In the Cases of the Serbian and the Brazilian Loans

Treaties are the first and foremost source of International law. Whenever an International Court has to decide an international dispute, its first endeavor is to find out whether there is an international treaty on the point or not. In case there is an international treaty governing the matter under dispute, the decision of the court is based on the provisions of the treaty. International treaties occupy the same significant position in the field of international law as the legislation occupies in the municipal law. Unlike municipal law, the various methods by which rights and duties may be created in international law are relatively unsophisticated. States transact a vast amount of work by using the device of treaty [1] . For instance, wars will be terminated, disputes settled, territory acquired, special interests determined, alliances established and international organizations created all by means of treaties. So treaties are a more direct and formal method of international law creation. There lies the importance of treaties.

2. Definitions of Treaty

Prof. Oppenheim: “International treaties are agreements of a contractual character between States or Organizations of States creating legal rights and treaties”.

Prof. Schwarzenberger: “Treaties are agreements between subjects of international law creating a binding obligation in international law”.

McNair: “A written agreement by which two or more States or International organization create or intend to create relations between themselves operating within the spheres of International Law”.

The term treaty has also been defined in the Vienna Convention on the Law of Treaties, 1969. Article 2(1) (a) of the Convention defines treaty as “an international agreement concluded between States in written form and governed by international law”. The Vienna Convention on the Law of Treaties came into force on 27th January, 1980.

3. Basis of the Binding Force of International Treaties

In the view of the Italian jurist, Anzilotti, the binding force of international treaty is on account of the fundamental principle known as ‘Pacta Sunt Servanda’. According to this principle, States are bound to fulfill in good faith the obligations assumed by them under treaties. The principle was reaffirmed in Article 26 of the 1969 Convention, and underlies every international agreement. “Every treaty in force is binding upon the parties to it and must be performed by them in good faith” [2] .

4. NOMENCLATURE OF Treaties

Protocol: This signifies an agreement less formal than a treaty or convention proper. The term covers the following instruments also; an instrument subsidiary to a convention, an ancillary instrument to a convention, an altogether independent treaty, Process-Verbal.

Agreement: an instrument less formal than a treaty or convention proper, and generally not in heads of state form.

Convention: This is the term ordinarily reserved for a proper formal instrument of a multi-lateral character.

Arrangement: The observations above as to Agreements apply here.

Process-Verbal: This term originally denoted the summary of the proceedings and conclusions of a diplomatic conference, but is now used as well to mean the record of the terms of some agreement reached between the parties.

Statute: A collection of constituent rules relating to the functioning of an international institution, eg; the statue of I.C.J.

Declaration: An informal instrument appended to a treaty or convention interpreting or explaining the provisions of the latter.

Modus Vivendi: an instrument recording an international agreement of a temporary or provisional nature intended to be replaced by an arrangement of a more permanent and detailed character.

Exchange of notes (or letters): an informal method, very frequently adopted in recent years, whereby states subscribe to certain understandings or recognize certain obligations as binding them. Ratification is not usually required here.

General Act: is really a treaty but may be of a formal or informal character.

Final Act: is the title of the instrument which records the winding up of the proceedings of the Conference summoned to conclude a convention.

5. Compartmentalization of Treaties

McNair has classified treaties under the following heads:

Treaties having the character of conveyances;

Treaty contracts;

Law-making treaties; and

Other treaties, such as, the treaty of Universal Postal Union.

6. Parties Competent to Make a Treaty

Generally, only Sovereign States are competent to make a treaty. In accordance with the principle of sovereignty sovereign states have unlimited powers to make treaties. Those States which are not completely sovereign are not competent to make it. The Permanent Court of International Justice in Wimbledon case observed: “the capacity of entering into international engagements is an attribute of state sovereignty”.

7. Formation of a Treaty

The main steps in the formation of a treaty are:

7.1 Accrediting of persons who conduct negotiations on behalf of the contracting states (Arts.7 & 8 of Vienna Convention)

Once a state has decided to commence negotiations with another state or other states for a particular treaty, the first step is to appoint representatives to conduct the negotiations. In practice a representative of a state is provided with a very formal instrument given either by the head of state or by the Minister of Foreign Affairs showing his authority in various regards. This instrument is called the Full Powers or Pleins Pouvoirs.

7.2 Negotiation and adoption (Art.9)

The accredited persons of contracting parties enter into negotiations for the adoption of the treaty. After the matters are settled, the treaty is adopted.

