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THE INTERNATIONAL
LAW OF TREATIES
On the Internet: www.public-international-law.net © 2009
Justice without might is helpless, might without justice is tyrannical Pascal, Pensées
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CONTENTS
Foreword
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I)
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Sources of International Law
II) Principles of Treaty Law
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1) Free consent
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2) Good faith
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3) Pacta sunt servanda
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4) The rebus sic stantibus clause
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5) Favor contractus
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III) Application of the major principles
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(free consent & good faith) 1) With regard to the conclusion of treaties
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a) The expression of free consent
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b) Pacta tertiis nec nocent nec prosunt
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c) Designation of treaties
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2) With regard to the termination of treaties
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a) By consensus
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b) by defects of consent
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c) No derogation of jus cogens
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3) With regard to the amendment of treaties
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a) The implicit amendment
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b) The explicit amendment
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4) With regard to the interpretation of treaties
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5) Specific application of the good faith-principle
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IV) Reservations
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V)
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Procedures 1) The State’s will
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a) With regard to the conclusion of treaties
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b) With regard to the termination of treaties
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2) The Depositary and the registration of treaties
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3) Settlement of Disputes
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VI) Further reading ...
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VII) Weblinks
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DOCUMENTS Vienna Convention on the Law of Treaties
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Annex to the Vienna Convention on the Law of Treaties
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States Parties
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Full Powers
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Belize
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Canada
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United Kingdom
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United States of America
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Model instruments of ratification
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1) Accession
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2) Approval
68
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Foreword
Nowadays as in the past, treaties play a fundamental role in international relations. The present publication aims at offering to an interested public an introduction to international treaty law, i.e. the law of the treaties concluded between States in written form and governed by public international law. In proceeding by deduction, the author's intention is to present international treaty law by starting from its inherent principles as embodied in the Vienna Convention on the Law of Treaties of Treaties of 1969. This convention has entered into force on 27 January 1980 and has been ratified by more than 100 countries.
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I) The Sources of International Law Article 38 of the Statute of the International Court of Justice, Justice, considered by some as the "Bible of the Poor" of those who seek quick answers despite of the complexity of international relations, constitutes nevertheless a good starting point for the understanding of the sources of international law. According to this article, international law finds its origin in the following f ollowing three sources: - international conventions of general or particular nature; - international custom, as evidence of a general practice accepted as law; - the general principles of law recognized by civilized nations.
The International Court of Justice in The Hague, Netherlands.
Most international law experts would rush to add the "unilateral acts" to these three sources of law and to declare that Article 38 of the Statute has omitted to mention these unilateral acts for which the United Nations' International Law Commission (ILC) has (ILC) has elaborated Guiding Principles in Principles in 2006. Contrary to this opinion, other international lawyers would maintain that these unilateral acts constitute specific expressions of the will of States leading eventually to agree-
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ments which are then governed by the t he rules applicable to international conventions. Finally, the idea of justice and equity originating in the philosophy of natural law is not to be discarded as a source of international law, since it is the opinion of the International Court of Justice itself Justice itself that whatever the legal argumentation of the judge, his or her decisions have to be just and in that sense must correspond to justice and equity. Moreover, the judges of the International Court of Justice are expressly authorized to decide a case ex aequo et bono, if the parties agree thereto, i.e. to found their judgements on arguments of equity (Article 38 (2) of the Statute of the International Court of Justice). Justice). International treaty law as codified by Vienna Convention on the Law of Treaties of 1969 is open for considerations of justice too (Preambular para. 4 and 5 and Article 44 (3)). Moreover, the concept of " jus cogens" cogens" seems also to be an angle of incidence for natural law ideas. Since, on the basis of their sovereignty and therefore independence, the equality of all States constitutes the theoretical foundation of international relations and although public international law, by definition, does not belong to civil law, international legal debates are often reminiscent of the discussions known in the latter area, in particular in the context of the law of contracts. However, the analogy with the law of contract ends where measures are taken on the basis of Chapter VII of the Charter of the United Nations. Nations. Although they are foreseen in an international treaty - in particular by Article 25 of the Charter Charter these measures deserve to be highlighted because of the legal obligations they impose to the whole world, their political significance and the remarkable development they have undergone since the Gulf War of 1991. The measures taken by the Security Council and Council and which are expressly based on Chapter VII of the Charter encompass not only military as well as economic sanctions against - certain States (Ethiopia, Eritrea, Iraq, Yugoslavia, Sierra Leone etc.) - or insurgents (Angola's UNITA, see resolution 1173/1998 of 12 June 1998) or even political parties in government (the Afghan faction of the Taliban, see res. 1267/1999 of 15 October 1999), but also
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- the creation of special tribunal to prosecute war crimes or crimes against humanity in the territory of the former Yugoslavia (res. 827/1993 of 25 May 1993) and in Ruanda (res. 955/1994 of 8 November 1994) - or of special administrative zones like in East Timor (see res. 1272/1999 of 25 October 1999) or in Kosovo (see res.1244/1999 of 10 June 1999) as well as - measures against terrorism in general (res. (res. 1373/2001 of 28 September 2001). These sources of international law are supplemented by two subsidiary means for the determination of rules of law (Article (Arti cle 38 (1)(d) of the Statute), i.e. by - judicial decisions (although even the decisions of the International Court of Justice have Justice have binding force only between the parties and in respect of the particular cases submitted to the Court - Article 59 of the Statute) and - the teachings of the most highly qualified publicists of the various nations. The present publication, for its part, is devoted to the international law of treaties as codified in the Vienna Convention. Convention. The principles of this convention as well as their application constitute its main subject-matter.
II) Principles of Treaty Law Although it is possible to conclude international conventions orally, almost all of them are concluded in written form. Orginally, the international treaty rules were either part of customary international law or belonged to the general principles of law; today the rules governing international treaties which are concluded between States in written form are codified. The codification governing this legal area is the Vienna Convention on the Law of Treaties (Vienna Convention) of 1969 which has entered into force f orce on 27 January 1980. Although the Vienna Convention is not applicable to treaties concluded before its entry into force (Article 4) it is de facto applied to those too, since it incorporates - at least to a large extent - customary rules which
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were already applicable before this date. Moreover, the Vienna Convention applies only in the absence of other applicable agreements and is therefore of subsidiary character.
A Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations dating from f rom 1986 has reproduced the provisions of the Vienna Convention. It reflects to a large extent international customary law, too; however, it has not yet entered into force. Finally, a Vienna Convention on Succession of States in respect of Treaties, concluded in 1978, entered into force in 1996, but since it has been ratified by 15 States only, it cannot be considered as a source of universal international law. Furthermore, it has hardly had any impact on state practice, the noteworthy exception being that practice widely follows the rule according to which a successor State can establish its status as party of a multilateral treaty to which its predecessor State already belonged through a declaration of succession. Generally speaking, one can say that customary international law is rather blurred in this regard. Basically, two types of treaties are two be distinguished: - bilateral treaties which are concluded between two States only and - multilateral treaties concluded between at least three States; the treaties which have attracted the largest numbers of parties are called universal. Amongst multilateral treaties, one can distinguish between "open" and "restricted" treaties. Whereas every State can become a party to the "open" ones, access to the latter category of treaties is excluded for those States which do not belong to the original States Parties, unless an agreement to the contrary has been entered into. Hence, every State can accede to the Vienna Convention (open treaty), but only the signatory States of the Convention on the Regulation of the Navigation on the Danube River from 1948 could originally ratify this (restricted) treaty: treat y: hence the accessions of Austria and Germany had to be approved by the original States Parties in 1960 and 1999, respectively, by way of supplementary agreements with these two countries. The Vienna Convention which consists of 85 articles, art icles, eight parts and an annex includes and materializes five fundamental legal principles, i.e.
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1.
free consent
2.
good faith
3.
pacta sunt servanda
4.
rebus sic stantibus
5.
favor contractus
Free consent and good faith (bona fide in Latin) are the leading principles which ought to be always followed by States in the course of their relations with one another. The other major principles which also emanate from the Roman Law tradition apply in particular - either to the conclusion of treaties: - pacta sunt servanda (a servanda (a treaty is binding upon the parties) - or to the interpretation or application of treaties: - omnia conventio intelligitur rebus sic stantibus (viz. the clausula rebus sic stantibus according to which a fundamental change of circumstances jeopardizes the validity of treaties) - favor contractus (it contractus (it is better to seek the maintenance rather than the termination of a treaty)
These five principles will be subject to closer scrutiny and the application of the two major principles (free consent and good faith) will faith) will be the object of a separate chapter. Of course, the delimitation between these principles can be vague, but eventually they are mutually supportive of each other. 1) Free consent
This international principle is embodied in preambular para. 3 of the Vienna Convention. Convention. First of all, it is the corollary of the prohibition of the threat and use of force contained in the Charter of the United Nations (Article 2 (4)) which legitimates such behaviour only in specific circumstances. The severance or absence of diplomatic (or consular) relations be-
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tween two or more States does not prevent the conclusion of treaties between those States (Article 74). According to the principle of free consent, international agreements are binding upon the parties and solely upon themselves. These parties cannot create either obligations or rights for third States without their consent (rule of pacta tertiis nec nocent nec prosunt Article 34). The only explicit exception to this rule appears in Article Art icle 22 (1) which is an expression of the favor contractus principle and concerns the withdrawal of reservations. Another important principle which can be deducted from the free consent rule is expressed by the latin phrase lex posterior derogat legi priori. According to this rule, a later treaty prevails over an earlier one when two treaties exist which relate to the t he same subject-matter (Article 30 para. 3). This principle will be dealt with in the context of treaty amendments. It is understood that by giving its consent, a State binds itself it self in respect of its entire territory and not retroactively, unless a different intention is established (Articles 28 and 29).
