General

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This Blog is written by Ujjawal Vaibhav Agrahari from National Law University, Odisha. Edited by Ritika Sharma.

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INTRODUCTION

Treaties are “an agreement between the states that are entered mutually, they can also be referred to as agreement, convention, protocol, charter, Pact, Protocol or concordat”. As explained by Vienna Convention a Treaty as “it means an international agreement concluded between States in written form and governed by international law”.

Treaties are not a very new phenomena, as it was subsisted in the world since very long time, several kings used it under their regime and so were the states, using it for establishment of peace through various pacts. ICJ statutes’ Article 38 regards pacts and treaties as one of the fundamental pillars of international law. These are instituted so that the world can have a peaceful discussion with a formal result as the end product which satisfies both the parties. Treaties are formal and direct outcome of International Laws which supervise, controls and monitor the behaviour and relations between countries. Treaties are the set of rules agreed by the partied and lays down rights and obligation to the parties itself. A treaty, like all other forms of contract, must have parties with legal capacity to conclude this form of contract. The only parties with legal capacity to this end are independent status

On the Law of Treaties, An International Convention was put forward and signed in 1969, which entered into force in the year 1980. It is also to be considered that in 1986 Convention on Treaties was signed, it was between International Organizations and states. Vienna Convention which came in 1969 was for the law of treaties popularly called as “treaty of treaties” it dictates the characteristics and behaviour of treaties thereby it is also a vital phase of customary International Law. Not only does it clarify what a “treaty” is, but it also specifies how a treaty can be made, the manner in which it is modified and how such treaties are handled, and how these treaties may be terminated due to the non-performance of the act previously adhered to by the parties. These are only mere guidelines and not the binding obligations.

The Treaty is a strong source of friendly relations between all, since it represents a tradition, an expectation, a resolution respected by both nations. The treaty has been well designed to represent these elements, the states that are parties are satisfied with the result, and there is no motivation from the treaty to defect. Treaties are authoritative but they make no legal commitment to their every agreement, their main purpose is to make lawful relationships between groups of nations in order to regulate their relationship through an understanding.

Why treaties work?

And the general question arises: Why are the Treaties Working? The short answer is that they are adopting a tradition, an obligation, a resolution that both parties support. The treaty is well structured to represent these aspects, the partner states are satisfied with the outcome and there is little desire to withdraw from the treaty.

The Convention on Landmine in Ottawa is the best example of this trend. It reflects the unique combination of aspirations of all those who have inspired it, particularly the International Movement to Ban Landmines and states parties such as Canada, Belgium and Norway.

Another explanation why treaties succeed is because their aims are clearly articulated or at least readily recognizable, and their results are observable. Here an efficient monitoring and the verification system can be of great help, giving all States parties the confidence that there are no free-riders and that failure to comply will not place them at risk.

CONSENT: FREE, FAIR AND ADMISSIBLE

One of the very important parts is the “consent” VCLT (in accordance with Article 9) provides for two ways in which a treaty is accepted by agreement involving the consent of all the parties participating in its establishment or adoption in international conventions, by a vote of two-thirds of the present State and by a referendum, unless the same majority decides to apply a specific law.

Treaty is only signed between competent sovereign countries. And it needs to be ratified before it is implemented. Consent given by parties should be free and not under any pressure, force or fraud. Treaties under international law requires free consent. But the rule was not being uniformly followed. The Treaty of Versailles, which came only after the Second World War, was secretly signed by those who lost the war and those who prevailed. So, saying that treaty is always signed on the consent basis is partially true. Another example is Shimla agreement.

VCLT cleared many doubts related to consent. There are some of the provisions here: Article 48 mentions that if consent is given by any of the States by mistake in a treaty, that State may withdraw it. Article 49 states if fraudulently consent has been taken from any sovereign state then he can withdraw his consent anytime. Article 50 again states if consent occupied with corruption is also subject to withdrawal. Article 51 protects consent of parties from any threat and the consent can be withdrawn anytime.

VCLT has tried to satisfy the hurdles that come in the consent part through its rules. The rules of consent are much dignified under VCLT and through this they tried to give it legal shape.

