International Law of Treaties - Case Study Example

International Law of Treaties: The Vienna Convention Introduction The Vienna Convention on the Law of Treaties (VCLT) is concerned with the international law involving different states. This convention got adopted on 22 May 1969 and one day later, it was opened for signature. On 27 January 1980, the convection took effect. By November 2010, 111 states had ratified the convention. To the extent that it is a restatement of the customary law, the states that are yet to ratify the convention may still acknowledge it to be binding them. According to VCLT, 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" (Article 2 [I] a) the convection also recognizes that any state has the power to conclude treaties. It is widely viewed as the authoritative guide in the formation of treaties (Brownlie607). Motivation With the globalization of various operations and increased international activities and concerns, the treaties are have become indispensable and more useful than ever. Basically, states’ motivation is founded on the idea that the treaties create an international framework of laws and rules upon which the international actors, particularly the states and related agencies, may operate with efficiency and orderliness. Treaties are equivalence of international or multinational contract, in which the concerned international subjects get to merge their wills for common good. Since a treaty will be regulating a subject of interest or significance to a member state, or because they regulate a subject that affects the state interest, a member state will often have an interest in ensuring that the treaty in question is enforced. Moreover, treaties serve the role of creating international mechanisms and institutions that enforce or help enforcing the interactional law. The enforcement quality of international law has often been cited as a major weakness of international law. Through treaties, the contracting states come together to agree on how their obligations and rights, as well as those of their citizens and agencies may be enforced. A good example to this effect are The Rome Statute and the Statute of ICJ, which have facilitated creation of international judicial institutions (courts and tribunals) through which various recognized international players may enforce their rights and obligations under the international law. Apart from creating legal rights and obligations for the states that are bound by the treaties, the treaties also create a moral obligation on the states to fulfill their obligations under the treaty. A number of international treaties are reactive in the sense that they are often enacted in response to matters of fundamental international or interstate concern. The moral force and sense of obligations thereby created increases the chances that the states will be conscious of their international obligations. States are therefore a form of indirect moral sanctions and some states may be motivated to participate in treaties just to beget a positive commitment from other international state actors. A states’ participation into a treaty reflects on the states’ commitment to meeting the obligations that are created by the treaty. As such, some states may ratify a particular treaty, in order to give a positive international image that they are committed to a particular international concern. For instance, as an attention that a state is committed to ensuring gender equality and eliminating all the systematic discriminations against women, a state may resort to ratifying The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), an international treaty that lays the fundamental principles to eliminated the said discriminations. The struggle to reflect is particularly common e with the developing and third world countries which often wish to impress their developed allies in order to win good relations and various forms of support. It is also likely to be found with the states that have a special interest in particular subject of the treaty, so as to show the rest of the world that the state is in the lime light of promoting the provisions of the treaty. Condition under Which a Treaty Bind A State and Enter Into Force A treaty enters into force when it starts binding the parties involved legally. The time at which the treaty should enter into force is determined by the provisions on the treaty itself. This time may be the date so specified in the treaty or the date that the depositary receives a specified number of approvals, ratifications, accessions or acceptances. A treaty that is already deposited with the Secretary-General relies on its provisions to determine when it enters into force. A state or an international organization may express its consent to be bound by a treaty that has entered into force. In that case, the treaty enters into force for the new parties in the manner specified in the treaty. (VCLT Article 24). A state only becomes a party to a treaty after expressing its consent to be bound by it. This consent can be expressed through accession, by an act of ratification, through approval or through acceptance. Under the international, law the state then becomes bound by the treaty. (VCLT article 2[1]{g}). While some treaties can only be entered into by states, other treaties also welcome some other entities with the capacity to make treaties. Ratification, Acceptance or Approval The above terms all refers to what is done on the international plane, in which a state expresses its consent to be bound by a treaty. A good number of multilateral treaties expressly provide room for the States to express their consent that a signature becomes binding on them subject to their ratification, approval or acceptance. Ratification refers to the act of a state signifying an agreement to be bound legally bound by the treaty’s terms. Ratifying the treaty involves first signing the treaty after which the state fulfils its legislative requirements. The national organ concerned - which may be the parliament, the head of state, the senate, the crown or a combination of the organs - comes to a formal decision to be bound by the treaty. A formal letter that is referring to the decision is prepared, signed by the concerned State’s authority, sealed and then deposited with the United Nations Secretary-General based in New York. A state ratifying a treaty may show an intention of being bound by the obligations thereby ratified through its acts and behaviors, a form of ratification called tacit ratification. A tacit occurs when a contracting party to a treaty, having been fully aware of an obligation owed by it to other parties, opts to accept the benefits arising from the obligation. It is also called implied ratification. The provision of a signature subject to ratification gives the state time to gain approval at the domestic level. It also provides time to enact the legislations that would enable the domestic implementation of the treaties, before taking the legal obligations imposed by the treaty at the international levels. The treaty that has been ratified by a state at the international level has to take effect at the domestic level. The state is held responsible to ensure that this happens. In general, the state is not restricted to a time span over which it should ratify the treaty after signing it. However, the state becomes legally bound by the treaty the moment it is ratified. Ratification may be done at two different levels, the national level and the international level. Ratification at the international level indicates to the international community that the state is committed to taking the obligations under the treaty. Ratification at the national level on the other had may be required of a state by its own constitution before expressing consent to be internationally