VIENNA CONVENTION ON THE LAW OF TREATIES

The countries are no longer confined to themselves. As the world advances to the new era of globalization the International relations and its regulation is a must. For years the internal relations between countries was regulated by international customs. With the increasing friction between states the need for a treaty to regulate a treaties was realized and therefore the Vienna Convention on law on Treaties was enacted by the General assembly.

The Vienna Convention on the Law of Treaties (VCLT) is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969[1] and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980.[2]

By the middle of the twentieth century the customary international law of treaties had grown to a fairly comprehensive body of rules. In view of that, the International Law Commission placed it at its first session, in 1949, By resolution 2166 (XXI) of 5 December 1966, the General Assembly endorsed the recommendation in principle and in the following year decided to convene the first session of the conference in 1968 and the second session in 1969, in Vienna.[3]

The United Nations Conference on the Law of Treaties was the last great codification conference that successfully used voting as its working method and could adopt the draft articles by substantial majorities. The final text of the convention was accepted by 79 votes to 1, with 19 abstentions. This achievement was helped by two circumstances. On the one hand, the customary law covering the more technical side of treaty-making was, except for minor details, practically undisputed.[4]

The VCLT was drafted by the International Law Commission (ILC) of the United Nations, which began work on the Convention in 1949.[5]

 

 

 

Application

The Convention codifies several bedrocks of contemporary international law. It defines a treaty as “an international agreement concluded between states in written form and governed by international law,” as well as affirming that “every state possesses the capacity to conclude treaties.” The most important point in the Convention is that Article 1 restricts the application of the Convention to written treaties between States, excluding treaties concluded between the states and international organizations or international organizations themselves.

Article 1 restricts the application of the Convention to (written) treaties between States, excluding treaties concluded by international organizations. In other respects, the first four parts of the Convention codify previously existing customary law with a few modifications due to progressive development.[6]

 

Scope

The scope of the Convention is comparatively quite limited which is a major drawback of this treaty considering the importance of this treaty. It applies only to treaties concluded between states, so it does not cover agreements between states and international organizations or between international organizations themselves, though if any of its rules are independently binding on such organizations, they remain so.[7] It does apply, however, to treaties between states within an intergovernmental organization.[8] However, agreements between states and international organizations, or between international organizations themselves, will be governed by the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations if it ever enters into force. Also, in treaties between states and international organizations, the terms of the Convention still apply between the state members.[9] The Convention does not apply to agreements not in written form therefore any agreement between states which is not in written form is not within the scope of this treaty.

 

Status of treaty in major countries

 

  1. USA

The United States signed the treaty on April 24, 1970. The U.S. Senate has not given its advice and consent to the treaty. The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.[10]

 

  1. India

The Indian courts in recent judgements have embraced the Vienna convention. The Supreme Court of India had, in Ram Jethmalani v. Union of India[11] has recognized that the Vienna Convention codifies many principles of customary international law.

The Delhi High Court in AWAS Ireland v. Directorate General of Civil Aviation[12]The High Court applied the principles enshrined in the Vienna Convention of Law of Treaties, 1969. What makes AWAS significant is that India is neither a signatory nor has it ratified the Vienna Convention. The High Court applying the principles of pacta sunt servanda in Article 26 and the general rules of interpretation of a treaty in Article 31 of the Vienna Convention, observed that an international convention is required to be interpreted in good faith, in accordance with the ordinary meaning given to the terms of the treaty, in their context, and in the light of its stated object and purpose. The High Court also applied the principle in Article 27 of the Vienna Convention which casts an obligation on a State to not only remain bound by the terms of a treaty entered into by a State but also, to not cite internal law as a justification for failure to perform its obligation under a treaty.[13]

 

  1. Canada

“In acceding to the Vienna Convention on the Law of Trea- ties, the Government of Canada declares its understanding that nothing in article 66 of the Convention is intended to exclude the jurisdiction of the International Court of Justice where such jurisdiction exists under the provisions of any treaty in force binding the parties with regard to the settlement of disputes. In relation to states parties to the Vienna Convention which accept as compulsory the jurisdiction of the International Court of Justice, the Government of Canada declares that it does not regard the provisions of article 66 of the Vienna Convention as providing `some other method of peaceful settlement’ within the meaning of paragraph 2 (a) of the declaration of the Government of Canada accepting as compulsory the jurisdiction of the International Court of Justice which was deposited with the Secretary-General of the United Nations on April 7, 1970.”[14]

 

