Treaties as a source of International Law | Law Optional Notes for UPSC PDF Download

Introduction

Treaties have been a fundamental concept in international law for millennia. One of the earliest recorded instances dates back to 2100 BC when the kings of Umma and Lagash in Iraq entered into an agreement to define their respective boundaries by inscribing the terms on a stone block.
Throughout history, treaties have played a significant role in promoting peaceful relations between countries and facilitating the regulation and oversight of international affairs. In earlier times, treaties were often established through verbal agreements, sealed with a ritual oath to God, which made them binding. Over time, the process of creating treaties became more organized and formalized, and nowadays, treaties between nations are typically required to be in written form and are legally enforceable.
Treaties essentially function as contracts between nations, serving to establish legal relationships between parties and govern their interactions through a formal agreement. These agreements can take various forms, such as extradition treaties, defense pacts, laws governing specific aspects of foreign relations, or the foundation for international organizations. Some treaties establish universal rules, like the UN Charter, while others specify general regulations, as seen in the Vienna Convention on the Law of Treaties. Contractual treaties, on the other hand, address specific issues involving two or more states.
In the realm of international agreements, terms like conventions, pacts, charters, statutes, declarations, covenants, and agreements are all used interchangeably with the term "treaties."

Vienna Convention On The Law Of Treaties

• The Vienna Convention on the Law of Treaties (VCLT) is the result of two protracted sessions of the 110-nation conference and also of the 15 years of preparatory work by the United Nations' International Law Commission (ILC). It is the first key component that has been exercised in the daunting challenge of codifying international law in accordance with Article 13 of the UN Charter, and is undoubtedly considered to be the principal authority dealing with the formation of treaties, drafted by the ILC and adopted on the 23rd of May, 1969. According to the VCLT, treaty refers to an international agreement concluded in writing between states regulated by international law, whether included in one instrument or two or more linked instruments. 
• This convention, also referred to as the "treaty on treaties" establishes a system of rules that would control the crucial element in the conduct of international relations. It addresses the most significant aspects of international law regarding treaties entered into between different states. Before the convention could take effect, it needed to be ratified by 35 UN member nations which were obtained by the end of 1979. As of 2022, 116 countries have ratified the VCLT.
• The terms and scope of the agreement are dealt with in Part I of the convention. The 2nd part lays down the procedures for concluding and adopting treaties, emphasizing the importance of parties' consent to be bound by it and the drafting of reservations. The third part essentially describes how the treaties are be applied and interpreted.
• The modification and amendment of treaties are dealt with under the fourth part. Part five of the convention, which is the most essential part, sets out the grounds for the "invalidity, termination, withdrawal and suspension" of treaties, and the consequences for the same. Further it also contains a clause which grants International Court of Justice (ICJ), the jurisdiction over possible disputes arising over the applicability or interpretation of the rules.
• The remaining parts cover the impacts of modifications in governance within a state, escalation of state-to- state conflicts, on treaties. It also specifies the rules for signing and ratification.

Treaties As A Source Of International Law

• Treaties are a contentious source of international law, with debates over their binding nature. One example is the ICJ's Nottebohm case, which led to arguments about the relevance of the Bancroft Treaties and the Pan-American Convention of 1906 as precedents.
• Opponents of the judgment argued that these were bilateral treaties not involving the parties in the Nottebohm case and, therefore, not binding on them. However, treaties can establish precedents in general international law that affect non-signatory states.
• Generally, treaties are accepted as a source of law, with the principle of pacta tertiis nec nocent nec prosunt suggesting that repeated treaty norms can become customary law. Major multilateral conventions, over time, can also shape customary international law.
• The concept of treaties as a source of law stems from the principle of Pacta servanda, emphasizing the importance of free consent and good faith, as seen in the VCLT's preamble. It's a fundamental rule requiring governments to honor ratified treaties, forming the basis of a just international system.
• In addition to general principles, treaties are recognized as a source of law under Article 38(1) of the ICJ's statute, focusing on treaties as contractual obligations. The controversy over whether treaties are ex post facto laws or legal obligations is a separate issue. Treaties gained significance as the world transitioned to states and established international organizations, culminating in the Law of Treaties.
• Treaty provisions can lead to customary international law, as seen in the North Sea Continental Shelf Case. The Portugal v. India case illustrates how a long-standing treaty clause can become a custom through repeated practice over time, but regional customs only bind supporting states.
• Treaties apply to each party's full territory unless otherwise specified. States can express consent through various means like signature, exchange of instruments, ratification, accession, or other agreed-upon methods, as seen in the Rush-Bagot treaty for Great Lakes disarmament.

