INTRODUCTION
Unlike municipal law, the various methods by which rights and
duties may be created in international law are relatively unsophisticated. With
in a state, legal interests may be established by contracts between two or more
persons, or by agreements under seal, or under the developed system for
transferring property, or indeed by virtue of legislation or judicial
decisions. Treaties on the other hand, are a more direct and formal method of
international creation.[1]
The Vienna Convention States that the law of treaties is the codification and
progressive development of the law of treaties. Article 2(1)(a) provides that “treaty” means 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.[2] In the Eastern Greenland Case in an oral
conversation wherein Danish Minister discussed extending Danish influence to
Greenland to which the foreign Minister of Norway said it would not make any
difficulties and received oral assurances that Denmark would be passive about
Norway extending its influence to Spitzebergen. An unsigned record was made of
this discussion. Court held that the transaction was an enforceable
undertaking; the quid pro quo for Greenland was Denmark’s disclaimer of
interest in Spitzebergen. As a result, Norway was under an obligation to
refrain from contesting Danish sovereignty over Greenland.[3]
A written treaty arises where one diplomat sends a note or letter with an offer
or proposal and the reply assents to it. The two documents constitute the
treaty. Where the parties to an agreement do not intend to create legal
relations or binding obligations or rights thereby, the agreement will not be a
treaty, although of course, its political effect may still be considerable. The
rules of customary international law continue to govern questions not covered
by the convention. It applies to all treaties concluded thereafter. Article 85
sets out a comprehensive code of rules governing law of treaties.
The rule “pacta sunt servanda” (agreements must be kept)
predates international law and is the basis of the law of treaties.[4]
Article 26 provides that Treaties are binding on the parties to them once in
force, and must be performed in good faith.[5]
A state may not justify non- observance by reference to any impediment arising
from its international law. Important to note is that International law does
not govern agreements between two sovereign states that are not international in
character for example contracts for sale of commodities or arms, or lease of
property, often where some third party (not a sovereign state) is closely
involved in the transaction.
Types
of treaties
Multilateral
treaties
Multilateral treaties are treaties to
which three or more sovereign states are parties each party owes the same
obligation to all other parties save for the instances where they have stated
reservations. Some examples of multilateral treaties are the conventions
relating to the status of refugees, the United Nations convention on the law of
the sea, Geneva conventions and the Rome statute of the international criminal
court.
Bilateral treaties
These are treaties between two
states, these types of treaties may become multilateral when additional parties
succeed or accede to it.[6]
Article 11 provides
that 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 means if so agreed.[7]
RESERVATIONS
Article 2(1) (d) provides for reservation as a
unilateral statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of the treaty in their
application to that State.[8]
FORMULATION OF RESERVATIONS
Article 19 provides
for Formulation of reservations;
A State may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified
reservations, which do not include the reservation in question, may be made; or
(c) in cases not failing under subparagraphs (a)
and (b), the reservation is incompatible with the object and purpose of
the treaty.[9]
Legal
effect of reservations
A state may not demand of allegiance of reserved portions
by other parties for example USA reserved the right to join the League of
Nations. Reservation of a bilateral treaty has the effect as an amendment and
both sides must agree to it to be binding. For example in a multilateral treaty
in force between states A,B and C where D proposed to enter with such
reservations do not affect treaty as regards relations of A,B,C, with each
other. It only affects relations between A-D, B-D and C-D. This means that where a state is satisfied with most of a treaty,
but is unhappy about one or two particular provisions, it may in certain
circumstances, wish to refuse to accept or be bound by such provisions, while
consenting to the rest of the agreement. This may have beneficial results in
the cases of multilateral conventions, by including as many states as possible
to adhere to the proposed treaty. It is to some extent a form of encouraging
harmony amongst states of widely differing social, economic and political
systems, by encouraging upon agreed, basic issues and accepting disagreement on
certain other matters.[10]
Prohibited Reservations
These arise where terms of treaty itself prohibit
reservations.
One exception was recognized in the case of Reservation
to the Convention on the Prevention and Punishment at the Crime of Genocide;
court held that “a multilateral convention is the result of an agreement freely
concluded and none of the contracting parties is entitled to frustrate or
impair, by means of unilateral decisions the object and purpose of the
convention.”[11] This prohibition was
projected to reduce on the dislocation of the whole purpose of the agreement.
It is meant to limit principle of sovereignty which states use to jeopardize
the whole exercise of international treaty through reservations. This is also reflected
in Article 19(c) of the Vienna Convention.
