Chapter 16 Int Law

Part VI International transactions, 16 The law of
treaties
James Crawford SC, FBA
From: Brownlie's Principles of Public International Law (9th Edition)

James Crawford
Previous Edition (8 ed.)
Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 09 July 2019
ISBN: 9780198737445
Subject(s):
Treaties, application — Treaties, conclusion — Treaties, amendments and modification —
e4434286-6bfe-1014-a35b-3d9d7c3ed365 — Treaties, observance — Treaties, invalidity, termination,
suspension, withdrawal — Treaties, reservations and declarations — Vienna Convention on the Law of
Treaties
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Universidad de Navarra; date: 08 September 2022
(p. 353) 16 The law of treaties
1. Introduction
Many international disputes are concerned with the interpretation and effects of treaties,
and much of the practical content of state relations is embodied in and structured by
treaties.1 International organizations, including the UN, have their legal basis in
multilateral treaties. So too do arrangements on matters ranging from geostationary orbit
to the regulation of intellectual property to the governance of Antarctica. Networks of
bilateral treaties regulate such matters as aviation, boundaries, extradition, investment
protection, and shared natural resources.
Since 1949, the International Law Commission (ILC) has concerned itself with the law of
treaties.2 In 1966, it adopted a set of 75 draft articles:3 these formed the basis for the 1969
Vienna Convention on the Law of Treaties (VCLT), which entered into force on 27 January
1980.4
At the time of its adoption, it could not have been said that the VCLT was, taken as a whole,
declaratory of general international law. Various provisions clearly involved progressive
development. Nonetheless, it has had a very strong influence, and a good (p. 354) number
of articles are now essentially declaratory of existing law; those which are not constitute
presumptive evidence of emergent rules.5 Indeed, its provisions are regarded as the
primary source of the law, irrespective of whether the VCLT applies qua treaty in the given
case.6 In Namibia, the Court observed that:
The rules laid down by the Vienna Convention … concerning termination of a treaty
relationship on account of breach (adopted without a dissenting vote) may in many
respects be considered as a codification of existing customary law on the subject.7
The Court of Justice of the European Union (CJEU) has observed that the customary
international law of treaties forms part of the European legal order, and it generally follows
the VCLT (implicitly or explicitly);8 the World Trade Organization (WTO) Dispute Settlement
Body and the International Tribunal for the Law of the Sea (ITLOS) have also emphasized
the customary status of the VCLT rules of treaty interpretation.9
The Convention was adopted by a very substantial majority at the Vienna Conference10 and
covers the main areas of the law of treaties. It does not deal with (1) treaties between states
and organizations, or between two or more organizations;11 (2) succession to treaties;12 or
(3) the effect of armed conflict on treaties,13 each of which has been the subject of separate
ILC projects.
(A) Definition of ‘treaty’

A provisional ILC draft defined a ‘treaty’ as:
any international agreement in written form, whether embodied in a single

