Demo Lecture presented by Muhammad Osamah Bakhsh

Title: "A brief introduction to Law of Treaties".

AIMS & OBJECTIVES

 Introduction
 What is a treaty?
 Treaty in respect to other forms under international law as towards attaining
legally binding obligations

Introduction & What is a Treaty.

 According to Lord Templeman in Maclaine Watson v Dept of Trade and
Industry [1989] 3 All ER 523 (the Tin Council litigation), a ‘treaty is a contract
between the governments of two or more sovereign states’.
 International conventions, or treaties, are the only way states can create
international law consciously. Treaties may be bilateral (between two states) or
multilateral (between many) and usually they are the outcome of long and difficult
negotiations.
 Considered as one of the vital sources of International law.
 They are the only way in which states may create binding legal obligations in a
deliberate and conscious manner. The law of treaties is the name given to that
body of international law which deals with the procedural and substantive rules
governing the use of treaties as a source of international law.
 The fact that only parties to treaties are bound by them has given rise to a debate
about whether treaties create law or whether they impose obligations which ‘the
law’ says must be carried out. The debate is often expressed in terms of a
distinction between ‘contract treaties’ and ‘law-making treaties’. Typically,
 bilateral treaties are said to be examples of the former, and multilateral treaties
examples of the latter.
 The law of treaties covers a wide variety of matters. There are rules dealing with
entry into force, termination, interpretation, reservations and the relationship of
treaty law to custom.
 Generally, a ‘treaty’ can be regarded as a legally binding agreement deliberately
created by, and between, two or more subjects of international law who are
recognised as having treaty-making capacity. A treaty is an instrument governed
by international law and, once it enters into force, the parties thereto have legally
binding obligations in international law. In this sense, a treaty creates rights and
obligations distinct from those arising under the national law of any state.
 The great majority of treaties will be made between states, but there are many
examples of other international persons, such as international organisations,
entering into treaty arrangements either with states or with each other (e.g. UN
Headquarters Agreement between the United Nations and the United States 1947).
 Treaties are, then, legally binding agreements, governed by international law,
made between those international legal persons recognised as having treaty-
making capacity. There are no obligatory formal requirements which must be
satisfied before a ‘treaty’ can come into existence, although the Vienna
Convention on the Law of Treaties 1969 applies only to treaties in written form
(see Art. 2 VC 1969).
 Under general international law, treaties can be oral, in a single written instrument
or in several written instruments. Similarly, a treaty may arise from the
deliberations of an international conference, from direct bilateral negotiations or
informal governmental discussions, from an ‘exchange of notes’ or an ‘exchange
of letters’ or any other means which the parties choose.
 In the Case Concerning Maritime Delimitation and Territorial Questions between
Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) 1994 ICJ
 Rep 112, this issue arose directly when Bahrain claimed that the agreed record of a
meeting with Qatar (known as the Doha Minutes) did not constitute a ‘treaty’ in
international law. The Court thought otherwise, and in confirming the existence of
a treaty, noted that Art. 2 of the Vienna Convention on the Law of Treaties 1969
does not lay down a definition of what constitutes a treaty and that the matter
should be judged objectively.
 In addition, there is no equivalent in international law to the doctrine of
‘consideration’ found in the UK law of contract. In order to create a valid and
binding agreement, the parties to the treaty need not provide each other with a
counter-promise or benefit. A treaty can create obligations or rights for one party
only. For example, one part of the Agreement between the UK and China
regarding Hong Kong provided for the transfer of sovereign UK territory to China
without any monetary or other quid pro quo.
 The instrument will be a treaty so long as it is intended to be legally binding in the
sense of creating rights and duties enforceable under international law, and this is
to be judged objectively according to the nature and content of the agreement and
the circumstances in which it was concluded.