NEGOTIATION: ‘MUTUAL COHERENCE’ AN IMPORTANT PHENOMENA

The negotiation is one of the prime parts in the process of treaty signing and are conducted by plenipotentiaries or agents which are specially appointed by the nations for this purpose. Several discussions take place before preparing a formal document i.e. draft. The negotiation is looked after by the Executive branch of the state who thereby regulate the formation of treaty. Before committing for the consideration of the treaty, the clauses in the treaty is to be fully communicated by the agents to each other “in due and form”. This is the reason that in future, the treaty in very few cases are suspended due to inefficient or misinformation of the clauses of Treaty. The work of making of treaty is protected under VCLT (Article 8) which protects from legal effect if they do any unauthorized work (except if government involved confirms it).

All the parties concerned are negotiating, seeking to find mutual grounds for achieving agreement. “Treaties are a major document and there are various ways in which States can give their consent so that a treaty can come into being, as provided for in Article 11 of the VCLT, which includes consent by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if agreed.”

 

RATIFICATION: SETTING UP OF SPECIFIC OBLIGATIONS AND PRIVILEGES ON PAPER APPROVAL

Ratification is the act by which a sovereign power announces its recognition of a treaty negotiated and concluded by its full potential: it is the government’s approval of the negotiation performed by its agent or agents. The ratification officially specifies that a contract between the involved parties is in effect. Ratification of a treaty consists in the setting up of specific obligations and privileges. The procedure used to carry out this act varies widely across different countries.

If a country signs a treaty it does not lead to its immediate ratification, the correct authority should accept it. It is necessary to consider the distance between ratification and signing, to cultivate public opinion, as more time means that the treaty also helps the state in the public eye.

However, Article 14 of the VCLT lays down those conditions leading to the ratification of a treaty as follows:

• Where the Treaty provides for consent to be expressed by ratification.

• The States agree to ratification during negotiations

• The Treaty is to be concluded with ratification

• The purpose is to ratify the treaty by the State representative

It is mainly the terms of the Treaties that decide the position of the parties after they have been ratified.

WAYS A TREATY MIGHT VITIATE

The Vienna Convention on the Law of Treaties provides a collection of exhaustive principles under which a treaty may be terminated but it is necessary to differentiate between the termination principles and the grounds for a treaty’s non-performance. And these are the grounds for breaching a treaty.

Invalidity

Under Article 42, it is presumed that the States agree to comply with the new treaty, although there are other explanations for its invalidity.

• Violation of an internal law: A state could not invoke an internal law clause as a reason for its inability to meet an international obligation. It is a general principle of international law but may invalidate a treaty as provided for in Article 46 if it violates a fundamental rule.

• Against a peremptory rule: VCLT Article 53 allows for a treaty to be null and void if, at the time of conclusion, it clashes with a peremptory general international law (jus cogens). Therefore, if a treaty clashes with a peremptory principle of general international law defined after the treaty takes effect, it becomes null and void.

• Flaw: Article 48 declares that “a State may invoke, as invalidating, an error in a treaty only if the error relates to the fact or situation which that State assumed to exist at the time the treaty was concluded and constituted an essential basis for its agreement to be bound by the treaty”.

This restrictive approach is consistent with the comments made in a variety of cases, including the case of the ICJ ‘s Temple, in which it noted that, despite the character and qualifications of the people involved on the Thai side in analysing the map, Thailand could not file an error claim.

• Fraud and Corruption: Article 49 states if fraudulently consent has been taken from any sovereign state then he can withdraw his consent anytime. Article 50 again states if consent occupied with corruption is also subject to withdrawal.

Termination & Suspension

VCLT Part V Section 3 deals with terminating and suspending the treaty. Of course, a treaty that specifies the terms of its termination and may provide for the parties to oppose it. Denunciation is, at least under some cases, conditional upon a fair notice period. There is no denunciation clause in certain important statutory treaties. The peace deal will not respond to unilateral denunciation. The reasons why a Treaty can be terminated and/or suspended are “Material breach”, “Treaty provision and consent”, “The fundamental change of circumstances”.

WHY TREATIES ARE NOT FOLLOWED SUCCESSFULLY?

The aspirational statement about the success of the treaty is a little superficial. In the real world, many states are entering treaties, not because of aspirations for a more prosperous, better planet, or because they are keen to tackle these specific international problems, but because universality is anticipated. It is simply a matter for certain states to enter the queue at UN headquarters on the day that the treaty is opened for signing to show off their multilateral bona fides. A second big explanation for failure to conclude a treaty is that they are poorly constructed. They provide wriggle-room for States trying to escape enforcement or to hold their options open.

A third explanation that treaties fail is the lack or failure of the enforcement clauses. The verification mechanism developed is mechanistic, under-resourced and relatively confident of the good intentions of States parties. Even insightful provisions, such as the possibility of ‘special inspections,’ are sometimes not used in substance to challenge inspections, in the event of suspected compliance.

