Definition of Treaty (Vienna Convention on the Law of Treaties, 1969)

The primary source for the modern definition and rules governing treaties is the Vienna Convention on the Law of Treaties (VCLT), adopted in 1969. The VCLT is often called the "treaty on treaties" as it codifies the customary international law and principles that apply to agreements between states. While India has signed the VCLT, it has not ratified it. However, India's courts and government consider many of its provisions as reflecting customary international law and therefore binding.

Article 2(1)(a) of the VCLT provides the authoritative definition of a treaty for the purposes of the Convention:

"An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."

This definition can be broken down into several key components.

International agreement

This element signifies a meeting of minds or a convergence of will between the parties. The states involved must have a genuine intention to create legally binding rights and obligations among themselves under international law. This distinguishes a treaty from a mere political declaration or a non-binding instrument like a Memorandum of Understanding (MoU) or a joint communiqué, which may only express common goals or intentions without creating legal duties.

Concluded between States

The 1969 VCLT specifically applies to treaties concluded between States. States are the primary subjects of international law and possess full treaty-making capacity. Agreements between a State and an international organization, or between two international organizations, are also treaties in a broader sense but are governed by a separate convention, the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Agreements between a state and a private foreign company are not treaties but are considered international contracts, typically governed by a specified national law.

In written form

The VCLT applies exclusively to agreements that are in written form. This requirement ensures clarity, precision, and verifiability of the terms agreed upon. While customary international law recognizes that oral agreements between states can be legally binding, such agreements fall outside the scope of the VCLT. The convention does not deny the legal force of oral agreements but simply states that its own rules do not apply to them.

Governed by International Law

This is a crucial element reflecting the intent of the parties. For an agreement to be a treaty, the states involved must intend for it to be subject to the rules and principles of international law, rather than the domestic law of one of the parties. This intent is what gives the agreement its international legal character. The name or designation given to the instrument—be it a 'Convention', 'Pact', 'Covenant', 'Charter', 'Statute', 'Protocol', or 'Agreement'—is immaterial. What matters is the substance of the agreement and the intention of the parties to be bound by it under international law.

Types of Treaties

Treaties are the most important source of international law and can be classified in several ways based on their parties, subject matter, and function. Understanding these classifications helps to appreciate their different roles in the international legal system.

Bilateral vs. Multilateral

This is the most common classification, based on the number of parties to the treaty.

• Bilateral Treaties: These are agreements concluded between two states. They function much like a contract between two individuals, creating specific rights and obligations for the two parties involved. They are the most numerous type of treaty.
  Examples: An extradition treaty between India and the United Kingdom, a trade agreement between India and Australia, or an air services agreement between two countries.

• Multilateral Treaties: These are agreements concluded between three or more states. They often deal with matters of common concern to a large number of states or the entire international community. They can be regional (e.g., SAARC Convention) or global (e.g., UN Charter).
  Examples: The United Nations Convention on the Law of the Sea (UNCLOS), the Paris Agreement on climate change, the Nuclear Non-Proliferation Treaty (NPT).

Law-making treaties

Law-making treaties, also known as normative treaties, are treaties that create general norms and principles of conduct that are intended to govern the behaviour of parties for the future. They are analogous to legislation in a domestic legal system.

• Characteristics: These treaties are almost always multilateral. They don't just regulate a specific issue between a few states but aim to establish universal or general rules of international law. They are a primary method for the codification and progressive development of international law.

• Function: They lay down universal legal frameworks on issues like human rights, the laws of war, the law of the sea, and diplomatic relations.

• Examples:

  • The Geneva Conventions of 1949, which set the standards for international law for humanitarian treatment in war.
  • The Vienna Convention on Diplomatic Relations of 1961, which codifies the rules for diplomatic intercourse between states.
  • The International Covenant on Civil and Political Rights (ICCPR) of 1966, which establishes a body of fundamental human rights.

Treaties creating international organizations

This is a special category of multilateral treaty, often referred to as a constituent treaty or a charter. The primary purpose of such a treaty is to establish a new international organization and to serve as its constitution.

• Characteristics: These treaties go beyond setting rules of conduct; they create new legal entities (international organizations) with their own organs, powers, and legal personality on the international stage.

