11.

The Law of Treaties

The Law of Treaties [1]

A treaty is a written international agreement concluded between States or other persons of
International Law and governed by International Law, whether embodied in a single instrument or in two
or more related instruments and whatever its particular designation.[2] In nglish, the term !treaty" is
used as a generic term embracing all #inds of international agreements in written form. In addition to the
term $treaty", many other terms are used, such as $accord", $act", $arrangement", $charter", $covenant",
$convention", $declaration", $general act", $pact", $protocol", $statute", as well as the term $agreement"
itself. %hatever the appellation of the agreement, it does not affect its validity under International Law.
[&]
'reaties can be traced bac# as far as the early(recorded history of )an#ind. vidence for their
e*istence has been found throughout the history. 'reaties have been the ma+or legal instruments for
regulating relations between States. States concluded treaties in every conceivable sub+ect. 'en of
thousands treaties have been registered with the ,nited -ations since ./01. ,ntil ./23, treaties had been
governed by international customary law. In ./1/, the 4ienna 5onvention on the Law of 'reaties was
signed, codifying and developing e*isting customary rules6 it came into force in ./23.
'he ./1/ 4ienna 5onvention on the Law of 'reaties defines $treaty" as $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."[0] It
further provides that it $does not apply to international agreements concluded between States and other
sub+ects of international law or between such other sub+ects of international law, or to international
agreements not in written form".[7] 'hese provisions e*clude agreements between states which are
governed by other than International Law, agreements between States and international organi8ations or
between international organi8ations, and oral agreements. 'he reason for the e*clusion of these types of
international agreements is to avoid complication and comple*ity if they are included in a single
convention with written agreements between States, since the rules governing them differ in certain
aspects from the rules governing written agreements between States. A special convention applicable to
agreements between states and international organi8ations, or between international organi8ations,
namely $the 5onvention on the Law of 'reaties between States and International 9rgani8ations or
between International 9rgani8ations", was signed in ./21.[1] :owever, this 5onvention has not yet
entered into force.
'he following sections are devoted to the rules applicable to the written agreements between States as
provided by the ./1/ 4ienna 5onvention on the Law of 'reaties. :owever, the rules provided by this
5onvention are not inclusive6 other rules e*isted under customary international law continue to govern
;uestions not regulated by the 5onvention.


Section 1: Conclusion of Treaties

'reaties may be concluded by States in any manner they wish. 'here are no obligatory prescribed
forms or procedures to be followed. -egotiating, formulating, signing and adopting a treaty are sub+ect
to the intention and consent of the contracting States. :owever, the ./1/ 5onvention on the Law of
'reaties provides general rules applicable to the conclusion of treaties, rules regarding the capacity and
the competent persons to conclude treaties, the adoption and authentication of the te*t of treaties, and the
adoption of treaties.

A. The Capacity to Conclude Treaties [<]

,nder the 5onvention, every State possesses capacity to conclude treaties. Since States are
represented by persons, the 5onvention provides rules to ensure that persons representing States have the
power to adopt or authenticate the te*t of a treaty, or to e*press the consent of the State bound by a
treaty. Such persons must produce what is #nown as $full powers". $=ull powers" refers to the
document issued by the competent authority of the concerned State certifying that the persons represent
it. 'his re;uirement is necessary to ensure the States parties to the treaty that they are dealing with the
competent persons. :owever, there are certain persons who need not to produce the $full powers".
'hese persons are>

?.@ :eads of States, heads of governments and the ministers for foreign affairs, for the purpose of
performing all acts related to the conclusion of a treaty6
?2@ :eads of diplomatic missions, for the purpose of adopting the te*t of a treaty between their
States6
?&@ Aepresentatives accredited by States to an international conference or to international
organi8ation or one of its organs, for the purpose of adopting the te*t of a treaty in that conference,
organi8ation or organ.


B. Adoption and Authentication of the Text of Treaties [2]

9nce a draft of a treaty has been agreed upon by the competent persons, several stages need to be
followed before it becomes legally binding. =irst, the te*t of the treaty has to be adopted. 'he adoption
of the te*t of a treaty implies that the form and content of the te*t of the proposed treaty are settled. It
ta#es place by the consent of all the States participating in its drawing up, e*cept the adoption at an
international conference, which ta#es place by the vote of two(third of the States present and voting,
unless by the same ma+ority they decide to apply a different rule. 'he adoption of the te*t of a treaty
does not mean that the participating States have e*pressed consent to be bound by the treaty, or that the
treaty has been adopted.
Second, the te*t of a treaty has to be authenticated. Authentication is a procedural step whereby the
te*t of the treaty is established as correct and genuine, and not sub+ect to alteration. It is necessary to
enable the States parties to the treaty to #now definitively its content so that there will be no confusion as
to its e*act terms. 'he authentication of the te*t of a treaty ta#es place according to the procedure
provided in the te*t or agreed upon by the States participating in its drawing up. =ailing such procedure,
authentication may ta#e place by the signature, signature ad referendum or initiating by the
representatives of the participating States.