instrument or in two or more related instruments and whatever its particular
designation (treaty, convention, protocol, covenant, charter, statute, act,
declaration, concordat, exchange of notes, agreed minute, memorandum of
agreement, modus vivendi or any other appellation), (p. 355) concluded between
two or more States or other subjects of international law and governed by
international law.14
The reference to ‘other subjects’ of the law was designed to provide for treaties concluded
by international organizations, the Holy See, and other international entities. But the ILC’s
Final Draft, and the VCLT itself, are confined to treaties between states (Art 1).15 Article 3
provides that the fact that the Convention is thus limited shall not affect the legal force of
agreements between states and other subjects of international law or between such other
subjects.
Article 2(1)(a) defines a treaty as ‘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’. The distinction
between a transaction which is a definitive legal commitment between two states, and one
which involves something less than that, is difficult to draw. The form or title of the
instrument, for example a joint communiqué, is not decisive.16 But there are limits:
administrative arrangements concluded at lower levels of government may well not be
considered treaties.17
Article 2(1)(a) also stipulates that the agreements to which the Convention extends must be
‘governed by international law’; this excludes commercial arrangements made between
governments and governed by national law.18
(B) The functions of treaties
McNair long ago pointed to the variety of functions which treaties perform.19 Some treaties,
dispositive of territory and rights in relation to territory, are like conveyances. Treaties
involving bargains between a few states are like contracts; whereas the multilateral treaty
creating either a set of rules, such as the Hague Conventions on the Law of War, or an
institution, such as the Copyright Union, is ‘law-making’. The treaty constituting an
institution is akin to a charter of incorporation. It is certainly fruitful to contemplate the
different features of different kinds of treaties and even to expect the development of
specialized rules. Thus, the effect of war between parties varies according to the type of
treaty involved. However, McNair and others have tended to support the position that the
genus of treaty produces fairly general effects on the applicable rules. Thus, the law-making
character of a treaty is said: (1) to rule out recourse to preparatory work as an (p. 356) aid
to interpretation; (2) to avoid recognition by one party of other parties as states or
governments; and (3) to render the doctrine of rebus sic stantibus inapplicable.20
By contrast, the ILC deliberately avoided any classification of treaties along broad lines and
rejected the concept of the ‘objective regime’ in relation to the effects of treaties on non-
parties. It accepted specialized rules in a few instances,21 but did not consider it necessary
to make a distinction between ‘law-making’ and other treaties.22 The ILC, and in turn the
Vienna Conference, saw the law of treaties as essentially a unity.23 Moreover, jurists are
now less willing to accept categorical distinctions between treaty-contract (vertrag) and
treaty-law (vereinbarung).24 The contrast intended between the bilateral political bargain
and the ‘legislative act’ produced by a broad international conference does not correspond
to reality. Political issues and bargaining lie behind law-making efforts like UNCLOS III.
Further, the distinction obscures the real differences between treaty-making and legislation
in a municipal system. Nonetheless, it should be acknowledged that some of the VCLT rules,
for example the rules relating to reservations, may work better with contractual-type
agreements than with law-making ones.
(C) Participation in treaties

In an early draft, the ILC defined a ‘general multilateral treaty’ as ‘a multilateral treaty
which concerns general norms of international law and deals with matters of general
interest to States as a whole’.25 But which states and other entities are permitted to
participate in drawing up such a treaty is a matter for the proponents, or in the case of a
treaty concluded under the auspices of an international organization, the organization. In
the ILC, it was proposed that states should have a right to become parties to this type of
treaty, a solution adopted in the insubstantial form that the right existed except where the
treaty or the rules of an international organization provide otherwise.26 The ILC’s Final
Draft contained no provision on the subject and amendments intended to give ‘all States a
right to participate in multilateral treaties’ were defeated at the Vienna Conference.27
2. Conclusion of Treaties

(A) Form and intention
How treaties are negotiated and brought into force depends on the intention of the parties.
There are no overriding requirements of form:28 for example, an agreement recorded in an
exchange of letters or even the minutes of a conference may have the same (p. 357) legal
effect as a formally drafted treaty contained in a single instrument.29 In practice, form is
governed partly by usage, and will vary according to whether the agreement is expressed to
be between states, heads of states, governments, or particular ministers or departments.
The VCLT applies only to agreements ‘in written form’ but Article 3 stipulates that this
limitation is without prejudice to the legal force of agreements ‘not in written form’.30
Where the parties wish to record mutual understandings for the conduct of their business
or other relationships, but do not intend to create legally binding obligations, they often
conclude non-binding instruments commonly referred to as memoranda of understanding
(MOUs).31 The name of the instrument is not conclusive as to its legal status; however, what
matters is the intention of the parties as reflected in the language used.32
(B) Full powers and signature

The era of absolute monarchs and slow communications produced a practice whereby a
state agent would be given full powers to negotiate and to conclude a particular treaty.33 In
modern practice, full powers give the bearer authority to negotiate and to sign and seal a
treaty but not to commit the state. In the case of less formal agreements, full powers are
often dispensed with.34 Thus, the definition in VCLT Article 2(c):
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 for accomplishing any other act with respect to a treaty.
One example of full powers arose in Cameroon v Nigeria, with the Court confirming that the
full powers afforded to a head of state derive from his or her position at the top of a state’s
hierarchy.35 This position was expanded upon—beyond the law of treaties—in Bosnian
Genocide, with the VCLT cited for the proposition that ‘every Head of State is presumed to
be able to act on behalf of the State in its international relations’.36
The successful outcome of negotiation is the adoption and authentication of an agreed text.
Signature has, as one of its functions, authentication, but a text may be authenticated in
other ways, for example by incorporation in the final act of a conference or by initialling.37
(p. 358) Where the signature is subject to ratification, acceptance, or approval, signature
does not establish consent to be bound nor does it create an obligation to ratify.38 What it
does is to qualify the signatory to proceed to ratification, acceptance, or approval; it also
creates an interim obligation of good faith to refrain from acts calculated to frustrate the
objects of the treaty.39
Where the treaty is not subject to ratification, acceptance, or approval, signature
establishes consent to be bound. Sometimes signature may be dispensed with: the text may
be adopted or approved by resolution of the UN General Assembly and submitted to
member states for accession.
(C) Provisional application

