The term “treaty” has regularly been used as a generic term to refer to all instruments binding at international law concluded between international agencies. This has been confirmed at both the 1969 Vienna Convention and the 1986 Vienna Convention. According to the 1969 Vienna Convention a treaty can be defined as “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”. The 1986 Vienna Convention has expanded this definition to include international agreements involving international organizations as parties. Since 1946, there has been a large number of treaties being signed partly as a result of the expansion of the international community and partly due to the refashioning of important topics of general international law in treaty form, under the UN auspices (Roseanne and Nijhoff, 28).
According to the 1969 Vienna Convention, treaties are a source of international law and they must be seen as a means of establishing peace between nations. A treaty must have the following criteria: it must be a binding instrument – implying that the parties signing it intend to create legal rights and duties; the instrument must be concluded by states or international organizations with treaty-making power; thirdly, it must be governed by international law and finally, the treaty has to be concluded in writing. Thirdly, it has to be governed by international law. Finally, the engagement has to be in writing. The importance of the content, the frequent changes in the personnel of the agencies through which treaties are concluded and the inability to confirm by witness the utterances of a state make it very important for treaties to be carefully expressed in writing (Crandall, 3). Moreover, it must be ensured that they are signed through free consent and in good faith and by persons representing the State. A treaty that is signed by a person who is not authorized to represent the state for that purpose is considered invalid till it is confirmed by that State (Article 8). The adoption of the treaty takes place with the consent of all the States participating in its drawing it is accepted at an international conference by two-thirds majority votes.
Interpretation of Treaties
The rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties is applied to virtually all treaties concluded in an international context and within national legal systems where treaties do have an impact. According to the rules of interpretation laid down in international law, the correct meaning of a treaty does not correspond to its literary meaning but rather to the “intention of the parties” (Linderfalk, 30). There are three features of treaties to be noticed before attempting to interpret them: Treaties are often an expression of multiple utterances and give voice to utterances from each and every individual Secondly, treaties often deal with several layers of information depending on the intentions of the parties. Thirdly, treaties are not the only expression of multiple utterances; these utterances could also be of different content depending on the negotiating states (Linderfalk, 32).
Articles 31, 32, and 33 of the 1969 Vienna Convention deal with the interpretation of Treaties. According to these articles, a treaty can be interpreted in good faith according to the direct meaning given to the terms of the treaty in the context of its objective and purpose. The context for the purpose of interpretation includes the preamble and annexes of the treaty as well. Moreover, subsequent agreements between the parties concerned and relevant rules of international law shall be taken into consideration. However, depending upon the parties’ intent, a special meaning can be given to a term. A basic rule of interpretation, expressed in Article 32 of the Vienna Convention on the law of Treaties is that it must not leave the meaning ambiguous or obscure or lead to a result that is manifestly absurd or unreasonable. In such cases when the meaning is ambiguous, the preparatory work of the treaty and the circumstances under which it was drafted may be included in the interpretation. In the case of the reinterpretation of the Anti-Ballistic Missile Treaty (ABM Treaty) between the United States and the Soviet Union in 1985, President Reagan asserted the Executive would be empowered to read the ABM Treaty and allow technological work to develop missile defense systems. There was huge opposition to the empowerment of the Executive. However, the ultimate success of the executive reinterpretation of the treaty was mostly due to the inherent presence of ambiguous terms (Sullivan, 800). Article 33 says that when the treaty is authenticated in two or more languages, the text is considered to be equally powerful in each language unless specified otherwise. The terms of the treaty are interpreted in the same way in the different languages unless there is a difference in meaning despite including context, in which case, the best meaning that suits the objective of the treaty is taken as the right one.
Validity of Treaties: Article 42 -53
Samuel B. Crandall says that for treaties to be valid, it is important that the contracting parties have power over the subject matter, that consent is reciprocally and regularly given, and that the object of the treaty is possible and lawful under the accepted principles of international law (Crandall, 2). Christopher C. Joyner lists three conditions for a treaty to be considered valid: The parties to an agreement must be capable of contracting legal instruments. For example, while fully sovereign states such as the United States, Canada, and France have that power, California, Saskatchewan, and Burgundy may not. Secondly, the validity of an international document depends on the authority granted to the agents entrusted with the negotiation. They can only be people who are authorized to negotiate on behalf of the government. The third element of validity is freedom of consent (Joyner, 115). The Vienna Convention stipulates five grounds on which the validity of an agreement may be challenged and they are: non-compliance with national law requirements; error; fraud and corruption; coercion; and jus cogens (Wallace, 267) where jus cogens refer to peremptory norms of international law.
Article 42 states that the validity of a treaty holds true till it is voted out in the Convention. Its termination or denunciation may take place only through the provisions of the treaty itself or through the Convention. The invalidity of a treaty or its termination will not interfere with the obligations of the State that it otherwise holds under international law (Article 33). A party may withdraw from the treaty only with respect to the whole treaty unless otherwise specified in the treaty or mutually agreed by the parties. If any party withdraws only from certain clauses, those clauses must be independent of the remaining clauses in the treaty and must not be affecting the whole treaty. However, the parties cannot ask for invalidation or termination of, or withdrawal from a treaty if it has been agreed as part of the treaty that it is valid and will continue to be implemented.
