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TREATIES
Question Bank
1. Explain different stages in the conclusion of treaties.
2. What do you mean by treaties? Explain various modes by which a state may express its consent to be bound by treaties.
3. Explain the concept of treaties. What are the various modes by which treaties can be terminated?
4. Explain in detail the process of the conclusion of treaties.
5. Explain in detail the Law of treaties and its codification.
6. What do you mean by âTreatiesâ? How can treaties be terminated?
Short Notes
1. Rectification of treaties.
2. Termination of treaties.
3. Pacta Sunt Servanda.
SYNOPSIS
I. Meaning and Definition of âTreatyâ
1. Definition by Oppenheim
2. Definition by the Harvard Draft Convention
3. Statutory Characterization under the Vienna Convention
II. Kinds of Treaties
1. Classification by Oppenheim
a) Law-Making Treaties
b) Treaties for Other Purposes (Treaty-Contracts)
2. Classification by Number of Parties
a) Unilateral Declarations / Treaties
b) Bilateral Treaties
c) Multilateral Treaties
3. Classification by Lord McNair
a) Treaties Having the Character of Conveyances
b) Treaties Having the Character of a Contract
c) Law-Making Treaties
i. Constitutional Treaties:
ii. Pure Law-Making Treaties:
d) Treaties Akin to Charters of Incorporation
III. Formation and Conclusion of a Treaty
1. Accrediting of Persons by Contracting States
2. Negotiation
3. Authentication and Signature
4. Ratification
5. Accession or Adhesion
6. Entry into Force
7. Registration and Publication
IV. Termination of Treaties
1. By Consent of the Parties
2. By Denunciation or Withdrawal
3. By Concluding a Subsequent Treaty
4. By Material Breach
5. Supervening Impossibility of Performance
6. As Per Internal Treaty Provisions
7. Doctrine of Fundamental Change of Circumstances (Rebus Sic Stantibus)
V. Pacta Sunt Servanda
VI. Short Notes on the Consent of States
1. Consent by Signature
2. Consent by Exchange of Instruments
3. Consent by Ratification
a) Purpose of Ratification
b) Modes of Ratification
c) Refusal of Ratification
4. Consent by Accession
VII. Landmark Judgments on the Law of Treaties
VIII. Conclusion
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I. Meaning and Definition of âTreatyâ
Treaties constitute the bedrock and most critical direct source of modern Public International Law. A treaty represents a binding legal instrument created by sovereign States to regulate their mutual conduct and establish actionable standards. This mechanism transfers abstract principles of international jurisprudence into concrete, enforceable statutory commitments.
1. Definition by Oppenheim
According to Lassa Oppenheim,
âInternational treaties are agreements of a contractual character, between states or organisations of States, creating legal rights and obligations between the parties.â
2. Definition by the Harvard Draft Convention
The Harvard Draft Convention on the Law of Treaties defines it as:
âA formal instrument of agreement by which two or more states establish or seek to establish a relation under international law between themselves.â
3. Statutory Characterization under the Vienna Convention
In contemporary international law, these classical descriptions are codified under Article 2(1)(a) of the Vienna Convention on the Law of Treaties (VCLT), 1969. The VCLT provides that a treaty is 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.
Synthesizing these definitions highlights the essential characteristics and core ingredients of a treaty:
a. It must be an international agreement reflecting a clear intention to create legal relations.
b. It must be concluded between recognized subjects of international law (primarily sovereign States and international organizations).
c. It must be executed in written form to ensure precision and prevent ambiguity.
d. It must be governed strictly by the principles of public international law rather than domestic municipal law.
e. It can be structured either as a single comprehensive instrument or split across multiple interconnected documents (such as an exchange of notes or protocols).
f. The specific nomenclature used does not alter its binding legal nature. Depending on its context and scope, a treaty may also be designated as an International Agreement, Protocol, Covenant, Convention, Charter, Statute, or Concordat.
From an Indian constitutional standpoint, the power to enter into and implement international treaties is an exclusive sovereign attribute of the Central Government. Under Article 246 read with Entry 14 of List I (Union List) of the Seventh Schedule to the Constitution of India, the Parliament holds the exclusive power to legislate on "entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries."
II. Kinds of Treaties
Jurists categorize treaties based on their structural objectives, operational mechanisms, and the number of participating contracting parties.