C. The Adoption of Treaties

A treaty has to be adopted by the participating States to become binding upon them. States adopt a
treaty by giving their consent to it. 'he consent of the States parties to a treaty is an essential factor
because States are bound only by their consent. 'he consent may be e*pressed by signature, e*change of
instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if
so agreed.[/]

?.@ 5onsent by signature [.3]

A State may be regarded as consented to a treaty by signature when the treaty provides that signature
shall have that effect, when it is established that the negotiating States were agreed that signature should
have that effect, or when the intention of the State to give that effect to the signature appears from the
full powers of its representatives or was e*pressed during the negotiation. Signing the treaty means
officially affi*ing the names of the representatives of the contracting States.
'he act of signature is usually a formal event. 9ften in important treaties, heads of States formally
affi* their signatures in a ceremony. ,sually in multilateral conventions, the representatives of the
participating States sign the treaties during a special closing session held for that reason.

?2@ 5onsent by e*change of instruments constituting a treaty [..]

A State may be regarded as consented to a treaty by an e*change of instruments constituting a treaty
when the treaty provides that the e*change of such instrument has that effect, or when it is established
that the States were agreed that the e*change of the instrument should have that effect. -owadays, often
each State signs an instrument constituting a treaty and sends it to the other State ?or States@ for its
signature.

?&@ 5onsent by ratification, acceptance or approval [.2]

'he signing of the treaty by the representative of a State is either a means of e*pressing the final
consent of the State to be bound by the treaty, or an e*pression of provisional consent sub+ect to
ratification, acceptance or approval. 'he effect of signature depends upon the terms of the treaty, the
agreement of the negotiating States or their intention. If the treaty is sub+ect to ratification ?acceptance or
approval@, then it does not become binding until it is ratified by competent authority of contracting State,
namely the head of the State. Aatification by the competent authority of the contracting State is a step
well established historically to ensure that the representative of the State did not e*ceed his powers or
instructions with regard to the conclusion of the treaty. It allows a State to e*amine the provisions of a
treaty before underta#ing formal obligations. )oreover, it enables a State, in the period between
signature and ratification, to pass the re;uired legislation or to obtain the re;uired approval. 'he
;uestion of how a state ratifies treaties is a matter for its internal law alone. 'he rules related to
ratification vary from State to State.
'he consent of a state to be bound by a treaty is e*pressed by ratification ?acceptance or approval@
when the treaty provides for such consent to be e*pressed by means of ratification, when it is established
that the negotiating states were agreed that ratification should be re;uired, when the representatives of
the State has signed the treaty sub+ect to ratification, or when the intention of the States to sign the treaty
sub+ect to ratification appears from the full powers of its representative or was e*pressed during the
negotiation.
Aatification occurs when instruments of ratification are e*changed between the contracting States, or
are deposited with the depositary. In the [.&]case of multilateral treaty, it usually provides that the
instruments of ratification should be deposited with the State or the international organi8ation that is
appointed by the treaty to act as the depositary.

?0@ 5onsent by accession

In addition to signature and ratification, a State may become a party bound by a treaty by accession.
Accession is a formal acceptance of a treaty by a State which did not participate in negotiating and
signing it. It is possible if the treaty provides that consent to it may be e*pressed by accession, if it is
established that the negotiating States were agreed that consent may be e*pressed by accession, or if all
the States parties to the treaty have subse;uently agreed that consent may be e*pressed by accession.
Accession has the same effects as signature and ratification combined. It is the practice in the modern
times that certain treaties remain open for accession by particular States for some periods.

D. eser!ation to a Treaty [.0]

It is well established in the practice of States that a State has a capacity, when becoming a party to a
treaty, to accept most of the provisions of a treaty or to ob+ect, for whatever reasons, to particular
provisions of a treaty. 'his capacity is reiterated by the 4ienna 5onvention on the Law of 'reaties which
states that a State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a
reservation unless the reservation is either prohibited by the treaty or incompatible with its ob+ect and
purpose, or the treaty permits only specified reservations. A reservation is defined by this 5onvention as
$a unilateral statement, however phrased or named, by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to e*clude or modify the legal effects of certain
provisions of the treaty in their application to that State".
[.7]


