The Vienna Convention on the Law of Treaties (VCLT) is technically only binding on its member states, which could limit its application to multilateral treaties where not all participants are members of the VCLT. Despite this, the VCLT serves as a codification of customary international law, allowing its principles to be applicable beyond its signatories.
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This includes treaties between non-member states and treaties that were in place before the VCLT came into force. Furthermore, parts of the VCLT that do not directly reflect customary international law can still influence the development of new international legal norms, indicating its broader significance in shaping international treaty law.
Formation/Application of Treaty(VCLT Provisions)
The Vienna Convention on the Law of Treaties (VCLT) of 1969 lays down comprehensive rules governing the formation of treaties between States. The provisions mentioned outline the critical aspects of this process, including the capacity of states to conclude treaties, the representation for treaty-making, and how states express consent to be bound by treaties. Here's a summary of these key provisions:
Article 6 - Capacity of States to Conclude Treaties: This establishes that every State possesses the capacity to conclude treaties, affirming the sovereign equality of states in international law.
Article 7 - Full Powers: This provision outlines the criteria for determining when a person is considered as representing a State for the purpose of treaty-making. It includes:
Producing appropriate full powers as defined in Article 2(1)(c) of the Convention.
Situations where it appears from the practice of the States concerned or from other circumstances that there was an intention to consider the person as representing the State for such purposes, thereby dispensing with the need for full powers.
Article 8 - Subsequent Confirmation of an Act Performed Without Authorization: This clarifies that any treaty-related act performed by a person not considered authorized under Article 7 is without legal effect unless later confirmed by the State.
Article 11 - Means of Expressing Consent to be Bound by a Treaty: This article states that the consent of a State to be bound by a treaty may be expressed through various means such as signature, exchange of instruments constituting a treaty, ratification, acceptance, approval, accession, or any other agreed means.
Article 12 - Consent to be Bound by a Treaty Expressed by Signature: It details when the signature of a State's representative expresses the State's consent to be bound by a treaty. Conditions include provisions in the treaty itself, agreement among negotiating States, or explicit intentions shown through full powers or negotiations.
Article 14 - Consent to be Bound by a Treaty Expressed by Ratification, Acceptance, or Approval: This provision explains that consent to be bound can also be expressed by ratification, acceptance, or approval under specific conditions, such as when the treaty requires it, the negotiating States agreed on it, or the State's intention is shown through its representative's actions or negotiations.
Article 15 - Consent to be Bound by a Treaty Expressed by Accession: This specifies that consent by accession is valid when the treaty allows for it, the negotiating States agreed to it, or all parties subsequently agree to the State expressing consent in this manner.
Together, these provisions establish a framework for treaty formation that respects state sovereignty, ensures clarity in the expression of consent to treaties, and provides mechanisms for confirming treaty obligations.
Meaning of Signing, ratifying, and acceding
The distinctions between signing, ratifying, and acceding to a treaty underscore the multifaceted nature of treaty consent. Signing a treaty often indicates preliminary endorsement, but ratification (or accession for non-signatories) is generally required for a treaty to become legally binding. This process allows states to undergo necessary domestic procedures, ensuring that treaty obligations are compatible with national laws and policies.
The exception to this process, where a signature alone can bind a state, highlights flexibility in international law to accommodate various forms of state consent, based on explicit agreement or clear intention. Compliance with the treaty, distinct from ratification, refers to the actual implementation of its provisions, with breaches constituting violations of international obligations.
Signing a treaty indicates a preliminary approval and intent to examine the treaty for ratification but does not usually create binding obligations.
Ratifying a treaty is a formal act of consent that makes the treaty legally binding on the state, following internal approval processes.
Acceding to a treaty allows a state to become a party to the treaty after its negotiation and signing by other states, serving as an alternative means of expressing consent to be bound with the same legal effects as ratification.
These stages are crucial in the international legal framework for establishing the obligations and commitments of states under treaties. Here's an outline of the major differences between signing, ratifying, and acceding to treaties according to the VCLT:
Signing a Treaty
Preliminary Endorsement: Signing a treaty generally signifies a state's preliminary endorsement of the document. It indicates the state's intention to examine the treaty further and consider ratification, but by itself does not create a binding legal obligation to comply with the treaty's terms.
Legal Obligations: Under certain conditions, such as specified in the treaty itself or agreed upon by the parties, a signature can express consent to be bound. However, this is an exception rather than the rule (Article 12).