A fourth reason for the failure of the Treaty is the lulling effect that the lack of exposed non-compliance may have, and the inherent tendency of the bureaucracy to ossify over time when left to its own devices.

A fifth explanation for the failure of a treaty the lack of adequate compliance mechanisms: there are procedures for coping with instances of failure to comply when detected.  In this way, almost all the treaties could be in error. Enforcement is one of the great under-attended topics in the field of treaty formation. This is probably because the negotiating states never want to take steps such as sanctions, but also because of treaty-makers’ ability to immediately comply with their beautifully constructed agreement with comprehensive verification clauses.

Therefore, the response to non-compliance appears to be ad hoc, rather than systematic. This gives future violators little feedback on what to expect, and consequently robs the system of any degree of deterrent power.

DEVELOPED NATIONS: TREATY MAKER OR TREATY BREAKER

One of today’s most successful environmental treaties is the Montreal Protocol, which aims to close the hole in the ozone layer caused by the release of chlorofluorocarbons (CFCs) into the atmosphere.  The ban on CFCs was relatively straightforward to envisage, could be monitored theoretically with relative ease, developed and developing countries were subject to the same conditions and there would be clear evidence that the treaty would be successful if the ozone hole were to be closed.

Seek to equate this with the Kyoto Protocol, which is founded on outdated science (although it is continually improving), where monitoring and verification are nascent and something of a technical nightmare, and where different parties have radically different obligations and prefer different ways of fulfilling them. Therefore, we have a situation in which two of the biggest emitters of greenhouse gases i.e. Australia and the United States have remained out of the agreement (scandalously in my view), while others have been relieved of any mitigation targets (particularly China , India and Brazil), while others like Canada are members, but are that rather than their emissions. Kyoto has a verification system which is a work in progress, is constantly being updated to match the research and is therefore not conducive to the ready generation of trust.

This is not the first time big countries have refrained from continuing the treaty, many developed or developing countries who only focuses on growth and development of their country to have greater prosperity and advancement than rest of the world, they either leave the treaty or breach the provisions or carry mal-practices.

Similar many countries like Iran, North Korea, Libya etc either don’t get themselves involved under important treaty or they withdraw from it or they simply boycott such treaties and they do whatever they feel like keeping the securities of rest of the countries at stake.

CONCLUSION

The scenarios for the world have gone drastic change since few decades. The population of many countries rose to the skies. There has been similar growth in technologies also. Technological advancements are as such that it could destroy the world in minutes. Nuclear technology is one of the worst examples for this advancement. Similarly, skyrocketing pollution has been affecting the living system on earth tremendously.

Everything should be done in optimum and limited way so that it must not affect the lives of others. In today’s society where growth and development are the prime most objective of every country, they tend to forget about others and their future. They are just busy making money and are in a race to be the 1st among every sphere. There is a great need to have control on everything and this needs to be done strictly. No body stands against these norms as this may hamper their growth to and those who raise the issue face boycott or no support. In the past many treaties like Geneva convention, Kyoto protocol, Montreal protocol etc., have been signed. Many countries followed, rest didn’t. Even many countries have followed as per their requirement and left when they felt to.

Different steps may be taken to improve the Treaty rules, encourage compliance, provide better early warning and help deter and prosecute transgressors. There is, of course, a catch to all this. We will not necessarily work as a dedicated non-compliant like Iran or North Korea. But I will suggest that “these egregious events, and before them those of Iraq and Libya, far surpass the ability of treaties to deal with, however cleverly designed by foresighted negotiators or patched up by major countries or organizations.”

Many people are bringing too many expectations into agreements which are merely voluntary, mutually advantageous partnerships which last as long as they continue. As we have seen, situations such as North Korea and Iran, where treaties can no longer cope, need to be taken outside their treaty contexts. We must look to the rest of the superpower with trepidation and hope to restore the treaties and beyond.

Treaties are one of the most important part for the survival of the world. This has to be kept in the mind that downsizing such treaties will have overall effect on that country too. Hence, there is a requirement of strong nodal head to implement treaties firmly and it should not get affected or be afraid by the powerful countries.

REFERENCES

(1) https://www.icj-cij.org/en/statute

(2) https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf

(3) https://www.icj-cij.org/files/case-related/45/045-19620615-JUD-01-00-EN.pdf

(4) https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf