Vienna Convention On The Law Of Treaties

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Article 2

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the VCLT applies to ‘international agreement[s] concludedbetween States in written form and governed by international law, whether embodied in a singleinstrument or in two or more related instruments and whatever its particular designation’.

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Article 7

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who can conclude treaties? While the head ofstate (e.g. President, King/Queen), the head of government (e.g. Prime Minister), and foreign affairsministers will have this authority, other persons representing the state will have to produce‘appropriate full powers.’

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When do treaties become binding?

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Joining a multilateral treaty is normally a two-step process. Firstthere is signature, by which a state agrees to ‘adopt the text’ under negotiation. Second there isratification, where the state deposits with the depository the instrument of ratification that makes thetreaty binding for that state. The more general question is when a treaty enters into force, and that is usually determined by theterms of the treaty itself that may set certain pre-conditions (e.g. a specified number of statesparties). The time lag between signature and ratification is often used by states to put their domestic law inorder so that the treaty will be complied with when it is ratified and binds the state

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Article 18

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[ a] State is obliged to refrain from acts which would defeat theobject and purpose of a treaty when (a) it has signed the treaty...until it shall have made itsintention clear not to become a party to the treaty.’

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Article 2(1)(d)

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defines a reservation as ‘a unilateral statement, however phrased ornamed, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty,where it purports to exclude or to modify the legal effect of certain provisions of the treaty in theirapplication to that State.’

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Article 19

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A State may, when signing, ratifying, accepting,approving or acceding to a treaty, formulate a reservation unless:(a) the reservation is prohibited by the treaty; (b)the treaty provides that only specified reservations, which do not include thereservation in question, may be made; or (c) in cases not falling undersub-paragraphs (a) and (b), the reservation is incompatible with the object andpurpose of the treaty.

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Articles 20 and 21

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lack of objection does not ‘cure’ an incompatibility with the object andpurpose of a treaty, and a reservation can still be found invalid by a competent third partyadjudicator at any stage, even if no state party objected to it.

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What is the effect of an impermissible reservation?

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The traditional view isthat the effect of an impermissible reservation is to vitiate the consent of the reserving stateto the treaty as a whole, thus making it no longer a party to the treaty.

There is an increasing body of authority to suggest that the situation haschanged, at least as regards human rights treaties, to allow impermissible reservations tobe severed from the rest of the treaty, leaving the reserving state bound but without theprotection of its reservation.

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Article 26

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Pacta sunt servanda: ‘Every treaty in force isbinding upon the parties to it and must be performed by them in good faith’.

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Article 27

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A state party to a treaty may not invoke the provisions of its internal (i.e. domestic) law as ajustification for failing to perform a treaty

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Article 28

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Treaties are not retrospective (unless expressed to be retroactive)

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Article 30

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Dealing with the interaction between an earlier treaty and a later treaty,and situations where not all parties to the earlier treaty are parties to the later treaty

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Article 34

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A treaty is binding only on the states parties to it. Under Article 34 of the VCLT it is made clear thatthird states cannot be bound in the absence of their consent.

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Article 31(1)

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‘A treaty shall be interpreted in good faith with the ordinary meaning to be given to the terms of thetreaty in their context and in light of its object and purpose’

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Article 32

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Recourse may be had to supplementary means of interpretation...when the interpretationaccording to article 31 (a) leaves the meaning ambiguous or obscure, or (b) leads to a result whichis manifestly absurd or unreasonable.’

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Article 50

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Treaty void where there has been coercion of the state representative

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Article 51

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Treaty void where the state itself hasbeen coerced through the threat or use of force

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Articles 53 and 64

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Treaty void where the treaty is inconflict with a peremptory norm

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Article 48

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One party's consent can be terminated where there is an error of fact which formed an essential basis of its consent to bebound

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Article 49

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The circumstances in which a state may raise as grounds for invalidating its consent to be bound bya treaty where a state is induced to conclude a treaty by the fraudulentconduct of another negotiating state

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Article 46

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Void where expression of consent to be bound has violated a rule of internal law of fundamental importance,and the violation is ‘manifest’, that is ‘objectively evident to any State conducting itself ... inaccordance with normal practice and in good faith’

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Article 47

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Void where the authorityof a state’s representative to consent to a treaty was subject to a restriction, and that restriction wasnot observed, and other States had prior notice

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Article 69(4)

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Note that if any of thesebases of invalidity are established then a bilateral treaty will be void as there will be no validconsent. In contrast if the consent of one party to a multilateral treaty is invalid, then the treatycontinues to apply as between the other parties

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Article 55 and 57

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There may be ‘internal grounds’ for terminating treaties, that is to say termination may be possiblefollowing the terms of the treaty itself or if the parties mutually consent to termination

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Article 60

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There are also ‘external’ grounds for terminating treaties, that is to say there are grounds providedin treaty law for terminating a treaty where there has been material breach by another party tothe treaty

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Article 60(3)

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defines material breach as ‘a repudiation of the treaty not sanctioned by the presentConvention’ or ‘the violation of a provision essential to the accomplishment of the object or purposeof the treaty’.

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Article 61

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Treaty can be terminated where there issupervening impossibility of performance resulting from ‘the permanent disappearance ordestruction of an object indispensable for the execution of the treaty’

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Article 62

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Treaty can be terminated where there is a fundamental change in circumstances. To be made out it must beshown (a) the circumstances at the time of consent were an essential basis for that consent, (b) thechange of circumstances was unforeseen by the parties, (c) ‘the effect of the change is radically totransform the extent of obligations still to be performed under the treaty’; and (d) the change ofcircumstances was not brought about by a breach of the treaty committed by the party relying onthis ground for terminating the treaty.