Nowadays as in the past, treaties play a fundamental role in international relations. The present website aims at offering to an interested public an introduction to international treaty law, i.e. the law of the treaties concluded between States in written form and governed by public international law.
In proceeding by deduction, the author's intention is to present international treaty law by starting from its inherent principles as embodied in the Vienna Convention on the Law of Treaties of 1969. This convention has entered into force on 27 January 1980 and has been ratified by more than 100 countries.
THE SOURCES OF INTERNATIONAL LAW
Article 38 of the Statute of the International Court of Justice, considered by some as the "Bible of the Poor" of those who seek quick answers despite of the complexity of international relations, constitutes nevertheless a good starting point for the understanding of the sources of international law. According to this article, international law finds its origin in the following three sources:
- international conventions of general or particular nature;
- international custom, as evidence of a general practice accepted as law;
- the general principles of law recognized by civilized nations.
Most international law experts would rush to add the "unilateral acts" to these three sources of law and to declare that Article 38 of the Statute has omitted to mention these unilateral acts for which the United Nations' International Law Commission (ILC) has elaborated Guiding Principles in 2006. Contrary to this opinion, other international lawyers would maintain that these unilateral acts constitute specific expressions of the will of States leading eventually to agreements which are then governed by the rules applicable to international conventions.
Finally, the idea of justice and equity originating in the philosophy of natural law is not to be discarded as a source of international law, since it is the opinion of the International Court of Justice itself that whatever the legal argumentation of the judge, his or her decisions have to be just and in that sense must correspond to justice and equity. Moreover, the judges of the International Court of Justice are expressly authorized to decide a case ex aequo et bono, if the parties agree thereto, i.e. to found their judgements on arguments of equity (Article 38 (2) of the Statute of the International Court of Justice).
International treaty law as codified by Vienna Convention on the Law of Treaties of 1969 is open for considerations of justice too (Preambular para. 4 and 5 and Article 44 (3)). Moreover, the concept of "jus cogens" seems also to be an angle of incidence for natural law ideas.
Since, on the basis of their sovereignty and therefore independence, the equality of all States constitutes the theoretical foundation of international relations and although public international law, by definition, does not belong to civil law, international legal debates are often reminiscent of the discussions known in the latter area, in particular in the context of the law of contracts.
However, the analogy with the law of contract ends where measures are taken on the basis of Chapter VII of the Charter of the United Nations. Although they are foreseen in an international treaty - in particular by Article 25 of the Charter - these measures deserve to be highlighted because of the legal obligations they impose to the whole world, their political significance and the remarkable development they have undergone since the Gulf War of 1991. The measures taken by the Security Council and which are expressly based on Chapter VII of the Charter encompass not only military as well as economic sanctions against
- certain States (Ethiopia, Eritrea, Iraq, Yougoslavia, Sierra
Leone etc.)
- or insurgents (Angola's UNITA, see resolution
1173/1998 of 12 June 1998) or even political parties in
government (the Afghan faction of the Taliban, see res.
1267/1999 of 15 October 1999),
but also
- the creation of special tribunal to prosecute war crimes or
crimes against humanity in the territory of the former
Yougoslavia (res. 827/1993 of 25 May 1993) and in Ruanda
(res. 955/1994 of 8 November 1994)
- or of special administrative zones like in East Timor (see
res. 1272/1999 of 25 October 1999) or in Kosovo (see
res.1244/1999 of 10 June 1999)
as well as- measures against terrorism in general (res. 1373/2001
of 28 September 2001).
These sources of international law are supplemented by two subsidiary means for the determination of rules of law (Article 38 (1)(d) of the Statute), i.e. by- judicial decisions (although even the decisions of the
International Court of Justice have binding force only between the parties and in respect of the particular cases submitted to theCourt - Article 59 of the Statute) and- the teachings of the most highly qualified publicists of the various nations.
This website, for its part, is devoted to the international law of treaties as codified in the Vienna Convention. The principles of this convention as well as their application constitute its main subject-matter.
Although it is possible to conclude international conventions orally, almost all of them are concluded in written form.