1. Classification by Oppenheim
Oppenheim divides treaties into two functional categories based on their capacity to generate general norms:
a) Law-Making Treaties
These treaties are concluded to lay down general, universally applicable rules of conduct among a large number of States. They function like international legislation, shaping customary international law. The Charter of the United Nations is a primary example of a law-making treaty, establishing the apex global body and setting rules on the prohibition of force. Other examples include the Geneva Conventions of 1949 and the United Nations Convention on the Law of the Sea (UNCLOS).
b) Treaties for Other Purposes (Treaty-Contracts)
Unlike law-making treaties, these instruments are non-legislative. They are concluded between a limited number of states to settle specific, narrow bilateral mattersâsuch as a boundary delimitation, a trade agreement, or a transit pact. They operate like private contracts, binding only the signatory parties to a specific performance rather than creating broad global norms.
2. Classification by Number of Parties
Treaties are also classified by their structural membership:
a) Unilateral Declarations / Treaties
While a treaty traditionally requires a meeting of minds between two or more actors, certain unilateral acts or declarations made by a State publicly and with an intent to be bound can create binding international legal obligations. The International Court of Justice (ICJ) affirmed this principle in the landmark Nuclear Tests Case (Australia v. France, 1974), ruling that unilateral public declarations by state authorities can create binding legal obligations under international law, even without reciprocity.
b) Bilateral Treaties
Bilateral treaties are concluded exclusively between two sovereign States or between a State and an international organization. They regulate specific mutual interests, such as Extradition Treaties or Bilateral Investment Treaties (BITs).
c) Multilateral Treaties
Multilateral treaties are open to a large number of sovereign states. They are negotiated at international conferences to establish broad frameworks for global governance, such as the Paris Agreement on Climate Change.
3. Classification by Lord McNair
Lord McNair proposed a detailed structural classification, widely regarded as a comprehensive breakdown of treaty typologies:
a) Treaties Having the Character of Conveyances
These treaties operate like real estate conveyances in property law. They register permanent territorial dispositions, land cessions, or boundary demarcations. Once executed, the territorial status quo becomes an objective international reality that survives independently of the treaty's active operation.
b) Treaties Having the Character of a Contract
These instruments mirror commercial contracts, where two or more states agree to specific mutual performances or transactional exchanges, such as direct commodity trade pacts.
c) Law-Making Treaties
McNair sub-divided these legislative instruments into:
i. Constitutional Treaties: Treaties that establish permanent international judicial or political organs. A primary example is the Rome Statute, which created the International Criminal Court (ICC), or the Statute of the International Court of Justice (ICJ).
ii. Pure Law-Making Treaties: Frameworks that establish general statutory standards to regulate state conduct over specific subject matters. Examples include the global labor conventions drafted by the International Labour Organization (ILO) or international environmental pacts.
d) Treaties Akin to Charters of Incorporation
These unique multilateral instruments create independent international administrative unions or specialized functional bodies. The historical Treaty of Berne (1874), which established the Universal Postal Union (UPU), is a classic example of a treaty functioning like a charter of incorporation.
III. Formation and Conclusion of a Treaty
Public international law does not mandate a single, rigid procedural format for concluding an international treaty. Under the VCLT framework, contracting states are free to adopt a format that suits their specific constitutional needs, provided their intent to be bound is clear. Despite this procedural flexibility, state practice has established a sequence of formal steps for the negotiation, validation, and entry into force of a treaty.
[Accrediting of Plenipotentiaries] â [Negotiation] â [Authentication & Signature] â [Ratification] â [Accession/Adhesion] â [Entry into Force] â [Registration with UN]
1. Accrediting of Persons by Contracting States
The initial phase requires states to designate authorized representatives to conduct negotiations. These agents are termed Plenipotentiaries. To validate their capacity, representatives must hold a formal instrument issued by the competent state authority (typically the Head of State, Head of Government, or Minister of Foreign Affairs) known as "Full Powers". This document explicitly authorizes them to negotiate, adopt, or authenticate the text of the treaty.
Under Article 7 of the VCLT, certain state officials do not need to produce full powers due to their high office. These include Heads of State, Heads of Government, and Ministers of Foreign Affairs. Similarly, Heads of Diplomatic Missions do not require full powers for the purpose of adopting a treaty text between their sending state and the state to which they are accredited.
2. Negotiation
Once credentials and full powers are verified, the plenipotentiaries begin formal negotiations. During this phase, proposals are submitted, debated, and adjusted to align the national interests of the participating states. Representatives maintain regular communication with their home governments to secure technical inputs during the drafting process.
3. Authentication and Signature
When the final text is settled, it is prepared for authentication. Under Article 10 of the VCLT, authentication is the formal procedure that establishes the drafted text as correct, definitive, and unalterable. This is typically achieved through initialing (ne varietur) or by appending signatures to the text.
