Law of Treaties- Lecture I

Lecture by- Roshani Giri, LLM (University of Cambridge)

Asst. Professor of law
Kathmandu School of Law
What is a treaty?
• An agreement between states on the international level (convention,
covenant, agreement, charter, protocol and so forth)
• Art. 2(a) VCLT (Vienna Convention on Law of Treaties) 1969- “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
• This definition does not include treaties governed by municipal law such as
commercial accords- does that mean such agreements are not treaties? What
about agreement with international organizations?
• Exclusion from the purview of the VCLT doesn’t make agreements between
states and other subjects of international law lose their validity (Art. 3)
• So as long as an agreement between states is attested, provided that
it is not one governed by domestic laws and is intended to create a
legal relationship, any kind of instrument or document may constitute
a treaty irrespective of the form or circumstances of its conclusion
(Starke, p. 397-98)
• Note that treaties must create a binding effects
• Pacta sunt servanda
• Is MCC a treaty?
Types
• Bilateral
• Two states
• Creating a binding legal relationship between the two states
• For instance, bilateral trade agreement, Indo-Nepal Peace and Friendship Treaty
• Multilateral
• Multiple parties
• Usually having more international impact and significance
• A single state signing the same treaty separately with more than one state doesn’t make
it enter into a multilateral treaty
• General international law
• Treaty provisions may form the basis of an international custom in certain
circumstances, provided that the provision in question is capable of such generalization
or is “of a fundamentally norm-creating character,” as the ICJ termed the process in
the North Sea Continental Shelf cases (1969)
• ICCPR, Geneva Conventions
Importance of treaties
• One of the major sources of international law (Art 38 ICJ Statute)
• Part of general legislation in international law
• Stabilizes relation between states
• Limits randomness and creates a sort of uniformity
• Guarantees international cooperation, peace, and security, at least a
consensus towards certain matter
• Coherence/universality of laws
• Dispute settlement
Conclusion of Treaties, Mode of Expression of State Consent (Signature,
Ratification, Accession)

• Every State possesses capacity to conclude treaties (Art. 6)

• Art. 2(1)(b)“ratification”, “acceptance”, “approval” and “accession”
mean in each case the international act so named whereby a State
establishes on the international plane its consent to be bound by a
treaty;
• Art. 11- 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.
• Signature as a mode of expression of state consent
• Signature of the representative of the state
• Does not necessarily create binding effect of the treaty
• If not binding, it is an indication of the willingness of the state to engage in
the treaty making process or intention to proceed to ratification, acceptance
or approval.
• It also creates an obligation to refrain, in good faith, from acts that would
defeat the object and the purpose of the treaty (Art. 18, Upper Silesia case,
PCIJ)
• Art. 12 a) the treaty provides that signature shall have that effect;
• (b) it is otherwise established that the negotiating States were agreed that
signature should have that effect; or
• (c) the intention of the State to give that effect to the signature appears from
the full powers of its representative or was expressed during the negotiation.
• Exchange of instruments as a means of expressing consent
• States may express their consent to be bound by an "exchange of
letters/notes” (Glossary of terms relating to Treaty actions, UN)
• Art. 13- The consent of States to be bound by a treaty constituted by
instruments exchanged between them is expressed by that exchange
when:
(a) the instruments provide that their exchange shall have that effect; or
(b) it is otherwise established that those States were agreed that the exchange
of instruments should have that effect.
• Ratification as a mode of expression of state consent
• It involves 2 distinct procedural acts- the first is the act of appropriate organ of the state
and the second is the international procedure which brings a treaty into force by a
formal exchange of information of ratification
• State’s internal procedures of adoption of treaty followed by communication to the
other state parties as to their consent to be bound by the treaty
• Ratification procedures grants states the necessary time-frame to seek the required
approval for the treaty on the domestic level and to enact the necessary legislation to
give domestic effect to that treaty.
• Art. 14-
(a) the treaty provides for such consent to be expressed by means of ratification;
(b) it is otherwise established that the negotiating States were agreed that ratification
should be required;
(c) the representative of the State has signed the treaty subject to ratification; or
(d) the intention of the State to sign the treaty subject to ratification appears from the full
powers of its representative or was expressed during the negotiation.
• Accession, acceptance and approval as a means of expression of state
consent
• "Accession" is the act whereby a state accepts the offer or the opportunity to
become a party to a treaty already negotiated and signed by other states.
• Usually occurs after the treaty has entered into force, but also before its entry into
force
• Appears to be the only way of becoming a party of an existing treaty
• Art. 15-The consent of a State to be bound by a treaty is expressed by
accession when:
(a) the treaty provides that such consent may be expressed by that State by means of
accession;
(b) it is otherwise established that the negotiating States were agreed that such
consent may be expressed by that State by means of accession; or
(c) all the parties have subsequently agreed that such consent may be expressed by
that State by means of accession.
Legal Consequences of ‘expression of
consent’
• Art.18- A State is obliged to refrain from acts which would defeat the
object and purpose of a treaty when:
• (a) it has signed the treaty or has exchanged instruments
constituting the treaty subject to ratification, acceptance or
approval, until it shall have made its intention clear not to become a
party to the treaty; or
• (b) it has expressed its consent to be bound by the treaty, pending the
entry into force of the treaty and provided that such entry into force is
not unduly delayed.
Various Stages of Conclusion of Treaty