Formation Of Treaties

• Appointment of Plenipotentiaries/Representatives for Contracting Parties: The initial stage in treaty formation involves the designation of representatives who will be granted authority by the Minister of Foreign Affairs to represent the state in treaty negotiations, ratification, adoption, etc.
• Negotiation and Adoption of the Treaty Text: The accredited individuals are empowered to engage in negotiations or adopt the treaty text. This necessitates the unanimous agreement of all treaty parties. The treaty is formally adopted once all relevant matters are resolved. If the adoption occurs during an international conference, the acceptance of the text typically requires a two-thirds majority vote, unless otherwise negotiated or agreed upon.
• Signatures: The subsequent step involves the signing of the treaty by the authorized representatives once the final draft is prepared. While the treaty officially comes into force when signed by the representatives on behalf of the contracting states, it only becomes legally binding after undergoing the next step.
• Ratification: Ratification refers to the act of the parties to an international treaty formally approving it. It involves the confirmation of a treaty previously signed by representatives of various states, typically done by the head of state, in accordance with the provisions of the country's constitution. A state can express its agreement to a treaty through various means, including signature, ratification, accession, or the exchange of instruments. The consent of states to be bound by a treaty is crucial for its effectiveness.
  • However, ratification of a treaty may be withheld under certain circumstances, such as when the representative exceeds their authority, is deceived about factual matters, faces difficulties in fulfilling treaty requirements, or when consensus ad-idem (common understanding) is lacking.
• Accession/Adhesion: A state that did not participate in the original treaty negotiations can become a party to the treaty by accepting it, a process known as accession. Adhesion, on the other hand, occurs when a non-signatory state accepts or adheres to specific provisions of a treaty that has already been signed. While these terms are often used interchangeably, the key distinction lies in the fact that accession implies acceptance of all treaty provisions, whereas adhesion involves acceptance of only some provisions.
• Entry into Force: The next step involves the enforcement of the treaty, which depends on the treaty's provisions. Some treaties include specific clauses regarding their applicability dates. Additionally, some treaties become legally binding immediately upon signature, while others only enter into force after being ratified by a specified number of states. A fundamental principle of international law is that only those parties that have consented to be bound by a treaty are obligated by it, as expressed in the maxim "pacta tertiis nec nocent nec prosunt."
• Registration: After ratification, the treaty must be registered with the headquarters of the relevant international organization. According to Article 102 of the UN Charter, registration and publication are essential, and non-compliance with this requirement means the treaty cannot be invoked before any organ of the UN Charter. However, this does not render the treaty invalid or unenforceable. Additionally, Article 18 of the Covenant of the League of Nations mandates that every treaty must be registered with the League Secretariat, and until registration is complete, it is not binding on any state. This implies that in the event of a dispute, a non-registered treaty cannot be relied upon.
• Enforcement and Incorporation of Treaties: The final step involves the enforcement of treaties, including their incorporation into the domestic law of the participating states.