2) Good faith
As well as free consent, good faith is of fundamental f undamental importance for the conduct of international relations in general and is therefore recognized as an international principle according to the very terms of the Vienna Convention (Preambular Convention (Preambular para. 3). If a State do not behave in good faith, peace and international security, the supreme goals of the Charter of the United Nations might eventualy be put in jeopardy. In a resolution from July 2001, the International Whaling Commission (IWC) which is constituted by more than 40 member countries declared that "good faith requires fairness, reasonableness, integrity and honesty in international behaviour". An abuse of right is contrary to the principle of good faith (see Article 300 of the United Nations Convention on the Law of the Sea). Of course, being a subjective element of behaviour, presence or absence of good faith can be difficult to prove. In the last analysis, good or bad faith can only be found in the minds of individuals, in particular of those who happen to have an influence on the conduct of foreign policy and, more specifically, of those whose task it is to negotiate and implement international conventions (see Articles 26, 31 (1) and 62 (2)(b)).
3) Pacta sunt servanda
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Apart from the fact that it is listed together with good faith among the universally recognized principles (preambular para. 3), this rule is also enshrined in Article 26: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." In Paul Reuter's words, this principle can be translated by the following formula: treaties t reaties "are what the authors wanted them to be and only what they wanted them to be and because they wanted them to be the way they are". A party is not authorized to invoke the provisions of its internal int ernal law as justification for its failure to perform a treaty (Article 27). Generally speaking, this solid legal link is nor even weakened in the case severance of diplomatic relations relat ions between the parties to a given treaty (Article 63). The only limit to t o the "pacta sunt servanda" rule is to be found in the notion of "peremptory norm of general international law" (or jus cogens). But apparently States expect increasingly out of realism that the treaties they conclude in certain areas, in particular with regard to the protection of the environment, will not be properly implemented by all States parties just out of respect for the t he "pacta sunt servanda" rule. This is why several recent treaties contain obligations to cooperate in order to facilitate compliance with the treaty obligations (see also Article 8 of the Ottawa Ott awa Convention on the prohibition of landmines).
4) The rebus sic stantibus clause
According to this principle (understood in a broad sense), extraordinary circumstances can lead to the termination of a treaty. These circumstances can consist either in a material breach of a given treaty by one of the States Parties (Article (Art icle 60), in a permanent disappearance of an object indispensable for the execution of the treaty (Article 61) or in a fundamental change of circumstances (Article 62, clausula rebus sic stantibus understood in a narrow sense). A fundamental change of circumstances can also occur in the case of the outbreak of hostilities between the States Parties (see Article 73). However, this fact cannot be invoked as a ground for terminating a treaty, if it has been concluded with regard to the possible outbreak of an armed conflict as in the case of the Geneva Conventions of 12 August 1949 (so-called Red Cross-conventions) or the Hague Conventions of 1899 and 1907. The International Law Commission (ILC) has elaborated draft articles on Effects of armed conflicts on treaty. A further extraordinary circumstance foreseen by the Vienna Convention is the emergence of "jus cogens" , i.e. of a new peremptory norm of general international law. This circumstance is distinct from those enumerated above by the fact that it is of normative and not 11
factual nature. The rebus sic stantibus clause can be considered as an implicit reservation generally affecting the consent expressed by a State to be bound by a treaty. It seems worthwhile mentionning in this context that Argentina has made a reservation to Article 62 in which it made plain that she would not not accept the idea that 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 be invoked as a ground for terminating or withdrawing from the treaty. However, according to Article 62 (2)(a) (rebus sic stantibus clause understood in a narrow sense), a fundamental change of circumstances may not be invoked in the case of boundary treaties, the reason being that putting into question international boundaries can lead to a peace theatening situation, because it jeopardizes the principle of territorial integrity (see Article 2 (4) of the Charter of the United Nations) which is quite fundamental in international relations. Hence, the Vienna Convention on Succession of States in respect of Treaties of 1978 has restated the rule that a succession of States does not affect as such a boundary or any other territorial regime established by a treaty.
5) Favor contractus
This principle expresses the preference of international treaty law for the maintenance and the conclusion of treaties over expiry for reasons of form. Hence, unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of he fact that the number of the parties falls f alls below the number necessary for its entry into force (Article 55). The Vienna Convention also sanctions the prohibition to denounce a treaty or to withdraw from it, if it does not foresee itself these forms of termination. This applies, of course, unless the parties did not wish, be it by tacit understanding, a different solution (see Article 56). Likewise, in order to uphold the validity of treaties, Article 68 allows parties to revoke at any time before they take effect notifications or instruments designed to lead to invalidity, even this is done only in relationship to one single other party. In practice, however, the most important expression of the favor contractus principle is contained in the provisions of the Vienna Convention concerning reservations; this publication will devote to them a separate chapter. In particular, whereas a reservation has to be accepted implicitly or explicitly by at least one other State Party (Article 20 (2),(4)(c) and (5)), it can be withdrawn at any time t ime without the consent of the State or States which
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had accepted it in the first place (Article 22 (1)). This is the only explicit exception to the free consent principle. The favor contractus principle can be found in Article 74, too. This provision clarifies that the severance or absence of diplomatic or consular relations does not prevent concerned States to conclude treaties between themselves.
III) Application of Treaty Principles Principles (free consent & good faith) 1) with regard to the conclusion of treaties
a) The expression of free consent the Vienna Convention which governs agreements concluded in written form between States, confirms in its Article 6 that every State possesses capacity to conclude treaties. The will of a State finds f inds its expression through persons who are authorized to do so or who are considered to be state representatives. Since international treaty law in its entirety is subject to t o the free consent principle. it is quite logical that the Vienna Convention offers a broad choice of possibilities to express consent (Article 11), i.e. - signature, - exchange of instruments constituting a treaty (in the case of bilateral treaties this often happens through the exchange of notes), - ratification, - acceptance, - approval, - accession or - by any other means if so agreed. A typical clause of entry into force can be found in Article 84 of the Vienna Convention itself which reads: "1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification rat ification or accession. 2. For each State ratifying or acceding to the Convention after the deposit of the thirty-fifth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification ratif ication or accession."
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The States Parties - primarily the contracting States (see Article 2 (1)(f)) - can also agree to apply a treaty provisionally pending its entry into force (Article 25). This agreement can be laid down in the treaty itself or in another way. If this done in the treaty treat y itself, the agreement enters into force with its signature (and which in this case remains, of course, subject to ratification). For reasons to be found in their own domestic legislation it is not possible for some States - Austria, for instance - to apply international int ernational conventions provisionally. provisionally. Finally, it should be mentioned that there are constitutions like that of Portugal (see Artikel 8) which do not authorize States to express their consent through all of the means enumerated in Article 11 of the Vienna Convention; hence, for Portugal there is only a possibility to ratify or approve a treaty. Since this is the result of a domestic provision, a consent which would be expressed in a different manner would not be flawed from point of view of international treaty law, because the ways and means to express consent are already determined by customary international law and not only by the Vienna Convention.
b) Pacta tertiis nec nocent nec prosunt A treaty binds the parties and only the parties; it does not create obligations for a third State without its consent (Article 34), since sovereignty implies that there is no agreement without free consent. "Third State" means a State which not a party to a given treaty (Article 2 (1)(h)). The acceptance of an obligation by a third State must be expressed both expressly and in writing (Article 35), in order to t o avoid doubts as to the extent of the obligation which had been previously defined by others. A consent which as been expressed in such a way can be qualfies as quasi-contractual. Hence, it is only logical that the obligation can only be revoked or modified with t he consent of all parties to the treaty treat y as well as of the third State, unless it is established that they had otherwise agreed (Article 37(1)). Although a third State cannot be granted a right without its it s approval, its assent is nevertheless presumed (Article 36(1)). A third State which exercising such a right is under an obligation to comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty (Article 36(2)). The rights granted to a third State can be revoked by the States Parties unless it is established that the right was intended not to be revocable or subject to modification without the consent of the third State. In such a case, the burden of proof lies with the third t hird party benefiting of the right or rights. The principle according to which a treaty cannot create rights or obligations for a third party without its consent is expressed in Latin by the phrase "pacta tertiis nec nocent nec pro14
sunt". This rule also applies when two or more parties of a multilateral convention conclude an agreement to modify the convention only in relation to each each other, since they hereby exclude third States from their agreement inspite of the fact that the latter are parties to the original treaty (see Article 41).