• Negotiation Phase- where [potential] parties come together to discuss to

reach a conclusion on certain matters. The representative of the states are
involved in negotiation (sometimes even civil societies may be involved
such as with Paris Convention).
• Successful outcome of negotiation is the adoption and authentication of
the agreed text.
• Drafting Phase- when the parties are in consensus as to the requirement
and content of the treaty, they draft
• Adoption Phase- Authentication of the draft-
• the draft is presented to the parties and sought adoptions (Art. 9 and 10 VCLT)
• 2/3rd majority (Art. 9)
Reservation to Treaties

• “Reservation” means 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 (Art. 2(1)(d) VCLT)
• Enables a state to accept a multilateral treaties by giving it the
possibility not to apply certain provisions with which it does not want
to comply(Glossary of terms relating to Treaty actions, UN)
• Should be in writing- Art. 23(4), VCLT, made before becoming a party
to the treaty
• The aim of reservation is to limit a State’s obligation under the treaty
• A typical reservation is where a state purports to interpret an
internationally protected right only in accordance with its domestic
laws often Constitutional or religious. Eg- US has reserved its
obligation under Art 7 of the CAT that it will interpret the Article as
per its Constitution.
• States may make reservations to a treaty where the treaty does not
prevent doing so and provided that the reservation is not
incompatible with the treaty’s object and purpose (Art. 19(1), VCLT)
• Permissibility- Under Art 19 of VCLT- a state may declare reservation to a treaty
unless it is prohibited by the treaty or is incompatible with its object and purpose.
• Art. 19-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.
• A balancing act for right to formulate reservation
• Other states may accept or object to such reservations. However, where a treaty permits
such reservations, no acceptance by other states is required (Art 20 VCLT).
• Limitation- Who decides? Art. 20
• 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.
• Reservations on Genocide Convention advisory opinion (1951) ICJ- The
Convention does not include any provision on reservation and the court
stressed the divergence of practice by states. The Court advised that ‘a
state which has made…a reservation which has been objected to by one
of more of the parties to the Convention but not by others, can be
regarded as being a party to the Convention if the reservation is
compatible with the object and purpose of the Convention.
• The ILC rejected this on the ground that it is too subjective and thus
preferred a rule of unanimous consent. However, in 1952 the UNGA
requested the SG to leave it to the states to draw legal consequences of
the reservation when the reservation were communicated to them.
• Thus the ‘flexible’ system. In 1962 ILC agreed that unanimity does not
work.
• HRC says it is inappropriate to leave objection to states and that HRC
should have that power (GC 24)
• The ‘compatibility’ test?- least objectionable but not an ideal regime
• The matter of ‘testing’ is left to individual states- politics can play an
important role
• Legal effects of reservation and objection to reservation
• In case of acceptance, the treaty as modified by the terms of the reservations comes into
force between the states concerned.
• And if objected, the treaty comes into force between the states concerned except for the
provisions to which the reservations relate and to the extent of the reservations (Art. 21
VCLT) but this does not preclude the application of the treaty between the states unless
the objecting state says so.
• The treaty relation between an objecting state and reserving state- the provision on
which the reservation applies will not apply between the two states
• However, reservation does not modify the provisions of the treaty for the other parties to
the treaty inter se.
• Reservations as well as objections to reservations can be withdrawn at any time (Art.22).
• Problems of reservation?
• -reservation or the combination of reservation might defeat the purpose of treaty
• -free-riding (reputation elements may benefit state without any obligation)
• The legal status of interpretative declaration of MCC? (See ILC Guide to Practice on
Reservations to Treaties)
• ILC Guide to Practice 4.3.6- Effect of an objection on treaty relations
