Haslinda Mohd Anuar COLGIS

All kinds of inter-State transactions are conducted through treaties. Various international organizations are established by means of treaties. Disputes between States are brought before international courts by means of treaties. The treaty is the most important source of international law. Therefore, the special importance of treaties in international law does not need emphasis.

The main reference in this area of the law is the Vienna Convention on the Law of Treaties, 1969. [VCLT] Adopted on 23 May 1969 and entered into force on 27 January 1980. It is a combination of codification and progressive development of international law.

Schwarzenberger: a treaty may be defined as a consensual engagement which subjects of international law have undertaken towards one another, with the intent to create legal obligations under international law. Oppenheim: International treaties are agreements, of a contractual character, between states, or organisations of states, creating legal rights and obligations between the parties.

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 two or more related instruments and whatever its particular designation.

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 subjects of international law, or to international agreements not in written form, shall not effect: a) the legal force of such agreements;

The definition of treaty under Article 2 of the Vienna Convention can be distinguished in two respects from the traditional definition. 1) It deals only with treaties concluded between states (this is because there is a separate convention on the law of treaties to which international organisations are parties). 2) The Convention is limited to written treaties only. However, it is not intended to deny the legal effect of oral agreements under international law.

The definition in the Vienna Convention is expressed to be for the purposes of the Convention and is limited to treaties between States. The following is an examination of the elements of the definition of treaty under Vienna convention as supplemented by customary international law.

States Article 6 of the Convention - states may make treaties, reflects customary international law. Capacity to make treaties is, in fact, valuable evidence of statehood. Federal States (Art. 6, para. 2, Draft Articles) States members of a federal union may possess a capacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits there laid down.

International Organizations The Vienna Convention on the Law of Treaties, 1969, is limited to treaties to which states are parties. It does not cover treaties to which public international Organizations are parties. A special convention, the Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, was signed in 1986.

Individuals Individuals have never been recognised as having the capacity to make treaties. Even transnational corporations (TNCs) have no such capacity. In the Anglo-Iranian Oil Company case, 1952 ICJ Rep. 93, the ICJ held that a contract between Iran and the Anglo-Iranian Oil Company was not a treaty. It is nothing more than a concessionary contract between a government and a foreign company.

The Vienna Convention does not apply to oral agreements, although such agreements are valid under customary international law. Even though the traditional practice is for the original text of a treaty to be typed or printed, there is no reason why a treaty should not be contained in a telegram, telex, fax message or even e-mail, or, rather, constituted by an exchange of such communications.

There may be agreements between states (e.g. agreements for the acquisition of premises for a diplomatic mission or for some purely commercial transaction). They are regulated by the local law of one of the parties or by a private law system determined by reference to conflict of laws principles. The notion of an international agreement for the purposes of the law of treaties is confined to one the whole formation and execution of which is governed by international law.

From practical point of view, the decisive factor is whether the instrument is intended to create international legal rights and obligations between the parties. This element of intention to create legal obligations under international law can be found in the traditional definitions of treaty by eminent writers but it is not expressly mentioned in the definition of treaty by the Vienna Convention. The ILC: The element of intention is included in the phrase governed by international law. [See also Aegean Sea Continental Shelf case.]

The classic form for a treaty is a single instrument. However, in modern practice treaties are made in less formal ways, such as exchanges of notes or exchange of letters. An exchange of notes usually consists of an initial note (by one State) and a reply note (by the other State). In other words it consists of two related instruments. The above phrase clearly acknowledges the validity of the increasing use of such exchanges of notes and letters in modern treaty practice.

Treaty is the generic term to embrace all types of binding international agreements. In practice, a number of terms are used to indicate an international agreement. The term Treaty itself is used to indicate formal agreements relating to peace, alliance, or the cession of territory, extradition, or some other fundamental matter.

Convention is the term used for a proper formal instrument of a multilateral character. A Protocol is an instrument which is subsidiary or ancillary to a convention or is a supplementary treaty An Exchange of Notes (or of letters) is an informal method, very frequently adopted in recent years, whereby states reach to certain understanding or recognize certain obligations as binding them.

The use of MOUs is now so widespread in State practice that governments may use the MOUs as the more usual form, a treaty being used only when it cannot be avoided. The main reasons for using MOUs in preference to treaties are confidentiality and convenience. As an MOU is not a treaty, there is as a rule no domestic or international requirement to publish it.