Ratifying a Treaty
Expression of Consent: Ratification is a formal act whereby a state signifies its consent to be legally bound by the terms of a treaty. It usually follows the signing of the treaty and involves domestic approval processes, often including legislative approval or executive decree (Article 14).
Legal Binding Effect: Ratification solidifies a state's commitment to a treaty and makes the treaty's provisions legally binding on the ratifying state. It signifies the completion of all internal legal requirements and procedures necessary for the treaty to take effect for that state.
Acceding to a Treaty
Late Participation: Accession is a method used by a state to become a party to a treaty after the treaty has already been negotiated and signed by other states. It is essentially a way for a state to join an existing treaty (Article 15).
Equivalent to Ratification: Accession has the same legal effect as ratification and signifies a state's consent to be legally bound by the terms of a treaty. The process bypasses the signing stage and moves directly to expressing consent to be bound.
Entry into Force
The Vienna Convention on the Law of Treaties (VCLT) 1969 outlines specific provisions related to the entry into force of treaties under its Articles 24, 25, and potentially 28, reflecting the general principles and rules governing how treaties between states come into effect.
Article 24: Entry into Force
Manner and Date of Entry into Force: A treaty enters into force according to the provisions it contains or as agreed upon by the negotiating states. This includes any specific conditions or dates that the treaty or the negotiating states stipulate for its activation.
Default Rule: In the absence of specific provisions or agreements, a treaty enters into force as soon as all negotiating states have expressed their consent to be bound by the treaty. This ensures that a treaty becomes active only when all parties involved in the negotiations have agreed to its terms.
Entry into Force for Late Consent: If a state's consent to be bound by a treaty is established after the treaty has already entered into force, the treaty enters into force for that particular state on the date its consent is established, unless the treaty specifies otherwise.
Pre-Entry Force Provisions: Certain provisions of a treaty, such as those regarding the treaty's authentication, consent to be bound, entry into force, reservations, and depositary functions, take effect from the time of the treaty's text adoption, even before the treaty officially enters into force.
Article 25: Provisional Application
Conditions for Provisional Application: A treaty or part of a treaty can be applied provisionally, pending its entry into force, if either the treaty itself provides for it or if the negotiating states have agreed to such an arrangement in another manner.
Termination of Provisional Application: The provisional application of a treaty or part of it can be terminated with respect to a state if that state notifies the other states involved in the provisional application of its intention not to become a party to the treaty, unless the treaty or the negotiating states have agreed otherwise.
Article 28: Non-retroactivity of Treaties
This article stipulates that, unless the treaty indicates a different intention or it is otherwise established, the provisions of a treaty do not bind a party in relation to any act, fact, or situation that took place or ceased to exist before the treaty entered into force for that party.
This principle ensures that treaties are not applied retroactively to situations that occurred before their activation for a particular state.
Entry into Force for Multilateral Treaties: Many multilateral treaties specify that a certain number of ratifications or accessions are required before the treaty can enter into force. This mechanism ensures that the treaty has widespread support and is feasible for implementation.
The example of the International Covenant on Civil and Political Rights (ICCPR), which requires thirty-five ratifications or accessions before it becomes effective, illustrates this principle.
Obligations under Article 18 of the VCLT: Article 18 bridges the gap between the time a state consents to be bound by a treaty and its actual entry into force. It obliges states not to act in a manner that would defeat the object and purpose of the treaty during this interim period.
This provision underscores the importance of states' commitment to their treaty obligations, even before the treaty formally takes effect.
It also implies that widespread consent to a treaty may contribute to the formation of customary international law, reinforcing the treaty's principles even outside its formal framework.
Amendment of Treaties
The Vienna Convention on the Law of Treaties (VCLT) outlines the provisions for the amendment of treaties under Articles 39, 40, and 41. These articles establish the legal framework for modifying treaties, both in the context of bilateral and multilateral agreements.
Article 39: General Rule Regarding the Amendment of Treaties
A treaty can be amended by agreement between the parties.
The general rules laid down in Part II of the VCLT apply to such an agreement, except in cases where the treaty provides otherwise.
Article 40: Amendment of Multilateral Treaties
General Provision: Unless the treaty specifies a different procedure, the amendment of multilateral treaties is governed by the procedures outlined in Article 40.
Proposal and Notification: Any proposal to amend a multilateral treaty among all parties must be notified to all contracting states, each of which has the right to participate in deciding on the proposal and in the negotiation and conclusion of any amendment agreement.
