Sketching Law of Treaties
All kinds of inter-state transactions are conducted through treaties, various international organizations are established by means if treaties, for example the International Labour Organization (ILO) which was established through the treaties of Versailles. Moreover, disputes between states are brought before the International Court of Justice (for instance in the Khulbhusan Jadhav case, the submission of jurisdiction was through optional protocol of Vienna Convention on Diplomatic Relations).
Most importantly treaties are considered to be one of the most important source of international law, keeping this in cognizance the International Law Commission, which is bestowed with the task of codification and progressive development of international Law created and adopted Law of Treaties (hereinafter referred to as ‘V.C.L.T) on 23rd may 1969, which entered into force on 27th January 1980. Primarily one has to understand the definition of treaties in international law, which is embodied under Article 2(a) of VCLT as a) between states, b) written form c) Governed by international law d) whether embodied in a single instrument or two or more related instruments. In certain instances oral treaties are permissible provided it has attained customary law status, which is articulated in the preamble of VCLT.
The term ‘governed by international law’ indicates the intention of the parties to the treaty, here one has to get a grip of interpretation of treaties, which unlike a resolution is not created through an executive organ, but is contractual in nature, hence interpretation of treaties is of primary importance. The Law Commission has taken textual interpretation as an authentic form of interpretation (which apparently has attained customary law status), but some of the commentaries on Law of Treaties stresses upon Teleological School of interpretation; which is more into ascertaining the object and purpose of treaties, talking about the object and purpose of treaties it goes without saying that, reservation of treaties comes to the picture ( Art. 19 of VCLT) also reference could be made to the Genocide Reservation case, wherein it was reiterated that , reservation could be made unless it is prohibited in the treaty or incompatible with the object and purpose of the treaty. The object and purpose of the treaty must be read in good faith (reference could be made to the Nuclear Test Case, Australia v France), good faith is the steam that drives VCLT along with free consent (reference could be made to Art.31 and 26 of VCLT).
The steps in treaty interpretation for starters is to deciphered to unlock the domestic implication of treaty coming into, the stages include;
b) Adoption and authentication of treaty,
c) Consent to be bound by the treaty
d) entry into force and
e) Registration and publication.
The consent to be bound by the treaty could be expressed by signature, exchange of instrument, ratification and accession by following Article 7 of VCLT, i.e. full powers the capacity to enter into treaty by head of the state, head of the government, minister of foreign affairs and head of diplomatic mission. What happens when municipal law and international law is at loggerheads? Which would supersede others, according to Article 27 of VCLT a party shall not invoke the provision of internal law to justify it’s failure to perform the international obligation ( but this has been contravened in many instances like the La Grande case, wherein U.S invoked domestic law as being primordial.
VCLT operates by non-retroactivity principle albeit it could be overhauled in case of customary law principle ( reference could be made to Article 4 of VCLT and the ICJ dictum in 2007 preliminary objection Bosnia vs. Serbia). The U.N charter is widely touted as the mother of all treaties, a question arose in the world court as to the supremacy of U.N charter and Montreal Convention ( reference could be made to Lockerbie case) , wherein the world court, invoked the doctrine of ‘Clause Paramount’ to place U.N charter in a higher pedestal. This has a caveat in jus cogens ( reference to an Article by Kamrul Hussain on U.N Charter and Security Council).
The treaty entered between the states doesn’t create obligation for a third state without its consent, the popular maxim ‘pacta tertiis nec nocent nec prosunt’ hold good. Treaty interpretation has to be made ‘effective manner’ as acknowledge through numerous reports of Law Commission.
Apart from some of these aspects on Law of Treaties invalidation and termination of treaties forms the final part of understanding treaty framework, invalidation could take place through violation of internal law, Error, Corruption, Coercion of a state, Conflict with Jus Cogens. Termination of treaties occurs through material breach, supervening impossibility of performance, fundamental change of circumstances (Rebus Sic Standibus) also called ‘Principle of Stability’.