A common feature of modern treaties, bilateral and multilateral, is that they may be subject
to a regime of provisional application before their entry into force, either for all or some
parties.40 In general, provisional application is resorted to in the case of urgency or where
there is uncertainty as to early ratification, to allow for the new agreement to operate
meanwhile. Examples include treaties on arms control, status of forces, fisheries,
commodities, and amendments to the charters of international organizations.
The VCLT adopts a permissive approach to provisional application (as it does to the legal
effects of signature generally). Under Article 25(1), a treaty ‘is applied provisionally
pending its entry into force’ if the treaty so provides or the negotiating states have so
agreed. Under Article 25(2), provisional application terminates if the state concerned
‘notifies the other States … of its intention not to become a party to the treaty’. The
language of Article 25 is descriptive and the principle pacta sunt servanda (Art 26) is not
expressed to cover provisionally applied treaties. Nonetheless, provisional application
appears to be a form of treaty application capable of producing legal effects in accordance
with the parties’ consent. How far these may extend remains controversial, notably in the
context of investment treaty arbitration under the Energy Charter Treaty.41
(p. 359) The ILC is working on further guidelines on provisional application, in accordance
with which a provisionally applied treaty is a real (though precarious) commitment.42
(D) Ratification
Ratification involves two distinct procedural acts: the first, an internal act of approval (e.g.
by the parliament, or in the UK the Crown); the second, the international procedure which
brings a treaty into force by a formal exchange or deposit of instruments of ratification.
Ratification in the latter sense is an important act involving consent to be bound.43 But
everything depends on the intention of the parties, and modern practice contains many
examples of less formal agreements intended to be binding on signature.44 As to the small
number of treaties containing no express provision on ratification, the ILC initially
considered that ratification should be required.45 However, it changed its view, partly
because of the difficulty of applying the presumption to treaties in simplified form. VCLT
Article 14 regulates the matter by reference to the parties’ intention without any
presumption.
(E) Accession, acceptance, and approval

‘Accession’ occurs when a state which did not sign a treaty formally accepts its provisions:
this may be before or after the treaty has entered into force.46 The conditions for accession
and the procedure involved depend on the provisions of the treaty. Accession may be the
only means of becoming a party, as in the case of a convention approved by the General
Assembly and proposed for accession by member states.47 Recent practice has introduced
the terms ‘acceptance’ and ‘approval’ to describe the substance of accession. Terminology
is not fixed, however: where a treaty is expressed to be open to signature ‘subject to
acceptance’, this is equivalent to ‘subject to ratification’.
(F) Entry into force, deposit, and registration

The provisions of the treaty determine how and when the treaty enters into force. Where
the treaty does not specify a date, there is a presumption that the treaty comes into force as
soon as all the negotiating states have consented to be bound.48
(p. 360) After a treaty is concluded, the written instruments of ratification, accession, etc
and also reservations and other declarations are placed in the custody of a depositary,
which may be one or more states or an international organization.49 The UN Secretariat
plays a significant role as depositary of multilateral treaties.
Article 102 of the UN Charter provides as follows:
1. Every treaty and every international agreement entered into by any
Member of the United Nations … shall as soon as possible be registered with
the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been
registered … may invoke that treaty or agreement before any organ of the
United Nations.
This provision (which goes back to President Woodrow Wilson50) is intended to discourage
secret diplomacy and to promote the availability of treaty texts. The Secretariat accepts
agreements for registration without conferring any status on them or the parties which they
would not have otherwise done. However, this is not the case where the regulations provide
for ex officio registration. This involves initiative by the Secretariat and extends to
agreements to which the UN is a party and multilateral agreements with the UN as
depositary. The phrase ‘every international agreement’ has a wide scope. Technical
intergovernmental agreements, declarations accepting the optional clause in the Statute of
the International Court, agreements between organizations and states, agreements
between organizations, and unilateral engagements of an international character are
included.51
Non-registration does not affect the validity of agreements, although these may not be
relied on in proceedings before UN organs. But there is no time limit for registration, so
there is in practice no constraint on reliance.52
3. Reservations
VCLT Article 2(d) defines a reservation as ‘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 (p.
361) of the treaty in their application to that State’.53 It is to be distinguished from an
interpretative declaration, which is an expression of view by a declarant state as to the
meaning of a treaty which is not put forward as a condition of being bound.54
Considerable uncertainty has surrounded the law and practice with regard to reservations.
(A) Historical background