Participation: Every state entitled to become a party to the treaty is also entitled to become a party to the treaty as amended.
Binding Effect: An amending agreement does not bind any state that is already a party to the original treaty but does not become a party to the amending agreement. Article 30(4)(b) of the VCLT applies to such states, which means the original treaty provisions continue to apply between the non-amended party and the parties to the amendment.
States Joining Post-Amendment: States that become parties to the treaty after the entry into force of the amending agreement are considered as parties to the treaty as amended, unless they explicitly state a different intention. In relation to parties not bound by the amendment, the new party is considered as a party to the unamended treaty.
Article 41: Agreements to Modify Multilateral Treaties Between Certain of the Parties Only
Conditions for Modification: Two or more parties to a multilateral treaty can conclude an agreement to modify the treaty between themselves alone if:
The treaty allows for such a modification; or
The modification is not prohibited by the treaty, does not affect the rights or obligations of other parties, and does not relate to a provision whose derogation would undermine the object and purpose of the treaty as a whole.
Notification: Unless the treaty provides otherwise for modifications as per paragraph 1(a), the parties intending to modify the treaty must notify other parties of their intention and the details of the modification.
These provisions ensure that amendments to treaties are conducted in a transparent, democratic, and legally sound manner, respecting the rights and obligations of all parties involved, and safeguarding the integrity and purpose of the original treaty.
Treaty and Third party States
While the Vienna Convention principles with regard to third party States’ rights and obligations apply only to parties to the Vienna Convention itself, this rule is considered to represent customary international law (Free Zones of Upper Savoy and the District of Gex Case (France v Switzerland), PCIJ Rep.
Of course, where a treaty codifies existing customary international law, then the third State would be bound by that law in the normal way. While the Vienna Convention principles with regard to third party States’ rights and obligations apply only to parties to the Vienna Convention itself, this rule is considered to represent customary international law— see Free Zones of Upper Savoy and the District of Gex Case (France v Switzerland), PCIJ Rep. Of course, where a treaty codifies existing customary international law, then the third State would be bound by that law in the normal way.
The Vienna Convention on the Law of Treaties (VCLT) 1969 addresses the impact of treaties on third states (i.e., states not party to a treaty) through Articles 34 to 38. These articles set forth the principles governing the extent to which treaties can confer rights or impose obligations on third states, emphasizing the requirement of consent and the conditions under which such rights and obligations can arise or be modified.
Article 34: General Rule Regarding Third States
Consent Principle: A treaty cannot impose obligations or grant rights to a third state without its consent. This principle upholds state sovereignty by ensuring that legal bindings are not unilaterally imposed on states without their agreement.
Article 35: Treaties Providing for Obligations for Third States
Creation of Obligations: A third state may become obligated under a treaty provision if (1) the treaty parties intend to establish the obligation towards the third state, and (2) the third state expressly accepts this obligation in writing. This ensures that any obligation is accepted knowingly and voluntarily by the third state.
Article 36: Treaties Providing for Rights for Third States
Granting of Rights: A third state can acquire rights under a treaty if the treaty parties intend to bestow such rights upon it, and the third state assents to them. Notably, assent is presumed unless expressly declined or the treaty stipulates otherwise, facilitating the easier conferment of rights to third states.
A third state exercising a right under the treaty must adhere to any conditions for exercising that right specified by the treaty or agreed upon in accordance with the treaty.
Article 37: Revocation or Modification of Obligations or Rights of Third States
Modifications and Revocations: Obligations toward a third state, established under Article 35, can only be revoked or modified with the consent of both the treaty parties and the third state, unless a prior agreement indicates otherwise.
Rights granted to a third state under Article 36 cannot be revoked or modified by the treaty parties if it's established that these rights were intended to be irrevocable without the third state's consent.
Article 38: Rules in a Treaty Becoming Binding on Third States Through International Custom
Customary International Law: The provisions (Articles 34 to 37) do not prevent a treaty rule from becoming binding on third states as a part of customary international law, recognized as such. This means that certain treaty provisions might evolve into general international legal norms that apply universally, beyond the treaty's original parties.
Overall, the VCLT protects the sovereignty of third states by requiring their explicit consent to be bound by treaty obligations or to enjoy treaty rights, while also acknowledging the potential for treaty rules to contribute to the development of customary international law that can have a broader application.
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