c) Designation of treaties As it appears from the definition of Article 2 (1)(a) of the Vienna Convention, the legally binding nature of a treaty is not affected by its particular designation. In order to be legally binding, the parties must have had the intention to be bound legally and not "only" through a political commitment. Nevertheless, the designation of a particular agreement indicates the political importance the parties attach to it, though it cannot be considered as conclusive evidence. evidence. With regard to bilateral agreements, the term "Treaty" suggests that the agreement so designated is considered to be of great importance. Friendship treaties, although outdated in many cases today, are an example thereof. The nowadays most utilized designation seems to be "Agreement". It is utilized so often that t hat it is impossible to conclude from there which political value it has for the parties. The term "memorandum of agreement" is widespread, too. With regard to multilateral agreements, the terms "Charter" or, here again, "Treaty" are chosen in general for the most important conventions as it is the case for - the Charter of the United Nations of 1945, - the Charter of the Organization of American States (1948), - the Charter of the Organisation of the Islamic Conference (2008) or - the European Charter for Regional or Minority Languages (1992). In spite of its solemn title, the Charter of Fundamental Rights of the European Union, which has been proclaimed in Nice on 7 March 2000 is not a legally binding instrument, although it is designed to become the common reference of fundamental values on which the members of the European Union intend to develop their further integration. As to the designation of a text as "Treaty", here are some examples: - the North Atlantic Treaty (the NATO-Treaty) of 1948, - The Treaty on the Non-Proliferation of nuclear Weapons (NPT - 1968) and 15
- the Treaty on the European Union of 1992 (as amended by the Treaty of Nice of 2001). In most cases, multilateral treaties are called "Conventions". This is the most general designation which is also used by Article 38 of the Statute of the International Court of Justice. They are often concluded under the auspices of an international organization such as - the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (so-called European Human Rights Convention concluded under the auspices of the Council of Europe), - the United Nations Convention on the Law of the Sea (1982) - the Universal Copyright Convention as revised at Paris on 24 July 1971 (concluded under the auspices of the United Nations Educational, Scientific and Cultural Organization - UNESCO) As in the case of bilateral treaties, the very general term t erm "Agreement" is also frequently used for multilateral conventions. It has been used in the following examples: - the European Agreement on continued Payment of Scholarships for Students Studying Abroad of 1969, - the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979) or - the North American Free Trade Agreement (1992). The designation "Protocol" is usually used for legally binding agreements which are additional or complementary to main agreements or which have a supporting role. As additional agreements they are added to the original treaties as it is the t he case with the Protocols Additional to the Geneva Conventions of 12 August 1949. As complementary agreement, they are in general already foreseen in the original convention. This technique is frequently used in environmental treaties where the protocols set out detailed provisions on the basis of an more general article in a framework f ramework agreement as it is the case of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity which has been adopted in 1999 on the basis of Article 19 (3) of the convention dating from 1992. Finally, As supporting agreements, they help to implement the main agreement as in the case of the Optional Protocol to the International Covenant on Civil and Political Rights of 1966, through which access to an intergovernmental body has been given to individuals.
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In the present context, it is worthwhile mentioning that in the present publication, we have also encountered the terms - "Statute" (Statute of the International Court of Justice, Rome Statute of the International Criminal Court of 1998) and - "Covenant" (International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights).
2) With regard to the termination of treaties
a) By consensus In the same way as States can conclude treaties, they can also terminate them by mutual consent. Their consent can be expressed either in the treaty itself which they had originally concluded (expiry date, denunciation clause) or thereafter (article 54), in particular through the conclusion of a later treaty aiming at achieving this very purpose (Article 59, explicit termination), or through the conclusion of a treaty relating to the same subject-matter (see Article 30 (3), implicit termination). The same rules apply for the termination as well as for the suspension of treaties (Article 57 and 59 (2)). With regard to multilateral treaties, the Vienna Convention authorizes two or more parties to suspend the operation of treaty provisions - temporarily and - as between themselves alone, as long as this does not entail a limitation of rights or obligations of the other parties (Article 58 (1); applicaton of the principle "pacta tertiis nec nocent nec prosunt"). Unless the treaty otherwise provides, the parties in question have to notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend (Article 58 (2)). As a matter of course, where a treaty contains a denunciation clause, the parties can avail themselves of the possibility offered by it and withdraw from the treaty. t reaty. The unilateral denunciation is not in contradiction to the principle of free consent, since the possibility of such a denunciation had been agreed upon by the parties in the treaty.
b) Termination of treaties as a consequence of a defect of consent 17
Every person invested with appropriate full powers has the authority to express the consent of the State which he represents to be bound by a given treaty. If this authority has been made subject to a specific restriction which has then not been observed by the representative, the State may invoke this fact as invalidating its consent. However, this possibility only exists, if the restriction had been notified to the other negotiating States before the expression of consent (Article 47), because if this prior notification did not take place, it would be easy to invoke defect of consent by mere political opportunism which, in return, would constitute a behaviour contrary to the principle of good faith. The other defects of consent are enumerated exhaustively in the Articles 48 to 52 of the Vienna Convention. They are the consequence of - an error (Article 48) - deceit (Articles 49 and 50) or - coercion (Articles 51 and 52). Error An error (Article 48) is a mistaken impression of facts which nullifies consensus. A State may invoke an error if it relates relat es 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 (Article 48). This provisions echoes the adage "omnis conventio intelligitur sic stantibus": A genuine consensus only exists where all essential facts f acts were equally known by all parties. Nevertheless, a State may only invoke an error, if it has not contributed to it by his own conduct. Deceit Like an error, fraud (Article 49) leads to a mistaken impression of reality, but unlike the former it is the consequence of a deception by the other party or parties. The State Party victim of such an act is entitled to invoke fraud as invalidating its consent to be bound by the treaty. The corruption of a State representative (Article 50) perverts the relationship of agency existing between this person and the State from which he has the authorization to act on its behalf. Corruption can occur either directly or indirectly, and in order to t o be invoked, it must be at the origin of the expression of a consent to be bound by a given treaty. Within the boundaries set by Article 44 (4) deceived States are entitled to invalidate either the whole treaty or only parts thereof. In cases of coercion (see below) or of treaties conflicting with jus cogens, the possibility of making such a choice is no foreseen; hence, only the treaty as a whole is voidable (Article 44 (5)). 18
Coercion The most quoted example of a coercitive measures taken against a State representative (Article 51) are the threats formulated against the Czechoslovak President President Hacha in order to have him agree on the end of a independent Czechoslovakia. "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." (Article 52). Such a coercion is indeed prohibited by Article 2 (4) of the Charter of the United Nations. Since consensus for the inclusion of a definition of "threat" in the Vienna Convention itself was lacking, the United Nations Conference on the Law of Treaties adopted at together with the Vienna Convention a "Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties". Paragraph one of this legally nonbinding declaration "solemny condems the threat or use of pressure in any form, whether military, political, or economic, by any State in order to coerce another State to perform any act relating to the conclusion of a treaty in violation of the principles of the sovereign equality of States and freedom of consent". However, in the context of diplomatic protection the question of the legitimacy of the use of force is disputed. Therefore, for some there is no defect in the consent of a State which has been brought about under such circumstances. As a matter of course, such an argumentation is very dangerous, since it furthers aggressive behaviour shown under the pretext that is is legitimated by the international law of diplomatic protection. But how are peace treaties to be judged in the light of Article Art icle 52, since most of them are the result of armed conflicts ?
c) No derogation of jus cogens With the exception of the provision contained in Article 22, para.1 which emanates from the favor contractus principle, only peremptory norms of general international law (Latin: jus cogens) can stand in the way way of an agreement which has been freely entered into. Indeed, Article 53 of the Vienna Convention specifies that a treaty conflicting with jus cogens at the time of its conclusion is void. Similarly, a treaty becomes void and terminates, if it is in contradiction with a peremptory norm of international which has newly emerged (jus cogens superveniens - Article 64) In that context we are in the presence of quite obscure provisions despite the definition of jus cogens contained in Article 53: According According to it, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified m odified only by a subsequent norm of general international law having the same character. 19
As the International Law Commission (ILC) nevertheless remarked itself in 1969 in its commentary on the draft articles for the international law of the treaties, there is no simple criterion which would allow to determine whether a rule belongs to jus cogens. This state of affairs has hardly evolved, although it seems that certain international norms for which criminals will have to stand before the International Criminal Court after having breached them constitute to a large extent the body of these sought jus cogens rules. These penal provisions concern the prohibition of genocide, war crimes, crimes against humanity and the crime of aggression. Eventually, jus cogens seems to be a concept invented by international law experts who had been pursuing the aim of allowing natural law ideas to irrupt into the legal regime of international treaties.
