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“Law Master’s” Publication

“Treaties”

Prof. S.D. Bhosale

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Treaties

Question Bank

Explain different stages in the conclusion of treaties.

1.

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.

5.

6.

Explain in detail the process of the conclusion of treaties.

Explain in detail the Law of treaties and its codification.

What do you mean by ‘Treaties’? 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 ‘Treaty’-

1. According to ‘Oppenheim’-

2. According to Harvard Draft Convention-

II. Kinds of Treaties-

1. According to Oppenheim-

a. Law-making treaty-

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b. Treaties for other purposes-

2. According to the parties to the treaty-

a. Unilateral Treaty-

b. Bilateral treaty-

c. Multilateral treaties-

3. According to M C Nair-

III. Formation /conclusion of the treaty-

1. Accrediting of persons by the 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-

(3) By concluding another treaty-

(4) By material breach-

(5) Impossibility of performance-

(6) As per provisions of the treaty-

(7) By fundamental change of circumstances-

V. Pacta Sunt Servanda-

Short Notes

a) 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-

I. Meaning and Definition of ‘Treaty’-

Treaties are an important source of International Law. A treaty is a law created by

the states among themselves. Different writers have given different definitions of the

treaty. We will discuss some of them as follows-

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1. According to ‘Oppenheim’- ‘International treaties are agreements of a contractual

character, between states or organisations of States, creating legal rights and obligations

between the parties.

2. According to the Harvard Draft Convention-

“Treaty is a formal instrument of the agreement by which two or more states

establish or seek to establish a relation under international law between themselves”.

Thus, from the above definitions, we may say that the treaty means (i) an

International agreement, (ii) concluded between states, (iii) in written form, (iv)

governed by International Law, (v) whether embodied in a single instrument. or in two

or more related instruments (vi) in any form. We may say that the above are the

characteristics or ingredients of treaties.

A treaty may also be called an ‘International agreement’, ‘Protocol’, ‘Covenant’,

“Convention’ etc.

II. Kinds of Treaties-

Different Jurists have classified treaties differently. We will discuss some of them

as follows-

1. According to Oppenheim-

Oppenheim classified treaties into-

a. Law-making treaties-

Law-making treaties are those which are concluded for the purpose of laying down

general rules of conduct among a considerable number of States. United Nations Charter

(UN) is the best example of a Lawmaking treaty; a number of States have created the

U.N. apex body of law-making.

b. Treaties for other purposes-

‘Treaties for other purposes are created for purposes other than lawmaking.

2. According to the parties to the treaty-

According to the number of parties to the treaty, treaties are classified as follows-

a. Unilateral Treaty-

Unilateral treaties are those that bind only one state.

b. Bilateral treaty-

Bilateral treaties bind both States to the treaty.

c. Multilateral treaties-

Multilateral treaties are those which bind more than two states.

3. According to M. C. Nair-

M. C. Nair classifies treaties as follows-

a. Treaties having two characters of conveyances.

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b. Treaties having the character of the contract.

c. Law-making treaties-

It is subdivided into-

(i) Treaties creating constitutional Law, e.g. creating the International Court of Justice.

(ii) Pure Law Making treaties, e.g. several Labour conventions negotiated by

international Labour Organisations.

d. Treaties akin to charters of incorporation-

The 1874 treaty establishing the Universal Postal Union is an example of a treaty

‘akin to characters of incorporation’.

This classification is known as the perfect classification of treaties.

III. Formation /conclusion of the treaty-

International Law does not prescribe any specific form or procedure for the

conclusion of a treaty. Therefore, parties are free to choose what form they please enter.

However, their intention must clearly result from it. Since there is no particular form in

the formation of the treaty, there is no precise procedure or standard in the formation

thereof. Though there is no specific form of formation of the treaty, the following steps

are generally adopted in its formation or conclusion.

1. Accrediting of persons by the contracting States-

The very first step in the conclusion of a treaty is the appointment of the

representatives. Those representatives are also called ‘plenipotentiary’. Those

representatives should be equipped with the necessary authority for the conclusion of a

treaty by the Heads of their States. Such authority is called “full power”. The

representatives are required to exchange their full powers. However, “full power is not

necessary in all cases, e.g. where the treaty is being concluded by the Heads of the States,

Heads of Governments, Ministers of Foreign Affirms, Heads of Diplomatic Missions

etc.