• 1.When a State or an international organization objecting to a valid reservation has not opposed
the entry into force of the treaty between itself and the reserving State or organization, the
provisions to which the reservation relates do not apply as between the author of the
reservation and the objecting State or organization, to the extent of the reservation.
• 2.To the extent that a valid reservation purports to exclude the legal effect of certain provisions
of the treaty, when a contracting State or a contracting organization has raised an objection to it
but has not opposed the entry into force of the treaty between itself and the author of the
reservation, the objecting State or organization and the author of the reservation are not bound,
in their treaty relations, by the provisions to which the reservation relates.
• 3.To the extent that a valid reservation purports to modify the legal effect of certain provisions
of the treaty, when a contracting State or a contracting organization has raised an objection to it
but has not opposed the entry into force of the treaty between itself and the author of the
reservation, the objecting State or organization and the author of the reservation are not bound,
in their treaty relations, by the provisions of the treaty as intended to be modified by the
reservation.
• Most HR treaties neither allow nor exclude reservations so more
discussions have been about the compatibility with the ‘object and
purpose’
• Human Rights Committee General Comment 24- “the object and purpose
of the covenant is to create legally binding standards for human rights by
defining certain civil and political rights…” suggesting that it is difficult to
reserve one right without altering the entire content of obligation under
the covenant. Those reservations violating peremptory norms,
customary international law or non-derogable norms are prohibited.
Furthermore, reservations to certain basic guarantees (the supportive
guarantees) such as effective remedy is not permissible, no reservation on
structural mechanism designed to oversee implementation of the treaty.
According to HRC, reservation is permissible but they should be (i) specific
and transparent, (ii) not general, (iii) must refer to a particular provision.
• Reservations are tightly constrained by numerous rules which suggest
that the object and purpose of the treaty would in fact be defeated by
selective assumption of human rights obligations and reservations on
those which the states do not wish. These limitation of reservations
are what ensures that the treaties do not become crippled with
‘perpetual non-attainment of international human rights standards’
• In typical scenario, other states are expected to raise concerns about
the validity of reservation but it is just a haphazard approach so it
shouldn’t be taken that just because a state doesn’t object to a
reservation doesn’t mean that the state thinks it is acceptable. So the
HRC has stated that it is not enough to say whether reservations are
accepted or not but rather whether they are valid or not.
HRC GC 24
• It is for the Committee to determine the validity of reservation. If it is rendered
invalid, it doesn’t mean the covenant will not be applicable at all. Just the reservation
will be severed and the covenant will be applicable without the benefits of
reservation.
• US and UK disagree with the comment of the HRC on the severability of reservation
with both agreeing that reservations are an integral part of the consent to the treaty
and if reservation is nullified, the consent will be nullified too.
• Guide to Practice on Reservations to Treaties, 2011 (International Law Commission)-
• 4.3.8- the author of the reservation has a right not to be bound by the treaty without
benefits of the reservation
• 4.5.3- the status of the author of invalid reservation depends on the intention
whether or not the State intends to be bound by the treaty without benefits of the
reservation.
• Why did the HRC take that view?
• Why did the 2 countries (UK and US) take that view? (Abishek
Baskota, Archana Yadav)
• Which view, that of US and UK or that of Committee is preferable?
• Is reservation permissible in bilateral treaties?
• Are signatories of a treaty bound by the treaty?
• Should reservations be permitted for international human rights
treaties?
LECTURE II
Law of Treaties- Lecture II

Lecture by- Roshani Giri, LLM (University of Cambridge)