3) With regard to the amendment of treaties
The rules concerning the conclusion of treaties (Articles 6 to 25) equally apply for the amendment of treaties (Article 39). Because of the pronciple of free consent, the States Parties are free to create specific norms for the amendment of their treaty or treaties. Such an agreement can be entered into - either implicitly - or explicitly, both orally or in written form (the Vienna Convention, however, however, is only applicable for agreements concluded in written form). This agreement can authorize the amendment of the original treaty as well as it can prohibit or restrict amendments. Nevertheless, agreements concerning the amendment of treaties can also be subject to amendments themselves. a) The implicit amendment An amendment is done implicitly when the States Parties conclude successive successive treaties relating to the same-subject-matter. Unless otherwise provided for in an agreement, the earlier treaty applies only to the eits provisions are compatible with the t he later treaty (in conformity with the latin maxim lex posterior derogat legi priori according to which the later treaty prevails over an earlier one if both regulate the same subject-matter, Article 30 (3)). In view of the provisions concerning e x p l i c i t amendments between certain parties only (Article 41) the implicit amendment must be considered as problematic, since it does not warrant the same transparency in the course of a negotiation: 20
In particular, parties which want to modify a treaty in accordance with Article 41, para. 2 have to notify the other parties of their intention. int ention. This provisions aims at ensuring that negotiations are conducted in good faith with parties being aware of the relevant circumstances.
b) The explicit amendment For bilateral treaties the rule incorporated in Article 39 according to which a treaty t reaty can be amended by agreement between the parties seems sufficient. As for multilateral treaties, one can envisage two types of situation: - either two or more States make a proposal for an amendment designed to enter into force for all States parties - or they intend to modify the treaty only between themselves. In both cases, in view of the good faith principle, the acting parties have to notify the others of their intention to conclude the agreement and of the envisaged modification to the treaty (Article 40 (2) and 42 (2)). According to the principle that agreements do not bind parties which are not privy to it (Article 34, repeated in Article 30 (4)(b) - pacta tertiis nec nocent nec prosunt), a modification agreed upon between certain States cannot bind other States which have not approved the modification or amendment (Article 40 (4)), despite the fact that the latter are parties to the original treaty. Out of respect for the principles of free f ree consent and good faith, an agreement aiming at modifying a multilateral treaty only between certain of its parties, must m ust not infringe - neither upon the rights and obligations of the parties to the original treaty - nor upon its object and purpose (Article 41(1)(b)(ii) - a vague concept, which is reiterated in the Articles 18, 19 and 31(1)). Finally, it is worthwhile noting that the Vienna Convention distinguishes between amendments which are valid for all parties to a given treaty and modifications which are only relevant for a restricted number of them.
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4) With regard to the interpretation of treaties
"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." (Article 31 (1); here again, as in the Articles 18, 19, 20 (2), 41 (1)(b)(ii) and 58 (1)(b)(ii), we find again the vague concept of "object and purpose of a treaty"). The context includes, in addition to the treaty text itself, the t he preamble and the annexes as well as other agreements and documents which are considered by the parties as being instruments related to the treaty (Article 31 (2)). Furthermore, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation has to be taken into account, too. According to the "Appellate Body", the highest dispute settlement organ of the World Trade Organization (WTO), the context of a legal instrument is also constituted by the other treaties its parties adhere to. Hence, in the case concerning "Standards for Reformulated and Conventional Gasoline" the Appellate Body explained that the Marrakesh Agreement Establishing the World Trade Organization (the "WTO Agreement") "is not to be read in clinical isolation from public international law". That means, in particular, that the trade provisions of the WTO Agreement have also to be interpreted in the light of conventions for the protection of the environment, provided that they are in force between bet ween the States Parties of the WTO Agreement. Finally, there are supplementary means of interpretation as, for instance, the preparatory work of the treaty (so called "travaux préparatoires") and the circumstances of its conclusion (Article 32). A specificty of international conventions lies in the fact that they are authenticated in several languages (see Article 33). With regard to treaties concluded under the auspices of the United Nations, these languages are regulary: Arabic, Chinese, English, French, Spanish and Russian. The terms of the treaty are presumed to have the same meaning in each authentic text (Article 33 (3)). In the t he case of several Protocols to the Convention for the Protection of the Alps (the Alpine Convention) there were so many difrences in the texts authenticated in French, German, Italian and Slovene that a separate conference had to be convened for the purpose of their harmonization (see Article 79 (3)). The LaGrand case revealed a divergence between the equally authentic English and Fench versions of Article 41 of the Statute of the International Court of Justice. Hence, the Court had to examine the object and purpose of the Statute together with the context of Article 41. In this way, the Court, in its judgement of 27 June 2001, "reached the conclusion that orders on provisional measures under Article 41 have binding effect".
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5) Specific application of the good faith principle (bona fide)
A State is entitled to invoke a deficiency of intention if he other States Parties knew that its consent had been expressed in manifest violation of a fundamental rule of internal law regarding competence to conclude treaties. In this case, the other parties cannot pretend bona fide that the State genuinely wished to be bound by the treaty in question. According to Article 46 (2), a violation is manifest if it would be objectively evident to any State conducting itslef in the matter in accordance with normal practice and good faith. It this provision, the meaning of the term "objectively " objectively evident " remains to be clarified as well as whether there really is a general practice one can refer to t o and which is applicable in each and every case. Moreover, the concept of "objective evidence" relies upon the term "good faith" which is a subjective element which therefore is dificult dif icult to prove. Luckily, the value of this provision rests to a large extent with theory. It is almost always in the course of the application and implementation of treaties that the conceept of bona fide comes ino play. If a State does not implement a treaty in good faith by violating at least one of its substantial provisions, the Vienna Convention authorizes the other parties to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part (Article 60). A bona fide application or implementation can also have a legitimizing effect in case the treaty is invalidated: According to Article 69 (2)(b), acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty. As a matter of course, there cannot be a legitimizing effect eff ect for a party to which fraud, an act of corruption or coercion is imputable (Article 69(3)). The injured party or parties are then entitled to 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. A State Party who wishes to impeach the validity of a treaty, to terminate it, to withdraw from it of to suspend its operation must notify the other parties of its claim in order to give them an opportunity to raise an objection against it. For this purpose, the Vienna Convention foresees a time limit of three months after the receipt of the notification (Article (Art icle 65(2)). After the end of this time limit, the State can declare the invalidity of the treaty treat y through a document signed by one of its representatives. With the exception of cases of special urgency, this instrument cannot be communicated before the end of the period of three months foreseen in Article 65 (2). If, however, an ob jection has been raised by at least one one other party, the States Parties are under an obligaobliga23
tion to seek a solution through the means indicated in Article 33 of the Charter of the United Nations.
IV) Reservations According to Article 2 (1)(d) the term "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 modify the legal effects of certain provisions of the treaty in their application to that State. St ate. The legal regime of reservations has been codified in the Articles 19 to 23 of the Vienna Convention. Since this regime does not always give clear answers on how to deal with reservations, the International Law commission (ILC) provisionally adopted „draft guidelines“ on this issue. One of the great difficulties is how to distinguish reservations from interpretative declarations. The Vienna Convention does not explicitly deal with the latter, but since the way a reservation is phrased or named does not matter, a large number of so-called interpretative declarations would seem to be in fact covered by the provisions of the Vienna Convention on reservations. In the same way as reservations, interpretative declarations are unilateral acts, but unlike the former, such declarations can be made at any time whereas a reservation must be formally confirmed by the State at the time of expressing its consent to be bound by a given treaty (Article 23 (2)), viz. when ratifying, ratif ying, accepting or approving it. By an interpretative declaration, a State aims at clarifying what meaning or extent i t attributes to a given treaty or to some of its provisions. The qualification of an unilateral declaration as reservation or interpretative declaration depends on the legal effects it intends to produce, a matter which is far from being always clear. In the case of a State not qualifying itself its declaration as reservation or interpretative declaration, it is sometimes the depositary who chooses one of the two designations when communicating the declaration to the other States Parties in accodance with Article 77 (1)(e) or with any other provision of a particular treaty relevant in the given circumstances. The favor contractus principle has a double impact on the legal regime of reservations: - In order to facilitate both the entry into force of a convention and a wide participation to it, the Vienna Convention establishes
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practically no obstacles to the declaration of reservations, although this is done at the price of the integrity of the treaties. Furthermore, silence amounts to agreement (Article 20 (5)) so that in the reality of treaty relations, in particular with regard to universal treaties, the entry into force of a reservation can be almost automatically assumed. - However, a return to treaty integrity is made even easier, since a reservation can be withdrawn at any time even without the consent of those States which had previously accepted (Article 22 (2)). In that case, the favor contractus principle supersedes the free consent rule. In accordance with the free consent principle the issue of the permissibility of reservations does not arise when a treaty straightforwardly prohibits them. The issue is of minor importance when a treaty accepts only specific reservations; in that case one has to question whether a specific reservation is still covered by the authorization expressed in the treaty. The matter gets complicated when one has to decide whether a reservation is compatible with object and purpose of the treaty in question (see Article 19 (c)). Since the Advisory Opinion of the International Court of Justice of 28 May 1951 concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, it is this compatibility with object and purpose of the treaty which constitutes the touchstone of its admissibility. Despite its vague content - but in default of a better bet ter alternative - the "incompatibility with the object and purpose of the treaty"-formula has been included into the Vienna Convention not in its Article 19(c) but also in its Articles 18, 20 (2), 31 (1) and 33 (5). According to this formula the States decide for themselves whether the reservation declared by another State Party is to be considered compatible with the object and purpose of a given treaty or not. If a State Party comes to the conclusion that the reservation made made by another State is not permissible, then it can raise an objection by the end of a period of twelve months after it was notified of the reservation (Article 20 (5)). The objection's effect is that the provisions to which the reservation relates do not apply to the extent of the reservation as between the State which has made the reservation and the one which has raised an objection. However, if the State which raises the objection wants to exclude the entry into force of the whole treaty between itself and the reserving State, it has to do it explicitly (Article 21 (3)). It is only in that case that there is a difference between the legal effects following from the acceptance of a reservation and those which are the consequences of objecting to it. Paradoxically, the legal consequences are otherwise the same.