2. Negotiation-

After an exchange of full power or authority, representatives start negotiations.

The proposals of the negotiating parties are put forward, discussed, harmonised and

tentatively agreed upon. The representatives may consult their Government while

negotiating a treaty.

3. Authentication and signature-

After the completion of negotiation and preparation of the final draft of the treaty,

the draft is ready for signature. A treaty comes into force after the signatures of the

representatives of the States. However, some treaties, after signature, may be kept for

ratification by their Heads. Such treaties take effect after ratification by the Head of the

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State. Thus, the signature of representatives and ratification gives authentication to the

treaty. (Discussed in short notes also).

4. Ratification-

Ratification implies the confirmation of the treaty by the head of the State or the

State Government. As discussed above, some treaties may be subject to ratification by

the Heads of that State. Such treaties only come into existence through ratification by

the head of the state. (Further discussed in short notes also).

5. Accession or Adhesion-

‘Accession’ is the acceptance of a treaty by the State that has not been signed.

Thus, the state that has not signed the treaty may accept the treaty later on. It takes place

in multilateral treaties. ‘Adhesion’ is acceptance of a treaty by some more States, even

after it is already ratified by the requisite number of States. (Discussed in short notes

also).

6. Entry into force-

‘Entering into force’ means becoming biding of the treaty upon signatory or

ratifying States. Actual entry into force depends upon the provisions of the treaty. Some

treaties enter into force immediately after the signatures of representatives. However,

some treaties come into force only after the ratification of the State Heads.

7. Registration and publication-

Registration and publication of every international treaty are essential.

Registration and publication of the treaty in the United Nations are necessary. Otherwise,

the treaty cannot be invoked before any organ of the United Nations. The purpose of

this provision is to prevent States from making secret agreements, and the purpose of the

publication is to make known to all citizens of the State the nature of the treaty entered

into by their State.

IV. Termination of treaties-

As per S. 3 of Part V of the Vienna Convention, treaties come to an end in the

following ways-

(1) By consent of the parties-

The treaty ends with the consent of all its parties (Art. 54 (b)).

(2) By denunciation-

The treaty, which does not make provision for its termination either by the expiry

of the period or on completion of the object or event, the treaty can be terminated by

withdrawal from it by either party to the treaty. The withdrawal from the treaty is called

denunciation. According to Art. 56 of the Vienna Convention, if a treaty does not

especially provide for its (i) termination, (ii) denunciation, or withdrawal, it cannot be

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denounced or withdrawn (i) unless other parties admit it, or (ii) there is implied provision

of denunciation found in treaty.

The party intending denunciation or withdrawal should give twenty months’ notice

of its intention to the other party of the treaty.

(3) By concluding another treaty-

A treaty shall be considered terminated if all the parties to it conclude another

treaty regarding the same subject matter (Art. 59 (i)). An earlier treaty shall be considered

terminated if it appears from the subsequent treaty that the parties intended that the

matter should be governed by the subsequent treaty.

(4) By material breach-

A material breach of a bilateral treaty by one of the parties entitles the other party

to invoke the breach as a ground for termination of the treaty (Art. 60). ‘Material Breach’

of a treaty means, violation of a provision essential for the accomplishment of the object

or purpose of the treaty.

(5) Impossibility of performance-

A treaty can be terminated if it becomes impossible to perform (Art. 61).

Impossibility of performance may occur after the conclusion of the treaty if a subsequent

event or development makes the performance of the treaty impossible, e.g., permanent

destruction of the subject matter of a treaty, the disappearance of a party or subject matter

of a treaty, natural calamity making the object of the treaty impossible, etc.

(6) As per provisions of the treaty-

A treaty may be terminated as per its provisions.

(7) By fundamental change of circumstances-

As per Art. 62 of the Vienna Convention, ‘the occurrence of the fundamental

change in the circumstance (i.e. rebus sic stantibus) may terminate the treaty.