Interpretation Of Treaties

• The concept of "interpretation" derives from the Latin word "interpretio," which means translating the meaning of a sentence from an unfamiliar language into a recognized one for the recipient. States Parties to a treaty, international organizations, and legal scholars all have the capacity to interpret treaties.
• The fundamental principles governing treaty interpretation are found in the third part of the Vienna Convention on the Law of Treaties (VCLT), specifically in Articles 31 to 33.
  These principles can be summarized as follows:
  • Scrutinizing the precise text of the treaty.
  • Considering the intention of the parties during the negotiation process.
  • Examining the purpose behind the formation of the treaty.
• Article 31(1) of the VCLT emphasizes that a treaty should be interpreted in good faith, taking into account its ordinary meaning, object, and purpose. Therefore, a crucial requirement for interpretation is that it must be conducted honestly, considering the underlying purpose of the treaty.
• Article 31(2) states that, in addition to the treaty text and preamble, any agreements or instruments related to the treaty should also be considered for interpretation. Article 31(3) further specifies that any subsequent agreements among the contracting states regarding interpretation, or any practices established in applying general rules or other principles of international law, should also be taken into account. Subsection 4 stipulates that if the parties intended for a specific term to have a particular meaning, that meaning should be given precedence.
• In cases where the text of a treaty is unclear or ambiguous, supplementary methods of interpretation, such as examining "travaux préparatoires" (preparatory work) and other relevant sources, may be employed. When interpreting treaties, it is often advisable to adopt a broad purposive approach. In situations where the treaty in question pertains to the establishment of an international organization, a purpose-oriented approach is typically applied.

Additionally, there are several general principles of treaty interpretation, which can be summarized as follows:

• Grammatical Interpretation: This involves analyzing the words and phrases in the treaty based on their plain and actual meanings, adhering to established grammar rules for syntax, vocabulary, and morphology.
• Object and Content: When certain terms or phrases in the treaty are unclear or vague, they should be interpreted in the context of the treaty's overall purpose and content.
• Reasonable Interpretation/Logical Interpretation: Treaty text must be interpreted in a logical and reasonable manner, in accordance with general principles of treaty law, using logic, reasoning, and arguments.
• Historical Interpretation: This approach, known as teleological interpretation, involves interpreting treaty terms in the context of historical, political, and social circumstances and the reasons that led to the treaty's creation.
• Principle of Effectiveness: Treaty interpretation should be done in a way that promotes its usefulness and effectiveness.
• Reliance on Extrinsic Material: Despite controversy, it was proposed that extrinsic material, such as preparatory work and the circumstances of the treaty's conclusion, can be used to interpret the treaty.

In addition to these principles, Fitzmaurice identified additional principles of interpretation:

• Actuality/Textuality: Treaties must be understood as a whole and based on their original wording.
• Natural and Ordinary Meaning: The principle of ordinary meaning should be followed unless it leads to an irrational conclusion. Extraneous means, like examining immediate circumstances or preparatory work (travaux préparatoires), may be used only when the language used is unclear or ambiguous.
• Integration: Interpretation can be done by considering the treaty as a whole or by dividing it into individual parts, chapters, or sections.
• Effectiveness ("ut res magis valeat quam pereat"): Treaty interpretation should aim to make the treaty more effective rather than rendering it ineffective.
• Subsequent Practice: The subsequent practice of the parties in relation to the treaty can be considered in interpreting its text.
• Contemporaneity: Terms in the treaty should be interpreted according to their current linguistic usage.

In a case before the International Court of Justice (ICJ), it was stated that the tribunal's responsibility is to examine the ordinary meaning of the treaty. The ICJ emphasized that interpretation is a judicial role aimed at discovering the precise and accurate meaning of a treaty provision, which cannot be altered. Examining the background of a treaty's negotiations and its preparatory work can aid in its interpretation.
It should also be noted that in the case of treaties concluded in multiple languages, common in multilateral agreements, if there is a lack of consensus or a difference of meaning that cannot be resolved through regular interpretation, Article 33 allows for the acceptance of the meaning that best reconciles the passages, taking into account the treaty's object and purpose.