Are MOUs treaties? Generally speaking MOUs are not treaties and they are not legally binding. An MOU can be a treaty in some cases but it cannot be so in other cases. Only by studying the terms of the instrument can one determine its genuine status. The decisive factor is whether there is an intention to create legal obligations. The actual practice of States is to indicate their intention to conclude a treaty by employing terminology such as shall, agree, undertake, and enter into force. An MOU will become effective on signature without the need for any further procedure

Oral undertakings According to customary international law writing is not an essential requirement of a treaty. An agreement or undertaking made orally between two states is as valid as a written treaty.

A territorial dispute between Denmark and Norway over Eastern Greenland. During the official conversation between M. Ihlen, Norwegian Foreign Minister, and the Danish Minister accredited to Norway, the Danish Minister suggested that Denmark would raise no objection to any claim Norway might want to make at the Paris Peace Conference to Spitzbergen if Norway would not oppose the Danish claim at the same conference to Greenland.

M. Ihlen, in the course of further conversations with the Danish Minister, declared that the Norwegian Government would not make any difficulty concerning the Danish claim. [This is known as the Ihlen Declaration] Denmark argued before the ICJ that this undertaking was binding upon Norway.

Held: The Court considers it beyond all disputes that a reply of this nature given by the Minister of Foreign Affairs on behalf of his Government in response to request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs.

Sometimes there are non-treaty circumstances which give rise to binding obligations. One example is: declarations made under Art. 36 (2) of the Statute of the International Court of Justice. Another example is: unilateral statements. If a State publicly makes unilateral statements with an intention to be legally bound, even though there is not a treaty (since there is no agreement between two States), these statements bind the State.

Australia and New Zealand brought proceedings against France arising from nuclear tests conducted by France in the South Pacific. Before the Court heard the merits of the case, unilateral public pronouncements were made by French authorities indicating that France would no longer conduct atmospheric nuclear tests.

Statement issued by the Office of the President; 2) statement made by the President himself at press conference; 3) statement by Foreign Minister addressing the UNGA.
1)

Held: An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor even any reply or reaction from other states, is required for the declaration to take effect.

Treaty-making capacity o Full powers is a document emanating from the competent authority of the state designating a person to represent the state for accomplishing certain or all acts with respect to a treaty. o Article 7(1) the general rule is that a person is considered as representing a state for purpose of expressing the consent of the state to be bound by the treaty if he produces appropriate full powers.

Exception certain persons never require full powers to represent the state in this respect. o Article 7(2) - In virtue of their functions and without having to produce full powers, the following are considered as representing their state: a) Heads of States, Heads of Governments and Ministers for Foreign Affairs (the Big Three); b) Heads of diplomatic missions, adopting the text of a treaty between the accrediting state and the state to which they are accredited

Steps to be taken in the making of a treaty The various steps in the creation of a treaty are: 1) Adoption and authentication of the treaty; 2) The expression of consent to be bound by the treaty (Signature, Ratification, Accession, etc.); 3) Entry into force; and 4) Registration and publication.

Negotiation Appoint representatives to conduct negotiations. Negotiations concerning a treaty are conducted through discussion in the case of bilateral treaties or by diplomatic conference when multilateral treaty is to be adopted.

Adoption and authentication Once the negotiation complete it is necessary for the state which took part in the drawing up the treaty to express their agreement with its form and content by adopting the text. A state which takes part in the drawing up and adoption of a treaty is known as negotiating state Before a negotiating state can decide whether to consent to be bound by a treaty, it needs to have a final text The process by which this is established is known as authentication

Consent to be bound by a treaty Article 11 enumerates the ways in which a State can express its consent: 1) by signature; 2) by exchange of instruments constituting a treaty; 3) by ratification, acceptance or approval; or 4) by accession. o A contracting state means a state which has consented to be bound by a treaty, even though it may not yet have entered into force. o A party is a state which has consented to be bound by a treaty and for which the treaty is in force.

1.

Signature The effect of signature of a treaty depends on whether or not the treaty is subject to ratification. If the treaty is subject to ratification, signature means no more than an authentication of its text. If the treaty is not subject to ratification, or is silent on this point, the better opinion is that, in the absence of contrary provision, the instrument is binding on signature.

2)

Ratification Ratification: final confirmation. Why ratification is required? Two reasons: 1) A state requires an opportunity of re-examining the whole effect of the treaty upon their interests; May need to prepare public opinion (or some times even referendum) for the obligation the state is about to undertake.