League of Nations practice in regard to multilateral conventions lacked consistency. The
League Secretariat, and later the UN Secretary-General, as depositary of conventions
concluded under the auspices of the League, followed the principle of absolute integrity: a
reservation would only be valid if the treaty permitted it or all contracting parties accepted
it; otherwise the reserving state would not be considered a party.55 In contrast, the Pan-
American Union, later the Organization of American States, adopted a flexible system which
permitted a reserving state to become a party vis-à-vis non-objecting states. This system,
dating from 1932, promoted universality at the expense of consistency of obligation.
Following the adoption of the Genocide Convention in 1948, a divergence of opinion arose
on the admissibility of reservations to the Convention, which contained no provision on the
subject; an advisory opinion was sought. The International Court stressed the divergence of
practice and the special characteristics of the Convention, including the intention of the
drafters that it be universal in scope. The Court’s principal finding was that ‘a State which
has made … 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’.56
In 1951, the ILC rejected the ‘compatibility’ criterion as too subjective, preferring a rule of
unanimous consent.57 However, in 1952 the General Assembly requested the Secretary-
General to conform practice to the opinion of the Court and, in respect of future
conventions of which the Secretary-General was depositary, to leave it to each (p. 362) state
to draw its own conclusions from reservations communicated to it.58 In 1959, the General
Assembly extended this to cover all UN conventions, unless they contained contrary
provisions.59 In 1962, the ILC decided in favour of the ‘compatibility’ rule.60
(B) Impermissible reservations

VCLT Article 20 provides for acceptance of and objection to reservations other than those
expressly authorized by a treaty.61 The ‘compatibility’ test is by no means ideal;62 in
particular, its application is a matter of appreciation, left to individual states. How is the
test to apply to provisions for dispute settlement, for example? In practical terms, the
‘compatibility’ test may not sufficiently maintain the balance between the integrity and the
effectiveness of multilateral conventions in terms of a firm level of obligation. It is very
doubtful whether there can be any place for the ‘compatibility’ test in relation to unlawful
reservations.63
The issue of severability in relation to human rights treaties has been particularly
controversial.64 In Belilos65 and Loizidou,66 the European Court of Human Rights treated
the objectionable reservation as severable. So did the Human Rights Committee: a state
could not, for example, reserve the right to subject persons to torture, or to presume a
person guilty unless proven innocent;67 rather than the state’s participation in the treaty
being negated, it was held to be a party to the treaty without benefit of its reservation,
whatever its underlying intention may have been.
(C) The ILC Guide (2011)