'he effect of a reservation depends on whether it is accepted or re+ected by the other parties to a
treaty, and this matter differs whether a treaty is bilateral or multilateral one. A reservation to a bilateral
treaty presents no problem since it constitutes a counteroffer which may reopen the negotiation between
the two parties concerning the terms of the treaty6 and unless the reservation is accepted by the other
party, no treaty will be concluded. :owever, a reservation to a multilateral treaty causes a problem
because it may be accepted by some parties and re+ected by others. In such a case, the 5onvention
on the Law of 'reaties provides that a reservation e*pressly authori8ed by a treaty does not re;uire any
subse;uent acceptance by the other contracting States unless the treaty so provides, and that when it
appears from the limited number of the negotiating States and the ob+ect 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 re;uires acceptance by all the parties.
'he 5onvention re;uires that a reservation, an e*press acceptance of a reservation and an ob+ection to
a treaty be formulated in writing and communicated to the contracting States and other States entitled to
become parties to the treaty. :owever, an acceptance of a reservation by a State may be implied if it has
raised no ob+ection 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 e*pressed its consent to be bound by the treaty, whichever is later.
An ob+ection by another contracting State to a reservation does not preclude the entry into force of the
treaty as between the ob+ecting and reserving States, unless a contrary intention is definitely e*pressed by
the ob+ecting State.
,nless the treaty provides otherwise, a reservation or an ob+ection to a reservation may be withdrawn
at any time. In case of the withdrawal of a reservation the consent of a State which has accepted the
reservation is not re;uired for its withdrawal. It is re;uired that the withdrawal of a reservation or of an
ob+ection to a reservation be formulated in writing. ,nless the treaty provides otherwise, or it is agreed
otherwise, the withdrawal of a reservation or of an ob+ection to a reservation becomes operative only
when notice of it has been received by the concerned State.
A reservation established with regard to another party modifies for the reserving State in its relations
with that other party the provisions of the treaty to which the reservation relates to the e*tent of the
reservation, and modifies those provisions to the same e*tent for that other party in its relations with the
reserving State. :owever, the reservation does not modify the provisions of the treaty for the other
parties to the treaty inter se, i.e. in their relations with each other.


Section ": #ntry into $orce% e&istration and Depositary of Treaties
'he 5onvention provides rules applicable to the entry into force of treaties as well as rules applicable
to registration and depositary of treaties.

A. #ntry into $orce of Treaties [.1]

According to the 4ienna 5onvention on the Law of 'reaties, a treaty enters into force in such a
manner and upon such date as it may provide or as the negotiating States may agree. In the absence of
any such provisions or agreement, a treaty enters into force as soon as consent to be bound by that treaty
has been established for all the negotiating States. %hen 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 provides otherwise.
-ormally, treaties specify that they will enter into force upon a certain fi*ed date or after a determined
period following the last ratification. )ultilateral treaties, usually, provide for entry into force upon
ratification by a specified number of States. :owever, even when the minimum re;uired number of
ratifications is reached, the treaty enters into force only between those States that have ratified it6 it does
not enter into force for other States until they have also ratified it. 'he 4ienna 5onvention on the Law of
'reaties, for e*ample, provides that it will come into force on the thirtieth day following the date of
deposit of the thirty(fifth instrument of ratification or accession.[.<] )oreover, it provides that for each
State ratifying or acceding to the 5onvention after the deposit of the thirty(fifth instrument of ratification
or accession, the 5onvention shall enter into force on the thirtieth day after deposit by such State of its
instrument of ratification or accession.
-evertheless, a treaty or a part of it may be applied provisionally pending its entry into force if the
treaty itself so provides, or the negotiating States have in some other manner so agreed. But, unless the
treaty provides otherwise or the negotiating States have agreed otherwise, the provisional application of a
treaty or a part of it 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.


B. e&istration and Depositary of Treaties [.2]

After the entry of a treaty into force, the 4ienna 5onvention re;uires that the treaty to be transmitted
to the Secretariat of the ,nited -ations for registration or filling and recording, as the case may be, and
for publication. 'his re;uirement follows the one provided for by the 5harter of the ,nited -ations.
Article .32 of the 5harter provides that every treaty and every international agreement entered into by
any )ember of the ,nited -ations must, as soon as possible, be registered with the Secretariat and
published by it. ,nder this article, non(registered treaty or agreement remains valid but the parties to it
may not invo#e it before any organ of the ,nited -ations, including the International 5ourt of Custice.
'his re;uirement is intended to prevent States from entering into secret treaties and in general to ensure
publicity for treaties.
'reaties, nowadays, are registered with the Secretariat of the ,nited -ations which then publishes
them in the ,nited -ations 'reaty Series ?,-'S@. 'he ,-'S provides a useful source of reference for
the conclusion and contents of treaties.
In addition, the 4ienna 5onvention on the Law of 'reaties re;uires the designation of depositary of a
treaty. 'his designation may be made by the negotiating States, either in the treaty itself or in some other
manner. 'he depositary may be one State or more States, an international organi8ation or the chief
administrative officer of the organi8ation. 'he depositary has functions of considerable importance
relating to> #eeping custody of the original te*t of the treaty, any instruments, notifications and
communications related to the treaty6 giving certified copies of the treaty and transmitting them to the
concerned States6 receiving any signatures, instruments, notifications and communications related to the
treaty6 and informing the States parties to the treaty about the entry into force of the treaty. -otably,
the ,nited -ations Secretariat plays a significant role as depositary of multilateral treaties.