According to the constitutional law of many states, treaties are not valid without some kind of consent on the part of Parliaments. (E.g. US Constitution). What treaties require ratification? The more formal the type of instrument adopted, the more likely is ratification to be required.
2)

Procedure for ratification: Instrument of ratification: A formal document duly signed by The Big Three. Ratification involves two steps: 1. the signing and sealing of the instrument of ratification. 2. The exchange or deposit of the document of ratification

Exchange or deposit the instrument of ratification In the case of a bilateral treaty, the exchange of the instrument of ratification with the corresponding instrument produced by the other party. In the case of a multilateral treaty, to deposit all instruments of ratification in a central headquarters such as the Foreign Office of the state where the treaty was signed. With regard to treaties concluded under the auspices of the UN, the instruments of ratification are to be deposited with the Sec-Gen of the UN.

A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when: a) it has signed the treaty or exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

3)

Accession Accede to: accession Accession is a traditional method whereby a state which has not signed a treaty subsequently becomes a party to it. Treaties frequently provide that they shall be open for signature for a certain period, and that after the expiry of that period they shall become open for accession.

Definition - Article 2(1)(d) of the VCLT: 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.

Disguised reservations: however phrased or named; to look at the substance. It is the substance that matters, not the form. Interpretative declarations: Purpose to establish an interpretation of the treaty which is consistent with the domestic law of the state. It will be an element in the interpretation of the treaty. If other parties do not make contrary declarations or indicate their disagreement, they may be regarded as having tacitly accepted it.

Traditional approach a state trying to modify the terms of the treaty. A reservation can therefore be assimilated to the refusal of an offer and the making of a fresh offer. In principle, this fresh offer must obtain the assent of the other contracting states if it is to be effective.

Compatibility test laid down by the ICJ In Reservation to the convention on the prevention and punishment of the crime of genocide, the Advisory Opinion of the ICJ held; y That a state which has made and maintained a reservation which has been objected to by one or more of the parties to the convention but not by others, can be regarded as being a party to the convention if the reservation is compatible with the object and purpose of the convention; otherwise, that state cannot be regarded as being a party

y That if a party to the convention objects to a

reservation which it considers to be incompatible with the object and purpose of the convention, it can consider that the reserving state is not a party to the convention; and y That if, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the convention, it can in fact consider that the reserving state is a party to it.

Reservation regime under the Vienna convention Although the convention does not generally distinguish between bilateral and multilateral treaties, even for reservation, under art 2(1)(d) a reservation cannot be made to a bilateral treaty.

A State may 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(1) - A reservation expressly authorised by a treaty does not require any subsequent acceptance by the other contracting States Art 20(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.

Art 20(4) - In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State; 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;

An act expressing a states consent to be found by the treaty and containing a reservation is effective as soon as at least one other contracting state has accepted the reservation Art 20(5) - 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 12 months after it was notified of the reservation

Three options for the other states Acceptance (expressly or impliedly). Mere objection Objection with a condition that the treaty shall not enter into force between the reserving and objecting State

A simple example: There are three states: A, B, and C. State A made a reservation to a treaty. State B raised no objection. States C objected and at the same time stated expressly that it precluded the treaty entering into force between it and State A. State A may be a party to the treaty in relation to State B, but not in relation to State C. There is no doubt that State B and State C are mutually bound by the treaty after its entry into force.

1.

A reservation established with regard to another party (established here means not prohibited and not objected to by other party) in accordance with Articles 19, 20 and 23. such a reservation; a) modifies for the reserving state in its relations with that other party (non objecting state) the provisions of the treaty to which the reservation relates to the extent of the reservation [reservation is effective between reserving and non objecting states]

The reservation does not modify the provisions of the treaty for the other parties (Among those states apart from the reserving state) to the treaty inter se. (Among themselves, they have to follow all the provisions of the treaty as if there is no reservation). 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.
2.

6) Entry into force A treaty often provides that it shall enter into force when it has been ratified or acceded to by a specific number of states. E.g, the Vienna Convention on the Law of Treaties, 1969, provides for its entry into force on the 30th day following the date of the deposit of the 35th instrument of ratification or accession. The United Nations Convention on the Law of the Sea, 1982, entered into force one year after the 60th ratification, namely on November 16, 1994.

Binding force of treaties Pacta sunt servanda (Article 26) y Every treaty in force is binding upon the parties to it and must be performed in good faith. Treaty versus municipal law (Article 27) y A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.

Non-retroactivity of treaties (Article 28) 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 of the treaty with respect to that party.

Effect of treaties on nationals of state parties The binding force of a treaty and its effect concern in principle the state parties only, and not their nationals. If treaties provisions affecting rights and duties of nationals of state parties, this may require the enactment of a statute by parliament.

Art 30(1) - Subject to Article 103 of the Charter of the UN, the rights and obligations of States parties to successive treaties shall be determined in accordance with the following paragraphs. Art 30(3) if parties are identical, the later treaty prevails over the earlier treaty. maxim Lex posterior derogat legi priori applies. In determining the earlier and later treaty, the relevant date is the date of adoption, not entry into force

Art 30(4) - If parties are not identical,the effect is based on the rule pacta tertiis nec necent nec prosunt. Therefore, as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties govern their rights and obligations.

