PUBLIC INTERNATIONAL LAW I - Chapter 3 Summary

Hello everyone! Welcome to the Public International Law course. We will continue our course with Chapter 3, Law and Practice of Treaties. In this chapter, we will talk about the concept of treaty in international law, the making of treaties, reservations to treaties, invalidity of treaties, termination and suspension of treaties, and lastly, treaty interpretation, amendment, and modification of multilateral treaties. We are starting this chapter with the concept of treaty in international law. Some define treaty as a written agreement by which two or more states or international organizations create or intend to create a relation between themselves operating within the sphere of international law. According to others, international treaties are agreements of a contractual character between states or organizations of states treating legal rights and obligations between the parties. The Vienna Convention defines treaty as an international agreement concluded between states in written form and governed by international law. But do not forget that every treaty is an agreement, but not all agreements are treaties. Let's continue with the making of treaties. The municipal law governs all matters concerning the authority to make international agreements. International law does not prescribe any manner or procedure to exercise the treaty-making power by state which has the constitutional arrangements. Generally, the authority to conclude treaties vests in the head of state who, in turn, delegate the power to negotiate and sign treaties to the ministers of foreign affairs and other diplomatic officials. Governments may also authorize their diplomatic officials. From negotiation to ratification, it is an act of the executive. Generally speaking, treaty is an executive act, and in the absence of any provision in the constitution to the contrary, the treaty-making power resides in the head of a state. At this point, we should continue with reservations to treaties. A reservation is a unilateral statement made by a state at the time of signing, ratifying, accepting, approving, or exceeding a treaty. The rationale behind reservation is that a state which is unable to fulfill its treaty obligations in totality because of certain constraints should be allowed to do so. Even this is in a limited way, provided that the reservation does not materially affect the basic provisions of the treaty. However, the right to make reservation to multilateral treaties that do not have any specific provision on reservation has always remained controversial. There have been three principal approaches in this regard. The traditional approach, the Pan-American approach, and the modern approach. The making of reservations and acceptance or objections must be in writing and must be duly communicated. A reservation or an objection to it may be withdrawn at any time by giving a notice. The notice will become effective when it is received by the other state that has accepted the reservation or formulated the reservation as the case may be. Now comes the subject of invalidity of treaties. The principle of treaties must be recognized as a fundamental principle of international law that makes the treaties binding. Once entered into a treaty, a state must observe the treaty obligations in good faith. The Vienna Convention provides that every treaty in force is binding upon the parties to it and must be performed by them in good faith. Regarding the violation of domestic law on treaty making, there are three different opinions regarding the validity of a state's consent for non-compliance with a requirement of municipal law on treaty making. A treaty becomes voidable in contravention of constitutional limitations. A state contesting the validity of a treaty on constitutional grounds may invoke only those provisions of the constitution which are notorious. Once the state has expressed its consent to be bound by the treaty through one of the established procedures under its constitutional law, the state is bound by the treaty in international law. The termination and suspension of treaties is also an important topic to dwell on. Treaties are liable to be terminated or suspended either in accordance with the will of the parties or by the operation of any rule of law. The termination of a treaty or withdrawal by a party may be in accordance with the terms of the treaty or at any time by the consent of all the parties. The operation of a treaty may be suspended for all the parties or for a particular party according to the express stipulations of the treaty or by mutual consent of all the parties at any time. Where a treaty is silent on the matter of termination, withdrawal or denunciation, normally no denunciation or withdrawal is possible. Treaties creating permanent regimes cannot be denounced. Treaties of alliance and commerce because of their subject matter are susceptible of denunciation even without containing any express provision to that effect. A treaty may be impliedly repealed if all its parties conclude a new treaty relating to the same subject matter. This can be in two cases. The first one is if it appears from the later treaty or otherwise established that the parties intended that the matter be governed by the new treaty or the second one is its provisions are incompatible with the earlier treaty and the two are not capable of being applied at the same time. Also sometimes it becomes difficult for the parties to fulfill their obligations under a treaty because of certain events that may lead to its termination or denunciation by a party. We will lastly talk about treaty interpretation, amendment and modification of multilateral treaties. The technique of interpretation is important to ascertain the true meaning of the text of a treaty. When parties ascribe different meanings to the same term or the meaning of the term is obscure and ambiguous, it is through the technique of interpretation that the term of the treaty is clarified. Interpretation differs from application of treaties which almost invariably involves some measure of interpretation whereas interpretation is the process of determining the meaning of the text and application is the process of determining the consequences which according to the text should follow in a given situation. There are three main approaches to treaty interpretation textual, the intention of the parties and teleological. These three approaches can be compounded to ascertain the true meaning of a treaty. So this is the end of our program for chapter three of the public international law course. Goodbye and see you in our next program chapter four.