Asst. Professor of law
Kathmandu School of Law
Entry into Force and Implementation of Treaties
• The treaty determines when it enters into force
• When no such provisions are there, it enters into force when the
negotiating states say so (Art.24, VCLT)
• UN Charter- Art.102- treaties entered into by the member states come
into force when it it registered with the Secretariat and published it.
• Why? To deter secret diplomacy and to promote availability of texts of
the Agreement
• Even accepts registration by non-members
• Implementation
• Through domestication of the treaty
• State reports and comments from treaty bodies, Individual complaints, State
to state complaints, dispute settlements
Treaty interpretation
• Article 31 VCLT - General rule of interpretation
• (1) 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…
• 2.The context for the purpose of the interpretation of a treaty shall comprise, in addition to
the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an instrument related to
the treaty.
• (3) There shall be taken into account, together with the context:
• (a) Any subsequent agreement between the parties regarding the interpretation of
the treaty or the application of its provisions;
• (b) Any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
• (c) Any relevant rules of international law applicable in the relations between the
parties…
• Article 32. Supplementary means of interpretation
• Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of
its conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the
interpretation according to article 31:
• (a) Leaves the meaning ambiguous or obscure; or
• (b) Leads to a result which is manifestly absurd or unreasonable
• ILC’s Draft conclusions on subsequent agreements and subsequent practice
in relation to the interpretation of treaties (2018):
• Conclusion 4: distinction between the subsequent practice of all parties as
an authentic means of interpretation in the sense of Art. 31(3)(b), and
subsequent practice by one or more parties as a supplementary means of
interpretation in the sense of Art. 32.
• Conclusion 10. Agreement of the parties regarding the interpretation of a
treaty
• 1. An agreement under article 31, paragraph 3 (a) and (b), requires a
common understanding regarding the interpretation of a treaty which the
parties are aware of and accept…
• 2. The number of parties that must actively engage in subsequent practice in
order to establish an agreement under article 31, paragraph 3 (b), may vary.
Silence on the part of one or more parties may constitute acceptance of the
subsequent practice when the circumstances call for some reaction.
• Conclusion 7. Possible effects of subsequent agreements and
subsequent practice in interpretation
• 1. Subsequent agreements and subsequent practice under article 31, paragraph
3, contribute, in their interaction with other means of interpretation, to the
clarification of the meaning of a treaty. This may result in narrowing, widening,
or otherwise determining the range of possible interpretations, including any
scope for the exercise of discretion which the treaty accords to the parties.
• 2. Subsequent practice under article 32 may also contribute to the clarification
of the meaning of a treaty.
• Conclusion 12: Constituent instruments of international
organizations…
• 3. Practice of an international organization in the application of its
constituent instrument may contribute to the interpretation of that
instrument when applying articles 31 and 32.
• In certain cases, a more flexible method of treaty interpretation,
based on the principle of effectiveness(i.e., an interpretation that
would not allow the provision in question to be rendered useless)-
interpreting treaties as living documents. For instance- Certain
expenses case (1962), Iron Rhine case (2005, PCA)s
Condition of the Validity of Treaties
• Can Constitutional limitations on treaty-making power be
invoked on international plane?
• 2 views
• First, Constitutional limitations determine the validity on
international plane
• Second, State is bound irrespective of internal limitation by
consent given by an agent properly authorized according to
international law
• Violating a state’s internal law of fundamental importance
(Art 46)
• Art. 48- A State may invoke an error in a treaty as invalidating its
consent to be bound by the treaty if the error relates to a fact or
situation which was assumed by that State to exist at the time when
the treaty was concluded and formed an essential basis of its consent
to be bound by the treaty.
• Paragraph 1 shall not apply if the State in question contributed by its own
conduct to the error or if the circumstances were such as to put that State on
notice of a possible error.
• An error relating only to the wording of the text of a treaty does not affect its
validity
• Article 49 Fraud
• If a State has been induced to conclude a treaty by the fraudulent conduct of
another negotiating State, the State may invoke the fraud as invalidating its
consent to be bound by the treaty.
• Article 50
Corruption of a representative of a State
• If the expression of a State’s consent to be bound by a treaty has been
procured through the corruption of its representative directly or indirectly by