Some of the difficulties in respect of permissibility of reservations are addressed in the
Guide to Practice on Reservations to Treaties adopted by the ILC in 2011.68 The Guide is
intended as a ‘toolbox’ for practitioners in dealing with the permissibility and effects (p.
363) of reservations, pointing them towards solutions consistent with existing rules. It is not
a binding instrument and is not intended to form the basis of a convention. But it is likely to
clarify the law and practice in this area.
On the question of severability, the Guide adopts an ingenious intermediate solution. Under
Guideline 4.5.1, an invalid or impermissible reservation is null and void, and has no legal
effect. Practice has varied on whether the author of an invalid reservation remains bound
by the treaty without the benefit of the reservation, or whether the nullity of the reservation
vitiates that party’s consent to be bound altogether.69 The Guide provides a presumption
that the former applies, unless the contrary intention of that party is expressed or otherwise
established.70 In this way, the Guide affirms that the key to the status of the reserving party
in relation to the treaty is that party’s intention,71 and offers ‘a reasonable compromise
between the underlying principle of treaty law—mutual consent—and the principle that
reservations prohibited by the treaty or incompatible with the object and purpose of the
treaty are null and void’.72
4. Observance, Application, and Interpretation of Treaties
(A) Pacta sunt servanda
The VCLT entails a certain presumption as to the validity and continuance in force of a
treaty.73 This may be based on pacta sunt servanda as a general principle of international
law: a treaty in force is binding on the parties and must be performed by them in good
faith.74 Legally, treaties are enduring instruments, not easily disposed of. Internal law may
not be invoked to justify a failure to perform a treaty.75
(B) Application of treaties

Treaties are not retroactive; that is, unless a contrary intention is established, parties are
only bound in respect of acts or facts taking place after the treaty has entered into force for
the party in question.76 Unless otherwise stated, they apply within the whole territory of the
states parties.77
(p. 364) VCLT Article 30 covers the application of successive treaties to the same subject
matter.78 The relation of treaties between the same parties and with overlapping provisions
is primarily a matter of interpretation, aided by presumptions. Thus, it is to be presumed
that a later treaty prevails over an earlier treaty concerning the same subject matter. But a
treaty may provide expressly that it is to prevail over subsequent incompatible treaties;
Article 103 of the UN Charter provides that in the case of conflict, obligations under the
Charter prevail over obligations arising under any other international agreement. Article
351 of the Treaty on the Functioning of the European Union (TFEU) provides that pre-
existing rights and obligations shall not be affected by its provisions or those of the Treaty
on European Union (TEU), but that where incompatibilities exist, parties shall take
appropriate steps to eliminate them.79 Whether or not there is a conflict in a given case is of
course a matter of interpretation: thus, a resolution which is capable of being performed in
a manner consistent with the International Covenant on Civil and Political Rights, for
example, may be construed as not intending to override the relevant rights.80 VCLT Article
59 provides for the termination or suspension of a treaty in certain circumstances where all
parties have concluded a later treaty relating to the same subject matter.
(C) Interpretation of treaties