Art. 30 deals with hierarchy among treaties. Art. 103 of the Charter: In the event of a conflict between the obligations of the Members of the UN under the present Charter and their obligations under any other international agreements, the obligations under the present Charter shall prevail. Art. 103 is known as clause paramount. Obligations under the UN Charter have primacy over obligations under any other treaty.

Article 34 - A treaty does not create either obligations or rights for a third state without its consent. o The general rule in Article 34, which is known by the maxim pacta tertis nec nocent nec prosunt, undoubtedly reflects customary international law. Art. 35 (obligations for third states must expressly accept in writing). Art. 36 (rights for third states consent can be presumed).
o

Departure from the general rule: UNs authority over non-members, Article 2(6) of the Charter states: The organization shall ensure that States which are not Members of the United Nations act in accordance with these principles [principles set out in Article 2 of the Charter] so far as may be necessary for the maintenance of international peace and security.

According to Fitzmaurice, there are three traditional schools of treaty interpretation: 1) Textual school interpretation in accordance with the ordinary meaning of the words of the treaty; 2) Intention school interpretation in accordance with the intention of the parties; 3) Teleological school interpretation in accordance with the aims and purposes of the treaty.

General Rule of Interpretation [Article 31] 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 shall comprise text, preamble and annexes. 3. There shall be taken into account, together with the context. a) any subsequent agreement; b) any subsequent practice.

Three integrated principles in Art. 31(1): 1) Interpreted in good faith; 2) In accordance with the ordinary meaning to be given to the terms of the treaty in their context; 3) In the light of its object and purpose. Object and purpose is more for the purpose of confirming an interpretation. Although Art. 31(1) contains both the textual and teleological approaches, it gives precedence to textual.

Textual interpretation is the prevailing approach. The general rule primarily adopts the textual approach. The ILC: the textual approach is the established rule of customary international law. The jurisprudence of the ICJ also demonstrates that the textual interpretation is regarded by it as established law.

The importance of subsequent practice The way in which the treaty is actually applied by the parties is a good indication of what they understand it to mean. E.g. Interpretation of Art. 27(3) of the Charter: Nine votes including concurring votes of the permanent members; According to the practice of the members, concurring means not objecting (See, e.g. abstention form voting).

Principle of effectiveness The parties are assumed to intend the provisions of a treaty to have certain meaning, and not to be meaningless; ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void). When a treaty is open to two interpretations, one of which does and the other does not enable the treaty to be effectively implemented, the former interpretation should be adopted. Principle of effectiveness does not allow an interpretation going beyond what the text of the treaty justifies.

The peace treaties between the Allied Powers, on the one hand, and Bulgaria, Hungary and Romania, on the other, provided for commissions to hear disputes concerning the treaty. The commissions were to consist of three members. The two parties to the dispute were to appoint a member each; the parties were then to agree upon a third. If they could not agree, the third member was to be appointed by the Secretary-General of the United Nations.

Disputes arose over the human rights guarantees in the treaties. Bulgaria, Hungary and Romania refused to appoint members to the commissions. The Allied powers wanted to establish the Commissions with only two members: one appointed by them and the other appointed by the SG of the UN. The question was brought before the ICJ. Held: It was not lawful to establish Commissions with only two members.

The world Court in this case refused to apply the principle of effectiveness in such a way as to override the clear meaning of the text (i.e. textual interpretation). The duty of the court is to interpret the treaty, not to revise it.

Supplementary means of interpretation [Article 32] Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31: a) leaves the meaning ambiguous or obscure; or b) leads to a result which is manifestly absurd or unreasonable.

Admission of a State to the United Nations, (1948) IICJ Rep 57 There is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself.

Travaux preparatoires [Preparatory work] It generally means the record of the drafting of a treaty. It includes records of negotiations between the states that participate in the drafting and, records of the work of independent bodies of experts, such as the ILC. At the Vienna Conference, the US argued that preparatory work must be treated equally with the text and not just as a supplementary means. It was not accepted because preparatory work was confusing, unreliable, and to be gathered from scattered and incomplete documents.

Five important grounds of invalidity: 1. Violation of internal law on competence to conclude treaties; 2. Error; 3. Corruption; 4. Coercion of a State; and 5. Conflict with jus cogens.

