Bilateral and multilateral treaties are governed by uniform legal rules; however, the process of negotiation and conclusion may differ. Generally bilateral treaties are initiated in the foreign ministry of one of the two interested parties. Instruments such as diplomatic notes are exchanged between the parties and draft instruments are prepared by the legal advisers.
Multilateral treaties are usually drafted at diplomatic conferences where participant states to the treaty are represented by their respective delegations. Drafts and working papers are considered by the delegates of such conferences and these documents serve as the basis for negotiations and bargaining.4
The negotiating and drafting process at these diplomatic conferences resembles that of national legislatures. Here amendments to different provisions of the working papers are presented, rapporteurs are designated, drafting committees are established, alternative texts are proposed and debated, etc. The conference records are a valuable source of information on the drafting history of the treaty. The formal results of the conference are frequently summarized in a so-called Final Act, which usually contains the text of the treaty. The Final Act can and often does serve to authenticate the text of the treaty.5
These treaties become effective on international plane when both states indicate their willingness to accept and adopt the agreement effective from a specific date. Multilateral treaties contain conditions specifying that how many states have to accept the treaty before it will be in force between them.6
The consent of a state to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other manner if so agreed.7 For acceptance of the treaty under international law, the methods specified may be utilized by a state to indicate its acceptance of the treaty. The signatures on the treaty by competent authorities of the states will bring a binding effect.8
The Convention on treaties require that the treaty must provide that on ratification it will have a binding effect.9 On the international plane, ratification is an act whereby a state, through its head of state, foreign minister, or duly authorized diplomatic agent declares that it considers itself bound by the treaty. The declaration is usually contained in a so-called instrument of ratification. These instruments are either exchanged between the parties or deposited with a previously designated depository government or organisation, which performs various custodial functions relating to the treaty.10
Ratification usually is the subsequent act in a two-stage process, the process requires signature followed by ratification. The signature serves as a method for the authentication of the text of the agreement.11 The subsequent ratification brings the agreement into force, their earlier signature alone does not have that effect.12
These treaties are submitted to the national authorities, say parliaments, for ratification who are empowered under national law to approve these treaties. A typical sequence for adoption and ratification for a country would be as under:
(1) Negotiation of treaty by authorized representative; (2) Signature of the representative on the concluded agreement; (3) Submission of the treaty before the Parliament; (4) Approval of treaty by the Parliament; (5) Ratification of the instrument by the respective parties.
Once the treaty is ratified by the parties, only then the negotiating countries will be bound by the treaty.
Sometimes these treaties can be signed with statements labelled as reservations.13 The statement of reservation are to be interpreted in terms of the provisions of VCLT.13A To determine its impact such statements are in fact not relevant..
In addition to reservations, there may exist understandings or declarations. These statements provide that a given provision of the treaty is well understood and does have a specific meaning. But it has been observed that in practice such statements cause ambiguities, for example, whether a declaration is a reservation or merely a unilateral interpretation.
However, three exceptions to the rule relating to reservations, exists, ie, (i) reservations prohibited by treaty; (ii) the type of reservation, say typical or limited; (iii) whether or not reservation is incompatible with the object and purpose of treaty.14
Where reservations are accepted by the parties it proposes to modify the terms of the treaty between parties to the agreement.15 In case of ambiguity created by such statements, the way out has been provided by the provisions of VCLT.16 A treaty may, however, provide that a reservation to the agreement requires acceptance by all parties.17 Where a treaty is the part of the document accepted by an international organisation, the statement so made will have to be accepted by the organisation.18 Where reservations made are not incompatible with the object and purpose of the treaty, the parties to the agreement are free to accept or reject the reservation.19
Let us assume that there is a multilateral treaty with a large number of states parties that contains no prohibition regarding reservations. Let us assume further that State P seeks to ratify with a reservation modifying Article 5 of a treaty. What will be the treaty relations of State P, if State I accepts the reservation, State F objects to it but does not object to P becoming a party, and State Q objects to the reservation and does not want the treaty to enter into force between it and State P? Under the international law,20 the result will be as follows: (1) between State D and I, the treaty is in force as modified by P’s reservation to Article 5; (2) between State P and F, the treaty is in force, but Article 5 is inapplicable “to the extent of the reservation”; (3) the treaty is not in force between P and Q; and (4) the treaty relations between I, F, Q and all other parties and their obligations inter se are unaffected by P’s reservation.
