LAW OF TREATIES

A treaty is an agreement or contract entered into between two or more states whereby
they undertake to carry out obligations imposed on each of them.

“International treaties are agreements of a contractual character between states and

organization of states creating legal rights and obligations between the parties.”

- Oppenheim

Kinds of Treaties
According to Oppenheim treaties are of two kinds:

1) Law Making treaties which are concluded for the purpose of laying down general
rules of conduct among a considerable number of States.
2) Treaties concluded for any other purpose- Treaties classified according to Subject
matter are treaties of alliance, treaties of guarantee, treaties of commerce, treaties
of neutralizing a State etc.

Valtas classifies treaties as equal and unequal and real and personal. Real treaties relate
solely to the subject matter of the convention independently of the persons of the
contracting parties. They continue to bind the State irrespective of changes in the persons of
its rulers. E.g. Boundary treaties. Personal treaties relate to the person of the contracting
parties and bind only the personal ruler, dynasty or government that made them.

Treaties may be distinguished as unilateral and bilateral according as they bind one
party or both the parties. These are also multilateral treaties which bind more than two
States as parties. E.g. political or non-political. These are also law-making treaties e.g. the
pact of Paris, the Covenant on the League of Nations and the Charter of United Nations.

Treaties classified according to the objects are political, commercial, social and
treaties of guarantee, neutrality, cession or extradition. There are also transitory and
permanent treaties. The perfect classification can be found is that given by Nc Niais
(Britain’s yearbook of International Law 1930)

Power to Enter Into Treaties

A sovereign State which has not parted with any portion of its sovereignty either by
confederation or treaty of alliance possesses full treaty making power. The power of semi
sovereign State to enter into treaties with other States is limited and depends upon the
nature of freedom that hey enjoy.

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Case: S.S. Wimbledon – It was observed by the permanent court of International Justice that
“the capacity of entering into International engagement is an attribute of State
sovereignty”.

Treaty Making Power of UN

There are a number of stipulations contained in the Charter of the United Nations
which lead to conclusion that the organization can conclude treaties- e.g. case Reparation
for injuries suffered in the service of the United Nations (Advisory Opinion) (ICJ)

Essentials: Since a treaty is an agreement, there should be an accord of will between the
contracting parties manifested by signs, spoken or written words. There must be mutual
consent of the parties. Mere proposal do not bind the parties.

*Duress does not invalidate consent as it does in private law of Contract. Capacity is
necessary and the object must be legal.

Vienna Convention on the Law of Treaties, 1969

Constitutional Requirements: In the case of sovereign States the power of entering
into treaties rests with the heads of State or their representatives, in case they violate the
constitutional limitation imposed by the municipal laws of their respective States, the
treaties are not binding on them. In the States like United Kingdom the making of a treaty is
an executive act while the performance of its obligations, if the alteration of the existing
domestic law, requires legislative action.

Conclusion of Treaties
There is no specific form for the conclusion of Treaties. The enormous importance of
the issues involved in such agreements however necessitates the compliance of formal
requirements and reducing the agreements into a document.

The various steps towards the conclusion of a treaty are:

1) Accrediting of representatives: Authorizations would be given to a representative to

participate, negotiate in the deliberations on behalf of a State.
2) Negotiation: The two plenipotentiaries exchange their full powers or a copy thereof
before entering upon their task. They then proceed with negotiations.
3) Signature: After finalization of draft of the treaty, signature to be affixed at a formal
closing session. A treaty generally comes into force on signature by plenipotentiaries
of the contracting states unless the States desire to subject it to ratification.
4) Ratification: It is an act of adopting an international treaty so long as a treaty is not
ratified by proper authority under the constitution of the country; it lacks the formal
validity or sanction. Though if subsequently confirmed it effects from the date of
signature.

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 The reasons for refusal to ratify the treaty must not, however, be arbitrary or
capricious.

When ratification may be withheld?

(i) Plenipotentiary exceeds his power;

(ii) If any deceit as to matters of fact has been practiced upon him;
(iii) Performance of treaty obligations impossible;
(iv) If there has not been consensus ad idem.

As regards the form of ratification, there is no express rule. Ratification is often

made with reservation; such reservations require the formal consent of the other
State parties.

