OBSERVANCE OF TREATIES

PACTA SUNT SARVANDA

The principle is based on the most basic fundamental rule of International law that treaties are
meant to be performed by the ratifying states and it should be taken care that states do not take
their international obligations lightly.

b. The territorial scope of treaties

As provided under Article 29 of the VCLT a treaty is binding upon the entire territory of each party
unless it is provided under the treaty for its restricted application.

INTERPRETATION OF TREATIES

Article 31 to Article 33 of the Vienna Convention of the law of treaties dictates the rules regarding
the interpretation of the treaties which can be summarized into three rules that are:

 Analysing the actual text of the agreement.

 The intention of the parties negotiating on the treaty.
 Consideration of the object and purpose of the treaty.

A treaty has to be interpreted in good faith with ordinary meaning to be given to the terms of the
treaty y in their context and in the light of its object and purpose1. Taking into account :

a) any subsequent agreement between the parties regarding the interpretation of the treaty or
the application of its provisions;
b) any subsequent practice in the application of the treaty which establishes the agreement of
the parties regarding its interpretation;
c) any relevant rules of international law applicable in the relations between the parties.

The international court of justice in the case of Competence of the General Assembly for the
Admission of a State to the United Nations noted that the duty of the tribunal is to look into the
ordinary meaning of the treaty. It has also been noted by the international court that the process of
interpretation ‘is a judicial function, whose purpose is to determine the precise meaning of a
provision, but which cannot change it.’ Analyzing the background of the workings of a treaty and its
preparatory works (travaux pr´eparatoires) can help in interpretation of the treaty.

PEACE TREATY CASE

This case concerned the procedure to be adopted in regard to the settlement of disputes between
the States signatories of the Peace Treaties of 1947 (Bulgaria, Hungary, Romania, on the one hand,
1
Article 31(1)
and the Allied States, on the other). In the first Advisory Opinion (30 March 1950), the Court stated
that the countries, which had signed a Treaty providing an arbitral procedure for the settlement of
disputes relating to the interpretation or application of the Treaty, were under an obligation to
appoint their representatives to the arbitration commissions prescribed by the Treaty.
Notwithstanding this Advisory Opinion, the three States, which had declined to appoint their
representatives on the arbitration commissions, failed to modify their attitude. A time-limit was
given to them within which to comply with the obligation laid down in the Treaties as they had
been interpreted by the Court. After the expiry of the time-limit, the Court was requested to say
whether the Secretary-General, who, by the terms of the Treaties, was authorized to appoint the
third member of the arbitration commission in the absence of agreement between the parties in
respect of this appointment, could proceed to make this appointment, even if one of the parties had
failed to appoint its representative. In a further Advisory Opinion of 18 July 1950, the Court replied
that this method could not be adopted since it would result in creating a commission of two
members, whereas the Treaty provided for a commission of three members, reaching its decision
by a majority.

Where a treaty is authenticated in more than one language, as often happens with multilateral
agreements, Article 33 provides that, in the absence of agreement, in the event of a difference of
meaning that the normal processes of interpretation cannot resolve, the meaning which best
reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

TREATIES AND THE THIRD STATE

A third state is a state not party to a treaty. The general rule of treaties is that they are binding only
to the states that are party to it and not to any third member. Therefore, it cannot create an
obligation on another state unless the third party states consents. As per Article 35 of the VCLT, an
obligation may arise for the third state if the provisions of the treaty on express written opinion of
the parties to the treaty create an obligation for another state and the state gives its consent for the
same which has been referred by the ICJ in the Free Zones case that it is the intention of the states
that have to be considered.

EXCEPTIONS
1. A treaty provision may become binding on non-parties if it becomes a part of international
customary law.