(i) Competence to interpret
Obviously the parties have competence to interpret a treaty, but this is subject to the
operation of other legal rules.81 The treaty itself may confer competence on the
International Court or a specialist tribunal. The UN Charter is interpreted by its organs,
which may seek advisory opinions from the Court.82
(p. 365) (ii) The ‘rules’ of interpretation
Various ‘rules’ for interpreting treaties have been put forward over the years.83 These
include the textual approach, the restrictive approach, the teleological approach, and the
effectiveness principle. Of these, only the textual approach is recognized in the VCLT:
Article 31 emphasizes that the intention of the parties as expressed in the text is the best
guide to their common intention.84 The jurisprudence of the International Court likewise
supports the textual approach.85
In a number of cases, the Permanent Court committed itself to the principle that provisions
implying a limitation of state sovereignty should receive a restrictive interpretation.86 As a
general principle of interpretation this is question-begging, and later decisions have given
less scope to it.87 However, the principle may operate in cases concerning regulation of
core territorial privileges. In these instances, it is not an ‘aid to interpretation’ but an
independent principle.
According to the teleological approach, an ambiguity in a treaty text should be resolved by
preferring the interpretation which gives effect to the object and purpose of the treaty.88
This may involve a judicial implementation of purposes in a fashion not contemplated by the
parties. The teleological approach has many pitfalls, not least its overt ‘legislative’
character.
A version of the teleological approach is often referred to under the rubric of ‘evolutive’ (or
‘progressive’) interpretation.89 It was apparently applied in Navigational Rights. There the
question was whether the phrase ‘for the purposes of commerce’ in a boundary treaty of
1858 extended to cover commercial tourism, that is, the carriage of passengers for hire.
The Court held that the term in the 1858 treaty should be interpreted to cover all modern
forms of commerce, of which tourism is one:
[W]here the parties have used generic terms in a treaty, the parties necessarily
having been aware that the meaning of the terms was likely to evolve over time, and
where the treaty has (p. 366) been entered into for a very long period or is ‘of
continuing duration’, the parties must be presumed, as a general rule, to have
intended those terms to have an evolving meaning.90
The result was evidently correct; it was relevant that the right of transit was permanent in
character, being part of the regime of the boundary. But the Court may have assumed that
the term ‘commerce’ in the mid-nineteenth century had a stereotyped meaning; in fact,
persons were carried for hire on the river at the time of the 1858 Treaty.
As to the effectiveness principle, in opinions concerning powers of UN organs, the Court
has often adopted a principle of institutional effectiveness and has implied the existence of
powers which in its view were necessary or conducive to the purposes of the Charter.91 The
European Court of Human Rights has preferred an effective and ‘evolutionary’ approach in
applying the ECHR.92 However, this approach suffers from the same defects as the principle
of restrictive interpretation. The ILC did not adopt the principle, considering that as a
matter of existing law it was reflected sufficiently in the doctrine of interpretation in good
faith in accordance with the ordinary meaning of the text.93
Care must be taken to ensure that such ‘rules’ do not become rigid and unwieldy
instruments that might force a preliminary choice of meaning rather than acting as a
flexible guide. The ILC avoided taking a doctrinaire position and instead confined itself to
isolating ‘the comparatively few general principles which appear to constitute general rules
for the interpretation of treaties’.94 Those principles appear as an economical code in VCLT
Articles 31 and 32, following exactly the ILC’s Final Draft.
(iii) The general rule: VCLT Article 31
VCLT Article 31, entitled ‘General rule of interpretation’, has been recognized by the
International Court as reflecting customary international law.95 It provides as follows:
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 connection with the conclusion of the treaty; (p. 367)
(b) any instrument which was made by one or more parties in
connection with the conclusion of the treaty and accepted by the other
parties as an instrument related to the 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.
In its Commentary the ILC emphasized that applying this ‘general rule’ would be a single
combined operation: hence the use of the singular. The various elements present in any
given case would interact.96
The first principle stated in VCLT Article 31 is that ‘a treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the terms of the treaty’. In
Polish Postal Service in Danzig, the Permanent Court observed that the postal service which
Poland was entitled by treaty to establish in Danzig was not confined to working inside the
postal building: ‘postal service’ must be interpreted ‘in its ordinary sense so as to include
the normal functions of a postal service’.97 Since then the principle of ordinary meaning has
become well established as a fundamental guide to interpreting treaties.
A corollary is the principle of integration: the meaning must emerge in the context of the
treaty as a whole (including the text, its preamble, and annexes, and any agreement or
instrument related to the treaty and drawn up in connection with its conclusion)98 and in
the light of its object and purpose.99 Another corollary is the principle of contemporaneity:
the language of the treaty must be interpreted in the light of the rules of general
international law in force at the time of its conclusion,100 and also in the light of the
contemporaneous meaning of terms.101 The doctrine of ordinary meaning involves only a
presumption: a meaning other than the ordinary meaning may be established, but the
proponent of the special meaning has a burden of proof.102 In (p. 368) complex cases, the
tribunal will be prepared to make a careful inquiry into the precise object and purpose of a
treaty.103
Article 31(3) lists further factors to be taken into account along with the context (as defined
in Art 31(2)). The parties may make an agreement regarding the interpretation of the treaty,
or the application of its provisions. Such agreements can take various forms; they need not
be formal amendments to the treaty.104
Reference may be made to ‘subsequent practice in the application of the treaty which
clearly establishes the understanding of all the parties regarding its interpretation’.105
Subsequent practice by individual parties also has some probative value.106 In a series of
important advisory opinions, the Court made considerable use of the subsequent practice of
organizations in deciding controversial issues of interpretation.107 Two points arise. The
first is that members who were outvoted in the organs concerned may not be bound by the
practice. Secondly, the practice of political organs involves elements of discretion and
opportunism: what is significant is the reasoning behind the practice which can indicate its
legal relevance, if any.108
The rule contained in Article 31(3)(c), requiring interpreters to take into account ‘any
relevant rules of international law applicable in the relations between the parties’, places
treaties within the wider context of general international law.109 In Oil Platforms, the Court
described the application of relevant rules of international law as an ‘integral part of the
task of interpretation’,110 although the majority judgment has been criticized for the
manner in which it then applied substantive customary and Charter rules on the use of
force to interpret a treaty provision about freedom of commerce.111
Article 31(3)(c) has been central to the debate around the so-called ‘fragmentation’ of
international law,112 forming the basis for arguments promoting systemic (p. 369)
integration between different, more or less specialized, areas of the law.113 In a world of
multiplying institutions with overlapping jurisdiction and choices to make between various
sources of applicable law, it is seen as increasingly important to maintain coherence.114
Treaties cannot be interpreted in isolation from the wider context, but tribunals should be
cautious about using Article 31(3)(c) as a vehicle for incorporating extraneous rules in a
manner that oversteps the boundaries of the judicial function.115
(iv) Supplementary means of interpretation: VCLT Article 32
The VCLT cautiously qualifies the textual approach by permitting recourse to further means
of interpretation in certain circumstances. VCLT Article 32 provides:
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