The same general principles which relate to bilateral treaties are not quite applicable
to the multilateral treaties.

5) Accession and Adhesion: A third State can become a party to an already existing
treaty by means of accession. This may be brought by formal entrance of the third
state with the consent of the original contracting parties.
Adhesion denotes the entrance of a third Sate into an existing treaty with regard to
certain regulations or certain principles only embodied in the treaty.

6) Coming into Force of Treaties: Multilateral treaties come into operation on the
deposit of a prescribed number of ratifications and accessions.

7) Registration: After the treaty has been so ratified, it has to be registered at the
headquarters of the international organization (UN Secretariat).

8) Incorporation of Treaty into State Law: - The final stage of the treaty is its actual
incorporation in the municipal law of the contracting state when it is required.

Doctrines Relating Treaties

Pacta Sunt Servanda: It is a doctrine borrowed from the Roman law and has been adopted
as a principle governing treaties in International Law. According to this doctrine the parties
to a treaty are bound to observe its terms in good faith. It is just that states taking over
certain obligations must perform them.

No State party to an international treaty can limit the obligations as

their municipal law is not permitting.

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Amendment or Modification (Art 39 and 40)
Amendment or modification may be made according to Articles 39 & 40 of the
Vienna Convention on Law of Treaties. Bilateral and Multilateral Conventions respectively.

Termination: On certain grounds treaties may be terminated, e.g. expiry of the specified
period in the treaty itself, material breach by one State, by mutual consent, if obligations are
incompatible with the objectives of the UN Charter, when war breaks out between
contracting parties, force majeure and impossibility of performance etc.(Art 61)

Doctrine of rebus sic stantibus

It connotes that when the existence or the development of a State stands in unavoidable
conflict with its treaty obligations, the latter must give way for self-preservation and
development in accordance with the growth and the vital requirements of the nation. It is a
tacit condition, said to attach to all treaties that they shall cease to be obligatory as soon as
the state of facts and condition upon which they were founded has substantially changed.

Thus every treaty implies a condition that the contracting party should have the right
to demand release from the obligations imposed by the treaty should, due to change of
circumstances, the continued existence of the State as an international person be
threatened.

As per Art 103 of the UN Charter,

“In the event of a conflict between the obligations of the members of the United Nations
under the present Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail.”

Part V of the Vienna Convention on the Law of Treaties (1969) deals specifically with the
invalidity termination and suspension off the operation of Treaties.

Doctrine of Jus Cogens

A treaty may be declared void if it conflicts with a peremptory norm(jus cogens) of
general International Law. Art 53 of the convention lays down that a treaty is void if, at the
time of its conclusion, it conflicts with a peremptory norm of general international law,
which is a norm community of States as a whole as a norm accepted and recognized by the
international community of States as a whole as a norm accepted and recognized by the
international community o States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international
law having the same character. On an objection raised to claim of invalidity of the treaty by
any other party, the parties will have to seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or
other peaceful means of their choice as enshrined in Art 33 of the UN Charter.

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 RECOGNITION
“The growth of international law is best understood as an expanding process from a nucleus
of entities which have accepted each other’s negative sovereignty and on the basis of
consent, are prepared to maintain and possibly expand the scope of their legal relations, like
most hubs, the society of sovereign states is based on the principle of co-option. In
experiencing this prerogative, the existing subjects of international law employ the device of
recognition”

- Schwargenberger

“In recognizing a state as a member of international community, the existing States declare
that in their opinion the new State fulfills the conditions of State hood as required by the
international law”.

- Oppenheim

“… through recognition the members of international community formally acknowledge that

the new State has acquired international personality”

- Fenwick

“… the free act by which one or more states acknowledge the existence of a definite
territory of a human society politically organized independent of any other existing States
and capable of observing obligations of international law by which they manifest, through
their intention to consider it a member of international community”

- The institute of International

Law

Kelson said that a community to be recognized as an international person must fulfill the
following conditions

1) The community must be politically organized;

2) It should have control over a definite territory;

3) This definite control should tend towards permanence;

4) The community thus constituted must be independent;

Thus the conditions of State hood are

a) People

b) A territory

c) A government

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 d) Sovereignty

We may say that through recognition, the recognizing State acknowledges that the
recognized State possesses the essential conditions of Statehood. However, international
law does not provide as to how these essential conditions are to be determined. It is
because of this reason that very often recognition is said to be a political diplomatic
function.

