of the Court. But the Court rejects this argument
for the simple reason that the change of circumstances has to affect the obligation in
question. Here the obligation was to refer disputes to the Court. This obligation had not
changed. Any new fishing techniques had no bearing on whether the Court is the
appropriate body to hear disputes.
4. Violation of Jus Cogens Rule
Art. 53 of the VC makes any treaty that violates a pre-existing rule of jus cogens void;
Art. 64 makes any treaties that offend a newly-emerged rule of jus cogens void and
terminates them.
In the Aloeboetoe Case (1994) the Inter-American Court of Human Rights held that the
rule against slavery today has a jus cogens quality.
If the treaty is found to violate a pre-existing jus cogens rule (i.e., Art. 53), then it will be
void and under Art. 71 the parties will be required to:
- eliminate the consequences of any act performed in conflict with jus cogens, and
- to bring their mutual relations into conformity with the jus cogens rule.
If it becomes void or terminates as a result of a new jus cogens rule (i.e., Art. 64), then
the termination of the treaty has the following effects:
- it releases the parties from any further obligations to perform the treaty, and
- it does not affect any right, obligation or legal situation created through the prior
execution of the treaty. This only applies to those rights, obligations or legal
situations that do not perpetuate the violation of the rule of jus cogens.
5. Error (Art. 48)
1. A 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.
2. Paragraph 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.
3. An error relating only to the wording of the text of a treaty does not affect its validity;
article 79 then applies.
6. Fraud (Art. 49)
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.
A state would be prevented from invoking fraud if
1) the conduct was not that of another negotiating State, and
2) no inducement was made to get it to enter into the Treaty.
7. Corruption (Art. 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.
Treaty ‘Defences’
1. Not in Force: If the treaty is not yet in force then no state will be able to bring a claim
for its breach. However, states may still be liable under the Vienna Convention for
violation the provision that requires states to refrain from actions against the object and
purpose of the treaty before it has come into force or before they have ratified it.
Ability to Withdraw (Art. 56)
There are no provisions in the Treaty providing for termination or withdrawal.
Art. 56 of the Vienna Convention
1. A 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.
2. A party shall give not less than twelve months’ notice of its intention to denounce or
withdraw from a treaty under paragraph 1.
Procedure and Consequences
The Vienna Convention
Whenever there is a treaty involved in any question of international law, the first issue is
whether this is a treaty covered by the VC Law of Treaties, 1969 (VC).
Art. 1 - applies to treaties between States
Art. 2(1)(a) - defines "treaty"
"‘treaty’ means an [1] international agreement [2] concluded between States in [3]
written form and [4] governed by international law, whether [5] embodied in a
single instrument or in two or more related instruments and [6] whatever its
particular designation."
Art. 4 - the Vienna Convention is not retroactive
Art. 5 - applies to treaties that are constituent instruments of international organisations
If the Vienna Convention is applicable, any states which are parties to it are bound: Art.
26 (pacta sunt servanda). In any event, most Convention provisions are now considered
to represent customary international law and therefore the states will be bound by the
custom even if not parties to the Convention.