Treaty in respect to other forms under international law as towards attaining

legally binding obligations
 For a treaty to come into existence, it is clear that the parties must have intended to
create rights or duties binding under international law, judged objectively. This is
a vital precondition to the formation of treaties, bearing in mind that international
law does not stipulate any set form for their creation. Examples include majority
of General Assembly Resolutions or states concluding complicated ‘agreement’,
encompassing formal procedures for future action, without establishing a legally
binding treaty such as the Final Act of the Conference on Security and
Cooperation in Europe 1975 (the Helsinki Declaration), which was not intended to
 take effect as a treaty under international law but which has given rise to a whole
host of formal procedures and institutions.
 But it is uncontroversial that states in particular may place themselves under
obligations binding in international law by means other than the ‘treaty’ such as
the mechanism provided for in Art. 36(2) of the ICJ Statute by which states may
unilaterally declare their acceptance of the jurisdiction of the ICJ.
 The consensual bond created by deposit of declarations has full legal effect and
creates legally binding obligations between all states making such declarations,
irrespective of the sequence in which they are made. In this sense they are similar
to treaties and, in Nicaragua v USA 1984 ICJ Rep 392, some members of the
Court indicated that states could not withdraw their declarations made under Art.
36(2) of the ICJ Statute without reasonable notice, by analogy with the
requirements of good faith in the law of treaties. The dictum in the Nicaragua Case
seem to suggest that declarations under the optional system are to be regarded as
treaties in international law, or at least as ‘treaty-like’. In the Fisheries Jurisdiction
Cases (Jurisdiction) 1973 ICJ Rep 3, the Court did appear to treat optional clauses
as treaty provisions
 But, in the Anglo-Iranian Oil Co. Case (Jurisdiction) 1952 ICJ Rep 93, a majority
of the Court refused to apply the rules relating to the interpretation of treaties to
the Iranian declaration of acceptance on the ground that it ‘is not a treaty text
resulting from the negotiations between two or more states’. This has been further
deliberated in the Fisheries Jurisdiction Case (Spain v Canada) (Jurisdiction) 1998
ICJ Rep, where the Court was explicit that it should not interpret a Declaration as
if it were a treaty.
 Towards its entirety, a binding treaty is essentially compulsory, in that an unlawful
termination may give rise to liability to another state. A binding declaration
remains voluntary in the sense that it can be unilaterally terminated according to
its terms without international responsibility, irrespective of the wishes of any
other state.
 There has been various queries in international law, ‘whether the unilateral
pronouncements of a state can result in binding international obligations?’.
 In the Eastern Greenland Case (1933) PCIJ Ser. A/B No. 53, the Foreign Minister
of Norway had declared in conversation with the Danish Ambassador that Norway
would not create any difficulties in respect of the Danish claim of sovereignty over
Eastern Greenland. When the matter came before the PCIJ, Denmark alleged that
this statement was binding on Norway and prevented any objection to the Danish
claim. A majority of the Court decided that the statement did not amount to a
recognition of Danish sovereignty but did amount to a legally binding
commitment to refrain from occupying Greenland. This would seem to suggest
that unilateral statements can create internationally binding obligations for a state.
But the matter is far from certain because the Court in this case appeared to
regard the Norwegian statement as being given in return for a Danish
commitment not to oppose a Norwegian claim to Spitzbergen.
 But judicial decisions have brought some clarity to the matter and in the Nuclear
Test Cases (Australia v France, New Zealand v France) 1974 ICJ Rep 253, the
Court confirmed that unilateral statements of states can become legally binding in
appropriate circumstances. The essence of the case was that Australia and New
Zealand brought a claim against France in respect of the latter’s atmospheric
nuclear tests conducted in the South Pacific. Before a hearing on the merits could
proceed, the French President and Foreign Minister made a series of statements
making it clear that France would cease atmospheric testing and the Court
considered briefly whether these statements could have created a binding
obligation for France. In the opinion of the majority, ‘[i]t is well recognised that
declarations made by way of unilateral acts concerning legal or factual
situations, may have the effect of creating legal obligations’.
 Regardless of the criticism, the Court made it abundantly clear that evidence will
be required before unilateral statements can have binding effect and, further, that
any statement which would restrict a state’s sovereignty or freedom of action
must be viewed with extreme caution. Subsequently, in the Frontier Dispute
Case (Burkina Faso v Mali) 1986 ICJ Rep 554, a Chamber of the Court confirmed
the possibility that unilateral statements could create binding legal obligations, but
warned that this would normally happen only when there was clear evidence of an
intention to be legally bound.