Orginally, the international treaty rules were either part of customary international law or belonged to the general principles of law; today the rules governing international treaties which are concluded between States in written form are codified. The codification governing this legal area is the Vienna Convention on the Law of Treaties (Vienna Convention) of 1969 which has entered into force on 27 January 1980. Although the Vienna Convention is not applicable to treaties concluded before its entry into force (Article 4) it is de facto applied to those too, since it incorporates - at least to a large extent - customary rules which were already applicable before this date. Moreover, the Vienna Convention applies only in the absence of other applicable agreements and is therefore of subsidiary character.
A Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations dating from 1986 has reproduced the provisions of the Vienna Convention. It reflects to a large extent international customary law, too; however, it has not yet entered into force.
Finally, a Vienna Convention on Succession of States in respect of Treaties, concluded in 1978, entered into force in 1996, but since it has been ratified by 15 States only, it cannot be considered as a source of universal international law. Furthermore, it has hardly had any impact on state practice, the noteworthy exception being that practice widely follows the rule according to which a successor State can establish its status as party of a multilateral treaty to which its predecessor State already belonged through a declaration of succession.
Generally speaking, one can say that customary international law is rather blurred in this regard.
Basically, two types of treaties are two be distinguished:
- bilateral treaties which are concluded between two States only
and
- multilateral treaties concluded between at least three States;
the treaties which have attracted the largest numbers of
parties are called universal.
Amongst multilateral treaties, one can distinguish between "open" and "restricted" treaties. Whereas every State can become a party to the "open" ones, access to the latter category of treaties is excluded for those States which do not belong to the original States Parties, unless an agreement to the contrary has been entered into.
Hence, every State can accede to the Vienna Convention on Diplomatic Relations (open treaty), but only the signatory States of the Convention on the Regulation of the Navigation on the Danube River from 1948 could originally ratify this (restricted) treaty: hence the accessions of Austria and Germany had to be approved by the original States Parties in 1960 and 1999, respectively, by way of supplementary agreements with these two countries.
The Vienna Convention which consists of 85 articles, eight parts and an annex includes and materializes five fundamental legal principles, i.e.
Free consent and good faith (bona fide in Latin) are the leading principles which ought to be always followed by States in the course of their relations with one another.
The other major principles which also emanate from the Roman Law tradition apply in particular
- either to the conclusion of treaties:
- pacta sunt servanda (a treaty is binding upon the parties)
- or to the interpretation or application of treaties:
(viz. the clausula rebus sic stantibus according to which a
fundamental change of circumstances jeopardizes the validity
of treaties)
- favor contractus (it is better to seek the maintenance rather
than the termination of a treaty)
These five principles will be subject to closer scrutiny on this website and the application of the two major principles (free consent and good faith) will be the object of a separate chapter. Of course, the delimitation between these principles can be vague, but eventually they are mutually supportive of each other.
This international principle is embodied in preambular para. 3 of the Vienna Convention. First of all, it is the corollary of the prohibition of the threat and use of force contained in the Charter of the United Nations (Article 2 (4)) which legitimates such behaviour only in specific circumstances. The severance or absence of diplomatic (or consular) relations between two or more States does not prevent the conclusion of treaties between those States (Article 74).
According to the principle of free consent, international agreements are binding upon the parties and solely upon themselves. These parties cannot create either obligations or rights for third States without their consent (rule of pacta tertiis nec nocent nec prosunt - Article 34). The only explicit exception to this rule appears in Article 22 (1) which is an expression of the favor contractus principle and concerns the withdrawal of reservations.
Another important principle which can be deducted from the free consent rule is expressed by the latin phrase lex posterior derogat legi priori. According to this rule, a later treaty prevails over an earlier one when two treaties exist which relate to the same subject-matter (Article 30 para. 3). This principle will be dealt with in the context of treaty amendments.
It is understood that by giving its consent, a State binds itself in respect of its entire territory and not retroactively, unless a different intention is established (Articles 28 and 29).
As well as free consent, good faith is of fundamental importance for the conduct of international relations in general and is therefore recognized as an international principle according to the very terms of the Vienna Convention (Preambular para. 3). If a State do not behave in good faith, peace and international security, the supreme goals of the Charter of the United Nations might eventually be put in jeopardy.