116
(b) leads to a result which is manifestly absurd or unreasonable.
In general, the Court has refused to resort to preparatory work if the text is sufficiently
clear in itself.117 But it has used preparatory work to confirm a conclusion reached by other
means.118 Preparatory work is an aid to be used with care, since it may detract from the
textual approach: moreover, particularly in the case of multilateral agreements, the records
of conference proceedings, treaty drafts, etc may be partial, confused, or equivocal.
Resorting to consideration of the preparatory work in cases referred to in Article 32(b) is
not the same as the teleological approach. The textual approach in practice often leaves the
decision-maker with a choice of possible meanings, and in exercising that choice it is
impossible to keep considerations of policy out of account. Issues of interpretation are by no
means narrow technical inquiries.
(p. 370) At the Vienna Conference, the US proposed an amendment to combine Articles 31
and 32, thus giving more scope to preparatory work and the circumstances in which the
treaty was concluded.119 This proposal received little support. In its Commentary the ILC
pointed out that the two articles should operate in conjunction, and would not have the
effect of drawing a rigid line between ‘supplementary’ and other means of interpretation. At
the same time, the distinction itself was justified since the elements of interpretation in the
first article all relate to the agreement between the parties ‘at the time when or after it
received authentic expression in the text’. Preparatory work did not have the same
authentic character ‘however valuable it may sometimes be in throwing light on the
expression of agreement in the text’.120
(D) Obligations and rights for third states

The maxim pacta tertiis nec nocent nec prosunt expresses the fundamental principle that a
treaty applies only between the parties.121 The VCLT refers to this as the ‘general rule’; it is
a corollary of the principle of consent and of the sovereignty and independence of states.
Article 34 provides that ‘a treaty does not create either obligations or rights for a third
State without its consent’. This falls slightly short of expressing the customary rule,
however: besides not creating obligations or rights, treaties cannot infringe the rights of
third states without their consent.122 This argument has been central to US objections to
the possibility of its nationals becoming subject to the jurisdiction of the International
Criminal Court without its consent, through the operation of Article 12(2)(a) of the Rome
Statute,123 although the equation of nationals (not state officials) with the state makes this
argument problematic.
The existence and extent of exceptions to the general rule have been controversial. The ILC
did not accept the view that treaties creating ‘objective regimes’ (e.g. the demilitarization of
a territory by treaty or a legal regime for a major waterway) had a specific place in the law
of treaties.124 VCLT Article 35 provides that ‘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’.
However, two apparent exceptions to the principle exist. First, a rule in a treaty may
become binding on non-parties if it becomes a part of customary international law.125 (p.
371) Secondly, a treaty may provide for lawful sanctions for violations of the law which are
to be imposed on an aggressor state.126 The VCLT contains a reservation in regard to any
obligation in relation to a treaty which arises 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’ (Art 75).
Article 2(6) of the Charter provides that:
The Organization shall ensure that states which are not Members of the United
Nations act in accordance with these Principles so far as may be necessary for the
maintenance of international peace and security.
Kelsen held the view that the provision created duties, and liabilities to sanctions under the
enforcement provisions of the Charter, for non-members.127 Assuming that this was the
intention of the drafters, it could only be reconciled with general principle by reference to
the status of the Principles in Article 2 as customary international law. By now the question
is largely academic, given that virtually all states are members of the UN and the Charter is
binding on them directly as parties.
More controversial is the conferral of rights on third parties, the stipulation pour autrui.
Not infrequently, treaties make provisions in favour of specified third states or for other
states generally, for example the treaties concerning certain of the major international
waterways, including, on one view, the Panama Canal.128 The problem has been to discover
when, if at all, the right conferred becomes perfect and enforceable by the third state: is the
third state required to give express or implicit assent to the creation of the right before it
will benefit, or is the right unconditional? According to the ILC, the two opposing views did
not differ substantially in their practical effects. VCLT Article 36 creates a presumption as
to the assent of the third state.
The third state may, of course, disclaim any already inhering right expressly or tacitly
through failure to exercise it. The right may not be revoked or modified by the parties if it is
established that it was intended that this could only occur with the consent of the third
state: Article 37(2).
5. Amendment and Modification of Treaties