The act of signing carries distinct legal consequences depending on the terms of the treaty. For simple treaties, a signature indicates a state's definitive consent to be bound. For more complex instruments, a signature represents an act of authentication, leaving the text subject to formal ratification by the state's domestic authorities.
Even when a signature is subject to ratification, Article 18 of the VCLT obligates the signatory state to refrain from acts that would defeat the object and purpose of the treaty during the interim period before its formal entry into force.
4. Ratification
Ratification is the formal international act whereby a state confirms its consent to be bound by a treaty on the international plane. The executive head of state or government reviews the authenticated text signed by its representatives and issues a formal instrument of ratification. This process serves a dual purpose: it allows states to secure necessary domestic parliamentary approvals and enables a thorough review of the treaty's long-term domestic implications before assuming binding international obligations.
5. Accession or Adhesion
Accession occurs when a State that did not originally negotiate or sign a treaty chooses to become a full party to it later. This mechanism is common in open multilateral conventions.
Adhesion represents a related variant where a non-signatory state accepts the framework of an active treaty, sometimes with a focus on specific provisions or administrative chapters, after the treaty has been ratified by the required number of original states.
6. Entry into Force
A treaty enters into forceâbecoming legally binding upon the contracting statesâin accordance with the specific terms set out within its text. Simple treaties often take effect immediately upon signature. In contrast, complex multilateral treaties typically require the deposition of a specified number of formal instruments of ratification with a designated depository before they take effect.
7. Registration and Publication
Following its entry into force, every international treaty must be registered and published. Article 102 of the United Nations Charter mandates that every treaty and international agreement entered into by any Member of the United Nations must be registered with the UN Secretariat and published by it as soon as possible.
The primary objective of this rule is to eliminate secret diplomacy and covert military alliances, which historically destabilized global peace. Article 102 provides a clear sanction: if a treaty is not registered, it cannot be invoked by any party before any organ of the United Nations, including the International Court of Justice (ICJ). However, failure to register an active treaty does not render it void; it remains binding on the parties inter se, but cannot be used within the institutional framework of the UN.
IV. Termination of Treaties
Part V, Section 3 of the Vienna Convention on the Law of Treaties codifies the grounds under which a validly concluded international treaty can be legally terminated or suspended.
1. By Consent of the Parties
Under Article 54(b) of the VCLT, a treaty may be terminated at any time by the mutual consent of all participating contracting parties, following consultation with the other contracting states.
2. By Denunciation or Withdrawal
Denunciation occurs when a state party unilaterally withdraws from a treaty, terminating its obligations under that framework. If a treaty contains an explicit clause permitting denunciation, a state can withdraw by following the specified notice procedure.
Under Article 56 of the VCLT, if a treaty contains no explicit provision regarding its termination, denunciation, or withdrawal, it cannot be unilaterally denounced unless:
a. It is established that the parties originally 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.
A state intending to denounce a treaty under these exceptions must provide at least twelve months' notice of its intention to the other parties.
3. By Concluding a Subsequent Treaty
Under Article 59 of the VCLT, an existing treaty is considered terminated if all its parties conclude a subsequent treaty relating to the same subject matter, provided:
a. It appears from the subsequent treaty or is otherwise established that the parties intended the matter to be governed by that treaty; or
b. The provisions of the subsequent treaty are so far incompatible with those of the earlier one that the two treaties are incapable of being applied at the same time.
4. By Material Breach
Under Article 60 of the VCLT, a material breach of a bilateral treaty by one party entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. A material breach is defined as:
a. A repudiation of the treaty not sanctioned by the VCLT; or
b. The violation of a provision essential to the accomplishment of the object or purpose of the treaty.
In multilateral contexts, a material breach allows the other parties, by unanimous agreement, to suspend or terminate the treaty's operation either in relations between themselves and the defaulting State or among all parties.
5. Supervening Impossibility of Performance
Under Article 61 of the VCLT, a state may invoke the impossibility of performance as a ground for terminating or withdrawing from a treaty if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. Examples include the permanent drying up of a riverbed central to a water-sharing treaty or a natural disaster that destroys a specific island enclave.
Importantly, if the impossibility is temporary, it can only be invoked as a ground for suspending the operation of the treaty. A state cannot invoke this ground if the impossibility results from its own breach of an obligation under the treaty.
6. As Per Internal Treaty Provisions
A treaty terminates automatically if it contains a sunset clause or expiration dateâsuch as a provision stating the pact will expire after twenty yearsâor if it terminates upon the completion of a specific project, such as the construction of a shared trans-national bridge.