In a resolution from July 2001, the International Whaling Commission (IWC) which was then already constituted by more than 40 member countries declared that "good faith requires fairness, reasonableness, integrity and honesty in international behaviour". An abuse of right is contrary to the principle of good faith (see Article 300 of the United Nations Convention on the Law of the Sea).
Of course, being a subjective element of behaviour, presence or absence of good faith can be difficult to prove. In the last analysis, good or bad faith can only be found in the minds of individuals, in particular of those who happen to have an influence on the conduct of foreign policy and, more specifically, of those whose task it is to negotiate and implement international conventions (see Articles 26, 31 (1) and 62 (2)(b)).
Apart from the fact that it is listed together with good faith among the universally recognized principles (preambular para. 3), this rule is also enshrined in Article 26:
"Every treaty in force is binding upon the parties to it and must be performed by them in good faith."
In Paul Reuter's words, this principle can be translated by the following formula: treaties "are what the authors wanted them to be and only what they wanted them to be and because they wanted them to be the way they are".
A party is not authorized to invoke the provisions of its internal law as justification for its failure to perform a treaty (Article 27). Generally speaking, this solid legal link is nor even weakened in the case severance of diplomatic relations between the parties to a given treaty (Article 63). The only limit to the "pacta sunt servanda" rule is to be found in the notion of "peremptory norm of general international law" (or jus cogens).
But apparently States expect increasingly out of realism that the treaties they conclude in certain areas, in particular with regard to the protection of the environment, will not be properly implemented by all States parties just out of respect for the "pacta sunt servanda" rule. This is why several recent treaties contain obligations to cooperate in order to facilitate compliance with the treaty obligations (see also Article 8 of the Ottawa Convention on the prohibition of landmines).
REBUS SIC STANTIBUS
According to this principle (understood in a broad sense), extraordinary circumstances can lead to the termination of a treaty. These circumstances can consist either in a material breach of a given treaty by one of the States Parties (Article 60), in a permanent disappearance of an object indispensable for the execution of the treaty (Article 61) or in a fundamental change of circumstances (Article 62, clausula rebus sic stantibus understood in a narrow sense).
A fundamental change of circumstances can also occur in the case of the outbreak of hostilities between the States Parties (see Article 73). However, this fact cannot be invoked as a ground for terminating a treaty, if it has been concluded with regard to the possible outbreak of an armed conflict as in the case of the Geneva Conventions of 12 August 1949 (so-called Red Cross-conventions) or the Hague Conventions of 1899 and 1907. The International Law Commission (ILC) has elaborated draft articles on Effects of armed conflicts on treaties.
A further extraordinary circumstance foreseen by the Vienna Convention is the emergence of "jus cogens" , i.e. of a new peremptory norm of general international law. This circumstance is distinct from those enumerated above by the fact that it is of normative and not factual nature. The rebus sic stantibus clause can be considered as an implicit reservation generally affecting the consent expressed by a State to be bound by a treaty. It seems worthwhile mentioning in this context that Argentina has made a reservation to Article 62 in which it made plain that she would not not accept the idea that a fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may be invoked as a ground for terminating or withdrawing from the treaty.
However, according to Article 62 (2)(a) (rebus sic stantibus clause understood in a narrow sense), a fundamental change of circumstances may not be invoked in the case of boundary treaties, the reason being that putting into question international boundaries can lead to a peace threatening situation, because it jeopardizes the principle of territorial integrity (see Article 2 (4) of the Charter of the United Nations) which is quite fundamental in international relations.
Hence, the Vienna Convention on Succession of States in respect of Treaties of 1978 has restated the rule that a succession of States does not affect as such a boundary or any other territorial regime established by a treaty.
FAVOR CONTRACTUS
This principle expresses the preference of international treaty law for the maintenance and the conclusion of treaties over expiry for reasons of form.
Hence, unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of he fact that the number of the parties falls below the number necessary for its entry into force (Article 55).
The Vienna Convention also sanctions the prohibition to denounce a treaty or to withdraw from it, if it does not foresee itself these forms of termination. This applies, of course, unless the parties did not wish, be it by tacit understanding, a different solution (see Article 56).