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Eventually, disputes concerning the admissibility of reservations can only be solved through a dispute settlement mechanism. Such a procedure has to be foreseen either in the concerned treaty or in an agreement agreement otherwise entered into by the States Parties. A very controversial issue in this regard is whether a reservation incompatible with the aim and purpose of a treaty is to be considered as lack of agreement or whether it is only the reservation itself which has to be considered null and void. This is a particularly thorny issue in case of reservations made to human rights treaties. This question can even lead to ideological confrontations when a State makes a reservation which declares the priority of islamic law (Sharî'a) over the provisions of such treaties. In general, the procedure to be followed in case of reservations is characterized by the fact that for reasons of legal security the various unilateral declarations, i.e. - the reservations themselves, the objections to them as well as - the withdrawal of reservations and objections must be formulated in writing (Article 23 (1) and (4)). If a reservation is formulated when signing the treaty without expressing at the same time the consent of the State to be bound by it, the reservation must be formally confirmed when the State expresses its consent to this effect (Article 23 (2)). In multilateral treaty practice, it is the task of the various depositaries to receive the reservations, the objections and the withdrawals and to inform the other States Parties about these communications (Article 77 (1)(c) and (e)).
V) Procedures
1) The State‘s will
a) With regard to the conclusion of treaties In view of their tasks, the following persons are considered to be States' representatives: - the Head of States, - the Head of governments and - the Ministers for foreign affairs. 26
As a rule, other persons are not allowed to express the consent of a State St ate to be bound by a treaty, unless he or she can produce appropriate full powers which have been issued by the authority authorized to do so according to its domestic legislation (Article 7 (1)(c) and 2 (1)(c). However, it can appear from the practice of the States concerned by a given treaty or from other circumstances that their intention was to consider a particular person as representing his or her State and to dispense with full powers (Article 7 (1)(b)). Free consent overrules any formality (production of full powers), a situation which is prone to confusion in today's world where one can witness multiple contacts between bureaucracies of all kind. An act relating to the conclusion of a treaty performed by a person who cannot be considered as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State (Article 8).
b) With regard to the termination of treaties Symmetrically to the conclusion of a treaty, a withdrawal, suspension or declaration of invalidity must be declared in a document signed - either by a Head of State, - a Head of government or - a Minister of Foreign Affairs. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the State communicating the termination may be called upon to produce full powers (Article 67 (2)). There is no explicit rule in the Vienna Convention as to whether the termination of a treaty declared without appropriate full powers can be subsequently confirmed; however, there is no reason why Article 8 which foresees such a possibility in the case of conclusion could not be applied by analogy on the basis of the general principles of law recognized by civilized nations (cf. Article 38 (1)(c) of the Statute of the International Court of Justice).
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2) The depositary and the registration of treaties
The documents by which States express their consent to be bound by a treaty (instruments of ratification, acceptance etc.) are kept by an organ designated by the respective treaties, the "depositary". His tasks are enumerated in Article 77 of the Vienna Convention and can be compared to those of notary public in the context of civil law. The Director General of the International Atomic Energy Agency (IAEA) or the Secretary General of the United Nations are examples of such organs who act, inter alia, as depositaries of various conventions; since 1945 more than 500 multilateral treaties have been deposited with the latter. Nevertheless, this task can also be conferred upon a government as in the case of the Switzerland which acts as depositary for more than 75 treaties. The functions of the depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their performance (Article 76 (2)). According to Article 102 of the Charter of the United Nations no party to an international agreement which has not been registered it with the Secretariat of the United Nations may invoke that agreement before any organ of the United Nations and in particular not before the International Court of Justice. The Treaty Section of the Office of Legal Affairs of the United Nations registers approximately 4000 treaties and related actions annually.
3) Settlement of disputes
The Vienna Convention considers the invalidity of a treaty being claimed by one or more parties, but contested by other States Parties as the most likely case for a dispute settlement (Article 65 (3)). Since the Vienna Convention does not intend to be prejudicial to other dispute settlement mechanisms which might have been agreed upon between the States (Article 65 (4)), it expresses its preference for a dispute settlement through one of the means listed in Article 33 of the Charter of the United Nations, i.e. - negotiation, - enquiry, - mediation, - conciliation, - arbitration, - judicial settlement, - resort to regional agencies or arrangements - or other peaceful means of their own choice In the special case of a dispute concerning the issue of a conflict between a treaty on one hand and a peremptory norm of general international law on the other (jus cogens, see Articles 53 and 64), the Vienna Convention, as a recourse of last resort, provides for the 28
mandatory settlement of the dispute by the International Court of Justice. Of course, the States Parties can also submit such a dispute by common consent to arbitration (Article 66 (a)). Any other dispute concerning the invalidity, the termination or the suspension of a treaty can, upon a request addressed to the Secretary-General of the United Nations, be submitted to the conciliation commission foreseen in the Annex to the Vienna Convention (Article 66 (b)). Three out of the five f ive conciliators constituting the conciliation commission must be chosen by the parties from a list held by the Secretary-General. Until today, the conciliation commission has not entered into function.
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Further reading ...
AUST, Anthony "Modern treaty law and practice" Cambridge University Press, 2000 VILLIGER, Mark E. Commentary on the 1969 Convention on the Law of Treaties, Brill, Leiden, 2009 COUNCIL OF EUROPE & BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW (Ed.) "Treaty Making - Expression of Consent Consent by States to be bound by a Treaty; Treaty; Conclusion des traités - Expression par les États du consentement à être liés par un traité", Kluwer Law International, Den Haag 2001 NEUHOLD,Hanspeter; HUMMER, Waldemar; SCHREUER, Christoph (Hrsg.) "Österreichisches Handbuch des Völkerrechts" 4. Auflage, Manzsche Verlags- und Universitaetsbuchhandlung, Wien 2004 PERRIN, Georges J. "Droit international public Sources, sujets, caractérisriques" Schulthess Polygraphischer Verlag, Zürich 1999 DAILLIER, Patrick; PELLET, Alain "Droit international public" 7ème édition, LGDJ, LGDJ, Paris 2002 2002 REUTER, Paul "Introduction au droit des traités" 3ème édition revue et augmentée augmentée par Philippe Cahier, Cahier, puf, Paris 1995
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Weblinks
Vienna Convention on the Law of Treaties
http://untreaty.un.org/ilc/texts/instruments/english http://untreaty.un.org /ilc/texts/instruments/english/conventions/1_1_1969.pdf /conventions/1_1_1969.pdf Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations http://treaties.un.org/doc/Treaties/1986/03/19860321% http://treaties.un.org/doc /Treaties/1986/03/19860321%2008-45%20AM/Ch_ 2008-45%20AM/Ch_XXIII_03p.pd XXIII_03p.pdf f
Vienna Convention on Succession of States in Respect of Treaties http://treaties.un.org/doc/Treaties/1996/11/19961106% http://treaties.un.org/doc /Treaties/1996/11/19961106%2005-51%20AM/Ch_ 2005-51%20AM/Ch_XXIII_02p.pd XXIII_02p.pdf f
United Nations (UN): ... Treaty collection http://treaties.un.org/Pages/Home.aspx?lang=en
... International law website http://www.un.org/en/law/
... Charter of the United Nations http://www.un.org/en/documents/charter/
... International Court of Justice http://www.icj-cij.org/
... International Law Commission (ILC) http://www.un.org/law/ilc/
... Office of Legal Affairs / TreatySection - Technical Assistance http://untreaty.un.org/OLA/div_treaty_techass http://untreaty.un.org /OLA/div_treaty_techassist.aspx?section=treaty ist.aspx?section=treaty
... Electronic Legal Resources on International Terrorism (UNODC) https://www.unodc.org/tldb
... Treaty Reference Guide http://untreaty.un.org/English/guide.asp
... UNITAR http://www.unitar.org/
... United Nations University http://www.unu.edu/
Electronic Information System for International Law (EISIL) http://www.eisil.org/
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International Development Law Organization (IDLO) http://www.idlo.int/ Glossary of treaty terms (UK Foreign and Commonwealth Office) http://www.fco.gov.uk/en/about-the-fco/publications/trea http://www.fco.gov.uk/en /about-the-fco/publications/treaties/practice-proc ties/practice-procedures/glossary-treaty-te edures/glossary-treaty-terms rms
Ministries of Foreign Affairs
http://hostings.diplomac http://hostings.diplomacy.edu/baldi/ y.edu/baldi/mofa.htm mofa.htm
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DOCUMENTS Vienna Convention on the Law of Treaties
The States Parties to the present Convention, Considering the fundamental role of treaties in the history of international relations, Recognizing the ever-increasing importance of treaties as a source of international law and as a means of developing peaceful co-operation among nations, whatever their constitutional and social systems, Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized, Affirming that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law, Recalling the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained, Having in mind the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all States, of non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all, Believing that the codification and progressive development of the law of treaties achieved in the present Convention will promote the purposes of the United Nations set forth in the Charter, namely, the maintenance of international peace and security, the development of friendly relations and the achievement of co-operation among nations, Affirming that the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention, Have agreed as follows: PART I INTRODUCTION Article 1 Scope of the present Convention The present Convention applies to treaties between States.