Section ': ()ser!ance and Application of Treaties

9nce treaties enter into force, they must be observed and applied by the parties. 9bservance and
application of treaties are sub+ect to certain established principles and rules.

A. ()ser!ance of Treaties [1*]

'he Latin principle $Pacta Sunt Servanda", which means that treaties shall be observed, is the
fundamental principle of the customary law of treaties and the very foundation of International Law.
'his principle is included in the Dreamble and Article 21 of the ./1/ 4ienna 5onvention on the Law of
'reaties, which states that $[e]very treaty in force is binding upon the parties to it and must be performed
by them in good faith." Another long(standing principle of customary international law included in
Article 2< of the 5onvention is that $[a] party may not invo#e the provisions of its internal law as
+ustification for its failure to perform a treaty."
According to these two principles, the parties to a treaty are under a duty to observe the treaty in good
faith, and a duty not to invo#e its internal law as +ustification for failure to perform the treaty.

B. Application of Treaties

,nder the 4ienna 5onvention on the Law of 'reaties, the application of treaties is sub+ect to the
following rules>

?.@ -on(Aetroactivity of 'reaties [23]

'he 4ienna 5onvention provides that the provisions of a treaty, unless a different intention appears
from the treaty or is otherwise established, do not bind a party to it in relation to any act or fact which
too# place or any situation which ceased to e*ist before the date of the entry into force of the treaty with
regard to that party. 'he general rule here is that a treaty does not operate retroactively6 any fact, action
or situation must be assessed in the light of the rules of law that are contemporary with it, not of the
provisions of the subse;uent treaty, unless a contrary agreement so provides.

?2@ 'erritorial Scope of 'reaties [2.]

'he 4ienna 5onvention provides that unless a different intention appears from the treaty or is
otherwise established, a treaty is binding upon each party in respect to its entire territory. 'his is a
general rule, but it is possible for a State to stipulate that the treaty will apply only to part of its territory.

?&@Application of Successive 'reaties Aelated to the Same Sub+ect )atter [22]

Sometimes, it happens that a party to a treaty subse;uently enters into another treaty related to the
same sub+ect matter, and that the provisions of the two treaties are inconsistent6 or it happens that the
other party or parties to the second treaty may or may not also be parties to the first treaty. 'hese
situations raise certain problems which need to be resolved. Article &3 of the 4ienna 5onvention lays
down the rules which constitute the general guide to be followed in resolving such problems. It is still
possible, however, for the parties themselves to resolve the raised problems by their mutual agreement.
,nder Article &3, the rights and obligations of States parties to successive treaties related to the same
sub+ect(matter shall be determined in accordance with the following rules>

a. %hen a treaty specifies that it is sub+ect to, or that it is not to be considered as incompatible with, an
earlier or later treaty, the provisions of that other treaty prevail.
b. %hen 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, the earlier treaty applies only to the e*tent that its
provisions are compatible with those of the later treaty.
c. %hen the parties to the later treaty do not include all the parties to the earlier one>
i. as between States parties to both treaties, the earlier treaty applies only to the
e*tent that its provisions are compatible with those of the later treaty6
ii. 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.

In case of treaties concerning the same sub+ect(matter and having incompatible provisions, the
presumption is that the later treaty prevails over the earlier treaty. A treaty may provide e*pressly that it
is to prevail over subse;uent incompatible treaties6 this is the case of Article .3& of the 5harter of the
,nited -ations which stipulates that $[i]n the event of a conflict between the obligations of the )embers
of the ,nited -ations under the present 5harter and their obligations under any other international
agreement, their obligations under the present 5harter shall prevail." =urthermore, a particular treaty
prevails over other treaties if it includes peremptory norms of general international law ?jus cogens@, i.e.
norms accepted and recogni8ed by the international community of States as a whole as norms from
which no derogation is permitted and which can be modified only by subse;uent norms of general
international law having the same character.