Likewise, in order to uphold the validity of treaties, Article 68 allows parties to revoke at any time before they take effect notifications or instruments designed to lead to invalidity, even this is done only in relationship to one single other party.
In practice, however, the most important expression of the favor contractus principle is contained in the provisions of the Vienna Convention concerning reservations; this website will devote to them a separate chapter. In particular, whereas a reservation has to be accepted implicitly or explicitly by at least one other State Party (Article 20 (2),(4)(c) and (5)), it can be withdrawn at any time without the consent of the State or States which had accepted it in the first place (Article 22 (1)). This is the only explicit exception to the free consent principle.
The favor contractus principle can be found in Article 74, too. This provision clarifies that the severance or absence of diplomatic or consular relations does not prevent concerned States to conclude treaties between themselves.
APPLICATION OF TREATY PRINCIPLES
(FREE CONSENT & GOOD FAITH)
... with regard to the conclusion of treaties
a)The expression of free consent
The Vienna Convention which governs agreements concluded in written form between States, confirms in its Article 6 that every State possesses capacity to conclude treaties. The will of a State finds its expression through persons who are authorized to do so or who are considered to be state representatives.
Since international treaty law in its entirety is subject to the free consent principle. it is quite logical that the Vienna Convention offers a broad choice of possibilities to express consent (Article 11), i.e.
- signature,
(in the case of bilateral treaties this often happens through the
exchange of notes),
- ratification,
- acceptance,
- approval,
- accession or
- by any other means if so agreed.
A typical clause of entry into force can be found in Article 84 of the Vienna Convention itself which reads:
"1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession.
2. For each State ratifying or acceding to the Convention after the deposit of the thirty-fifth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession."
The States Parties - primarily the contracting States (see Article 2 (1)(f)) - can also agree to apply a treaty provisionally pending its entry into force (Article 25). This agreement can be laid down in the treaty itself or in another way. If this done in the treaty itself, the agreement enters into force with its signature (and which in this case remains, of course, subject to ratification).
For reasons to be found in their own domestic legislation it is not possible for some States - Austria, for instance - to apply international conventions provisionally.
Finally, it should be mentioned that there are constitutions like that of Portugal (see Artikel 8) which do not authorize States to express their consent through all of the means enumerated in Article 11 of the Vienna Convention; hence, for Portugal there is only a possibility to ratify or approve a treaty. Since this is the result of a domestic provision, a consent which would be expressed in a different manner would not be flawed from point of view of international treaty law, because the ways and means to express consent are already determined by customary international law and not only by the Vienna Convention.
b)Pacta tertiis nec nocent nec prosunt
A treaty binds the parties and only the parties; it does not create obligations for a third State without its consent (Article 34), since sovereignty implies that there is no agreement without free consent. "Third State" means a State which not a party to a given treaty (Article 2 (1)(h)).
The acceptance of an obligation by a third State must be expressed both expressly and in writing (Article 35), in order to avoid doubts as to the extent of the obligation which had been previously defined by others.
A consent which as been expressed in such a way can be qualifies as quasi-contractual. Hence, it is only logical that the obligation can only be revoked or modified with the consent of all parties to the treaty as well as of the third State, unless it is established that they had otherwise agreed (Article 37(1)).
Although a third State cannot be granted a right without its approval, its assent is nevertheless presumed (Article 36(1)). A third State which exercising such a right is under an obligation to comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty (Article 36(2)). The rights granted to a third State can be revoked by the States Parties unless it is established that the right was intended not to be revocable or subject to modification without the consent of the third State. In such a case, the burden of proof lies with the third party benefiting of the right or rights.
The principle according to which a treaty cannot create rights or obligations for a third party without its consent is expressed in Latin by the phrase "pacta tertiis nec nocent nec prosunt". This rule also applies when two or more parties of a multilateral convention conclude an agreement to modify the convention only in relation to each other, since they hereby exclude third States from their agreement inspite of the fact that the latter are parties to the original treaty (see Article 41).
c)Designation of treaties
As it appears from the definition of Article 2 (1)(a) of the Vienna Convention, the legally binding nature of a treaty is not affected by its particular designation. In order to be legally binding, the parties must have had the intention to be bound legally and not "only" through a political commitment.