another negotiating State, the State may invoke such corruption as
invalidating its consent to be bound by the treaty.
• Article 51
Coercion of a representative of a State
• The expression of a State’s consent to be bound by a treaty which has been
procured by the coercion of its representative through acts or threats
directed against him shall be without any legal effect.
• Article 52
Coercion of a State by the threat or use of force
• A treaty is void if its conclusion has been procured by the threat or
use of force in violation of the principles of international law
embodied in the Charter of the United Nations.
• Art. 53- Treaties conflicting with a peremptory norm of general
international law (“jus cogens”)
• Lack of authority if states’ representative (ILC draft Art.32)
Withdrawal, Termination and Suspension
of Treaties
• There is an assumption of continuation and validity of treaty- pacta sunt servanda
• And thus can only be done as per the VCLT or the treaty in question (Art. 42)
• States have to invoke certain ground to terminate or suspend treaties so treaties are voidable
not void
• However, a treaty is void in case of coercion (Art.51)
• Treaties may be terminated or suspended through a provision in the treaty (if one exists) or by
the consent of the parties (Art. 54) or by conclusion of subsequent agreement (Art 59)
• A party specially affected by a breach of a multilateral treaty may invoke breach as a ground for
termination (Art 60) as well as impossibility of performance (Art. 61)
• Irrespective of termination of the treaty, the obligations under international law embodied in
the treaty will not be terminated (Art. 43, VCLT)
• Termination should be invoked for the whole treaty unless the treaty provides for separability
(Art. 44)
• War and armed conflict- do not ipso facto terminate the treaties.
• Many treaties are not intended to be less binding during conflict such as the GCs
• State practice suggest that some types of treaties are suspended during war,
which may later be terminated on the ground of impossibility of performance or
fundamental change of circumstances
• Termination by mutual agreement- another treaty intended to supplant the
former one (Art.59)
• Material breach- ground to invoke suspension or termination of treaty in whole
or in part (Art.60) See- Certain German Interests in Polish Upper Silesia (1926)
whereby the PCIJ said that the treaty has been rendered void due to material
breach by Poland
• Supervening impossibility of performance- A party may invoke the
impossibility of performing a treaty as a ground for terminating or withdrawing
from it if the impossibility results from the permanent disappearance or
destruction of an object indispensable for the execution of the treaty. If the
impossibility is temporary, it may be invoked only as a ground for suspending
the operation of the treaty (Art.61)
• However, impossibility of performance may not be invoked by a party
as a ground for terminating, withdrawing from or suspending the
operation of a treaty if the impossibility is the result of a breach by
that party either of an obligation under the treaty or of any other
international obligation owed to any other party to the treaty
(Art.61.2)
• Fundamental change of circumstances- A fundamental change of
circumstances which has occurred with regard to those existing at the time of
the conclusion of a treaty, and which was not foreseen by the parties, may not
be invoked as a ground for terminating or withdrawing from the treaty unless:
• (a) the existence of those circumstances constituted an essential basis of the
consent of the parties to be bound by the treaty; and
• (b) the effect of the change is radically to transform the extent of obligations
still to be performed under the treaty.
• 2. A fundamental change of circumstances may not be invoked as a ground for
terminating or withdrawing from a treaty:
• (a) if the treaty establishes a boundary; or
• (b) if the fundamental change is the result of a breach by the party invoking it
either of an obligation under the treaty or of any other international obligation
owed to any other party to the treaty.
• needs to demonstrate that the change is substantial and unforeseen, that it affects
a vital aspect of the treaty, and that it seriously affects the party's ability to
continue fulfilling its obligations.
• Example- a treaty requiring military and political alliance cannot be
implemented anymore due to change in government incompatible with the
basis of alliance
• It is a statement of customary international law (Fisheries jurisdiction case (UK
Vs. Iceland)
• Arguments were made in Hungary v Slovakia (Gabcikovo-Nagymaros) too, but
court rejected Hungary’s argument that progress of environmental knowledge,
diminishing economic viability and development of new norms cannot be
considered fundamental changes
• Fisheries jurisdiction case (Spain V. Canada)- changing migratory patterns of fish
may a fundamental change in circumstances but did not meet the threshold
• Severance of diplomatic and consular relations? Does not affect
treaties unless such relations are essential for implementation of the
treaty (Art. 63)
• Emergence of peremptory norm “jus cogens’- the treaty becomes
void and terminates (Art.64)
• Consequences?