Authentication ,signature and exchange of instruments

When the final draft is agreed upon, the instrument is ready for signature. Unless there is an agreement to dispense with signature, this is essential for a treaty, principally because it serves to authenticate the text. This rule is stated in Article 10 of the Vienna Convention. The effect of signature of a treaty depends on whether or not the treaty is subject to ratification, acceptance, or approval. If the treaty is subject to ratification, acceptance, or approval, signature means no more than that the delegates have agreed upon a text and are willing to accept it and refer it to their governments for such action as those governments may choose to take in regard to the acceptance or rejection of the treaty. Where a treaty is constituted by instruments exchanged by representatives of the parties, such exchange may result in the parties becoming bound by the treaty.

Ratification

The next stage is that the delegates who signed the treaty refer it back to their governments for approval, if such further act of confirmation be expressly or impliedly necessary. Ratification means the international act ….whereby a state establishes on the international plane its consent to be bound by a treaty.

The power of refusing ratification is deemed to be inherent in state sovereignty, and accordingly at international law there is neither a legal nor a moral duty to ratify a treaty.

Accessions and adhesions:

In practice when a state has not signed a treaty it can only accede or adhere to it. The practice of the States shows that those states which have not signed the treaties may also accept it later on. This is called accession. A treaty becomes a law only after it has been ratified by the prescribed number of State parties. Even after the prescribed number of State parties have signed, the other States may also accept or adhere to that treaty. This is called adhesion.

Entry into force

“The entry into force of a treaty depends upon the provisions of the treaty or upon what the contracting states have otherwise agreed upon [3] “.

Registration and publication

Art.102 of the United Nations Charter provides that the registration and publication of every international treaty entered into by the members is essential. It is made clear in this Article that if an international treaty or agreement is not registered, it cannot be invoked before any organ of the United Nations.

7.8 Application and enforcement

The final stage of the treaty – making process is the actual incorporation of the treaty provisions in the municipal law of the state parties, and the application by such states these provisions, and, also, any required administration and supervision by international organs.

8. Reservation of a Treaty

A state may be willing to accept most of the provisions of a treaty, but it may, for various reasons, object to other provisions of the treaty. I n such cases states often make reservations when they become parties to a treaty. The term “reservation” has been defined in Article 2(1) of the Vienna Convention on the Law of Treaties, 1969. It runs as follows; “Reservation means a unilateral statement …..Made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby, it purports to exclude or modify the legal effects of certain provisions of the treaty in their application to the State”.

9. TERMINATION OF TREATIES

A treaty can be terminated by (1) the operation of law and by the (2) act or acts of the state parties.

9.1 By the Operation of Law:

It includes the following:

9.1.1 Expiry of time

If the treaty has been concluded for a fixed period of time, the expiration of the fixed term will automatically terminate the treaty.

9.1.2 Fulfillment of object

In case of treaties imposing no continuous obligation, it may cease to operate on the fulfillment of the object.

9.1.3 Extinction of the parties

If one of the parties is extinguished by annexation or merger, it may cease to operate. For e.g.: the treaty between USA and Tripoli came to an end when the latter was annexed by Italy in 1912.

9.1.4 Outbreak of War

The treaties may be suspended or terminated at the outbreak of the war.

The treaties between the belligerent states for which general, political and good relations are essential, cease at war.

Treaties relating to complete situations such as fixation of boundaries shall not cease.

The treaties relating to the rule of war remain in force and binding upon the parties.

Some multilateral treaties relating to health, service, protection of industrial property do not completely end. They remain suspended and revived at the end of the war.

9.1.5 Impossibility of Performance

Article 61 of the Vienna convention stated that “the impossibility of performance is a valid ground for the termination of the treaty”.

9.1.6 Rebus Sic Standibus

When the fundamental or material circumstance under which a treaty is concluded or change, it gives room for the termination of the treaty. There may be situations in which the continued application of treaty may be both contrary to the shared expectations on the parties and an intolerable burden on them.

9.1.7 Jus Cogens

A treaty may be declared void if it conflicts with a preemptory norm (jus cogens) of international law. According to Article 53 of the Vienna Convention the treaty is void, if at the time of conclusion it conflicts with peremptory norm of international law.

By The Act of State Parties

Consent of The Parties

According to Article 54 of the Vienna convention, it will be considered as terminated, if all the parties to it conclude a subsequent treaty relating to the same subject matter.

Notice of Termination or by Act of Denunciation

If a state party wishes to withdraw from a treaty, it usually does so by notice of termination or by denunciation. The term “denunciation’’ means notification by a state to the other state parties that it intends to withdraw from the treaty. Ordinarily the treaty itself provides denunciation, or state concerned may, with the consent of other parties, have reserved a right of denunciation.

10. Interpretation of Treaties

With regard to the interpretation of treaties there are agencies to interpret the treaties.

Agencies of Interpretation

There may be courts such as International Court of Justice,

The Court of Justice of Three European Communities (The European Coal and Steel Community, The European Economic Community (common market) and the European Atomic Energy Community (EURATON)). They have the jurisdiction to interpret the Treaties of 18th April 1951and 25th march 1957 establishing these three communities.