V. Pacta Sunt Servanda-

“Pacta sunt servand’ is a Latin term. It means ‘the States are bound to fulfil in

good faith the obligations assumed by them under treaties”. The doctrine is propounded

by Grotius. It is one of the most elementary and universally agreed principles of

International Law. The doctrine is the basis of validity and binding force of lawfully

concluded treaties. In other words, it keeps the sanctity of treaties at the International

level. The doctrine also embodies a rule of natural justice.

Anzilotti, Prof. Oppenheim, Hans Wehberg, etc., follow this theory. It is well

established that once a state has bound itself by agreement in a treaty, it cannot withdraw

from its obligation, nor can it modify the treaty without the consent of the other state

parties.

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The sanctity of the doctrine of “Pact sunt servant is kept intact by several

International declarations, such as the Declaration of 1871, by Great Britain, France,

Italy, Prussia, Russia, etc., in April 1935 by League of Nations Council, by Art. 2 (2) of

United Nations Carter, Art. 26 of Vienna Convention in 1969 etc.

Short Notes

Consent of States-

The Treaty is binding upon the State only when it is consented to by that State.

There are the following ways of giving consent.

1. Consent by signature-

After the completion of negotiation and preparation of the final draft of the treaty,

the draft is ready for signature. A treaty comes into force after the signatures of the

representatives of the States. However, some treaties, after signature, may be kept for

ratification by their Heads. Such treaties take effect after ratification by the Head of the

State. Thus, the signature of representatives and ratification gives authentication to the

treaty.

2. Consent by Exchange of Instruments-

If the States have agreed to it, the mere exchange of instruments constitutes

consent of the State. The instrument so exchanged constitutes the clause that mere

exchange of it constitutes the effect of consent.

Sometimes, in addition to the exchange of instruments, a treaty may be concluded

through the exchange of notes or letters. In 1935, the UK and Germany agreed to the

“Limitation of Naval Armaments” by exchanging notes. Similarly, the King of Saudi

Arabia and the Amir of Bahrain concluded a treaty concerning ‘Maritime Delimitation

and Territorial Questions’ through exchanging letters.

3. Consent by Ratification-

Ratification implies the confirmation of the treaty by the head of the State or the

Government of the State. As discussed above, some treaties may be subject to ratification

by the Heads of that State. Such treaties come into existence only by Ratification of the

Head of that State. Art. 2 of the Vienna Convention lays down that ratification is an

international act whereby a State establishes on the international plane its consent to be

bound by a treaty. The process of ratification is used to submit the executive's treaty-

making power to parliamentary control. Thus, the Legislators also know the nature of

the treaty and its effect on the State.

(a) Purpose of Ratification-

Presently, all the treaties are required to be ratified by the States. This practice is

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compulsorily adopted in multilateral treaties. The purposes of ratification of the treaty

are as follows-

(i) In a democracy, citizens and parliamentarians should know the treaty entered into on

behalf of their State by the Government. They should get their opinion in the

formation of a treaty.

(ii) the signatory states get an opportunity to re-examine and review the treaty signed by

their representatives.

(iii) a State can even withdraw from a treaty by non-ratification.

(iv) The state may get time between signature and ratification to amend its own Law to

give necessary effect to the treaty.

(b) Modes of Ratification-

Ratification is an internal process of the State, governed by its internal usages and

processes. Therefore, the process of ratification differs from State to State. There is no

universal process of ratification as such. For example, in India, a treaty is ratified by the

President on the advice of the Central Cabinet. In the U.K., the Crown ratifies a treaty of

advice of the concerned minister. In the U.S.A., the President ratifies the treaty with the

advice and consent of the Senate (with two-thirds of the senator’s presence).

(c) Refusal of ratification-

It is not binding upon the State to ratify the treaty. The state may refuse to ratify

the treaty expressly or impliedly by non-ratifying it within the stipulated period or

withholding consent (if no time limit is framed for its ratification). After its signing, the

State may refuse ratification. However, some treaties having an effect on international

peace need to be ratified, or else non-signing states may face the wrath of the Security

Council of the U.N.

4. Consent by Accession-

‘Accession’ is the acceptance of a treaty by the State that has not been signed.

Thus, the State which has not signed the treaty may accept the treaty latter on. It takes

place in multilateral treaties. ‘Adhesion’ is acceptance of a treaty by some more States,

even after it is already ratified by the requisite number of States.

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