7. Doctrine of Fundamental Change of Circumstances (Rebus Sic Stantibus)
Under Article 62 of the VCLT, the doctrine of rebus sic stantibus allows for the termination or withdrawal from a treaty due to a fundamental change of circumstances. To prevent states from abusing this doctrine to escape inconvenient obligations, international law applies it under strict conditions:
a. The change must be fundamental and must relate to circumstances existing at the time the treaty was concluded.
b. The existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty.
c. The effect of the change must radically transform the scope of obligations still to be performed under the treaty.
Article 62 explicitly prohibits invoking a fundamental change of circumstances if the treaty establishes a certain boundary, or if the fundamental change results from a breach by the party invoking it.
The International Court of Justice clarified the boundaries of this doctrine in the landmark GabÄĂkovo-Nagymaros Project Case (Hungary v. Slovakia, 1997). The ICJ held that environmental developments and political changes did not alter the core obligations of the treaty radically enough to satisfy the requirements of Article 62, ruling that the treaty remained valid and binding.
V. Pacta Sunt Servanda
The doctrine of Pacta Sunt Servanda is the foundational maxim of the international law of treaties. This Latin term dictates that agreements must be kept. It establishes that every existing treaty in force is binding upon the parties to it and must be performed by them in good faith.
The doctrine was advanced by early natural law jurists, including Hugo Grotius, who identified it as an essential rule of natural justice necessary for coexistence among nations. It provides the legal basis that prevents international relations from collapsing into systemic disorder.
Prominent positive and analytical juristsâsuch as Dionisio Anzilotti, Lassa Oppenheim, and Hans Wehbergâemphasize that once a sovereign state voluntarily binds itself to an international agreement, it cannot unilaterally withdraw from or alter those commitments without the free consent of the other contracting parties.
The status of this doctrine is reinforced across key international instruments:
1. The London Declaration of 1871 affirmed that no power can liberate itself from the engagements of a treaty, nor modify its stipulations, except by the consent of the contracting parties.
2. The League of Nations Council (1935) formally reaffirmed the sanctity of treaties as a requirement for global security.
3. Article 2(2) of the United Nations Charter mandates that all Members shall fulfill in good faith the obligations assumed by them in accordance with the Charter.
4. Article 26 of the Vienna Convention on the Law of Treaties (1969) codifies the rule under the title "Pacta sunt servanda", stating: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith."
Crucially, Article 27 of the VCLT complements this doctrine by establishing that a party may not invoke the provisions of its internal municipal law as a justification for its failure to perform a treaty obligation.
VI. Short Notes on the Consent of States
A treaty cannot impose binding legal obligations upon a sovereign State without its explicit, voluntary consent. This rule reflects the principle of sovereign equality, as expressed in the maxim pacta tertiis nec nocent nec prosuntâa treaty does not create either obligations or rights for a third State without its consent. States can manifest their consent to be bound through several recognized methods:
1. Consent by Signature
When a treaty is designed as a simple agreement, or explicitly states that a signature will carry definitive legal weight, the act of signing by an authorized plenipotentiary expresses the state's consent to be bound. However, for major conventions, a signature serves primarily to authenticate the text, leaving the state's final consent subject to subsequent ratification.
2. Consent by Exchange of Instruments
States can express their consent by exchanging formal declarations, letters, or diplomatic notes. Under this method, the instruments exchanged contain an explicit clause stating that the act of exchange indicates definitive consent to be bound.
Historical examples include the agreement on the Limitation of Naval Armaments (1935) concluded between the United Kingdom and Germany via an exchange of notes. Similarly, the Kingdom of Saudi Arabia and the Emirate of Bahrain resolved complex maritime borders and territorial issues using an exchange of letters.
3. Consent by Ratification
Ratification is the formal process whereby a state's highest executive authority confirms the signature appended by its plenipotentiary, establishing its consent to be bound on the international plane. As defined under Article 2 of the VCLT, ratification serves to bring treaty-making under domestic constitutional scrutiny.
a) Purpose of Ratification
The practice of requiring ratification is standard for open multilateral treaties due to several practical considerations:
i. In democratic states, it ensures that the legislature can review international obligations negotiated by the executive branch.
ii. It provides governments an opportunity to re-examine the treaty's long-term implications.
iii. A state can choose to withdraw from a signed framework by withholding its ratification.
iv. It offers an interim period for the state to amend its domestic legislation to align with its new international commitments.