• Function: They define the organization's objectives, structure, membership, functions, and the powers of its various organs (e.g., an assembly, a council, a secretariat, a court).

• Examples:

  • The Charter of the United Nations (1945), which established the United Nations and its principal organs like the General Assembly, Security Council, and International Court of Justice.
  • The Rome Statute of the International Criminal Court (1998), which created the International Criminal Court (ICC).
  • The Articles of Agreement of the World Bank and the International Monetary Fund, which are the constituent treaties for these financial institutions.

Process of Treaty-Making

The creation of a treaty, from initial idea to legally binding instrument, is a formal and deliberate process governed by both international law (primarily the Vienna Convention on the Law of Treaties, 1969) and the domestic constitutional law of each participating state. While the specific procedures can vary, the process generally follows a sequence of distinct steps: negotiation, authentication of the text, and the expression of consent to be bound (e.g., through ratification).

Negotiation

This is the foundational stage where the representatives of two or more states come together to discuss, draft, and agree upon the content, terms, and wording of a proposed treaty. The nature of negotiations can differ significantly:

• Bilateral Treaties: Negotiations are often conducted through diplomatic channels, between foreign ministries, or by specially appointed envoys.
• Multilateral Treaties: These are typically negotiated at large international conferences convened for a specific purpose (e.g., the Rome Conference for the ICC Statute) or within the framework of an international organization like the United Nations.

Representation of States

A state is represented in negotiations by individuals who possess "full powers," which is a formal document issued by a state's competent authority authorizing a person to represent the state for negotiating and concluding a treaty. However, under Article 7 of the VCLT, certain high-level officials are considered to have full powers by virtue of their position (de jure) and do not need to produce this document. These include:

• Heads of State, Heads of Government, and Ministers for Foreign Affairs.
• Heads of diplomatic missions (for adopting the text of a treaty between their accrediting State and the State to which they are accredited).
• Representatives accredited by States to an international conference or to an international organization.

Authentication

Once the negotiations are complete and the final wording of the treaty is agreed upon, the text must be authenticated. This is the formal procedure by which the text is established as authentic and definitive. It "freezes" the text, confirming that it is the final, agreed-upon version.

According to Article 10 of the VCLT, the common methods of authentication are:

• Signature: The most common method, where representatives sign the treaty text.
• Signature ad referendum: A preliminary signature that requires subsequent confirmation by the government.
• Initialling: Representatives place their initials on the text, which also serves to authenticate it.

It is crucial to understand that signing a treaty does not usually mean that the state is legally bound by it yet. The signature primarily signifies two things:

1. That the state agrees the text is the final version.
2. A good faith obligation under Article 18 of the VCLT to refrain from acts which would defeat the object and purpose of the treaty until the state has made its intention clear regarding ratification.

Ratification/Accession

This is the most critical step by which a state formally declares its consent to be bound by a treaty. It is a two-level process, involving both domestic and international actions.

Ratification

Ratification is the process used by states that have participated in the negotiation and signing of a treaty. It gives the state an opportunity to review the treaty at the national level and take the necessary legislative action before committing to it internationally.

1. Domestic Procedure: The state follows its own constitutional rules. In many countries, this involves seeking approval from the national parliament or legislature. In India, under Article 73 of the Constitution, the executive branch of government holds the power to make and ratify treaties. While parliamentary approval is not constitutionally mandatory for all treaties, it is a common practice to seek it for significant treaties or those that require the enactment of a new domestic law to be implemented.
2. International Procedure: After domestic approval, the state prepares a formal document called an "instrument of ratification." For a bilateral treaty, these instruments are exchanged between the two states. For a multilateral treaty, the instrument is deposited with a designated depositary (e.g., the Secretary-General of the United Nations). The state is legally bound from the moment of this exchange or deposit.

Accession

Accession is the method by which a state that did not sign the treaty (e.g., because it did not participate in the negotiations or missed the deadline for signature) can become a party. It has the same legal effect as ratification and is accomplished in a single step by depositing an "instrument of accession" with the depositary.