The other agencies which would interpret the treaties are the International Labour Office (for the office’s interpretation of labour convention).

The various organs of UN recognized at the San Francisco Conference which in 1945 drew up the UN Charter that each organ of UN’s would have largely to do its interpretation works.

Executive directors and board of governors of the Indian Monetary fund.

And also the reference of point to the Adhoc committee.

Instruments of Interpretation

The diplomatic conferences which adopt treaties are only conscious about the drafting defects. To avoid the difficulties arising out of the construction of particular clauses or articles, an instrument such as a protocol, or process-verbal or final act is often annexed to the main convention containing detailed interpretation or explanation of the doubtful provisions.

Multilingual Treaties

The treaties are often drafted in two or more languages. Multilateral conventions, including conventions of ILO are usually concluded in French and English and it is provided that both the texts shall be authoritative. It may prevail in the event of conflict. The UN Charter of 1945 was drawn in 5 languages such as English, French, Russian, Spanish and china. Article III of the UN Charter stated, that all five texts are equally authentic.

The Article 33 of the Vienna Convention is dealing with the conditions for the authentications of the treaties. They are the following:

If a treaty is authenticated in several languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that one particular text is to prevail in case of divergence.

The terms of the treaty are presumed to have some meaning in each text.

A construction is to be given which best reconciles the texts having regard to object and purpose of the treaty.

General Principles

There are numerous rules, canons and principles have been laid down international tribunals and by writers to interpret the treaties. To serve it as useful, indeed measures, guidelines to the drafting of treaty provisions. All these rules and canons are not absolute formulae but they are related to particular text and to the particular problem. Their weight depends on cumulative application of several, rather than the application of one singly.

Grammatical Interpretation and Intention of Parties

In treaties the words and phrases are to be construed according to their plain and natural meaning. If a grammatical interpretation result in absurdity, or marked inconsistency with other portions of treaty, it should not be adopted.

While interpreting the treaty the following things are to be noted:

The purpose or plan of the parties in negotiating the treaty.

It should not restrict unduly the rights intended to be protected by law.

The interpreter should look into the ostensible intention of parties mentioned in four corners of the text.

Special meaning should be given to a particular term, if it is established that parties so intended.

Object and Content of Treaty

If particular words and phrases are doubtful, their construction should be governed by the general object of treaty. Art 31, para 1 of the Vienna Convention stated that treaty should be interpreted with reference to its object and purpose. For the interpretation it include preamble, annexes to the treaty and related agreements or instruments made in connection with the conclusion of the treaty.

Reasonableness and Consistency

The interpretation should be done in such a manner in which reasonable meaning of words and phrases is preferred. By the term consistency, it means that it should be interpreted in the light of the existing International law. If the state entering into a treaty is unwilling to limit their sovereignty, ambiguous meaning should be given, which is least restrictive upon a party’s sovereignty or in conflict between the special and general law. If there is a conflict between general and special law the special law will prevail over the other.

Principle of Effectiveness

According to the PCIJ, the interpretation as a whole make the treaty ‘’most effective and useful’’. The PCIJ applied this principle in US diplomatic and Consular staff in Tehran ICJ 1980. The principle of effectiveness enabled the treaties to work and have appropriate effects. It is very important in case of multilateral conventions containing the constituent rules of international organizations. It warrants an interpretation which works a revision of a convention, or any result contrary to the letter and spirit of treaties.

Recourse to Extrinsic Material

The international tribunal is limited to the context of treaty, provided that clear words are not thereby contradicted. The following points are relevant:

Past history and historical usages

Preparatory work, i.e. preliminary drafts, records of conference discussion, draft amendments etc.

Interpretation protocols, Resolutions, Committee reports.

The subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions (Article 31(3) of Vienna Convention).

The subsequent conduct of the state parties, intention of parties and their conception of the treaty.

Other treaties, in parimateria, in case of doubt.

Disputes Clause

The dispute clause is inserted in the multilateral conventions to settle the disputes arising as to interpretation or application of convention. The methods used for such settlements are the arbitration, conciliation and the judicial settlement.

11. DOMESTIC IMPLEMENTATION OF INTERNATIONAL TREATIES

Introduction

Indian government as member of the world community has always played its role in quite an effective manner by duly undertaking the implementation of the relevant international treaties. Article 51(c) of the Constitution of the country speaks about fostering respect for international law and treaty obligations in the dealings of organised people with one another. This project tries to look into the efforts made by the different wings of the government towards maintaining an international consciousness in the country and the mechanisms which are available as of now for the said purpose.

Why should India ratify and adopt treaties

Prior to looking into the implementation mechanisms available in the country, it is necessary to look into the reasons which would make such an implementation necessary.