b) Modes of Ratification
Ratification is an internal constitutional process governed by the domestic laws of each state. Consequently, procedures vary across jurisdictions:
i. India: Treaty-making and ratification fall under the executive power of the Union. Treaties are formally executed and ratified by the President of India on the binding advice of the Union Cabinet, led by the Prime Minister. Unlike the United States, there is no blanket constitutional requirement for prior parliamentary approval before ratification, unless the treaty requires implementing legislation that alters domestic laws or involves the cession of Indian territory, as ruled by the Supreme Court in the landmark In Re: Berubari Union Case (1960).
ii. United Kingdom: The power to ratify treaties rests with the Crown under the Royal Prerogative. However, under the Ponsonby Rule (codified in the Constitutional Reform and Governance Act 2010), treaties must be laid before Parliament for 21 sitting days before ratification can proceed.
iii. United States: The President ratifies treaties, but can only do so with the "Advice and Consent" of the US Senate, requiring a two-thirds majority vote of the senators present under Article II, Section 2 of the US Constitution.
c) Refusal of Ratification
A state is under no legal obligation to ratify a treaty it has signed. It can refuse ratification either expressly or by withholding consent indefinitely. However, treaties linked to international security can carry significant political weight, and states that refuse to ratify major global instruments may face political pressure within organs like the UN Security Council.
4. Consent by Accession
Accession is the method by which a State that did not participate in the original negotiations or sign the initial text chooses to become a party to a pre-existing treaty. Accession carries the same legal weight as a signature followed by ratification and is common in broad multilateral conventions that remain open for global membership.
VII. Landmark Judgments on the Law of Treaties
The application of treaty obligations within domestic jurisdictions has been shaped by landmark rulings in Indian and international courts:
1. In Re: Berubari Union and Exchange of Enclaves [AIR 1960 SC 845] (Supreme Court of India)
The Central Government sought to implement an agreement with Pakistan involving the exchange of border enclaves. The Supreme Court of India held that while the executive has the power to enter into treaties under its external sovereign capacities, any treaty arrangement that involves the actual cession of Indian territory to a foreign power cannot be implemented by simple executive action or standard legislation under Article 3. Instead, it requires a formal Constitutional Amendment under Article 368.
2. In Maganbhai Ishwarbhai Patel v. Union of India, [AIR 1969 SC 783],
The Supreme Court considered a challenge to the implementation of the Indo-Pakistan Western Boundary Tribunal Award relating to the Rann of Kutch. The Court held that where an international agreement or arbitral award merely demarcates or clarifies a disputed international boundary, and does not involve the cession of territory that is unquestionably part of India, its implementation does not require a constitutional amendment under Article 368. Distinguishing the earlier opinion in In Re: The Berubari Union and Exchange of Enclaves, the Court observed that the Executive may implement such a boundary settlement in the exercise of its treaty-making power, provided no alteration of the Constitution or municipal law is necessary.
3. In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, [AIR 1984 SC 667], The Supreme Court examined the relationship between international law and municipal law in India. The Court held that India broadly follows the dualist approach with respect to treaties, under which treaty obligations do not automatically become enforceable in municipal law unless incorporated by appropriate legislation where necessary. At the same time, the Court recognised that rules of customary international law are ordinarily regarded as part of municipal law, provided they are not inconsistent with the Constitution, an Act of Parliament, or binding judicial precedent. The Court further observed that municipal courts should, wherever possible, interpret domestic law consistently with India's international obligations; however, where an express conflict exists between an Act of Parliament and an international obligation, the parliamentary enactment prevails within the Indian legal system.
4. In Vishaka v. State of Rajasthan, [AIR 1997 SC 3011],
The Supreme Court addressed the absence of legislation regulating sexual harassment of women at the workplace. Referring extensively to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to which India is a party, the Court held that international conventions and norms consistent with the Fundamental Rights and not inconsistent with domestic law may be relied upon as interpretative aids in constitutional adjudication. Exercising its powers under Articles 32, 141 and 142 of the Constitution, the Court framed the Vishaka Guidelines to prevent and redress workplace sexual harassment, holding that these guidelines would operate as binding law until Parliament enacted suitable legislation. The judgment reaffirmed that international human rights instruments may be utilised to give meaningful content to the guarantees of equality, non-discrimination, dignity and personal liberty embodied in Articles 14, 15, 19(1)(g) and 21 of the Constitution.
VIII. Conclusion
Treaties serve as a vital instrument for cross-border cooperation and the maintenance of global order. Grounded in the principle of Pacta Sunt Servanda, they provide a structured framework that binds sovereign states to their commitments, balancing national sovereignty with the requirements of an interconnected international community.
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