Invalidity, Termination And Suspension Of A Treaty

Treaties can be terminated in two primary ways: either through the operation of law or by the actions of the contracting parties.
Here are various reasons for the termination of a treaty by operation of law:

• Extinction of One Contracting Party: In the context of a bilateral treaty, if one of the parties ceases to exist, the treaty may be terminated.
• Conclusion of a New Treaty on the Same Subject Matter: If a new treaty is formed covering the same subject matter as an existing one, it can be inferred that the previous treaty is terminated. This assumes that the states intend to be governed by the provisions of the new treaty, or if both treaties are incompatible and cannot be applied simultaneously.
• Violation or Breach of the Treaty: A party to a treaty may have the right to terminate or suspend a bilateral treaty in the event of a significant breach by the other party. In the case of a multilateral treaty, a unanimous decision may be made to terminate or suspend the treaty, either in whole or in part.
• Impossibility of Performance: Inability to fulfill the terms of a treaty is considered sufficient grounds for its cancellation or suspension. If the impossibility is permanent, the treaty may be entirely dissolved. If the difficulty in fulfilling the terms is temporary, the treaty may be suspended for the necessary duration.
• Significant Change in Circumstances: The principle of "rebus sic stantibus" states that if the fundamental circumstances under which the treaty was concluded have changed significantly, either party may have the right to terminate it. Unexpected developments that have a fundamental impact on the treaty may justify its termination or revocation.
• Strained Diplomatic and Consular Relations: When relations between diplomats and consular officers become strained, it can lead to treaty termination.
• Jus Cogens: Any treaty that violates a newly established "jus cogens" or peremptory rule of international law, recognized universally, is presumed to be terminated.

The consequences of termination or invalidity, as outlined in Article 70 and 71, are that unless the treaty specifies otherwise or the parties agree differently, the states are relieved of their obligations under the treaty after termination. This termination does not affect any rights or legal statuses that existed due to the treaty's formation before termination. In the case of suspension, parties are temporarily exempted from their obligations under the treaty during the suspension period.

Important Treaties

• The Treaty of Versailles in 1919, signed at the conclusion of World War I during the Paris Peace Conference, formally ended the war between Germany and the Allies. This conference was dominated by the "big four" leaders, with Clemenceau particularly focused on ensuring that Germany would not pose a military threat to Europe. The treaty included clauses aimed at achieving this goal. However, the treaty was imposed on Germany as a done deal, leading to objections, especially regarding the "war guilt" provision and reparation terms. Some view the treaty as exacerbating animosity and causing more problems than it solved. Its effects are categorized as economic, political, and military, making it a significant event in world history.
• The Onís-Adams Treaty of 1819, also known as the Transcontinental Treaty, resolved a territorial dispute between the United States and Spain. This agreement established the western boundaries of the Louisiana Purchase for the United States and led to Spain relinquishing its claims to the Pacific Northwest. In return, the U.S. recognized Spanish control over Texas.
• The Treaty of Tordesillas in 1494 divided the New World between Portugal and Spain, aiming to settle disputes over newly discovered territories. This treaty established a border west of the Cape Verde Islands, determining the future possessions of Portugal and Spain. Portugal was permitted to establish a colony in this region, while Spain took control of the rest of the Americas.
• The Treaty of Paris in 1898 ended the Spanish-American War and granted the United States the Philippines, Guam, and Puerto Rico, in exchange for Cuba's independence. This treaty marked the beginning of American imperialism abroad and was ratified after a lengthy and challenging process.

Conclusion

In conclusion, treaties have evolved as a crucial source of international law and play a significant role in the international justice system. They are highly regarded because they represent voluntary agreements among countries willing to be bound by them. However, they are not the sole source of international law, as they require country ratification and customs to develop over time. Nonetheless, the combination of customs and treaties mitigates the limitations of each source, resulting in a more effective source of law when combined.