Negotiated reservations
Jeopardize among bilateral treaties can not exist since a
reservation by one party to a proposed term of the agreement would necessitate
a renegotiation. An agreement between two parties cannot exist where one party
refuses to accept some of the provisions of the treaty. This is not the case
with respect to multilateral treaties, and here it is possible for individual
states to dissent from particular provisions, by announcing their intention
either to exclude them altogether, or understand them in a certain way. These
can be anticipated by the parties, a useful technique is for a group of states
to decide at the precise text of reservations which will be permitted and to
prohibit any other reservations by the terms of the treaty.[12]
Acceptance
and refusal of reservations
No state in its treaty relations may be bound without its
consent. In the case of Reservation to the Convention on the
Prevention and Punishment at the Crime of Genocide; court held that “a
multilateral convention is the result of an agreement freely concluded and none
of the contracting parties is entitled to frustrate or impair, by means of
unilateral decisions the object and purpose of the convention.”[13]
A reservation formulated by a state wishing to become a
party to a treaty, must therefore be accepted or rejected by each state already
party to the treaty. Reservations authorized by the treaty itself, if adopted
by a state proposing to be a party to a treaty already in force, do not be
accepted by the states which are already parties to the treaty. If such
reservations are not already spelled out in a multi-lateral treaty in force,
and an in coming state proposes adopting the treaty subject to a reservation,
acceptance of the reservation of the states already party to the treaty will be
implied after failure to react after 12 months have elapsed.[14]
When consent containing a
reservation is effective
The expression of the reserving state’s consent to be
bound becomes effective even if one state accepts it. One type of treaty for
example Treaty of Rome may by its terms provide that acceptance may be required
by all existing parties before the reserving state’s instrument of consent
become effective. Article 20 provides
for Acceptance of and objection to reservations Clause (1) A
reservation expressly authorized by a treaty does not require any subsequent
acceptance by the other contracting States unless the treaty so provides. (2) When
it appears from the limited number of the negotiating States and the object and
purpose of a treaty that the application of the treaty in its entirety between
all the parties is an essential condition of the consent of each one to be
bound by the treaty, a reservation requires acceptance by all the parties. (3) When
a treaty is a constituent instrument of an international organization and
unless it otherwise provides, a reservation requires the acceptance of the
competent organ of that organization. (4) In cases not falling under the
preceding paragraphs and unless the treaty otherwise provides: (a) acceptance by another contracting State of a
reservation constitutes the reserving State a party to the treaty in relation
to that other State if or when the treaty is in force for those States; (b)
an objection by another contracting State to a reservation does not preclude
the entry into force of the treaty as between the objecting and reserving
States unless a contrary intention is definitely expressed by the objecting
State; (c) an act expressing a State’s consent to be bound by the treaty
and containing a reservation is effective as soon as at least one other
contracting State has accepted the reservation.
(5) For the purposes of paragraphs 2 and 4 and unless the
treaty otherwise provides, a reservation is considered to have been accepted by
a State if it shall have raised no objection to the reservation by the end of a
period of twelve months after it was notified of the reservation or by the date
on which it expressed its consent to be bound by the treaty, whichever is
later.[15]
The
effect of reservations is outlined in Article 21. This declares that a
reservation established with regard to another party modifies, for the reserving
state in its relations with the other party, the provisions of the treaty to
which the reservation relates, to the extent of the reservation.[16] The
other party is similarly affected in its relations with the reserving state. An
example of this was provided by the Libyan Reservation to the 1961 Vienna
Convention on Diplomatic Relations with regard to the diplomatic bag,
permitting Libya to search the bag with the consent of the state whose bag it
was, and insist that it be returned to its state of origin. Since the UK did
not object to the reservation, it could have acted similarly with regard to
Libya’s diplomatic bag.
JUS COGENS
According to the Vienna convention,
the treaties conflicting with a peremptory norm of general international law,
where a treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of the present
convention, a peremptory norm of general international law is a norm accepted
and recognized by 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.[17]
Terrorism
Convention on the prevention and
punishment of crimes against internationally protected persons including
Diplomatic agents adopted by the General assembly of the United Nations on 14
December 1973.The state parties to this convention having in mind the
purpose and principles of the United
Nations charter concerning the maintenance of international peace and the
promotion of friendly relations and corporation among states, considering that
such crimes jeopardize the safety of these persons and create a serious threat
to maintenance of international relations
and being a matter of grave concern to the state realize urgent need to adopt effective measures for
preventions and punishment of such crisis.
The Vienna convention 1969[18]
is to effect that each state party shall make crimes such as modern kidnap or
threat to commit any attack on protected persons, these crimes, punishable by
appropriate penalties which take into account their grave nature. The
convention does not define what amounts to appropriate penalties thus lack of clarity
in definition makes it difficult to uniformly punish the criminal which is a
major principle of law that it must be uniform.
Convention on the prevention
and punishment of the crime of Genocide
Adopted by resolution in the same way
Article 1 provides that the contracting parties confirm that Genocide whether
committed in time of peace or in time of war is a crime under international law
which they under take to prevent and punish.
Article 2, the prevent convention,
Genocide means any of the following acts committed with intent to destroy in
whole or in part anatimal, racial or religious group as such, killing members
of the group, causing serious bodily or mental harm to members of the group.