Nevertheless, the designation of a particular agreement indicates the political importance the parties attach to it, though it cannot be considered as conclusive evidence.
With regard to bilateral agreements, the term "Treaty" suggests that the agreement so designated is considered to be of great importance. Friendship treaties, although outdated in many cases today, are an example thereof. The nowadays most utilized designation seems to be "Agreement". It is utilized so often that it is impossible to conclude from there which political value it has for the parties. The term "memorandum of agreement" is widespread, too.
With regard to multilateral agreements, the terms "Charter" or, here again, "Treaty" are chosen in general for the most important conventions as it is the case for
- the Charter of the United Nations of 1945,
- the Charter of the Organization of American States(1948),
- the Charter of the Organisation of the Islamic Conference (2008) or
- the European Charter for Regional or Minority Languages(1992).
Inspite of its solemn title, the Charter of Fundamental Rights of the European Union, which has been proclaimed in Nice on 7 March 2000 is not a legally binding instrument, although it is designed to become the common reference of fundamental values on which the members of the European Union intend to develop their further integration.
As to the designation of a text as "Treaty", here are some examples:
- the North Atlantic Treaty (the NATO-Treaty) of 1948,
(NPT - 1968) and
- the Treaty on the European Union of 1992 (as amended by the
Treaty of Nice of 2001).
In most cases, multilateral treaties are called "Conventions". This is the most general designation which is also used by Article 38 of the Statute of the International Court of Justice. They are often concluded under the auspices of an international organization such as
- the Convention for the Protection of Human Rights and
Fundamental Freedoms of 1950 (so-called
European Human Rights Convention concluded
under the auspices of the Council of Europe),
- the United Nations Convention on the Law of the Sea (1982) or the
- the Universal Copyright Convention as revised at Paris on
24 July 1971 (concluded under the auspices of the
United Nations Educational, Scientific and Cultural Organization
- UNESCO) or the
As in the case of bilateral treaties, the very general term "Agreement" is also frequently used for multilateral conventions. It has been used in the following examples:
for Students Studying Abroad of 1969,
(1979) or
- the North American Free Trade Agreement (1992).
The designation "Protocol" is usually used for legally binding agreements which are additional or complementary to main agreements or which have a supporting role.
As additional agreements they are added to the original treaties as it is the case with the Protocols Additional to the Geneva Conventions of 12 August 1949.
As complementary agreement, they are in general already foreseen in the original convention. This technique is frequently used in environmental treaties where the protocols set out detailed provisions on the basis of a more general article in a framework agreement as it is the case of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity which has been adopted in 2000 on the basis of Article 19 (3) of the convention dating from 1992.
Finally, as supporting agreements, they help to implement the main agreement as in the case of the Optional Protocol to the International Covenant on Civil and Political Rights of 1966, through which access to an intergovernmental body has been given to individuals.
In the present context, it is worthwhile mentionning that on this website we have also encountered the terms
- "Statute" (Statute of the International Court of Justice,
and
- "Covenant" (International Covenant on Civil and Political Rights,
... with regard to the termination of treaties
a)By consensus
In the same way as States can conclude treaties, they can also terminate them by mutual consent. Their consent can be expressed either in the treaty itself which they had originally concluded (expiry date, denunciation clause) or thereafter (article 54), in particular through the conclusion of a later treaty aiming at achieving this very purpose (Article 59, explicit termination), or through the conclusion of a treaty relating to the same subject-matter (see Article 30 (3), implicit termination). The same rules apply for the termination as well as for the suspension of treaties (Article 57 and 59 (2)).
With regard to multilateral treaties, the Vienna Convention authorizes two or more parties to suspend the operation of treaty provisions
- temporarily and
- as between themselves alone,
as long as this does not entail a limitation of rights or obligations of the other parties (Article 58 (1); application of the principle "pacta tertiis nec nocent nec prosunt").
Unless the treaty otherwise provides, the parties in question have to notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend (Article 58 (2)).
As a matter of course, where a treaty contains a denunciation clause, the parties can avail themselves of the possibility offered by it and withdraw from the treaty. The unilateral denunciation is not in contradiction to the principle of free consent, since the possibility of such a denunciation had been agreed upon by the parties in the treaty.