bound by the treaty. Ratification done at the national level is not adequate to establish the intentions to get legally bound at the international level. The international requirements must therefore be undertaken as well. Accession is the act of a state which is yet to sign a treaty expressing its consent to become a party to it through depositing with the Secretary-General of the United Nations an "instrument of accession". The legal effect of accession is similar to that of acceptance, approval or ratification. Accession, unlike ratification, does not need to be proceeded by a signature to create a binding legal obligations; all that is required is the deposition of the instrument of accession. The Secretary-General, in his capacity as a depositary, tends to treat the ratifications that are not followed by a signature instrument of accession in which case the secretary general advices the states involved are advised accordingly. The provisions of the treaty in question determine the condition under which accession may be accepted. In most cases, accession is used by the states that would like to express their consent to be bound by a treaty yet the deadline for signature has passed. A good number of modern multilateral treaties provide for accession even when the period for signature is own. Signature is yet another important concept to entry into force. Multilateral treaties always provide for signature which is also referred to as simple signature. This signature is subjected to acceptance, approval or ratification. The signature simply indicates that the state has the intention of taking steps towards expressing its consent to be bound by the treaty later, but does not impose on the state a positive legal obligation on signing. In Qatar v. Bahrain, Jurisdiction and Admissibility, the court aptly made and observation that “an international agreement or treaty that has not been registered with the Secretariat of the United Nations may not, according to the provisions of Article 102 of the Charter, be invoked by the parties before any organ of the United Nations.” (122, para.29). This case highlights the role of registration in enforcement of a treaty. The court also made a comprehensive comment on the effect t of late registration in the enforcement of a treaty as thus: “Non-registration or late registration, on the other hand, does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties.” (at 122, para.29). Therefore, merely signing a treaty without ensuring that it is registered would render the treaty invalid and void. In the period between the times the signing is done to the time that ratification, acceptance or approval, is done, the state is obliged to avoid in good faith any acts that would work against the purpose or objectives of the treaty. (VCLT article 18) Conditions for Termination of a Treaty A staring point to understanding the conditions for termination of a treaty is to understand the provisions of Article 42(2) of the VCIT which states that “The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty.” This sub article fundamentally restricts the circumstances under which a state will terminate a treaty. It seeks to bar the mischief of contracting parties entering and terminating treaties at their wish, particularly when they merely wish to evade their obligations and liabilities arising from the contract. The specific grounds for termination of treaties, along with suspension and withdrawal from the treaty are covered under Section 3 (Article 54-64) of the Vienna Convention extensively. The convention identifies two broad categories of grounds for termination: (a) termination by consent, and (b) termination by operation of the treaty (VCIT). The former is provided for in Article 54 (b) which provides that a treaty would be terminated “at any time by consent of all the parties after consultation with the other contracting States.” The latter category encompasses a number of conditions prescribed by the Convention, which would lead or justify termination of a treaty. Under Article 55 of VCLT, unless the treaty itself thus provide, there would be no ground for termination of treaty if the number of the parties to the treaty reduces below the number that which was fixed as a threshold to allow the treaty enters into force. Similarly, a unilateral withdrawal or denunciation of a treaty where there is no provision in the treaty authorizing the same would not lead to termination of the treaty. Article 59 as read with Article 30 (2) are to the effect that conclusion of a later treaty would result into the termination or suspension of the earlier treaty. According to Article 30 (2) “When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.” The effect of this provision is that the latter treaty will only oust the previous treaty to the extent that there are inconsistencies and conflicts between the two treaties. The intension of the parties will also be relevant in deciding whether or not a former treaty will be terminated. According to Article 59 (1) “A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and: [i]t appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty.” Sub article (b) reiterates the requirement of inconsistencies between the two treaties (essentially that under Article 30). A material breach of a treaty by a party may entitle other parties, especially those materially affected by the breach, to invoke termination of the treaty (Article 60). However, the defaulting party may not rely on this ground, as it will be benefiting from its wrong doing. Article 60 sub article 3 of the VCLT defines material breach as consisting: “(a) A repudiation of the treaty not sanctioned by the present Convention; or (b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty.” However, this ground is not applicable with regards to protection of human beings arising from humanitarian treaties. Impossibility of performance, owing to a supervening event, is yet another ground for termination of a treaty by virtue of Article 61 of the treaty. However, such impossibility must be permanent. A temporary impossibility may only warrant a suspension. Moreover, such a ground will be defeated if the impossibility arose from a default in fulfilling the obligations under the treaty , or a breach of any other international obligation. Closely related to Article 61 is Article 62 which allows termination in the event that there is fundamental change of circumstances with regards to state of affairs that existed at concluding the treaty and the present. Such a change must not have been reasonably foreseeable. Morover , two fundamental condition must be met “ (a) The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.” (VCLT Article 62 [a] and [b]. This ground is not applicable in obligations relating to boarders and may not be relied upon by a party that was responsible for the change in circumstances. This was reiterated the ICJ in Aegean Sea Continental Shelf Case (Greece v. Turkey). Conclusion In the advent of globalization of globalization and increased international dealings, treaties have become vital. They help define and create obligations and rights of parties. They help create important international institutions and mechanisms. The Vienna Convention on the Law of Treaties (VCLT) plays a key role in interpreting, understanding and general application of the treaty thereby created. Works Cited Aegean Sea Continental Shelf Case (Greece v. Turkey), Judgment, ICJ Reports 1978, pp.35-36, Brownlie, Ian. Principles of Public International Law (5th ed.). Oxford: Oxford University Press. pp. 607–08. (1998) Qatar v. Bahrain, Jurisdiction and Admissibility, ICJ Reports 1994. Vienna Convention on the Law of Treaties. Vienna, 23 May 1969. Accessed at < http://fletcher.tufts.edu/multi/texts/BH538.txt> May 10, 2011. Read More