Article 38(1) of the International Court of Justice’s statute identifies treaties as a source of law, along with general principles and customs. The treaty was drafted by the International Law Commission of the UN and taking force on 27 January 1980, the Vienna Convention on the Law of Treaties set out some fundamental rules. More than half of the member states of the UN are a party to the Convention. Treaty must be written and are legally binding between the parties. Article 26 of the Vienna Convention on the Law of Treaties deals with the Latin maxim “pacta sunt servanda”, i.e. every signatory is to follow the treaty in good faith and is binding upon them. This forms the basis of every international agreement. The Convention defines treaty as a written agreement between states which may be embodied in one or more than one instrument and is governed by International law.
Types of Treaties:
- Bilateral treaties
Treaties involving two entities are bilateral treaties. It is not necessary that the treaty can only have 2 parties and there should be only two states involved. For example, the bilateral treaties between Switzerland and the European Union (EU) have 17 parties, which are divided into two parts, the Swiss and the EU and its member states by virtue of this treaty, obligations, and rights arise between the two entities to it, i.e. the EU and the Swiss. This treaty does not give rise to obligations between the EU and its member states.
- Multilateral treaties
Treaties between three countries or more are multilateral treaties. They might be international or domestic. They give rise to rights and obligations among all the parties, i.e. each signatory has obligations towards all the other signatories. Treaties with a higher number of participating states gain more international significance since it reflects the importance of the treaty. All treaties have different purposes. Some set up international organizations through the UN Charter of 1945, whereas others deal with issues such as visa regulations.
Vienna Convention on the Law of Treaties, 1969:
Part 5 which mainly deal with invalidity of treaty. Articles 46-53 set out the ways to invalidate a treaty, i.e. make them void and unenforceable under international law. There are several reasons as to why an internationally binding treaty may be declared as invalid. Eg: Article 46 which deal with ultra vires, Article 48 error, fraud and corruption, Coercion, Conflict with Jus cogens.
Article 56 deals with Termination of Treaty grounds:
2) Suspension and Termination
(a) Implied by the conclusion of a later treaty
(b) Consequence of its breach
(c) Impossibility of performance
(d) Fundamental change of circumstances
- Rift of diplomatic or consular relations
(f) Emergence of new jus cogens
Formation of treaty:
- Adoption of the Text
Consent of all parties to a treaty is essential for adopting a text. If the treaty is being adopted at an international conference, a two-thirds majority shall be required for the adoption of text unless agreed upon otherwise.
- Authentication of the Text
As per the procedure mentioned in the text, a treaty shall be established to be authentic. On the failure of such procedure, signatures or initials of representatives of the participating states may be sufficient to deem the text to be definitive.
- Expression of Consent
This may be by way of signatures, ratification, acceptance, approval or accession or by exchanging instruments required for the treaty.
- Consent by Signature
Provided that the treaty explicitly states that signature by the representative of a state shall be sufficient to be declared as a party, or the negotiating states have mutually consented to signature be sufficient, the representative’s signature expresses a state’s full intention to enter into a treaty.
- Consent by Exchange of Instruments required by the Treaty
If the states agree that exchange shall be equivalent to the expression of the consent to enter into the treaty, then so shall be the case.
- Consent by Ratification, Acceptance or Approval
If the negotiating states are of the opinion that ratification shall be equivalent to expressing consent, or the treaty provides for ratification, then it shall be an acceptable way of obtaining consent to the treaty. Similarly, the same condition applies to consent expressed by approval or acceptance.
- Consent expressed by Accession
Consent to the treaty shall be obtained if the treaty provides for it or the negotiating states agree upon accession.
- Formulation of Reservations
A state while concluding the treaty expresses its reservations unless it’s prohibited by the treaty or if permitted shall violate with the object and intent of the treaty.