• Art.69- Consequences of Invalidity of a treaty

• No legal force
• (a) each party may require any other party to establish as far as possible in their
mutual relations the position that would have existed if the acts had not been
performed;
• (b) acts performed in good faith before the invalidity was invoked are not
rendered unlawful by reason only of the invalidity of the treaty.
• Article 70- Consequences of the termination of a treaty
• (a) releases the parties from any obligation further to perform the treaty;
• (b) does not affect any right, obligation or legal situation of the parties created
through the execution of the treaty prior to its termination.
In nutshell,
• 1) Expiry of Specific Period :

2) Where the main purpose/object of the treaty is fulfilled :

3) Termination by Mutual Consent :

4) One of the state party ceases to exist:

5) When that obligation of the treaty becomes incompatible with the Charter of
United Nations- Art. 103 or jus cogens
6) Impossibility of performance
7) Breach
8) Emergence of jus cogens
Treaties and Third States

• “third State” means a State not a party to the treaty (VCLT, art 2(1)(h))- an
ineligible party, a party which hasn’t agreed to the treaty
• Art. 34- A treaty does not create either obligations or rights for a third State
without its consent.
• Article 35- An obligation arises for a third State from a provision of a treaty if the
parties to the treaty intend the provision to be the means of establishing the
obligation and the third State expressly accepts that obligation in writing.
• Art 36- A right arises for a third State from a provision of a treaty if the parties to
the treaty intend the provision to accord that right either to the third State, or to a
group of States to which it belongs, or to all States, and the third State assents
thereto.
• Eg- Panama Treaty and Suez Canal Treaty creating legal rights on third states to
use the canal
• Exceptions- Art 2(6), International Customs (Art 38 of VCLT)
• This obligation of the third States was confirmed in Namibia case
where International Court of Justice held: “As to non- member States,
although not bound by Article 24 and 95 of the Charter, they have
been called upon in para 2 and para 5 of the resolution 276 (1970) to
give assistance in the action which has been taken by the United
Nations with regard to Namibia.
Treaties and Jus Cogens

• Jus Cogens- ‘compelling law’- norms from which no derogation is

permitted
• Article 53
• A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law.
• Article 64
• If a new peremptory norm of general international law emerges, any existing
treaty which is in conflict with that norm becomes void and terminates.
• Customary international law
• North Sea Continental Shelf (Germany/Denmark,
Germany/Netherlands), ICJ Rep 1969
• “Not only must the acts concerned amount to a settled practice, but
they must also be such, or be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it.” (para. 77)
• - Threshold for practice: “State practice, including that of States
whose interests are specially affected, should have been both
extensive and virtually uniform” (North Sea Continental Shelf, para.
74); the requirement of general consistence (Nicaragua, para. 186)
• - Opinio juris and the importance of legal explanations given by States.
Treaty Provision Under the Constitution of Nepal, 2015 and Nepal Treaty Act,
1990

• Art. 278- Power to make treaties: (1) The Federation shall have the
power to make treaties or agreements.
• (2) In making a treaty or agreement on a matter falling within the list
of State power, the Government of Nepal must consult the concerned
State.
• (3) A State Council of Ministers may, with the consent of the
Government of Nepal, make contractual agreements on financial and
industrial matters.
• Art. 279- Ratification of, accession to, acceptance of, or approval of,
treaties or agreements: (1) The ratification of, accession to, acceptance
of, or approval of, treaties or agreements to which Nepal or the
Government of Nepal is to become a party shall be as provided for in
the Federal law.
• (2) Any law to be made pursuant to clause (1) shall, inter alia, require
that the ratification of, accession to, acceptance of, or approval of,
treaties or agreements on the following subjects must be made by a
majority of two-thirds of the total number of the then members of
both Houses of the Federal Parliament:
(a) peace and friendship,
(b) defence and strategic alliance,
(c) boundaries of the State of Nepal, and
(d) natural resources, and the distribution of their uses.
• Provided that, out of the treaties or agreements under sub-clauses (a)
and (d), if any treaty or agreement is of an ordinary nature, which
does not affect the nation extensively, seriously or in the long term,
the ratification of, accession to, acceptance of, or approval of, such
treaty or agreement may be made by a simple majority of the
members present in a meeting of the House of Representatives.
• (3) After the commencement of this Constitution, unless a treaty or
agreement is ratified, acceded to, accepted or approved in
accordance with this Article, such treaty or agreement shall not apply
to the Government of Nepal or Nepal.
• Limitation to conclusion of treaties- (4) Notwithstanding anything
contained in clauses (1) and (2), no treaty or agreement may be
concluded in detrimental to the territorial integrity of Nepal.
LECTURE III
Law of Treaties- Lecture
III

Lecture by- Roshani Giri, LLM (University of Cambridge)