As far as international law is concerned the obligation to perform treaties in good faith applies to the signing parties.21 A party to a treaty cannot invoke the provisions of its internal law as a justification for its failure to perform a treaty.22
A treaty is binding upon each party in respect of its entire territory.23 A treaty does not create either obligations or rights for a third state without its consent.24 Error of fact, fraud, corruption and duress, are also available under international law to invalidate treaties.25 A norm is accepted and recognized by the international community of states as a whole from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.26
The mere fact that the government of a state who is party to a treaty has changed or has been overthrown does not, as a matter of law, can terminate or suspended a treaty.27 States may withdraw from a treaty, terminate it, or suspend its operation in a manner prescribed by the treaty or with the consent of all states parties thereto.28 It is an established principle of international law that a material breach of a treaty is a valid ground for its suspension or termination.29 International law recognizes that impossibility of performance and a fundamental change of circumstances (rebus sic standibus) in certain situations may justify the termination of or the withdrawal from a treaty.30
(The writer is an advocate and is currently working with Azim-ud-Din Law Associates. To see author’s other areas of interest visit Zafars Blog on International Studies http://blogoninternationalstudy.blogspot.com/
REFERENCES;
1. See Article 2(1)(a) of the Vienna Convention on the Law of Treaty (VCLT) (May 23, 1969). It entered into force in 1980 and stands ratified by many states.
2. See Article 3 of VCLT which adopts a more restrictive definition because it was expressly made applicable only to agreements between states. 3. See legal status of Eastern Greenland, 1933 P.C.I.J. also see Article 3 of VCLT. International agreements involving international organisations are governed by a more recent treaty, the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, Mar. 21, 1986, 25 I.L.M. 543. This instrument compliments the VCLT and amplifies to a significant extent the existing body of norms applicable to international agreements.
4. See Article 9 of VCLT.
5. See Article 10 of VCLT. The adoption of the Final Act is not as a rule designed to bring the agreement into force; it simply establishes that the negotiations are completed.
6. See Article 24 of VCLT.
7. See Article 11 of VCLT.
8. See Article 8 of VCLT.
9. See Article 14(1) of VCLT. As per the Provisions of Article 7 and 14 of VCLT.
10. See Article 76-77 of VCLT.
11. See Article 10 of VCLT.
12. See Article 18 of VCLT.
13. See Article 2(1)(d) of VCLT: The Convention defines a reservation as, a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.
13A. See Article 2(1)(d) of VCLT
14. See Article 19 of VCLT. A reservation designed to enable a state to suspend any of the non-derogable fundamental rights be treated as incompatible with the treaty.
15. In the case of a bilateral treaty, the acceptance of the reservation results in an amendment of the treaty.
16. See Article 20 of VCLT: A reservation expressly authorized by a treaty does not require acceptance.
17. See Article 20(2) of VCLT.
18. See Article 20(3) of VCLT.
19. See Article 20(4) of VCLT.
20. See the provisions of VCLT.
21. See Article 27 of VCLT.
22. See Article 46 of VCLT.
23. See Article 29 of VCLT.
24. See Article 34 of VCLT.
25. See Article 48-52 of VCLT.
26. See Article 53 of VCLT.
27. See Article 63 of VCLT.
28. See Article 54 & 57 of VCLT.
29. See Article 60(3)(b) of VCLT.
30. See Article 61(1) of VCLT.