SEA CONTINENTAL SHELF

Germany v. Denmark, Germany v. Netherlands

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle
(A-B and C-D). An agreement on further prolongation of the
boundary proved difficult because Denmark and Netherlands
wanted this prolongation to take place based on the
equidistance principle (B-E and D-E) where as Germany was of
the view that, together, these two boundaries would produce an
inequitable result for her. The Netherlands and Denmark,
located to the west and north of Germany, respectively, have
convex coastlines, meaning their coastlines bulge outwards. Germany, on the other hand, has a
concave North Sea coastline, meaning it dips inward. If the standard principle of equidistance was
used to delimit the state’s continental shelf claims, Germany would end up being “squeezed in” and
as a result be left with a smaller area of continental shelf. Germany stated that due to its concave
coastline, such a line would result in her losing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline.

Also at issue was the fact that, at the time, Germany was not party to the 1958 Convention on the
Continental Shelf, while Denmark and the Netherlands were. The 1958 Convention calls for
signatories to use the principle of equidistance when delimiting disputed continental shelf
boundaries, which Denmark and the Netherlands wished to apply in this case. Denmark and the
Netherlands argued that the 1958 Convention on the Continental Shelf, which specifically holds that
such disputes should be resolved with the principle of equidistance, should be applied in this case.
Having arrived at an impasse, Germany appealed to the ICJ to litigate the dispute. All states involved
agreed to delimit their boundary according to the ruling of the Court. As such, they did not ask the
Court to delimit the boundary, only to rule on the underlying assertion that Germany was bound by
the 1958 Convention on the Continental Shelf. The Court had to decide the principles and rules of
international law applicable to this delimitation. In doing so, the Court had to decide if the
principles espoused by the parties were binding on the parties either through treaty law or
customary international law.

Is Germany under a legal obligation to accept the equidistance-special circumstances principle,

contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a
customary international law rule or on the basis of the Geneva Convention?

DECISION OF THE COURT (extracted from

https://sovereignlimits.com/blog/the-north-sea-continental-shelf-cases
by Alex Marsh)
The ICJ first decided that Denmark’s and the Netherland’s originally separate cases against
Germany should be joined, since they had a common interest. The Court held that Germany was not
bound by the provisions of Article 6 of the 1958 Convention on the Continental Shelf because
Germany was not a signatory to the agreement, and the convention was not yet a part of the
“corpus” (body) of international law. Thus, Denmark and the Netherlands had no basis to compel
Germany to delimit their disputed boundary via equidistance.

The Court stated that in order for a treaty to become a part of the “corpus” (body) of international
law, states must have adhered extensively and almost universally to the principle in question.
Furthermore, the Court held that the states in question must, in essence, feel that they are
undertaking a legal obligation by adhering to the provisions of the treaty even if they haven’t signed
it. The Court felt that, at the time of the case, neither the number of signatories to the 1958
convention (39 states) or the amount of time it was in force (11 years) suggested extensive or near
universal adoption.
Lastly, the Court urged all the parties involved to mitigate the impact of “an incidental coastal
feature” (Germany’s concave coastline) that could lead to an unjust apportionment of the
continental shelf if the principle of equidistance is applied. As a result, Germany was granted most
of the additional area they desired, which can be seen by comparing Figure 1 (current North Sea
boundaries) to Figure 2 (equidistance). The three States were instructed by the Court to establish
an equitable boundary, which was not necessarily based on equidistance but rather by a
delimitation methodology agreed on by the states involved.

op
TAKEAWAY:

The jurisprudence of the North Sea Continental Shelf Cases sets out the
dual requirement for the formation of customary international law: (1)
State practice (the objective element) and (2) opinio juris (the
subjective element). In these cases, the Court explained the criteria
necessary to establish State practice – widespread and representative
participation. It highlighted that the practices of those States whose
interests were specially affected by the custom were especially
relevant in the formation of customary law. It also held that uniform
and consistent practice was necessary to demonstrate opinio juris –
opinio juris is the belief that State practice amounts to a legal
obligation. The North Sea Continental Self Cases also dispelled the
myth that duration of the practice (i.e. the number of years) was an
essential factor in forming customary international law.

The ICJ stated that a provision of a treaty must meet the following stringent requirements before it
achieves the status of a customary rule:

a) It must be a norm creating nature

b) The parties to the treaty must agree that the provision is of such a nature; and
c) State practice of non-parties to the treaty must indicate that they regard the relevant
provision of the treaty as binding.

