Vienna Convention on the Law of Treaties (VCLT) 1969

Salient Features of the Vienna Convention on the Law of Treaties (VCLT) 1969

The Vienna Convention on the Law of Treaties, often called the “treaty on treaties,” is a landmark international agreement that codifies and develops the rules governing treaties between states. Its salient features include:

1. Definition of a Treaty (Article 2(1)(a)): It defines a treaty as “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 clarifies the scope of the Convention’s application.

2. Consent to be Bound (Part II): The VCLT meticulously outlines the various ways a state can express its consent to be bound by a treaty, including signature, ratification, acceptance, approval, and accession (Articles 11-16). It also addresses consent to be bound by part of a treaty and obligations prior to entry into force (Article 18).

3. Reservations (Part II, Section 2): The Convention provides a framework for states to make reservations to treaties, allowing them to exclude or modify the legal effect of certain provisions in their application to themselves (Articles 19-23). However, it also sets limits, stating that a reservation cannot be incompatible with the object and purpose of the treaty.

4. Pacta Sunt Servanda (Article 26): This fundamental principle of international law is enshrined in the VCLT, stating that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” This underscores the binding nature of treaty obligations.

5. Interpretation of Treaties (Part III, Section 3): The Convention lays down rules for interpreting treaties, emphasizing the importance of the ordinary meaning of the terms in their context and in light of the treaty’s object and purpose (Article 31). It also allows for recourse to supplementary means of interpretation, such as the preparatory work of the treaty and the circumstances of its conclusion (Article 32).

6. Invalidity, Termination, and Suspension of the Operation of Treaties (Part V): This crucial part details the grounds on which a treaty can be considered invalid (e.g., error, fraud, coercion), terminated (e.g., material breach, supervening impossibility of performance), or its operation suspended (e.g., temporary impossibility). It also addresses the emergence of a new peremptory norm of general international law (‘jus cogens’).

7. Jus Cogens (Articles 53 & 64): The VCLT recognizes the existence of peremptory norms of general international law (‘jus cogens’), which are norms accepted and recognized by the international community of States as a whole as norms from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Treaties conflicting with an existing or emerging ‘jus cogens’ norm are void.

8. Procedure for Invalidity, Termination, Withdrawal or Suspension (Article 65-68): The Convention establishes a specific procedure that parties must follow when invoking grounds for the invalidity, termination, withdrawal, or suspension of a treaty, aiming to ensure a degree of order and prevent unilateral actions without due process.

Pacta Sunt Servanda and Jus Cogens

Pacta Sunt Servanda:

• Meaning: Latin for “agreements must be kept.” This is a foundational principle of international law, stating that states are bound by the treaties they have freely and validly consented to and must perform their obligations in good faith. It ensures the stability and predictability of international relations.
• Example: If two states, A and B, enter into a treaty establishing a trade agreement with specific tariff reductions, the principle of pacta sunt servanda requires both states to implement those tariff reductions according to the agreed-upon schedule. State A cannot unilaterally decide to reimpose higher tariffs without violating the treaty and this fundamental principle.

Jus Cogens:

• Meaning: Latin for “compelling law.” These are peremptory norms of general international law that are considered so fundamental to the international legal order that no derogation (exception) is permitted. Any treaty that conflicts with a jus cogens norm is considered void ab initio (from the beginning).
• Characteristics:
  • Accepted and recognized by the international community of states as a whole.
  • No derogation is permitted.
  • Can only be modified by a subsequent norm of general international law having the same character.
• Examples: While there isn’t an exhaustive list universally agreed upon, widely recognized examples of jus cogens norms include:
  • Prohibition of genocide: A treaty that aimed to authorize or facilitate genocide would be void.
  • Prohibition of slavery and the slave trade: Agreements seeking to legalize or promote slavery would be invalid.
  • Prohibition of torture: A treaty permitting the use of torture would be contrary to jus cogens.
  • Prohibition of aggression: A treaty planning an act of aggression against another state would be void.
  • Principle of self-determination: Treaties that deny the right to self-determination of a people might be considered to conflict with jus cogens.

Concept of ‘Reservations’

A reservation is a unilateral statement 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.

Key Aspects of Reservations:

• Unilateral Statement: It is a declaration made by a single state.
• Timing: Made upon expressing consent to be bound (signature, ratification, etc.).
• Purpose: To exclude or modify the legal effect of specific treaty provisions for the reserving state.
• Limitations: Cannot be incompatible with the object and purpose of the treaty (Article 19(c) of the VCLT). Some treaties explicitly prohibit reservations to certain or all provisions.
• Acceptance and Objection: Other states can accept or object to a reservation. Acceptance (express or implied) means the treaty enters into force for the reserving and accepting states with the modification stated in the reservation. Objection does not prevent the treaty from entering into force between the reserving and objecting states unless the objecting state clearly expresses its intention that the treaty should not enter into force between them (Article 20 & 21 of the VCLT).

Examples of Reservations by States in Conventions of the International Maritime Organization (IMO):

States often make reservations to IMO conventions to accommodate their specific national laws, technical capabilities, or geographical circumstances. Here are a few illustrative examples:

1. International Convention for the Prevention of Pollution from Ships (MARPOL):

   • A state with a unique geographical feature, like extensive ice-covered waters, might make a reservation concerning the application of certain discharge regulations within those specific areas, citing the need for different environmental protection measures or technical limitations of vessels operating in such conditions.
   • A state might make a reservation regarding the specific standards for sewage treatment on smaller vessels operating solely within its territorial waters, arguing that the international standards are disproportionately burdensome for such vessels.

2. International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW):

   • A developing state might make a reservation concerning the timeframe for full implementation of certain higher-level certification requirements for seafarers, citing a lack of adequate training infrastructure and requesting a longer transitional period.
   • A state with a significant number of inland waterway vessels might make a reservation excluding the application of certain STCW regulations that are primarily designed for ocean-going ships and are not relevant to the operation of vessels on its internal waterways.

3. International Convention on Maritime Search and Rescue (SAR):

   • A state with limited search and rescue resources in a remote part of its exclusive economic zone might make a reservation regarding the extent of its responsibility to provide SAR services in that specific area, particularly if it relies on international cooperation for such operations.

4. Convention on the International Regulations for Preventing Collisions at Sea (COLREG):

   • While less common due to the fundamental safety nature of these regulations, a state might conceivably make a reservation concerning the interpretation or application of a specific rule in a highly unique navigational environment within its territorial waters, provided it doesn’t compromise overall safety at sea. Such reservations would likely face strong scrutiny due to the convention’s object and purpose.

It’s important to note that the legality and effect of these reservations are subject to the rules of the VCLT, particularly the requirement that they are not incompatible with the object and purpose of the treaty. Other states can object to these reservations if they believe they undermine the fundamental aims of the convention. The depositary of the treaty (usually the Secretary-General of the IMO in these cases) circulates the reservations and objections to all contracting states.