Reservations to Treaties

A reservation is a unilateral statement made by a state when it signs, ratifies, or accedes to a multilateral treaty, through which it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state. The practice of allowing reservations strikes a balance between two competing goals: maintaining the integrity and uniformity of the treaty, and encouraging the widest possible participation (universality) by allowing states to opt-out of provisions they cannot accept.

Conditions for valid reservations

The right to make a reservation is not unlimited. Article 19 of the VCLT sets out the conditions under which a reservation is permissible. A state may formulate a reservation unless:

1. The reservation is prohibited by the treaty.
   Some treaties explicitly forbid any reservations to ensure that all parties are bound by the exact same obligations. For example, the Rome Statute of the ICC explicitly prohibits reservations.

2. The treaty provides that only specified reservations, which do not include the reservation in question, may be made.
   A treaty may allow reservations to certain articles but not others. Any reservation that is not on the permitted list is invalid.

3. The reservation is incompatible with the object and purpose of the treaty.
   This is the most important and most general rule. A state cannot make a reservation that undermines the core principles or the fundamental aim of the treaty. The "object and purpose" refers to the essential reason the treaty was created. Determining what is incompatible is often a matter of interpretation by the other state parties.

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Entry into Force

Entry into force is the event that marks the beginning of a treaty's life as a legally binding instrument. It is the moment from which the treaty becomes operative, and the states that have consented to be bound are legally obligated to perform its provisions in good faith. This fundamental principle of compliance is known as pacta sunt servanda ("agreements must be kept"), which is codified in Article 26 of the VCLT.

Determining the Moment of Entry into Force

The rules for entry into force are determined by the treaty itself. Article 24 of the VCLT states that a treaty enters into force in such manner and upon such date as it may provide or as the negotiating states may agree. In the absence of such a provision, a treaty enters into force as soon as consent to be bound has been established for all the negotiating states.

Common methods include:

• Bilateral Treaties: Entry into force often occurs on a specific date or upon the exchange of the instruments of ratification between the two parties.

• Multilateral Treaties: These typically require a minimum number of states to express their consent to be bound before the treaty becomes operational. This threshold prevents a treaty from coming into force with only a handful of parties, ensuring it has a meaningful level of support. The specific clause might look like this:

  "This Convention shall enter into force on the ninetieth day following the date of deposit of the thirtieth instrument of ratification or accession."

  For example, the United Nations Convention on the Law of the Sea (UNCLOS) entered into force on 16 November 1994, one year after the 60th state (Guyana) ratified it.

Entry into Force for Latecomers

For a state that ratifies or accedes to a multilateral treaty after it has already entered into force, the treaty will typically enter into force for that specific state on the date it deposits its instrument of ratification, or after a short waiting period (e.g., 30 days) as specified in the treaty. From that moment, it joins the existing community of state parties and is bound by the same rights and obligations.

Interpretation of Treaties

The interpretation of treaties is the process of determining the meaning of the terms and provisions of a treaty to understand the scope of the rights and obligations agreed upon by the parties. Since treaties are the result of negotiations between states with different languages, cultures, and legal traditions, ambiguities and disagreements over meaning are common. The Vienna Convention on the Law of Treaties (VCLT) provides a structured and authoritative framework for interpretation in its Articles 31 and 32.

Rules of interpretation

The VCLT establishes a primary "general rule" of interpretation that integrates several approaches, supported by "supplementary means" that can be used in specific circumstances. This framework prioritizes the text of the treaty itself while allowing for context and purpose to be considered.

General Rule of Interpretation (Article 31 of VCLT)

Article 31 combines the textual, contextual, and teleological (object and purpose) schools of interpretation into a single, unified rule. It states that 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.

• Good Faith: Parties must act honestly and reasonably in interpreting the treaty, consistent with the principle of pacta sunt servanda (agreements must be kept).

• Ordinary Meaning: The starting point is always the plain, literal meaning of the text. This is the textual or objective approach.

• Context: The "ordinary meaning" is not determined in isolation. The context includes:

  • The entire text of the treaty, including its preamble and annexes.
  • Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty.
  • Any instrument which was made by one or more parties in connection with the treaty's conclusion and accepted by the other parties as an instrument related to the treaty.