Article 4 is to the effect that
persons committing Genocide or are accomplices or to be punished whether they
are constitutionally responsible rules, public officials or private
individuals.
In Yugoslavia, the first state to be
found in breach of the Genocide convention where Serbia, in Bosnia and Herzegovina v Serbia and
Montenegro case, the international court of justice presented the judgment
on 26 Feb. 2007. It cleared Serbia of direct involvement in Genocide during the
Bosnian war but ruled that Belgrade did breach the international law by failing
to prevent the 1995 Srebrenica Genocide and failing to try.
However, the reservation does not modify the provisions
of the treaty for the other parties to the treaty as between themselves.
Article 21(3) provides that where a State objects
to a reservation, but not to the entry into force of the treaty between itself
and the reserving State, the provisions to which the reservation relates do not
apply as between the two States to the extent of the reservation.[19]
This provision was applied by the arbitration tribunal in the Anglo
– French Continental Shelf Case, where it was noted that; the combined
effect of the French reservations and their rejection by the United Kingdom is
neither to render article 6 [of the Geneva Convention on the Continental Shelf,
1958] inapplicable in toto, as the French Republic contends, nor to render it
applicable in toto, as the United Kingdom primarily contends. It is to render
the article inapplicable as between the two countries to the extent of the
reservations.[20] A number of important issues, however, remain unresolved.
In particular, it is unclear what effect an impermissible reservation has. One
school of thought takes the view that such reservations are invalid, another
that the validity of any reservation is dependent upon acceptance by other
states. While there is a presumption in favour of the permissibility of
reservations, this may be displaced if the reservation is prohibited explicitly
or implicitly by the treaty or it is contrary to the object and purpose of the
treaty. There is however a trend with regard to human rights treaties to regard
impermissible reservations as severing that reservation so that the provision
in question applies in full to the reserving state.[21] In
the Belilos
Case, the European court of Human rights laid particular emphasis upon
Switzerland’s commitment to the European Convention on Human Rights, so that
the effect of defining the Swiss declaration as a reservation which was then
held to be invalid was that Switzerland was bound by the provision (article 6)
in full.[22]
This view was reaffirmed in the Loizidou Case, where court analysed
the validity of the territorial restrictions attached to Turkey’s declarations
under article 25 and 46 recognizing the competence of the Commission and the
court and held that they were impermissible under the terms of the convention.
Court concluded that the effect of this in the light of the special nature of
the Convention as a human rights treaty was that the reservations were
severable so that Turkey’s acceptance of the jurisdiction of the Commission and
the court remained in place, unrestricted by the terms of the Commission and
the court remained in place, unrestricted by the terms of the invalid
limitations attached to the declarations. In general, reservations are deemed
to have been accepted by states that have raised no objections to them at the
end of a period of twelve months after notification of the reservation, or by
the date on which consent to be bound by the treaty was expressed, whichever is
later. Reservations must be in writing and communicated to the contracting
states and other states entitled to become parties to the treaty, as must
acceptances of, and objections to, reservations. Most multilateral conventions
today will in fact specifically declare their position as regards reservations.
Some, however, for example the Geneva Convention on the High seas, 1958,
make no mention at all reservations, while others may specify that reservations
are possible with regard to certain provisions only. Still others may prohibit
altogether any reservations.[23]
CONCLUSION
All in all the agreements between
many states would almost be impossible to perform on well stipulated exceptions
to reservations as seen above to include human rights violation treaties,
Genocide and terrorism.
BIBLIOGRAPHY
STATUTES
1. The Vienna
Convention on the law of Treaties, 1969
TEXTS
1. Malcolm Shaw, International
Law, 4th Edition Cambridge
WEBSITES
1. http://en.wiki/multilateral-treaty.
[1].
Malcolm Shaw, International Law, 4th Edition Cambridge, at pg.632
[3].
(P.C.I.J) 1933
[4].
The Vienna Convention on the law of Treaties, 1969
[5].
The Vienna Convention on the law of Treaties, 1969
[6]. http://en.wiki/multilateral-treaty. 28.05.2012.
[7].
The Vienna Convention on the law of Treaties, 1969
[8].
The Vienna Convention on the law of Treaties, 1969
[9].
The Vienna Convention on the law of Treaties, 1969
[10]. Malcolm
Shaw, at pg.642
[11].
[ICJ] 1951
[12]. Malcolm
Shaw, at pg.646
[13].
[ICJ] 1951
[14].
Article 20 of the Vienna Convention
[15].
The Vienna Convention on the law of Treaties, 1969
[16]. The
Vienna Convention on the law of Treaties, 1969
[17].
Article 53 of The Vienna Convention on
the law of Treaties, 1969
[18].
Article 2(3) of The Vienna Convention on
the law of Treaties, 1969
[19].The
Vienna Convention on the law of Treaties, 1969
[21].
Malcolm Shaw, at pg.647
[22].
European Court of Human Rights, Series A, No.132
[23].
Malcolm Shaw, at pg.649