2. Conferment of a right on a third party

A treaty creates rights or obligations for a third state under two situations namely, firstly when the
states parties to the treaties intended to create such rights or obligations, and secondly the third
consent to such rights or obligations. Rights of the third states can only be revoked or modified only
when the treaty specifies that the rights given were revocable, and the third parties have consented
to it.

Invalidity, termination and suspension of the treaty

Vienna convention on the law of treaties provides a list of exhaustive rules under which a treaty can
be terminated however, it is necessary to distinguish between the rules of termination and grounds
for non-performance of a treaty. Following are the grounds for termination of a treaty:

1. Invalidity

Under article 42 the consent to abide by the treaty in force is presumed by the states however there
are certain grounds which can invoke its invalidity which are:

a. Violation of an internal law

It should be noted that a state may not invoke a provision of its internal law as a justification for its
failure to carry out an international obligation. This is a general principle of international law but if
it violates a fundamental law than as per Article 46 it can invalidate a treaty.

b. Error

Article 48 declares that a state may only invoke an error in a treaty as invalidating if the error
relates to a fact or situation which was assumed by that State to exist at the time when the treaty
was concluded and formed an essential basis of its consent to be bound by the treaty. This
restrictive approach is in harmony with the comments made in a number of cases, including the
Temple case by the ICJ where it noted that in view of the character and qualifications of the persons
who were involved on the Thai side in examining the map, Thailand could not put forward a claim
of error.

c. Fraud, Corruption and Coercion

d. Conflict with a peremptory norm

VCLT Article 53 provides that a treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law (jus cogens). Further, a treaty becomes void if it
conflicts with a peremptory norm of general international law established after the treaty comes
into force.

2. Termination

VCLT Part V Section 3 deals with termination and suspension of the operation of treaties. A treaty
may, of course, specify the conditions of its termination and may provide for denunciation by the
parties. Where a treaty contains no provisions regarding its termination, the existence of a right of
denunciation depends on the intention of the parties, which can be inferred from the terms of the
treaty and its subject-matter, but, according to the VCLT, the presumption is that the treaty is not
subject to denunciation or withdrawal.

At least in certain circumstances, denunciation is conditional upon a reasonable period of notice.

Some important law-making treaties contain no denunciation clause. Treaty of peace is not open to
unilateral denunciation. Following are the grounds of the termination and suspension of a treaty:

Material breach

Treaty provision and consent

The fundamental change of circumstances.

3. Procedure and consequence of the termination

The consequences of invalidity, termination, and suspension will depend on the grounds relied
upon. Certain grounds of invalidity must be invoked by a party and so the treaties concerned are
not void but voidable.

These grounds are incompetence under internal law, restrictions on the authority of representative,
error, fraud, and corruption of a representative.

The same is true of certain grounds of termination—material breach, impossibility and

fundamental change of circumstances. On the other hand, a treaty is void in case of coercion of a
state (invalidity), and conflict with an existing or emergent peremptory norm (invalidity or
termination). Consent to be bound by a treaty procured by the coercion of the representative of a
state ‘shall be without any legal effect’ (Article 51, invalidity).

The rules governing separability of treaty provisions (Article 44), that is, the severance of particular
clauses affected by grounds for invalidating or terminating a treaty, do not apply to the cases of
coercion of a representative, coercion of a state, or conflict with an existing peremptory norm.
Articles 69 to 72 deal with the consequences of invalidity, termination, or suspension.

Conclusion
Vienna Convention on the Law of Treaties is a comprehensive code that codifies the relationship
between the states and a treaty. It includes the framework regarding the conclusion, observance
and interpretation of the treaty. It also dictates various grounds for terminating a treaty and the
procedure to be followed after that. Generally, it is considered that a treaty may enter into force
after it has been signed and ratified. Parties to a treaty may exercise the right of the reservation to
preserve their interest. The purpose of the Law of Treaties is to expand and develop a friendly
relationship between nations and achieve cooperation amongst them.