  1. United Kingdom

“The United Kingdom does not accept that the interpretation of Article 52 put forward by the Government of Syria correctly reflects the conclusions reached at the Conference of Vienna on the subject of coercion; the Conference dealt with this matter by adopting a Declaration on this subject which forms part of the Final Act;

“The United Kingdom objects to the reservation entered by the Government of Syria in respect of the Annex to the Convention and does not accept the entry into force of the Convention as between the United Kingdom and Syria;

“With reference to a reservation in relation to the territory of British Honduras made by Guatemala on signing the Convention, the United Kingdom does not accept that Guatemala has any rights or any valid claim with respect to that territory; “The United Kingdom fully reserves its position in other respects with regard to the declarations made by various States on signature, to some of which the United Kingdom would object, if they were to be confirmed on ratification.”[15]

 

  1. Russian Federation

The Union of Soviet Socialist Republics does not consider itself bound by the provisions of article 66 of the Vienna Convention on the Law of Treaties and declares that, in order for any dispute among the Contracting Parties concerning the application or the interpretation of articles 53 or 64 to be submitted to the International Court of Justice for a decision or for any dispute concerning the application or interpretation of any other articles in Part V of the Convention to be submitted for consideration by the Conciliation Commission, the consent of all the parties to the dispute is required in each separate case, and that the conciliators constituting the Conciliation Commission may only be persons appointed by the parties to the dispute by common consent.

The Union of Soviet Socialist Republics will consider that it is not obligated by the provisions of article 20, paragraph 3 or of article 45 (b) of the Vienna Convention on the Law of Treaties, since they are contrary to established international practice.

Declaration:

The Union of Soviet Socialist Republics declares that it      reserves the right to take any measures to safeguard its interests in the event of the non-observance by other States of the provisions of the Vienna Convention on the Law of Treaties.[16]

 

  1. China

Reservation:

  1. The People’s Republic of China makes its reservation to article 66 of the said Convention.

 

Declaration:

  1. The signature to the said Convention by the Taiwan authorities on 27 April 1970 in the name of “China” is illegal and therefore null and void.[17]

 

 

Key Provisions

The rule of interpretation in article 31, which establishes, inter alia, the object and purpose of a treaty and the latter’s context as guidelines of interpretation. These are teleological elements which militate against a narrow literal construction of treaty texts. Part V of the Convention deals with the invalidity, termination and suspension of the operation of treaties. It is the key part of the Convention. The relevant customary rules had evolved from isolated instances of State practice or unconnected arbitral or judicial pronouncements. It was the International Law Commission that gave this incoherent material a systematic structure. The grounds of invalidity of treaties or termination are either taken from among the general principles of law (error, fraud), or adapt these to situations particular to international law, like the corruption of a representative (article 50), or the coercion of a representative (article 51), or of a State by the threat or use of force (article 52). The most far-reaching development of the law was the introduction of the concept of jus cogens into positive international law in articles 53 and 64. It has become relevant outside the scope of the law of treaties as a major element in the construction of modern international law.

Article 66, which provides for the judicial settlement, arbitration or conciliation of disputes arising from the application of the rules in Part V of the Convention, establishes in subparagraph (a) the mandatory jurisdiction of the International Court of Justice in disputes involving jus cogens, unless the parties agree to submit the dispute to arbitration.[18]

 

Conclusions

The Vienna convention on law of treaties has been recognized by various countries and international organizations. The treaty is known as “treaty to regulate treaty” and has fulfilled its job to a certain extent. Disputes between states can now be solved quite easily due to the application of this treaty. The treaty although has  faced various defects, firstly being its scope which is quite limited and fails to cover various parts of international law, secondly the reservation clause under the convention has also to a certain extent vitiated the object the treaty. Finally the Convention has still not being ratified by various countries which further limits the scope of the treaty as whole.

[1] http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

[2]  Law of treaties, International Law Commission, last update: 30 June 2005

[3] Karl Zemanek, Vienna Convention On The Law Of Treaties

[4] ibid

[5] ibid

[6] http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

[7] Article 3, Vienna Convention on the Law of Treaties available at :- http://web.archive.org/web/20050208040137/http://www.un.org/law/ilc/texts/treatfra.htm

[8] Article 2 and 5 Vienna Convention on the Law of Treaties

[9] supra

[10] https://www.state.gov/s/l/treaty/faqs/70139.htm

[11] Ram Jethmalani v. Union of India ((2011) 8 SCC 1

[12]  AWAS Ireland v. Directorate General of Civil Aviation (W.P.(C) 671/2005

[13] ibid

[14] https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&clang=_en

[15] ibid

[16] ibid

[17] ibid

[18] supra

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