Theories of Recognition
There are two main theories of recognition

1) Constitutive Theory

2) Declaratory or Evidentiary Theory

Constitutive Theory

“According to this theory, recognition clothes the recognized State with rights and duties
under international law. Hegel, Anzilloti, Oppenheim etc are chief exponents of constitutive
theory. As Oppenheim said that a State is, and becomes, an international person, through
recognition only and exclusively.”

Statehood and participation in the international legal order are attached by political groups
only in so far as they are recognized by established State. In the view of Lauterpacht, there
is a legal duty on the part of the State to recognize any community that has in fact acquired
the characteristics of Statehood. Jurists have been to be correct as it will create serious
problems. If a State is not recognized it can have neither duty nor rights. Further if some
states recognize and some not by accepting this proposition a great difficulty will arise. For
example, China was not recognized by America and other Western countries for a number
of years although China possessed all the essential attributes of State.

Declaratory Theory

According to this theory, Statehood or the authority of the new government exists as
such prior to and independently of recognition. Recognition is merely declaratory of an
existing fact that a particular State or government possesses the essential attributes as
required under international law. The chief exponents of this theory are Hall, Wagner
Briesly, Pitt Cobbet and fisher.

Briesly said that “the granting of recognition to a new State is not a ‘Constitutive’ but
a ‘declaratory’ act. A State may exist without being recognized and if it exists in fact, then
whether or not, it has been formally recognized by other States, it has a right to be treated
by then as a State.

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 This theory has also been subject to criticism as recognition is only a declaratory of
an existing fact is not completely correct. In fact when a State is recognized, there ensure
some legal effects of recognized which may be said to be of constitutive nature.

On the basis of the above discussion, it may be concluded that recognition is

declaratory as well as constitutive act.

Modes of Recognition
Recognition may be of two kinds:

1) De-facto

2) De-Jure

De Facto Recognition
The practice of States shows that in first stage generally gives de facto recognition. Later on,
when they are satisfied that he recognised States is capable of fulfilling International
obligations, they confer de-jure recognition on it. It can be said that de-facto recognition of
State is a step towards de jure recognition.

The reason for granting de facto recognition is that it is doubted that the State recognised
may be stable or it may be able and willing to fulfil its obligations under International Law.

In the view of Lauterpacht, de-facto recognition shows that the recognising States wants to
establish its relations with the recognised State without establishing diplomatic relations. As
remarked by Prof Oppenheim de facto recognition is, in a sense, provisional liable to be
withdrawn if the absent requirement of recognition fails to materialise.

De Jure Recognition
De jure recognition is granted when in the opinion of recognising states, the recognised
State or its government possesses all the essential requirements of Statehood, and it is
capable of being member of International Community.

Recognition de jure results from an expressed declaration or from a positive act indicating
clearly the intention to grant this recognition such as the establishment of diplomatic
relations.

De Jure recognition is final, and once given cannot be withdrawn.

Recognition of Insurgency
Insurgency denotes the state of political revolt in a State. Insurgency presupposes a
civil war.

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 Insurgency is used to denote the condition of physical revolt in a country where the
rebels have not attained the character of belligerence. Thus “Insurrection “is a war of
citizens against the State for the purpose of obtaining power in the whole or part. It always
implies a sustained armed struggle by a group of citizenry against an established order.

In fact, insurgency is an intermediate stage between tranquillity and belligerency. If

the state recognises the insurgents of another state, it would imply that it would not treat
such insurgents as violators of law. It also implies that such a State wishes to establish
relations with such insurgents on a temporary basis.

It is not against International Law to recognize insurgents as a de facto government

over the territory under their control (Lauterpacht). It is merely an acknowledgement of fact
situation for practical purpose.

Essential Conditions for recognising insurgents

1. Control over a considerable part of the territory.

2. Considerable support to the insurgents from the majority of the people living in the
territory.

3. Insurgents should have the capacity and will to carry out the international
obligations.

Effects of recognition of insurgency

The recognition of insurgency is less important than the recognition of belligerents.

1) They are not treated as pirates.

2) The rebels of civil strife are treated as hostes generis humani (the public enemy)
until they are recognised as insurgents.