?0@ 'reaties and 'hird States [2&]

'he Latin principle $pacta tertiis nec nocent nec prosunt", which means that a treaty creates neither
right nor obligation for third States ?not parties to the treaty@ without their consent, is a general principle
which constitutes part of the customary international law.[20] 'he reasons for this principle can be
found in the fundamental principles of the sovereignty and independence of States, which contemplate
that States must consent to rules before they can be bound by them. 'his principle is codified in article
&0 of the ./1/ 4ienna 5onvention on the Law of 'reaties as a general rule corollary of the principle of
consent and of the sovereignty and independence of States. :owever, this 5onvention states certain
e*ceptions to this general rule.
=irst, the 5onvention provides that an obligation may arise for a third State from a provision of a
treaty if the parties to the treaty intend the provisions of the treaty to be the means of establishing the
obligation, and the third State e*pressly accepts that obligation in writing. In such a case, the obligation
may be revo#ed or modified only with the consent of the parties to the treaty and of the third States,
unless it is established that they have agreed otherwise.
Second, the 5onvention provides that a right may arise for a third State from the 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, unless the treaty provides
otherwise. In such a case, the right may not be revo#ed or modified by the parties to the treaty if it is
established that the right has not been intended to be revo#ed or modified without the consent of the third
State. In e*ercising such a right the third State is re;uired to comply with the conditions for its e*ercise
provided for in the treaty or established in conformity with the treaty. 'hird, the 5onvention provides
that a rule of a treaty may become binding upon a third State if it becomes a part of customary
international law.
An e*ample of a treaty imposes obligation upon non(party State is the .2.7 agreement concerning the
neutrali8ation of Swit8erland. 'he apparent e*amples of rules which are binding upon third States as
customary international law are the rules of the .2// and ./3< :ague 5onventions concerning land
warfare, and the principles stated in Article 2 of the 5harter of the ,nited -ations, especially those
related to the peaceful settlement of disputes and the prohibition of resorting to threat or use of force. As
far as rights conferred upon third States by a treaty are concerned, there are many treaties containing
provisions in favor of third States ?pactum in favorem tertii@. *amples of such treaties are the ././
'reaty of 4ersailles which contains provisions in favor of Eenmar# and Swit8erland, and the .222
5onstantinople 5onvention which contains provisions guaranteeing freedom of passage for ships through
the Sue8 5anal.


Section +: ,nterpretation of Treaties ["-]

Interpretation of treaties is the most fre;uent focus of disputes arising with regard to treaties. Because
language is not a perfect means for e*pressing legal rules, ambiguities and uncertainties in treaty(te*ts
are common phenomena. 'hus interpretation of treaties has been a ma+or tas# in International Law.
9bviously the parties to a treaty have competence to interpret a treaty, but other entities may perform
such a tas#. 'he treaty itself may confer competence on an ad hoc tribunal, an international organ, or the
International 5ourt of Custice ?I5C@. 'he 5harter of the ,nited -ations is interpreted by the organs of the
,nited -ations, which may re;uest advisory opinions from the I5C.
Interpretation of treaties is a rational process of clarifying and elucidating the meaning of unclear and
ambiguous treaty provisions. Its purpose is to ascertain in good faith the intention of the parties. It is
governed by numerous principles and rules developed by international tribunals, publicists, organs of
international organi8ations and diplomatic practice. 'hough, there is no coherent and mandatory system
of rules of treaty interpretation in International Law.
'he ./1/ 4ienna 5onvention on the Law of 'reaties, however, lays down certain fundamental rules
and guidelines for treaty interpretation. It contains specific provisions concerning general rules of treaty
interpretation, supplementary means of interpretation, and interpretation of treaties authenticated in two
or more languages.[21]
A. Feneral Aules of 'reaty Interpretation [2<]

'he first general rule for treaty interpretation provided by the 4ienna 5onvention is that $[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 conte*t and in the light of its ob+ect and purpose."[22] 'his rule is the te*tual approach of
treaty interpretation.
'he conte*t of a treaty for the purpose of interpretation comprises, in addition to its te*t, including its
preamble and anne*es, any agreement and instrument related to it and made in connection with its
conclusion. 'ogether with the conte*t of a treaty, should be ta#en into account any subse;uent
agreement between the parties regarding the interpretation of the treaty or the application of its
provisions, any subse;uent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation, and any relevant rules of International Law applicable in relations
between the parties.
'he second general rule for treaty interpretation provided by the 5onvention is that $[a] special
meaning shall be given to a term if it is established that the parties so intended."[2/] 'his is the
$intention of the parties" approach of treaty interpretation.
:owever, there are other established approaches of treaty interpretation not provided for in the 4ienna
5onvention on the Law of 'reaties. Among these approaches is $the principle of effectiveness" which
involves the interpretation of the terms of a treaty in a way that will render the treaty most effective and
useful. 'his principle is of particular importance in the interpretation of multilateral treaties establishing
international organi8ations.

B. Supplementary )eans of Interpretation [&3]

'he 4ienna 5onvention provides that $[r]ecourse may be had to supplementary means of
interpretation, including the preparatory wor# of the treaty and the circumstances of its conclusion",[&.]
when the meaning resulting from the application of the above general rules needs to be confirmed, or
when the interpretation according to the said general rules leaves the meaning ambiguous or obscure, or
leads to a manifestly absurd or unreasonable result.