• Object and Purpose: The interpretation must be consistent with the overall goal or aim of the treaty. This is the teleological approach. For example, a human rights treaty should be interpreted to maximize the protection of human rights.

Furthermore, Article 31 provides that, along with the context, account shall be taken of:

• Subsequent agreements between the parties regarding the interpretation of the treaty.
• Subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.
• Any relevant rules of international law applicable in the relations between the parties.

Supplementary Means of Interpretation (Article 32 of VCLT)

Supplementary means, such as the preparatory work of the treaty (travaux préparatoires) and the circumstances of its conclusion, can be used in two situations:

1. To confirm the meaning resulting from the application of Article 31.
2. To determine the meaning when the interpretation according to Article 31 either (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

Amendment and Modification of Treaties

As circumstances change over time, states may find it necessary to alter the provisions of a treaty. The VCLT provides two distinct procedures for this: amendment, which involves all parties, and modification, which involves only some of them.

Amendment (Article 40)

An amendment is a formal revision of a treaty's provisions that affects all the parties. The process for amending a treaty is as follows:

• Proposal: Any proposal to amend a multilateral treaty must be notified to all contracting states, each of which has the right to take part in the decision-making and negotiation.

• Consent: States that become parties to the treaty after the amendment has entered into force are considered parties to the amended treaty, unless they express a different intention.

• Binding Effect: The crucial rule is that the amending agreement does not bind any state which is already a party to the original treaty but does not become a party to the amendment. This can create complex relationships:

  • Between two states that have both ratified the amendment, the amended treaty applies.
  • Between a state that has ratified the amendment and a state that has not, the original, unamended treaty applies.

Modification (Article 41)

A modification (or an inter se agreement) is an agreement between two or more parties to a multilateral treaty to alter the treaty's effects as between themselves only. This is permissible only under strict conditions:

1. The possibility of such a modification must be provided for by the treaty itself; OR

2. The modification is not prohibited by the treaty AND:

   • it does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; and
   • it does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

The parties intending to conclude such a modification must notify the other parties of their intention.

Termination and Suspension of Treaties

Termination releases all parties from the obligation to perform the treaty, while suspension temporarily relieves them of this duty. Given the importance of treaty stability (pacta sunt servanda), the VCLT provides a limited and exhaustive list of grounds upon which a treaty may be lawfully terminated or suspended.

By consent

The simplest way to end a treaty is through the consent of the parties.

• In accordance with the treaty's provisions: Many treaties contain clauses specifying their duration or a procedure for withdrawal or termination. For instance, a treaty might state it is valid for 10 years or that a party may withdraw by giving 12 months' notice.

• By consent of all parties: At any time, a treaty can be terminated if all the parties to it agree. This can also be achieved if all parties conclude a later treaty on the same subject matter that is intended to replace the earlier one.

By material breach

A "material breach" of a treaty by one party may entitle the other parties to invoke the breach as a ground for terminating the treaty or suspending its operation (Article 60, VCLT).

A breach is "material" if it consists of:

• A repudiation of the treaty not permitted by the VCLT; or
• The violation of a provision essential to the accomplishment of the object or purpose of the treaty.

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By supervening impossibility of performance

A state may invoke the impossibility of performing a treaty as a ground for terminating it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty (Article 61, VCLT).

For example, if a treaty requires one state to ensure the flow of a river to another state, and the river permanently dries up due to geological shifts, performance becomes impossible. This ground cannot be invoked if the impossibility is the result of a breach by the party invoking it.

By fundamental change of circumstances (Rebus sic stantibus)

This is a very controversial and strictly limited doctrine, known as rebus sic stantibus ("things standing thus"). A state may only invoke a fundamental change of circumstances as a ground for termination if a set of very strict, cumulative conditions are met (Article 62, VCLT):

1. The change must be of circumstances that existed at the time the treaty was concluded.
2. The change must be fundamental.
3. The change was not foreseen by the parties.
4. The existence of the original circumstances was an essential basis of the consent of the parties to be bound.
5. The effect of the change is to radically transform the extent of obligations still to be performed.

This ground cannot be invoked for a treaty that establishes a boundary.

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