... with regard to the termination of treaties
b)Termination of treaties as a consequence of a defect of consent
Every person invested with appropriate full powers has the authority to express the consent of the State which he represents to be bound by a given treaty. If this authority has been made subject to a specific restriction which has then not been observed by the representative, the State may invoke this fact as invalidating its consent. However, this possibility only exists, if the restriction had been notified to the other negotiating States before the expression of consent (Article 47), because if this prior notification did not take place, it would be easy to invoke defect of consent by mere political opportunism which, in return, would constitute a behaviour contrary to the principle of good faith.
The other defects of consent are enumerated exhaustively in the Articles 48 to 52 of the Vienna Convention. They are the consequence of
- an error (Article 48)
- deceit (Articles 49 and 50)
- or coercion (Articles 51 and 52).
Defects of consent
Error
An error (Article 48) is a mistaken impression of facts which nullifies consensus. A State may invoke an error if it 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 (Article 48). This provision echoes the adage "omnis conventio intelligitur sic stantibus": A genuine consensus only exists where all essential facts were equally known by all parties. Nevertheless, a State may only invoke an error, if it has not contributed to it by its own conduct.
Deceit
Like an error, fraud (Article 49) leads to a mistaken impression of reality, but unlike the former it is the consequence of a deception by the other party or parties. The State Party victim of such an act is entitled to invoke fraud as invalidating its consent to be bound by the treaty.
The corruption of a State representative (Article 50) perverts the relationship of agency existing between this person and the State from which he has the authorization to act on its behalf. Corruption can occur either directly or indirectly, and in order to be invoked, it must be at the origin of the expression of a consent to be bound by a given treaty.
Within the boundaries set by Article 44 (4) deceived States are entitled to invalidate either the whole treaty or only parts thereof. In cases of coercion (see below) or of treaties conflicting with jus cogens, the possibility of making such a choice is no foreseen; hence, only the treaty as a whole is voidable (Article 44 (5)).
Coercion
The most quoted example of a coercitive measures taken against a State representative (Article 51) are the threats formulated against the Czechoslovak President Hacha in order to have him agree on the end of a independent Czechoslovakia.
"A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations." (Article 52). Such a coercion is indeed prohibited by Article 2 (4) of the Charter of the United Nations. Since consensus for the inclusion of a definition of "theat" in the Vienna Convention itself was lacking, the United Nations Conference on the Law of Treaties adopted together with the Vienna
Convention a "Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties". Paragraph one of this legally non-binding declaration
"solemny condems the threat or use of pressure in any form, whether military, political, or economic, by any State in order to coerce another State to perform any act relating to the conclusion of a treaty in violation of the principles of the sovereign equality of States and freedom of consent".
However, in the context of diplomatic protection the question of the legitmacy of the use of force is disputed. Therefore, for some there is no defect in the consent of a State which has been brought about under such circumstances. As a matter of course, such an argumentation is very dangerous, since it furthers aggressive behaviour shown under the pretext that is is legitimated by the international law of diplomatic protection. But how ar peace treaties to be judged in the light of Article 52, since most of them are the result of armed conflicts ?
... with regard to the termination of treaties
c)No derogation of jus cogens
With the exception of the provision contained in Article 22, para.1 which emanates from the favor contractus principle, only peremptory norms of general international law (Latin: jus cogens) can stand in the way of an agreement which has been freely entered into. Indeed, Article 53 of the Vienna Convention specifies that a treaty conflicting with jus cogens at the time of its conclusion is void. Similarly, a treaty becomes void and terminates, if it is in contradiction with a peremptory norm of international law which has newly emerged (jus cogens superveniens - Article 64)
In that context we are in the presence of quite obscure provisions despite the definition of jus cogens contained in Article 53: According to it, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
As the International Law Commission (ILC) nevertheless remarked itself in 1969 in its commentary on the draft articles for the international law of the treaties, there is no simple criterion which would allow to determine whether a rule belongs to jus cogens.
This state of affairs has hardly evolved, although it seems that certain international norms for which criminals will have to stand before the International Criminal Court after having breached them constitute to a large extent the body of these sought jus cogens rules. These penal provisions concern the prohibition of genocide, war crimes, crimes against humanity and the crime of aggression. Recently, a debate started on whether the prohibition to proliferate nuclear weapons constitutes a peremptory norm of international law.