Asst. Professor of law
Kathmandu School of Law
 TREATY ACT 1990
• (a) “Treaty” means an agreement concluded in writing between two
or more states, or be tween any state and any inter- governmental
organization and this term also includes any document of this nature,
irrespective of how it is designated.
• Section-3 Power to Conclude Treaties: the Prime minister and the
Minister of Foreign Affair
(b)- Charge d’ Affaires
• Ratification and Accession (Section 4)- Apart from treaties mentioned
in Art. 279 of the Constitution, a resolution has to be tabled in the
parliament, which shall be passed by a majority
• Section-7- Power to Denounce or Suspend a Treaty: Unless otherwise
contained in the treaty to which Nepal or Government of Nepal is a
party , Government of Nepal shall have the power to denounce, or
partially or fully suspend such treaty, or withdraw the suspension
imposed thereon
• Section 9-Treaty Provisions Enforceable as good as Laws: (1) In case
of the provisions of a treaty, to which Nepal or Government of Nepal
is a party upon its ratification accession, acceptance or approval by
the Parliament, inconsistent with the pro visions of prevailing laws,
the inconsistent provision of the law shall be void for the purpose of
that treaty, and the provisions of the treaty shall be enforceable as
good as Nepalese laws.
• (b) Any treaty which has not been ratified, accede to, accepted or approved
by the Parliament, though to which Nepal or Government of Nepal is a party,
imposes any additional obligation or burden upon Nepal, or Government of
Nepal, and in case legal arrangements need to be made for its enforcement,
Government of Nepal shall initiate action as soon as possible to enact laws for
its enforcement.
• Reema Bajracharya v. Royal Nepal Corporation (2057)- recognized
right to equality under UDHR and non-discrimination under CEDAW.
• Dinesh Kumar Sharma v. Office of the Council of Ministers (2063)-
treaty laws are only ‘equivalent to law’ and are ‘not a law’ of Nepal
per se.
• Advocate Jyoti Paudel et al. v. Nepal Government (2064) , “Nepal
cannot derogate from its obligation once it becomes a party of a
treaty or convention. After being state party to a treaty or convention,
the provision should be complied with verbatim in good faith.
• Adv. Achyut Prasad Kharel v. GoN (2065)- treaties and agreement to
which Nepal is a party shall be enforced as good as Nepalese law
• Rabindra Prasad Dhakal v. GoN (2064)- Despite not being a state part
to the disappearance convention, Nepal has an obligation to protect
people. The Convention has not established separate values other than
prevailing international human rights laws rather it has reinforced the
values enshrined in the mainstream human rights laws, and therefore,
the fact of non-ratification of this convention by Nepal does not
provide any ground to deny the state responsibility created by
mainstream human rights instrument.
 Question to think about
1. What is a reservation in the context of international treaties, and how does it affect the obligations of the
state making the reservation?
2. What are the main reasons why states make reservations to treaties?
3. How do reservations impact the effectiveness and universality of international treaties?
4. Are there any limitations or restrictions on the types of reservations that states can make to treaties?
5. What is the process for making reservations to a treaty, and how are they communicated to other states?
6. What are the potential consequences or implications for a state that makes a reservation to a treaty?
7. Are reservations considered valid if they are inconsistent with the object and purpose of the treaty?
8. How do reservations affect the rights and obligations of other states party to the treaty?
9. What is the role of the treaty monitoring bodies or dispute settlement mechanisms in assessing the validity
and compatibility of reservations?
10. 10. What is the role of treaty interpretation in international law, and why is it important for understanding
and implementing treaty obligations?
11. What are the primary methods or principles used for interpreting treaties, such as the Vienna Convention
on the Law of Treaties?
12. How do the principles of object and purpose, ordinary meaning, and subsequent practice influence the
interpretation of treaties?
13. What is the significance of the travaux préparatoires (preparatory work) in treaty interpretation, and how
are they used by courts and tribunals?
14. How do courts and tribunals approach the interpretation of ambiguous or unclear treaty provisions?
15. What is the relationship between treaty interpretation and customary international law?
16. How do states' subsequent agreements or subsequent practice influence the interpretation of treaties?
17. Can the context in which a treaty provision was negotiated or the historical background affect its
interpretation? If so, how?
18. How do courts and tribunals resolve conflicts between different language versions of a treaty during the
interpretation process? (See Art. 33 VCLT)
19. What do you mean by ‘fundamental change of circumstances’ as a ground for termination, withdrawal or
suspension of a treaty? Explain with reference to Hungary V. Slovakia.
20. Can the interpretation of a treaty provision evolve over time? If so, what factors contribute to such
evolution? (Refer to Iron Rhine Case, Gabcikovo-Nagymaros case, Genocide Convention case)