3) The international rules of war become applicable to them.

Recognition of Belligerency
When the insurgents are well organised, conduct hostilities according to laws of war
and have a determinate territory under their control they may be recognised as belligerents
whether or not the parent State has already recognised that status. Recognition of
belligerency is the question of policy and not of law. Consequently some States find it
convenient to recognise belligerency and do not.

Recognition of belligerency is the acknowledgement of a juridical fact that there

exists a State of hostilities between two factions contending for power of authority.

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Effects

1. From the date on which the recognition of belligerency is accorded international law
rules governing the conduct of hostilities apply.

2. The consent is internationalised and the belligerents get some rights under
International Law.

3. The relations between the recognised belligerent authorities established

government and the recognising States are governed by International Law rather
than municipal law.

Implied Recognition
Sometimes recognition may be implied. The recognition of a State may be implied by
the attitude and other circumstances of a State. Implied recognition may be inferred when
circumstances indicate that the State concerned has been accepted as a member of the
International community.

In practice such an implied recognition may be only de-facto. But in the following
circumstances such recognition may also be deemed to de-jure recognition:

1. When the recognised State and the recognising State enter into bilateral treaty and
formally sign it.

2. The beginning of formal diplomatic relations, exchange of consuls, etc.

The following acts also indicate implied recognition:

i) Participation of the State concerned is a multilateral treaty;

ii) Participation in International Conference; and

iii) The start of negotiations between the recognizing and the recognized States.

Estrada Doctrine
This was propounded by Estrada, the foreign minister of Mexico. In this doctrine he
declared that regarding the establishment of diplomatic relations with other States, Mexico
government considers itself free to determine it in accordance with the facts and
circumstances of each case. In other words if the Mexico government considers that after
the change of government in any State through revolution, a revolutionary government
commands the support of the people, it may establish diplomatic relations with it. Many
have criticized this doctrine as it regards the rules of International Law. It encourages the
individual appraisal in this field. However, in practice it takes a new way so far as the
recognition of new States are concerned.

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Stimson Doctrine
This was propounded by Mr Stimson< secretary of State of The United State Of
America. This is also called the doctrine of non-recognition. According to this doctrine if a
state grants, recognition to another State in violation of another treaty, such recognition
would not be valid. By International Treaty, the Stimson doctrine mainly meant the pact of
Paris, 1928 or Kellog Briand Pact through which the State parties renounced war as an
instrument of their National Policy. The League Assembly also passed a resolution that any
State that violated the pact of Paris, 1928, would not be granted recognition. Stimson
propounded this doctrine after Japan attacked Manchuria in 1931. In this doctrine the
American secretary of States declared that any contract or treaty which was contrary to the
Paris pact, 1928 would not be acceptable (China, Japan and America were all parties to the
Paris pact). Although this doctrine has much to recommend itself it is not always by the
States so far as the grant of recognition to new State is concerned. States refuse to accept
any such obligation and treat recognition as a political diplomatic function.

Tobar Doctrine
This doctrine was propounded by Tobar, the foreign minister of Ecuador. Actually the five
Central American Republic concluded treaties in 1907 and 1923 which embodies the
“doctrine of legitimacy”. Through which they bound themselves not to grant recognition to
any government coming into existence by revolutionary means so long as the freely elected
representatives of the people..... have not constitutionally recognised the countries, i.e.
until such government has been recognised by its own people in its constitutional manner.

Consequences of Non- Recognition

Although recognition is essentially a political act, there are certain political as well as legal
consequences of non-recognition as a State.

Recognition can bring, inter alia, an opportunity to establish diplomatic and consular
relation with recognising States; an increase in stability at home and prestige abroad; access
to foreign aid, loan and trade, and in case if new government often established State, access
to State funds on deposit in the banks of recognising States. A decision to withhold
recognition can be a powerful or an important political weapon depending upon the relative
power of the non-recognising and unrecognised entities.

Following are the some of the consequences of non- recognition:

1) An unrecognised State cannot sue in the courts of non-recognising States. (US v

PINK)

2) A State which has not been recognised is not entitled to enter into diplomatic
relations with the non-recognizing States.

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3) Diplomatic representatives do not have immunities from legal processes.

4) Such States are not entitled to get their property situated in foreign States.

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