The invalidity of Treaties: A State can conclude treaties only if it is in violation concerning an internal law of fundamental importance (Article 46). If there is a mistake in the treaty a State may say that it is invalid only if the error is related to a basic assumption made by the State while signing the treaty. All other errors will not invalidate a treaty (Article 48). In case of a State being forced to sign the treaty by fraudulent means or through threat, then, the State may invoke the fraud as invalidating its consent to the treaty (Article 49, Article 51). If the signature of the signing authority has been obtained through corruption directly or indirectly, the State may invoke such corruption as invalidating its consent (Article 50). A treaty also becomes void when it was concluded as a result of threat or use of force, violating the principles of the UN Charter (Article 52). A treaty is nullified when at the time of its conclusion it conflicts with the peremptory norms of international law (Article 53) (Slomanson, 2006).
Termination of Treaties: Articles 54-64
Treaties can become extinct when “their time limit expires or when in the course of their existence, they are unable to perform the specific purpose of the contract or are superseded by a subsequent agreement’s entry into force” (Joyner, 116). Treaties may be dissolved by mutual consent, express renunciation by a party, or a denunciation or withdrawal by notice in accordance with terms of the instrument. The most obvious way to terminate a treaty is when the agreements contain specific terms for the termination in their provisions. Sometimes treaties may be ended through the explicit or tacit agreement of the parties involved in the treaty. Governments can end a treaty by implication, that is by concluding a new agreement the provisions of which replace those in the former document. Moreover, non-compliance by all parties to an agreement will legally render the instrument a dead letter.
A treaty may be terminated if it is in accordance with the provisions of the treaty or by the consent of all the parties involved in the treaty (Slomanson, 2006). Supposing the treaty is multilateral, it cannot be terminated based on the reason that the number of parties falls below its required number for action (Article 55). When the treaty has no provision for termination, it may be terminated if there is a hint that the parties intended to terminate at a future point in time, or if such a right to termination is implied by the nature of the treaty (Article 56). A treaty may be suspended with respect to all parties if it’s in accordance with the provisions of the treaty or through consultation with other parties. If it’s a multilateral treaty then two or more parties may suspend the treaty if the suspension is provided for by the treaty itself or if it’s found to be harmless and compatible with respect to the overall objective of the treaty (Article 58). Another way to terminate a treaty is by concluding another treaty relating to the same subject by the same parties, and if the provisions of the later treaty conflict with those of the first treaty (Article 59). When one of the parties breaches the treaty, the other party can invoke the breach as a ground for terminating the treaty or suspending it in whole or in part. Again according to Article 61, a treaty may be terminated if one of the parties finds it impossible to perform the treaty and it has not breached any obligation under the treaty or any other international obligation (Article 61) (Slomanson, 2006). Supposing there has been a fundamental change in the circumstances since the conclusion of the treaty that was not foreseen, the treaty may be terminated provided the circumstances are really vital to the implementation of the treaty and if the changes make it difficult to keep the obligations implied by the treaty. This is known as the concept of rebus sic stantibus, or the doctrine of changing circumstances (Joyner, 117). This doctrine of changing circumstances may be abused by one or more parties and hence it is emphasized that a complete change must have happened to consider it a change of circumstances. Joyner says: “The change of circumstances must be such that it renders the execution of the treaty difficult or impossible or that it requires the performance of obligations that were not foreseen by the contracting parties and had they been foreseen, would never have been undertaken” (Joyner, 117). For example, in 2002, the United States withdrew from its bilateral Antiballistic Missile Treaty with Russia. The reason given by the U.S. Government for the withdrawal was that the international threat environment had changed dramatically in the modern era of terrorism (Joyner, 117). Russia was not the main threat but certain rogue states were. A national missile defense system was very much needed for security purposes and hence the country had to withdraw from the treaty. Such a termination based on a change of circumstances cannot be invoked if the treaty establishes a boundary or if the fundamental change has been the result of a breach by one of the parties. Whenever a party seeks termination of a treaty, there is also the provision to seek suspension of the treaty (Article 62). A treaty is affected by the severance of diplomatic relations between parties if diplomatic relations are an essential part of the treaty (Article 63). Finally, if a new form of international law emerges, any existing treaty that is in conflict with its recent form becomes void and terminates (Article 64).
Works Cited
Candall, B. Samuel (2005). Treaties, Their Making and Enforcement. The Lawbook Exchange, Ltd., 2005
Joyner, C. Christopher (2005). International Law in the 21st Century: Rules for Global Governance. Rowman & Littlefield Publishers.
Linderfalk, Ulf (2007). On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties. Springer Publications.
Rosenne, Shabtai and Nijhoff, Martinus (2004). The Perplexities of Modern International Law, Boston.
Slomanson, William (2006). Fundamental Perspectives on International Law. Thomson-Wadsworth Publishers.
Sullivan, M. Scott (2008). Rethinking Treaty Interpretation. Texas Law Review, Vol. 86, 777-817. Web.
Wallace, M. Rebecca (2005). International law. Sweet & Maxwell Publishers.