5. Interpretation of 'reaties Authenticated in 'wo or )ore Languages [&2]

In case of a treaty authenticated in two or more languages, as often happens with multilateral treaties,
the 4ienna 5onvention provides that when a comparison of the authentic te*ts discloses a difference of
meaning which the application of the provided general rules and supplementary means of interpretation
does not remove, $the meaning which best reconciles the te*ts, having regard to the ob+ect and purpose
of the treaty, shall be adopted."[&&] -evertheless, the 5onvention provides that the treaty may provide
or the parties may agree that, in such a case, a particular te*t shall prevail.

Section -: A.end.ent and /odification of Treaties

Although amendment and modification of treaties are two processes share a common aim which is an
alteration or revision of a treaty, they are two separate processes accomplished by different manners and
sub+ect to different rules and conditions. Amendment relates to a formal alteration or revision of certain
treaty provisions or the treaty as a whole, affecting all the parties to that treaty. )odification relates to
an alteration or revision of certain treaty provisions as between particular parties only. 'hus the ./1/
4ienna 5onvention on the Law of 'reaties deals with these two processes in separate articles.

A. Amendment of 'reaties [&0]

'he 4ienna 5onvention refers to three manners to accomplish amendments to treaties. 'he first
manner is that a treaty may be amended by agreement between the parties. In such a manner, the rules
described by the 4ienna 5onvention which are related to the conclusion and entry into force of a treaty
will be applied.
'he second manner is that a treaty may be amended in accordance with the procedure laid down in the
treaty itself. )ultilateral treaties, particularly those establishing international organi8ations, normally
provide detailed procedure for amendments. 'he 5harter of the ,nited -ations, for e*ample, lays down
in Articles .32 and .3/ the procedure for its amendments and revision. ,nder these Articles such
amendments or revision shall ta#e effect when adopted and ratified by two(thirds of the members of the
,nited -ations, including all the permanent members of the Security 5ouncil.
'he third manner is that a treaty may be amended in accordance with the basic rules of procedure
described by the 4ienna 5onvention. 'he 4ienna 5onvention specifies that any proposed amendment
must to be notified to all contracting States. All contracting States shall have the right to participate in
the decision as to the action to be ta#en in regard to such proposal, and in the negotiation and conclusion
of any agreement for the amendment of the treaty. very State entitled to become a party to the treaty is
also entitled to become a party to the treaty as amended. 'he amendment will not bind any State already
a party to the original treaty which is not a party to the amending agreement. Any State which becomes a
party to the treaty after the entry into force of the amending agreement, unless it intends otherwise, is
considered as a party to the treaty as amended in relation to parties bound by the amending agreement,
and as a party to the unamended treaty in relation to any party to the treaty not bound by the amending
agreement.

B. )odification of 'reaties [&7]

'he 4ienna 5onvention provides that two or more of the parties to a multilateral treaty may conclude
an agreement to modify the treaty as between themselves alone if one of two conditions is fulfilled. 'he
first condition, if $the possibility of such a modification is provided for by the treaty."[&1] 'he second
condition, if $the modification in ;uestion is not prohibited by the treaty" and provided it $does not affect
the en+oyment by the other parties of their rights under the treaty or the performance of their obligation,
and $does not relate to a provision, derogation from which is incompatible with the effective e*ecution of
the ob+ect and purposes of the treaty as a whole."[&<] 'he 4ienna 5onvention re;uires, however, that
unless in the first mentioned case or if the treaty provides otherwise, the parties in ;uestion must notify
the other parties of their intention to conclude the agreement and of the modification to the treaty.


Section 0: Ter.ination and Suspension of the (peration of Treaties

Eespite the general rule that $[e]very treaty in force is binding upon the parties to it and must be
performed by them in good faith,"[&2] the 4ienna 5onvention provides that a treaty may be terminated,
denounced, withdrawn from or suspended. 'he 5onvention provides that the termination of a treaty, its
denunciation, the withdrawal of a party or the suspension of its operation $may ta#e place only as a result
of the application of the provisions of the treaty or of the present 5onvention."[&/] 'he applicable rules
to such instances, provided by the 5onvention are as such>