The Courts of our country have opted for adopting principles from international treaties on the event of insufficiency of the existing laws prevailing in the domestic scenario.

Owing to the high level of deliberations and issues addressing, international treaties guarantee a great amount of knowledge regarding contemporary affairs across the world and the legal protections ensuing.

It will help to supplement any national law making mechanisms which may have defects inherent in themselves or which could not perform their responsibilities as expected or desired for reasons best known to them.

Judiciary And International treaties

It is worth to be considered that India has been keen on ratifying those international treaties which could be brought within the gamut of fundamental rights as is existing in the country. Thus, Indian judiciary, executive and legislature have acted in favour of adopting principles of human rights, laws of war, environmental rights etc into the system. In many situations, the application of international principles into Indian scenario have appeared to be a less cumbersome task, because of the open mindedness exhibited by the judiciary of the country. Honourable Courts have tried to locate the provisions of many conventions and treaties within the framework of already existing rights. This was considered to be the easiest way of broadening the scope and ambit of fundamental rights. For example, in Visakha and Ors v. State of Rajasthan and Ors [4] , right to work with human dignity and promotion of gender justice, guaranteed under Convention on Elimination of Discrimination against Women at Work Places, to which India is a party was read along with Articles 14, 15, 19(1) (g) and 21 of the Constitution of India. Again in M.C. Mehta v. Union of India [5] , precautionary principle [6] and polluter pays principle [7] was accepted as part of the Law of the Land through Article 21 of the Constitution. In Sunil Batra v. Delhi Administration and Ors. etc [8] , the Supreme Court referred to the international consciousness regarding human rights. In Rev. Mons. Sebastiao Francisco Xavier dos Remedios Monteiro v. The State of Goa [9] , the court discussed the concepts of annexation and occupation as is prevalent in international law and held that Conventions Act of 1960 does not provide special remedy under domestic law but gives indirect protection by providing for the penal repression of breaches of the Conventions. R. Kapur v. State of Punjab [10] However, if a conflict arises between the municipal law and international law, the former would prevail [11] .

Indian Status on ratifying International Treaties

India has been party to around 27 treaties on environment protection which includes the convention on biological diversity, climate change etc and again has signed and ratified different treaties pertaining to protection of wild life and migratory animals. As regards the implementation of the International Covenant on Civil and Political Rights, India has exhibited its dedication by submitting periodic national reports to the Human Rights Council reflecting the national implementation mechanisms.

Legislations such as Human Rights Act 1993, Chemical Weapons Convention Act 2000 etc prevalent in the country are the outcome of the efforts to implement the international obligations and principles in the Indian scenario. Thus, in many ways the international treaties and other instruments have worked as factors encouraging the nation to perform and protect the rights of its citizens in a better manner.

As far as treaties on international humanitarian laws are concerned, India has ratified four main treaties. However, it has not been a party to Additional Protocols I, II and III of the Geneva Conventions 1949 till date. As regards International Human Rights regime is concerned, India is party to the major ones like CEDAW, CRC, and Disability Rights Convention. On other areas like Use of Weapons, Terrorism, International Criminal Law, Racial discrimination, Slavery, Status of women etc., it has acceded to major treaties available at the international context. It has also ratified to the SAARC Convention on Suppression of Terrorism, 1993 and its additional protocol in 2004. India has ratified around 30 ILO conventions, as the status report of 2005 indicates. It has even ratified conventions during pre independence period which makes it very clear that British India has always maintained a level of international consciousness. However, it is not a party to many of the optional protocols accompanying to many of these conventions. Whether this is to be attributed to intentional aloofment or reluctance to reduce the international influence on the country or the way to protect the sovereignty of the country is to be checked.

But what could be inferred while cross examining the list of treaties ratified by India is that, the Government has shown reluctance in ratifying treaties which may hinder its supremacy or those which may confer more status to the individual in the international context. Likewise, it has not signed treaties which work towards prevention of torture, ensuring rights to refugees. Similarly, it has also not ratified the Rome Statute, 1998 resulting in the establishment of International Criminal Court. More than the legal importance of these matters, the ratification of a treaty could be considered as policy matters of the government. However, it is not a party to many of the optional protocols accompanying to many of these conventions. Whether this is to be attributed to intentional aloofment or reluctance to reduce the international influence on the country or the way to protect the sovereignty of the country is to be checked.

However, in the context of the emerging trade regime, India has expressed its willingness to go by the policies of liberalization and globalization, which started in the early 90s and is a party to major treaties on international trade, intellectual property rights etc. For example, India is a party to the intellectual property treaties like WIPO, TRIPS, Patent Co-operation Treaty, Paris Convention for the Protection of Industrial Property, Budapest Treaty etc. India has been a founder member of GATT and also of its successor WTO since January 1, 1995.

CONCLUSION