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Article 2 Use of terms 1. For the purposes of the present Convention: (a) "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; (b) "ratification", "acceptance", " 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; (c) "full powers" means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or f or accomplishing any other act with respect to a treaty; (d) "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; (e) "negotiating State" means a State which took part in the drawing up and adoption of the text of the treaty; (f) "contracting State" means a State which has consented to be bound by the treaty, whether or not the treaty t reaty has entered into force; (g) "party" means a State which has consented to be bound by the treaty and for which the treaty is in force; f orce; (h) "third State" means a State not a party to the treaty; (i) "international organization" means an intergovernmental organization. 2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State. Article 3 International agreements not within the scope of the present Convention The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other sub jects of international law, or to international agreements not in written written form, shall not affect: 34
(a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties. Article 4 Non-retroactivity of the present Convention Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States. Article 5 Treaties constituting international organizations and treaties adopted within an international organization The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization. Part II Conclusion and entry into force of treaties treat ies Section 1. Conclusion of treaties Article 6 Capacity of States to conclude treaties Every State possesses capacity to conclude treaties. Article 7 Full powers 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for f or the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers; or (b)
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it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. 2. In virtue of their functions f unctions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; t reaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty treat y between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ. Article 8 Subsequent confirmation of an act performed without authorization An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State. Article 9 Adoption of the text 1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. 2. The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States Stat es present and voting, unless by the same majority they shall decide to apply a different rule. Article 10 Authentication of the text The text of a treaty is established as authentic and definitive: (a) by such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or (b) failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text. Article 11 Means of expressing consent to be bound by a treaty 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. 36
Article 12 Consent to be bound by a treaty expressed by signature 1. The consent of a State to be bound by a treaty t reaty is expressed by the signature of its representative when: (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 t he negotiation. 2. For the purposes of paragraph 1: (a) the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed; (b) the signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty. Article 13 Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that t hat 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. Article 14 Consent to be bound by a treaty expressed by ratification, acceptance or approval 1. The consent of a State to be bound by a treaty t reaty is expressed by ratification when: (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) 37
the intention of the State to sign the t he treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation. 2. The consent of a State to be bound by a treaty t reaty is expressed by acceptance or approval under conditions similar to those which apply to ratification. Article 15 Consent to be bound by a treaty expressed by accession 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. Article 16 Exchange or deposit of instruments of ratification, acceptance, approval or accession Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon: (a) their exchange between the contracting States; (b) their deposit with the depositary; or (c) their notification to the contracting States or to the t he depositary, if 50 agreed. Article 17 Consent to be bound by part of a treaty t reaty and choice of differing provisions 1. Without prejudice to articles 19 to 23, the t he consent of a State to be bound by part of a treaty is effective only if the treaty t reaty so permits or the other contracting States so agree. 2. The consent of a State to be bound by a treaty t reaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates. Article 18 Obligation not to defeat the object and purpose of a treaty t reaty prior to its entry into force A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a)
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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 t he treaty and provided that such entry into force is not unduly delayed. Section 2. Reservations Article 19 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 falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Article 20 Acceptance of and objection to reservations 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 t o 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; 39
(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. Article 21 Legal effects of reservations and of objections to reservations 1. A reservation established with regard to another party in accordance with articles 19, 20 and 23: (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State. 2. The reservation does not modify the provisions of the treaty for the t he other parties to the treaty inter se. 3. When a State objecting to a reservation has not opposed 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. Article 22 Withdrawal of reservations and of objections to reservations 1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its it s withdrawal. 2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time. 3. Unless the treaty otherwise provides, or it is otherwise ot herwise agreed: (a) the withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been received by that State; (b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation. Article 23 Procedure regarding reservations
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1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty. 2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. 3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. 4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing. Section 3. Entry into force and provisional application of treaties Article 24 Entry into force 1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State to be bound by a treaty t reaty is established on a date after the treaty has come into force, the treaty enters into force f orce for that State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty t reaty apply from the time of the adoption of its it s text. Article 25 Provisional application 1. A treaty or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed. 2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the t he treaty. Part III Observance, application and interpretation of treaties 41
Section 1. Observance of treaties Article 26 Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Article 27 Internal law and observance of treaties A party may not invoke the provisions of its internal law as justification for f or its failure to perform a treaty. This rule is without prejudice to article 46. Section 2. Application of treaties Article 28 Non-retroactivity of treaties Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force f orce of the treaty with respect to that party. Article 29 Territorial scope of treaties Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. Article 30 Application of successive treaties relating to the same subject-matter 1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following f ollowing paragraphs. 2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the t he earlier treaty are parties also to the later treaty treat y but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty t reaty applies only to the extent that its provisions are compatible with those of the latter treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States parties to both treaties the same rule applies as in paragraph 3; (b)
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as between a State party to both treaties and a State party part y to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. 5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty, the provisions of which are incompatible with its obligations towards another State under another treaty. Section 3. Interpretation of treaties Article 31 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 connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the t he 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. 4. A special meaning shall be given to a term if it is established that the parties so intended. 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 t he 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. 43
Article 33 Interpretation of treaties authenticated in two or more languages 1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted. Section 4. Treaties and third States Article 34 General rule regarding third States A treaty does not create either obligations or rights for a third State without its consent. Article 35 Treaties providing for obligations for third States 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. Article 36 Treaties providing for rights for third States St ates 1. 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 t he third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides. 2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty. Article 37 Revocation or modification of obligations or rights of third States 1. When an obligation has arisen for a third State in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed.
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2. When a right has arisen for a third State in conformity with article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State. Article 38 Rules in a treaty becoming binding on third States through international custom Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such. Part IV Amendment and modification of treaties Article 39 General rule regarding the amendment of treaties A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide. Article 40 Amendment of multilateral treaties 1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs. 2. Any proposal to amend a multilateral treaty as between all the parties must m ust be notified to all the contracting States, each one of which shall have the right to take part in: (a) the decision as to the action to be taken in regard to such proposal; (b) the negotiation and conclusion of any agreement for the amendment of the treaty. 3. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended. 4. The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4(b), applies in relation to such State. 5. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State: (a) be considered as a party to the treaty as amended; and (b) be considered as a party to the unamended treaty in relation to any party to the t he treaty not bound by the amending agreement. Article 41 Agreements to modify multilateral treaties between certain of the parties part ies only 1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: 45
(a) the possibility of such a modification is provided for by the treaty; or (b) the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. 2. Unless in a case falling under paragraph 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides. Part V Invalidity, termination and suspension of the operation of treaties Section 1. General provisions Article 42 Validity and continuance in force of treaties 1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention. 2. The termination of a treaty, its it s denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the t he treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty. Article 43 Obligations imposed by international int ernational law independently of a treaty The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil f ulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty. Article 44 Separability of treaty provisions 1. A right of a party, part y, provided for in a treaty or arising under article 56, to denounce, withdraw from or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties otherwise agree. 2. A ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty recognized in the present Convention may be invoked only with respect to the whole treaty except as provided in the following paragraphs or in article 60. 46
3. If the ground relates solely to particular clauses, it may be invoked only with respect to those clauses where: (a) the said clauses are separable from the remainder of the treaty with regard to t o their application; (b) it appears from the treaty or is otherwise ot herwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole; and (c) continued performance of the remainder of the treaty would not be unjust. 4. In cases falling under articles 49 and 50 the State entitled to t o invoke the fraud or corruption may do so with respect either to the whole treaty or, subject to paragraph 3, to the particular clauses alone. 5. In cases falling under articles 51, 52 and 53, no separation of the provisions of the treaty is permitted. Article 45 Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force f orce or continues in operation, as the case may be; or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be. Section 2: Invalidity of treaties Article 46 Provisions of internal law regarding competence to conclude treaties 1. A State may not invoke the fact that its it s consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. Article 47 Specific restrictions on authority to express the consent of a State
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If the authority of a representative to express the consent of a State St ate to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating States prior to t o his expressing such consent. Article 48 Error 1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to t o 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. 2. 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. 3. An error relating only to the wording of the text of a treaty does not affect its validity; article 79 then applies. 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. Article 53 Treaties conflicting with a peremptory norm of general international law (jus cogens)