A. 'ermination of a 'reaty [03]

'ermination of a treaty means the end of the operation of a treaty, resulting in depriving all the parties
of all the rights, and in releasing them from performing further obligations, under the treaty. ,nder the
4ienna 5onvention termination of a treaty or the withdrawal of a party may ta#e place either in
conformity with the provisions of the treaty, or at any time by consent of all the parties after consultation
with the other contracting States. Actually, most of the modern treaties contain provisions for their
termination or for the withdrawal of a party. A treaty may provide that it shall come to an end
automatically after a certain time, or at the occurrence of a particular event. A treaty may give a party a
right to withdraw from it after giving a certain period of notice.
%here a treaty does not contain any provision regarding its termination and does not provide for
denunciation or withdrawal, it will not be sub+ect to the denunciation or withdrawal, unless it is
established that the parties intended to admit such a possibility, or such a right is implied by the nature of
the treaty. In such cases, however, a party must give at least twelve monthsG notice of its intention to
denounce or withdraw from the treaty.
'he 5onvention specifies the reasons for terminating a treaty. =irst, a treaty may be terminated by
the conclusion of a later treaty related to the same sub+ect(matter, if it appears that the matter is to be
governed by that treaty or 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. Second, a treaty may
be terminated as a conse;uence of its breach. A material breach of a treaty which consists in either a
repudiation of the treaty not permitted by the 4ienna 5onvention or the violation of a provision essential
to the accomplishment of the ob+ect or purpose of the treaty entitles the other parties to terminate the
treaty. 'hird, a treaty may be terminated by the impossibility of performance resulting from the
permanent disappearance or destruction of an ob+ect indispensable for the e*ecution of the treaty. =orth,
a treaty may be terminated when a fundamental change of circumstances occurs with regard to those
e*isting at the time of the conclusion of that treaty. =ifth, a treaty may be terminated by reason of the
severance of diplomatic or consular relations between parties to the treaty. :owever, such event does not
affect the legal relations established between the parties e*cept in so far as the e*istence of diplomatic or
consular relations is indispensable for the application of the treaty. =inally, if a new peremptory norm of
general international law emerges, any e*isting treaty which is in conflict with that norm terminates.
As regard the conse;uences of termination of a treaty, the 5onvention provides that unless the treaty
provides otherwise or the parties agree otherwise, the termination of a treaty releases the parties from any
further obligation to perform the treaty6 however, it does not affect any right, obligation or legal situation
of the parties created through the e*ecution of the treaty prior to its termination.

B. Suspension of the 9peration of a 'reaty [0.]

Suspension of the operation of a treaty means the ma#ing of a treaty temporary inoperative in regard
to either all or a particular party. ,nder the 4ienna 5onvention, suspension of the operation of a treaty,
li#e termination, may ta#e place either according to the provisions of the treaty or at any time by consent
of all the parties. 'wo or more parties to a multilateral treaty may conclude an agreement to suspend the
operation of provisions of the treaty, temporary and as between themselves alone if $the possibility of
such a suspension is provided for by the treaty," or $the suspension in ;uestion is not prohibited by the
treaty" and provided it $does not affect the en+oyment by the other parties of their rights under the treaty
or the performance of their obligation," and $is not incompatible with the ob+ect and purposes of the
treaty.[02] :owever, unless the treaty provides otherwise, the parties in ;uestion must 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. 'reaties sometimes provide for the possibility of suspension of the entire
treaty or some of its provisions in particular circumstances.
,nder the 5onvention, a treaty may be suspended by the following circumstances> .@ the conclusion
of a later treaty related to the same sub+ect matter, if it appears from the later treaty or otherwise
established that such was the intention of the parties6 2@ a material breach of a treaty which consists in
either a repudiation of the treaty not permitted by the 4ienna 5onvention or the violation of a provision
essential to the accomplishment of the ob+ect or purpose of the treaty6 &@ the temporary impossibility of
performing a treaty6 or 0@ a fundamental change of circumstances occurs with regard to those e*isting at
the time of the conclusion of that treaty.
Suspension of the operation of a treaty releases the parties from any further obligation to perform the
treaty during the period of suspension6 however, it does not affect any right, obligation or legal situation
of the parties created through the e*ecution of the treaty prior to its suspension.


Section 1: ,n!alidity of Treaties

Invalidity of a treaty means nullity of a treaty or its particular provisions because of the e*istence or
absence of certain circumstances or conditions affecting its legal status. 5ustomary international law
does not provide clear and acceptable rules governing validity or invalidity of treaties. 'he ./1/ 4ienna
5onvention on the Law of 'reaties, however, provides some general rules on this matter. 'his
5onvention describes rules governing invalidity of treaties in general, grounds for invalidity of treaties,
and conse;uences of the invalidity of treaties.

A. Feneral Aules on Invalidity of 'reaties [0&]

'he 4ienna 5onvention on the Law of 'reaties provides that $[t]he validity of a treaty or the consent
of a State to be bound by a treaty may be impeached only through the application of the present
5onvention."[00] ,nder the 5onvention, a ground for invalidating ?as well as for terminating,
withdrawal from or suspending the operation of a treaty@ may be invo#ed only with respect to the whole
treaty, e*cept where the ground relates solely to particular clauses which are separable and unessential,
or relates to a material breach of a treaty by one of the parties. A State cannot invo#e a ground for
invalidating ?as well as for terminating, withdrawal from or suspending the operation of a treaty@ if, after
becoming aware of the fact, it e*pressly agreed that the treaty is valid or remains in force, or it, by reason
of its conduct, may be considered as having ac;uiesced in the validity of the treaty or in its continuance
in force or in operation.

