treaties

Question 1

introduction

Answer 1

Treaties are the first and foremost source of International law. Whenever an International Court has to decide an international dispute, its first endeavor is to find out whether there is an international treaty on the point or not.
In case there is an international treaty governing the matter under dispute, the decision of the court is based on the provisions of the treaty. International treaties occupy the same significant position in the field of international law as the legislation occupies in the municipal law.

Question 2

2. Definitions of Treaty

Answer 2

Prof. Oppenheim: “International treaties are agreements of a contractual character between States or Organizations of States creating legal rights and treaties”.
McNair: “A written agreement by which two or more States or International organization create or intend to create relations between themselves operating within the spheres of International Law”.
The term treaty has also been defined in the Vienna Convention on the Law of Treaties, 1969. Article 2(1) (a) of the Convention defines treaty as “an international agreement concluded between States in written form and governed by international law”.

Question 3

3. Basis of the Binding Force of International Treaties

Answer 3

In the view of the Italian jurist, Anzilotti, the binding force of international treaty is on account of the fundamental principle known as ‘Pacta Sunt Servanda’.

Question 4

‘Pacta Sunt Servanda’.

Answer 4

According to this principle, States are bound to fulfill in good faith the obligations assumed by them under treaties.

Question 5

The principle was reaffirmed in Article 26 of the 1969

Answer 5

Convention, and underlies every international agreement. “Every treaty in force is binding upon the parties to it and must be performed by them in good faith” [2]

Question 6

Parties Competent to Make a Treaty

Answer 6

Generally, only Sovereign States are competent to make a treaty.
In accordance with the principle of sovereignty sovereign states have unlimited powers to make treaties.

Question 7

Formation of a Treaty

The main steps in the formation of a treaty are:

Answer 7

1 Accrediting of persons who conduct negotiations on behalf of the contracting states (Arts.7 & 8 of Vienna Convention)
2 Negotiation and adoption (Art.9)
a. Authentication ,signature and exchange of instruments
b.Ratification
c. Accessions and adhesions
d.Entry into force
e.Registration and publication

Question 8

Reservation of a Treaty

Answer 8

A state may be willing to accept most of the provisions of a treaty, but it may, for various reasons, object to other provisions of the treaty. I n such cases states often make reservations when they become parties to a treaty. The term “reservation” has been defined in Article 2(1) of the Vienna Convention on the Law of Treaties, 1969.

Question 9

TERMINATION OF TREATIES

Answer 9

A treaty can be terminated by (1) the operation of law and by the (2) act or acts of the state parties.

Question 10

1 By the Operation of Law:

Answer 10

1 Expiry of time
2 Fulfillment of object
3 Extinction of the parties
.4 Outbreak of War
5 Impossibility of Performance
6 Rebus Sic Standibus
7 Jus Cogens

Question 11

1 Expiry of time

Answer 11

If the treaty has been concluded for a fixed period of time, the expiration of the fixed term will automatically terminate the treaty.

Question 12

2 Fulfillment of object

Answer 12

In case of treaties imposing no continuous obligation, it may cease to operate on the fulfillment of the object.

Question 13

3 Extinction of the parties

Answer 13

If one of the parties is extinguished by annexation or merger, it may cease to operate. For e.g.: the treaty between USA and Tripoli came to an end when the latter was annexed by Italy in 1912.

Question 14

4 Outbreak of War

Answer 14

The treaties may be suspended or terminated at the outbreak of the war.
general, political and good relations are essential, cease at war.
Treaties relating to complete situations such as fixation of boundaries shall not cease.
The treaties relating to the rule of war remain in force and binding upon the parties.
Some multilateral treaties relating to health, service, protection of industrial property do not completely end. They remain suspended and revived at the end of the war.

Question 15

5 Impossibility of Performance

Answer 15

Article 61 of the Vienna convention stated that “the impossibility of performance is a valid ground for the termination of the treaty”.

Question 16

6 Rebus Sic Standibus

Answer 16

When the fundamental or material circumstance under which a treaty is concluded or change, it gives room for the termination of the treaty.
There may be situations in which the continued application of treaty may be both contrary to the shared expectations on the parties and an intolerable burden on them.

Question 17

7 Jus Cogens

Answer 17

A treaty may be declared void if it conflicts with a preemptory norm (jus cogens) of international law. According to Article 53 of the Vienna Convention the treaty is void, if at the time of conclusion it conflicts with peremptory norm of international law.

Question 18

By The Act of State Parties

Answer 18

Consent of The Parties

Notice of Termination or by Act of Denunciation

Question 19

Consent of The Parties

Answer 19

According to Article 54 of the Vienna convention, it will be considered as terminated, if all the parties to it conclude a subsequent treaty relating to the same subject matter.

Question 20

Notice of Termination or by Act of Denunciation

Answer 20

If a state party wishes to withdraw from a treaty, it usually does so by notice of termination or by denunciation. The term “denunciation’’ means notification by a state to the other state parties that it intends to withdraw from the treaty. Ordinarily the treaty itself provides denunciation, or state concerned may, with the consent of other parties, have reserved a right of denunciation.