Eventually, jus cogens seems to be a concept invented by international law experts who had been pursuing the aim of allowing natural law ideas to irrupt into the legal regime of international treaties.
... with regard to the amendment of treaties
The rules concerning the conclusion of treaties (Articles 6 to 25) equally apply for the amendment of treaties (Article 39). Because of the principle of free consent, the States Parties are free to create specific norms for the amendment of their treaty or treaties. Such an agreement can be entered into
- either implicitly
- or explicitly,
both orally or in written form (the Vienna Convention, however, is only applicable for agreements concluded in written form). This agreement can authorize the amendment of the original treaty as well as it can prohibit or restrict amendments. Nevertheless, agreements concerning the amendment of treaties can also be subject to amendments themselves.
a) The implicit amendment
An amendment is done implicitly when the States Parties conclude successive treaties relating to the same subject-matter. Unless otherwise provided for in an agreement, the earlier treaty applies only to the extent its provisions are compatible with the later treaty (in conformity with the latin maxim lex posterior derogat legi priori according to which the later treaty prevails over an earlier one if both regulate the same subject-matter, Article 30 (3)).
In view of the provisions concerning e x p l i c i t amendments between certain parties only (Article 41) the implicit amendment must be considered as problematic, since it does not warrant the same transparency in the course of a negotiation:
In particular, parties which want to modify a treaty in accordance with Article 41, para. 2 have to notify the other parties of their intention. This provisions aims at ensuring that negotiations are conducted in good faith with parties being aware of the relevant circumstances.
b) The explicit amendment
For bilateral treaties the rule incorporated in Article 39 according to which a treaty can be amended by agreement between the parties seems sufficient. As for multilateral treaties, one can envisage two types of situation:
- either two or more States make a proposal for an amendment
designed to enter into force for all States parties
- or they intend to modify the treaty only between themselves.
In both cases, in view of the good faith principle, the acting parties have to notify the others of their intention to conclude the agreement and of the envisaged modification to the treaty (Article 40 (2) and 42 (2)).
According to the principle that agreements do not bind parties which are not privy to it (Article 34, repeated in Article 30 (4)(b) - pacta tertiis nec nocent nec prosunt), a modification agreed upon between certain States cannot bind other States which have not approved the modification or amendment (Article 40 (4)), despite the fact that the latter are parties to the original treaty.
Out of respect for the principles of free consent and good faith, an agreement aiming at modifying a multilateral treaty only between certain of its parties, must not infringe
- neither upon the rights and obligations of the parties to the original
treaty
- nor upon its object and purpose (Article 41(1)(b)(ii) - a vague
concept, which is reiterated in the Articles 18, 19 and 31(1)).
Finally, it is worthwhile noting that the Vienna Convention distinguishes between amendments which are valid for all parties to a given treaty and modifications which are only relevant for a restricted number of them.
... with regard to the interpretation of treaties
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (Article 31 (1); here again, as in the Articles 18, 19, 20 (2), 41 (1)(b)(ii) and 58 (1)(b)(ii), we find again the vague concept of "object and purpose of a treaty").
The context includes, in addition to the treaty text itself, the preamble and the annexes as well as other agreements and documents which are considered by the parties as being instruments related to the treaty (Article 31 (2)). Furthermore, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation has to be taken into account, too.
According to the "Appellate Body", the highest dispute settlement organ of the World Trade Organization (WTO), the context of a legal instrument is also constituted by the other treaties its parties adhere to. Hence, in the case concerning "Standards for Reformulated and Conventional Gasoline" the Appellate Body explained that the Marrakesh Agreement Establishing the World Trade Organization (the "WTO Agreement") "is not to be read in clinical isolation from public international law". That means, in particular, that the trade provisions of the WTO Agreement have also to be interpreted in the light of conventions for the protection of the environment, provided that they are in force between the States Parties of the WTO Agreement.
Finally, there are supplementary means of interpretation as, for instance, the preparatory work of the treaty (so called "travaux préparatoires") and the circumstances of its conclusion (Article 32).
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