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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 the international community of States as a whole as a norm from f rom which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Section 3: Termination and suspension of the operation of treaties Article 54 Termination of or withdrawal from a treaty t reaty under its provisions or by consent of the parties The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after af ter consultation with the other contracting States Article 55 Reduction of the parties to a multilateral treaty below the number necessary for its entry into force Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force. Article 56 Denunciation of or withdrawal from a treaty t reaty containing no provision regarding termination, denunciation or withdrawal 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty under paragraph 1. Article 57 Suspension of the operation of a treaty under its provisions or by consent of the parties The operation of a treaty in regard to all the parties or to a particular party may be suspended: 49
(a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after af ter consultation with the other contracting States. Article 58 Suspension of the operation of a multilateral treaty by agreement between certain of the parties only 1. Two or more parties to a multilateral multilat eral treaty may conclude an agreement to suspend the operation of provisions of the treaty, temporarily and as between themselves alone, if: (a) the possibility of such a suspension is provided for by the treaty; or (b) the suspension in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) is not incompatible with the object and purpose of the treaty. 2. Unless in a case falling under paragraph 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend. Article 59 Termination or suspension of the operation of a treaty implied by conclusion of a later treaty 1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and: (a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or (b) the provisions of the later treaty are so far f ar incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time. 2. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties. Article 60 Termination or suspension of the operation of a treaty as a consequence of its breach 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2. A material breach of a multilateral treaty by one of the parties entitles: 50
(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State, or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further f urther performance of its obligations under the treaty. 3. A material breach of a treaty, for f or the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. Article 61 Supervening impossibility of performance 1. 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 t he impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty. 2. 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 t reaty or of any other international obligation owed to any other party to the treaty. Article 62 Fundamental change of circumstances 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the t he 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: 51
(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 t he extent of obligations still to be performed under the treaty. 2. A fundamental change of circumstances may not be invoked as a ground for f or 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 eit her of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. 3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may m ay also invoke the change as a ground for suspending the operation of the treaty. Article 63 Severance of diplomatic or consular relations The severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations established between them by the treaty except in so far as the existence of diplomatic or consular relations is indispensable for the application of the treaty. Article 64 Emergence of a new peremptory norm of general international law (jus cogens) If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. Section 4: Procedure Article 65 Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty 1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor. 2. If, after the t he expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, not ification, no party has raised any objection, the party making the notification may carry out in the manner provided in article 67 the measure which it has proposed. 52
3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in article 33 of the Charter of the United Nations. 4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the t he parties under any provisions in force binding the parties with regard to the settlement of disputes. 5. Without prejudice to article 45, the fact f act that a State has not previously made the notification prescribed in paragraph 1 shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation. Article 66 Procedures for judicial settlement, arbitration and conciliation If, under paragraph 3 of article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed: (a) any one of the parties to a dispute concerning the application or the interpretation of articles 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration; (b) any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in Part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to t he Secretary-General of the United Nations. Article 67 Instruments for declaring invalid, terminating, withdrawing from or suspending the operation of a treaty 1. The notification provided for under article 65 paragraph 1 must be made in writing. 2. Any act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of article 65 shall be carried out through an instrument communicated to the other parties. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the State communicating it may be called upon to produce full powers. Article 68 Revocation of notifications and instruments provided for in articles 65 and 67 A notification or instrument provided for in articles 65 or 67 may be revoked at any time before it takes effect. Section 5: Consequences of the invalidity, termination or suspension of the operation of a treaty Article 69 Consequences of the invalidity of a treaty 53
1. A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force. 2. If acts have nevertheless been performed in reliance on such a treaty: (a) each party may require any other party to establish as far as possible in their t heir 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. 3. In cases falling under articles 49, 50, 51 or 52, paragraph 2 does not apply with respect to the party to which the fraud, the act of corruption or the coercion is imputable. 4. In the case of the invalidity of a particular State's consent to be bound by a multilateral treaty, the foregoing rules apply in the relations between that State and the parties to the treaty. Article 70 Consequences of the termination of a treaty 1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties from any obligation further to perform the treaty; treat y; (b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination. 2. If a State denounces or withdraws from a multilateral mult ilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty t reaty from the date when such denunciation or withdrawal takes effect. Article 71 Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law 1. In the case of a treaty t reaty which is void under article 53 the parties shall: (a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; and (b) bring their mutual relations into conformity with the peremptory norm of general international law. 2. In the case of a treaty t reaty which becomes void and terminates under article 64, the termination of the treaty: (a) releases the parties from any obligation further to perform the treaty; treat y; (b) 54
does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination; provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law. Article 72 Consequences of the suspension of the t he operation of a treaty 1. Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the operation of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their t heir mutual relations during the period of the suspension; (b) does not otherwise affect the legal relations between the parties established by the treaty. 2. During the period of the suspension the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty. Part VI Miscellaneous provisions Article 73 Cases of State succession, State responsibility and outbreak of hostilities The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from f rom the international responsibility of a State or from the outbreak of hostilities between States. Article 74 Diplomatic and consular relations and the conclusion of treaties The severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between those States. The conclusion of a treaty does not in itself affect the t he situation in regard to diplomatic or consular relations. Article 75 Case of an aggressor State The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State's aggression. Part VII Depositaries, notifications, corrections and registration Article 76 Depositaries of treaties
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1. The designation of the depositary of a treaty may be made by the negotiating States, either in the treaty itself or in some other manner. The depositary may be one or more States, an international organization or the chief administrative officer of the organization. 2. The functions of the depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their t heir performance. In particular, the fact that a treaty has not entered into force between certain of the parties or that a difference has appeared between a State and a depositary with regard to the performance of the latter's functions shall not affect that obligation. Article 77 Functions of depositaries 1. The functions of a depositary, unless otherwise provided in the treaty or agreed by the contracting States, comprise in particular: (a) keeping custody of the original text of the treaty and of any full powers delivered to the depositary; (b) preparing certified copies of the original text and preparing any further text of the treaty in such additional languages as may be required by the treaty and transmitting them to the parties and to the States entitled to become parties to the treaty; (c) receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it; (d) examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the State in question; (e) informing the parties and the States entitled to become parties to the treaty t reaty of acts, notifications and communications relating to the treaty; (f) informing the States entitled to become parties to the treaty when the number of signatures or of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited; (g) registering the treaty with the Secretariat of the United Nations; (h) performing the functions specified in other provisions of the present Convention. 2. In the event of any difference appearing between a State and the depositary as to the performance of the latter's functions, the depositary shall bring the question to the attention of the signatory States and the contracting States or, where appropriate, of the competent organ of the international organization concerned. Article 78 Notifications and communications 56
Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any State under the present Convention shall: (a) if there is no depositary, be transmitted direct to the States for which it is intended, or if there is a depositary, to the latter; (b) be considered as having been made by the State in question only upon its receipt by the State to which it was transmitted or, as the t he case may be, upon its receipt by the depositary; (c) if transmitted to a depositary, be considered as received by the State for which it was intended only when the latter State has been informed by the depositary in accordance with article 77, paragraph 1 (e). Article 79 Correction of errors in texts or in certified copies of treaties 1. Where, after the authentication of the text of a treaty, the signatory States and the contracting States are agreed that it contains an error, the error shall, unless they decide upon some other means of correction, be corrected: (a) by having the appropriate correction made in the text and causing the correction to be initialled by duly authorized representatives; (b) by executing or exchanging an instrument or instruments setting out the correction which it has been agreed to make; or (c) by executing a corrected text of the whole treaty by the same procedure as in the case of the original text. 2. Where the treaty is one for which there is a depositary, the latter shall notify the signatory States and the contracting States of the error and of the proposal to correct it and shall specify an appropriate time-limit within which objection to the proposed correction may be raised. If, on the expiry of the time-limit: (a) no objection has been raised, the depositary shall make and initial the correction in the text and shall execute a procŠs-verbal of the rectification of the text and communicate a copy of it to the parties and to the States entitled to become parties to the treaty; (b) an objection has been raised, the depositary shall communicate the objection to the signatory States and to the contracting States. 3. The rules in paragraphs 1 and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the signatory States and the contracting States agree should be corrected.
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4. The corrected text replaces the defective text ab initio, unless the signatory States and the contracting States otherwise decide. 5. The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations. 6. Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procŠs-verbal specifying the rectification and communicate a copy of it to the signatory States and to the contracting Slates. Article 80 Registration and publication of treaties 1. Treaties shall, after their entry into force, be transmitted to the Secretariat of the t he United Nations for registration or filing and recording, as the case may be, and for publication. 2. The designation of a depositary shall constitute authorization for it to perform the acts specified in the preceding paragraph. Part VIII Final provisions Article 81 Signature The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the t he International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention, as follows: until 30 November 1969, at the Federal Ministry for Foreign Affairs of the Republic of Austria, and subsequently, until 30 April 1970, at United Nations Headquarters, New York. Article 82 Ratification The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations. Article 83 Accession The present Convention shall remain open for accession by any State belonging to any of the categories mentioned in article 81. The instruments of accession shall be deposited with the Secretary-General of the United Nations. Article 84 Entry into force 1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification rat ification or accession.
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2. For each State ratifying or acceding to the Convention after the deposit of the thirty-fifth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification ratif ication or accession. Article 85 Authentic texts The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. In witness whereof the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention. Done at Vienna, this twenty-third day of May, one thousand nine hundred and sixty-nine.