B. Frounds for Invalidating 'reaties

'he 4ienna 5onvention specifies the following grounds for invalidating treaties>

.@ )anifest violation of a provision of fundamental importance of StateGs internal law regarding
competence to conclude treaties>[07] A violation is manifest $if it would be ob+ectively evident to any
State conducting itself in the matter in accordance with normal practice and in good faith."[01]
2@ Lac# of the StateGs representative appropriate full powers.[0<]
&@ *cess of authority by the representative>[02] Such an e*cess will be a ground to invalidate a
treaty if the specific restriction imposed by the State upon its representative to e*press its consent to be
bound by the treaty was notified to the other negotiating States prior to his e*pressing such consent.
0@ rror>[0/] A State may invo#e an error in a treaty as invalidating its consent to be bound by the
treaty if the error relates to a fact or situation mista#enly assumed by that State to e*ist at the time when
the treaty was concluded, and that fact or situation forms an essential basis of its consent to be bound by
the treaty. If the State in ;uestion contributed by its own conduct to the error or if it was put on notice
of a possible error, it is not allowed to invo#e such an error as a ground for invalidating its consent. An
error relating only to the wording of the te*t of a treaty does not affect its validity.
7@ =raud>[73] A State may invo#e the fraud as invalidating its consent to be bound by the treaty if it
has been induced to conclude that treaty by the fraudulent conduct of another negotiating State.
1@ 5orruption of a representative of a State>[7.] A State may invo#e the corruption of its
representative as invalidating its consent to be bound by the treaty if the e*pression of its consent has
been procured through the corruption of its representative directly or indirectly by another negotiating
State.
<@ 5oercion of a representative of a State>[72] Acts or threats directed personally against a
representative of a State as an individual in order to procure the e*pression of a StateGs consent to be
bound by a treaty render such e*pression of consent without any legal effect.
2@ 5oercion of a State by the threat or use of force>[7&] 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
5harter of the ,nited -ations.
/@ 5onflict of the treaty with an e*isting and emerging peremptory norm of general International Law
?Jus Cogens@>[70] A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm
of general International Law. If a new peremptory norm of general International Law emerges, any
e*isting treaty conflicting with that norm becomes void and terminated.

5. 5onse;uences of Invalidity of 'reaties [77]

'he conse;uences of invalidity of treaties vary according to the nature of the ground of invalidity. 'he
4ienna 5onvention ma#es a distinction between void and voidable treaties. In cases of lac# of full
powers, coercion of a representative, coercion of a State and conflict with an e*isting and emerging of
peremptory norm of general international law, the treaty is void, which means that the e*pression of
consent of the State to be bound by the treaty is without any legal effect from the beginning ?ab initio@.
In cases of violation of the internal law of the State, e*cess authority by the representative, error, fraud,
and corruption of the representative, the treaty is probably voidable rather than void6 the treaty is valid
until the State claims that it is invalid. 'he State may invo#e the ground to invalidate the treaty.
:owever, this right may be lost for the following reasons> ?a@ if after becoming aware of the fact, the
concerned State e*pressly agreed that the treaty is valid or remains in force or it, by reason of its conduct,
may be considered as having ac;uiesced in the validity of the treaty or in its continuance in force or in
operation6 or ?b@ if the concerned State contributed by its own conduct to the error or was put on notice of
a possible error.
'he 5onvention provides that an invalid treaty is void and without any legal effect. If acts have
nevertheless been performed in reliance on such a treaty, each party may re;uire any other party to
establish as far as possible in their mutual relations the position that would have e*isted if the acts had
not been performed. Acts performed in good faith before the invalidity was invo#ed are not rendered
unlawful by reason only of invalidity of the treaty.


Section 2: 3rocedures to )e $ollowed with espect to ,n!alidity% Ter.ination% 4ithdrawal fro.%
or Suspension of the
(peration of a Treaty [-0]

'he 4ienna 5onvention provides that a party invo#ing a ground to invalidate a treaty, terminate it,
withdraw from it or suspend its operation, must notify, in writing, the other parties of its claim and give
them time to ma#e ob+ections before it ta#es any action. If after the e*piry of a period which shall not be
less than three months from the receipt of the notification, no ob+ection has been raised by any party, the
party ma#ing the notification may carry out the measures it has proposed. If, however, ob+ection has
been raised by any party, the parties must see# a solution through the peaceful means indicated in Article
&& of the 5harter of the ,nited -ations.
If no solution is reached within twelve months, the dispute is to be submitted to a special conciliation
commission set up under an anne* to the 5onvention or, in cases of dispute involving peremptory norms
of general International Law to be submitted to the International 5ourt of Custice ?I5C@.