Article 46 allows a State, by way of exception, to invoke violation of internal law as invalidating its consent, only when: i. the internal law relates to competence to conclude treaties; ii. it concerns a rule of fundamental importance; and iii. the violation is so manifest that the other party (or parties) must be deemed to have been aware of it. [E.g. the State organs and representatives may have exceeded their powers in concluding such a treaty.]

A state may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error 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
1.

In 1904,The boundary between Cambodia and Thailand in the area of Preah Vihear was determined by a treaty The treaty stated that it was to follow the watershed line and provided for the details to be worked out by a Mixed Commission. A map was prepared by the Commission. This clearly placed the Temple in Cambodia. Cambodia relied upon the map. Thailand argued that the map embodied a material error because it did not follow the watershed line as required by the treaty

The Court rejected Thailands argument and stated: It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error, or could have avoided it.

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 52 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 clearly refers to Art. 2(4) of the UN Charter which prohibits the threat or use of force against territorial integrity or political independence of State.

Iceland argued that the 1961 Exchanges of Notes took place when the British Navy had been using force to oppose the 12-mile fishery limit of Iceland and that they were void ab initio. The Court rejected the argument because there was no concrete evidence of use of force and stated: The 1961 Exchange of Notes were freely negotiated by the interested parties on the basis of perfect equality and freedom of decision on both sides.

Not all peace treaties would be void. It is to be determined case by case. A peace treaty would be void if procured by an aggressor states coercion of a victim. On the other hand, a peace treaty concluded by a defeated aggressor State as a result of military victory by a victorious victim (particularly in the case of lawful collective action against the aggressor) is valid.

General Assembly Declaration on Principles of International Law, the General Assembly Resolution 2625 (XXV), 1970 Principle on the threat or use of force The territory of State shall not be the object of acquisition by another State resulting from the threat or use of force, No territorial acquisition resulting from the threat or use of force shall be recognized as legal.

Since states are sovereign, there is no sovereign political authority above the States. To enable inter-State relations, States voluntarily surrender a certain portion of their sovereignty and that is international law. Therefore international Law is consensual in nature. Its existence depends entirely on consent of States. Rules of international law are normally voluntary rules: jus dispositivum. They can at any time be amended or abolished by consent of States, i.e., by entering into new treaties.

However, a new concept crystallized in the late 1960s, i.e., the concept of jus cogens. Many States have come to accept that there are certain rules of general international law which are so important for the existence of the international community that they are peremptory norms from which no derogation is permitted; they are jus cogens (compelling law)as opposed to jus dispositivum (voluntary law). States can not contract out of them.

Article 53 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 which no derogation is permitted and which can by modified only by a subsequent norm of general international law having the same character.

Article 64 If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

Definition of jus cogens A norm accepted and recognized by the international community as a whole Chairman of the Drafting Committees interpretation: All States less a very small number of States. [The establishment of a jus cogens may not be affected if one state in isolation refuses to accept the peremptory character of it, or if that State is supported by a very small number of States.]

Identifying rules having the character of jus cogens Many rules have been suggested as candidates for jus cogens. However, at present only a few pass the test. The ICJ in the Nicaragua case quoted with approval the statement by the ILC: The law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule having the character of jus cogens.

Least controversial norms having the character of jus cogens are: The prohibition of the use of force; The prohibition of genocide; The prohibition of piracy and slave-trading; The principle of self-determination; The principle of racial discrimination; The prohibition against torture; Universally recognised principles of international humanitarian law.

The effects of jus cogens The typical effect of peremptory norms is that, as States cannot derogate from them through treaties or customary rules (which are not endowed with the status of jus cogens), the treaty or customary rules contrary to them are null and void ab initio. A rule of jus cogens may also have a deterrent effect in that they signal to all states and individuals that the prohibitions they envisage are absolute values from which nobody must deviate.

The main difference between the two groups of grounds for invalidity: y The relative grounds (violation of internal law on treaty-making, error, corruption) invalidate only the consent of a State to be bound by the treaty. y The absolute grounds (coercion and jus cogens) invalidate the treaty itself and render it void ab initio.

However, the legal consequences will depend on whether the treaty is bilateral or multilateral. In the case of bilateral treaties, the legal effect of establishing a relative ground is the same as that of establishing absolute invalidity: the treaty falls. In the case of multilateral treaties, however, establishing an absolute ground means that the treaty is null and void and without legal effect, whereas establishing a relative ground does not affect the validity of the treaty as a whole as between the other remaining parties.

Internal and external grounds for termination Internal ground: in accordance with the treaty; with the consent of the parties. External grounds: 1) Material breach (Art. 60); 2) Supervening impossibility of performance (Art. 61); and 3) Fundamental change of circumstances (Art. 62).