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Annex to the Vienna Convention on the Law of Treaties
1. A list of conciliators consisting of qualified jurists shall be drawn up and maintained by the Secretary-General of the United Nations. To this end, every State which is a Member of the United Nations or a party to the present Convention shall be invited to nominate two conciliators, and the names of the persons so nominated shall constitute the list. The term of a conciliator, including that of any conciliator nominated to fill a casual vacancy, shall be five years and may be renewed. A conciliator whose term expires shall continue to fulfil any function for which he shall have been chosen under the following paragraph. 2. When a request has been made to the Secretary-General under article 66, the Secretary-General shall bring the dispute before a conciliation commission constituted as follows: The State or States constituting one of the parties to the dispute shall appoint: a) one conciliator of the nationality of that State or of one of those States, who may or may not be chosen from the list referred to in paragraph 1; and b) one conciliator not of the nationality of that State or of any of those States, who shall be chosen from the list. The State or States constituting the other party to the dispute shall appoint two t wo conciliators in the same way. The four conciliators chosen by the parties shall be appointed within sixty days following the date on which the Secretary-General receives the request. The four conciliators shall, within sixty days following the date of the last of their own appointments, appoint a fifth conciliator chosen from the list, who shall be chairman. If the appointment of the chairman or of any of the other conciliators has not been made within the period prescribed above for such appointment, it shall be made by the Secretary-General within sixty days following the expiry of that period. The appointment of the chairman may be made by the Secretary-General either from the list or from the membership of the International Law Commission. Any of the periods within which appointments must be made may be extended by agreement between the parties to the dispute. Any vacancy shall be filled in the manner prescribed for the initial appointment. 3. The Conciliation Commission shall decide its own procedure. The Commission, with the consent of the parties to the dispute, may invite any party to the treaty to submit to it its
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views orally or in writing. Decisions and recommendations of the Commission shall be made by a majority vote of the five members. m embers. 4. The Commission may draw the attention of the parties to the t he dispute to any measures which might facilitate an amicable settlement. 5. The Commission shall hear the parties, examine the claims and objections, and make proposals to the parties with a view to reaching an amicable settlement of the dispute. 6. The Commission shall report within twelve months of its constitution. Its report shall be deposited with the Secretary-General and transmitted to the parties to the dispute. The report of the Commission, including any conclusions stated therein regarding the facts or questions of law, shall not be binding upon the parties and it shall have no other character than that of recommendations submitted for the consideration of the parties in order to facilitate an amicable settlement of the dispute. 7. The Secretary-General shall provide the Commission with such assistance and facilities as it may require. The expenses of the Commission shall be borne by the United Nations.
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States Parties The 109 States Parties to the Vienna Convention on the Law pf Treaties
(established on the basis of the list of States Parties as of 8 September 2009 published by the Secretary-General of the United Nations in its capacity as depositary of the Vienna Convention1.)
*Albania *Algeria *Andorra *Argentina *Armenia *Australia *Austria *Barbados *Belarus *Belgium *Bosnia and Herzegovina *Bulgaria * Burkina Faso *Cameroon *Canada *Central African Republic *Chili *China *Colombia *Congo *Costa Rica *Croatia *Cuba *Cyprus *Czech Republic *Denmark *Democratic Republic of the Congo * Ecuador *Egypt *Estonia *Finland * Gabon *Georgia *Germany *Greece *Guatemala * Guinea * Guyana *Haiti *Holy See *Honduras *Hungary *Ireland *Italy *Jamaica *Japan *Kazakhstan * Kiribati *Kuwait *Kyrgyzstan *Kyrgyzstan *Lao People's Democratic Republic *Latvia *Lesotho *Liberia *Liberia * Libyan Arab Jamahiriya *Liechtenstein *Lithuania * Luxembourg *Malawi *Malaysia *Mali *Mauritius *Mexico *Moldova *Mongolia * Montenegro *Morocco *Mozambique *Myanmar *Nauru *Netherlands *New Zealand *Niger *Nigeria *Oman *Panama 77*Paraguay *Peru *Philippines *Poland * Portugal *Republic of Korea *Russian Federation *Rwanda *Saudi Arabia *Serbia *Solomon Islands I slands *Sweden *Switzerland *Senegal *Slovakia *Slovenia *Spain *Saint Vincent and the Grenadines *Sudan *Suriname *Syria *Tajikistan *Tanzania *The Former Yugoslav Republic of Macedonia *Togo *Tunisia *Turkmenistan *Ukraine *United Kingdom of Great Britain and Northern Ireland *Uruguay *Uzbekistan *Viet Nam
1
http://treaties.un.org/Pages/ViewDetailsIII.a wDetailsIII.aspx?&src=TRETY&mtdsg_no=XXI spx?&src=TRETY&mtdsg_no=XXIII~1&chapter=23&Temp=m II~1&chapter=23&Temp=mtdsg3&lang=en tdsg3&lang=en See http://treaties.un.org/Pages/Vie
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Full powers
BELIZE
" WHEREAS the Government of Belize wishes to conclude an Air Transport Agreement Between Belize and the Austrian Federal Government; BY VIRTUE OF THE POWERS VESTED IN ME BY THE
Government of Belize, I do hereby authorize and grant full powers to HIS EXCELLENCY (name of the person ) , Ambassador of Belize to sign on behalf of the Government of Belize, The Air Transport Agreement between Belize and the Austrian Federal Government. Done at Belmopan, Belize CENTRAL AMERICA on 15th January, Two thousand One. (name and signature of the person signing the credentials ) PRIME MINISTER MINISTER OF FINANCE & FOREIGN AFFAIRS „
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CANADA
"I (name of the person signing the credentials ) Minister of Foreign Affairs in the Government of Canada do hereby certify that (name of the person ) Minister of Canadian Heritage, or (name of the person ) Secretary of State (Multiculturalism) (Status of Women) or (name of the person ) Deputy minister of Canadian Heritage, or (name of the person ) Ambassador of Canada to the Republic of Austria is vested with Full Powers and Authority to sign, on behalf of the Government of Canada, the Audio-visual Co-productiton Agreement between the Government of Canada and the Government of the Republic of Austria. In witness thereof, I have signed and sealed these presents at, this ... day of (month and and year) Minister of Foreign Affairs"
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UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
"Elisabeth the Second, by the Grace of God of the United kingdom of Geat Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith, &c., &c., &c. To all and singular to whom these Presents shall come, Greetings! Whereas,
for the better treating of of and arranging any matters which are now in discussion, or which may come into discussion, between us, in respect of Our United Kingdom of Great Britain and Northern Ireland, and any other Powers or States, We W e have judged it expedient to invest a fit person with Full Power to t o conduct negotiations on Our part, in respect of Our United Kingdom of Great Britain and Northern Ireland; Know ye, therefore, t herefore, that We, resposing especial Trust and Confidence in the Wisdom, Loyalty, Diligence and Circumspection of Our Right Trusty and Well-beloved William Armand Thomas tristan Garel-Jones, Esquire, a Member of Parliament, one of Our Ministers of State for Foreign and Commonwealth Affairs, have named, made, constituted and appointed, as We do by these Presents name, make, constitute and appoint him Our undoubted Commissioner, Procurator and Plenipotentiary in respect of Our United Kingdom of Great Britain and Northern Ireland; Giving to him all manner of Power and Authority to treat, adjust and conclude with such Minister or Ministers, Plenipotentiary or Plenipotentiaries as may be vested with similar Power and Authority on the part of any other Powers or States any Treaty, Convention, Agreement, Protocol or other Instrument between Us and such Powers or States, and to sign for Us and in Our name, in respect of Our Kingdom of Great Britain and Northern Ireland, everything so agreed upon and concluded, and to do and transact all such other matters as may appertain thereto, in as ample manner and form, and with equal force and efficacy, as We Ourselves could do, if personally present; engaging and promising, upon Our Royal Word, that whatever things shall be so transacted and concluded by Our said Commissioner, Procurator an Plenipotentiary, in respect of Our United Kingdom of Great Britain and Northern Ireland, shall, subject if necessary to Our Ratification, be agreed to, aknowledged and accepted by Us in the fullest manner, and that We will never suffer, either in the whole or in part, any person whatsoever to infringe the same, or act contrary hereto, as far as it lies in Our power.
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In Witness Whereof We have caused Our Great Seal to be affixed to these Presents,
which We have signed with Our Royal Hand. Given at our Court of Saint James's James's
the Twenty-First day of February in the Year of Our Lord One thousand Nine hundred and Ninety-two and in the Foty-first Year of Our Reign." UNITED STATES OF AMERICA
"FULL POWER
I invest (name of the person ), ), Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Austria, or, in his absence, the Chargé d'Affaires ad interim of the United States of America, (name of the person ), ), with full power and authority for and in the name of the Government of the United States of America to sign th Convention between the united States of America and the Republic of Austria for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respet to Taxes on Estates, Inheritances, Gifts, and Generation-skipping Transfers, together with any related documents, the said Convention to be transmitted to the President of the United States of America for his ratification by and with the advice and consent of the Senate of the United States of America. IN TESTIMONY WHEREOF, I have hereonto set my hand and caused the seal of the Department of State to be affixed at the city of W ashington, in the District of Columbia, this twenty-seventh day of March, 1982.
(Alexander M. Haig, Jr.) Secretary of State"
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Model instruments of ratification 1) ACCESSION
WHEREAS the
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents
was adopted by the General Assembly of the United Nations at New York on 14 December 1973, NOW THEREFORE I,
_____________________________ ____________________________________________ ____________________________ _______________________ __________ [name and title of the Head of State, Head of Government or Minister for Foreign Affairs] declare that the Government of [name of the State] having considered the above mentioned conven- tion accedes to the same and undertakes faithfully to perform and carry out the stipula- tions therein contained. IN WITNESS WHEREOF, I have I have signed this instrument of accession at accession at [name [name of the city]
on [date].
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2) APPROVAL
WHEREAS the
Amendment to the Convention on the Physical Protection of Nuclear Material
was adopted at Vienna on 8 July 2005, NOW THEREFORE I,
_____________________________ ____________________________________________ ____________________________ _______________________ __________ [name and title of the Head of State, Head of Government or Minister for Foreign Affairs] declare that the Government of the [name of the State] having considered the above mentioned amendment approves the same and undertakes faithfully to perform and carry out the stipulations therein contained. IN WITNESS WHEREOF, I have I have signed this instrument of accession at accession at [name [name of the city]
on [date].
,
_____________________________ ____________________________________________ ____________________________ _______________________ __________ [Signature]
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69