The amendment of treaties depends on the consent of the parties, and the issue is primarily
political.129 However, the lawyer may be concerned with procedures for amendment, as a
facet of the large problem of peaceful change in international relations. Many (p. 372)
treaties, including the Charter (Arts 108, 109), provide a procedure for amendment.
International organizations have amendment procedures which in some cases show
considerable sophistication. In the League Covenant (Art 19) and, less explicitly, in the
Charter (Art 14), provision for peaceful change was made as part of a scheme to avoid
threats to the peace.
Apart from amendment, a treaty may undergo ‘modification’ when some of the parties
conclude an inter se agreement altering the application of the treaty between themselves
alone: VCLT Article 41 restricts this capacity in certain cases.
Modification may also result from the conclusion of a subsequent treaty or even the
emergence of a new peremptory norm of general international law. The ILC’s Final Draft
provided that ‘a treaty may be modified by subsequent practice in the application of the
treaty establishing the agreement of the parties to modify its provisions’.130 This was
rejected at the Vienna Conference on the ground that such a rule would create
instability.131 This result is unsatisfactory. First, Article 39 provides that a treaty may be
amended by agreement without requiring any formality for the expression of agreement.
Secondly, a consistent practice may provide cogent evidence of common consent to a
change. Thirdly, modification of this type occurs in practice. The process of interpretation
through subsequent practice is legally distinct from modification, although the distinction is
often a fine one.
6. Invalidity, Termination, and Suspension of Treaties

VCLT Part V governs invalidity, termination, and suspension of the operation of treaties.132
It sets out an exhaustive list of grounds (see Art 42(2)), although issues of justifying the
non-performance of obligations can also arise, irrespective of the validity or termination of
the source of obligation, the treaty. The topic of justification belongs to the law of state
responsibility,133 expressly reserved by VCLT Article 73.
(A) Invalidity
Generally speaking, the validity and continuance in force of a treaty and of consent to be
bound is presumed (Art 42), but various matters may give rise to issues of invalidity,
although they rarely arise in practice, and are even more rarely sustained by tribunals.
(p. 373) (i) Violations of internal law
The extent to which constitutional limitations on treaty-making power can be invoked on the
international plane is a matter of controversy.134 Historically, three main views have
received support. According to the first, constitutional limitations determine validity on the
international plane.135 Criticism of this view emphasizes the insecurity in treaty-making it
would entail. The second view varies from the first in that only ‘notorious’ constitutional
limitations are effective on the international plane. The third view is that a state is bound
irrespective of internal limitations by consent given by an agent properly authorized
according to international law. Some advocates of this view qualify the rule in cases where
the other state is aware of the failure to comply with internal law or where the irregularity
is manifest. This position, which involves a presumption of competence and excepts
manifest irregularity, was approved by the ILC in 1966.136 At the Vienna Conference, the
draft provision was made more restrictive and the result appears in VCLT Article 46. It has
never been successfully invoked before the Court.137
(ii) Defects of authority
VCLT Article 47 provides that if the authority of a representative to express the consent of
his state to be bound by a particular treaty has been made subject to a specific restriction,
omission to observe the restriction may not be invoked as a ground of invalidity unless the
restriction was previously notified to the other negotiating states.138
(iii) Error
Under VCLT Article 48, a state may invoke an error as invalidating its consent to a treaty if
the error relates 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 by
the treaty’.139 However, consistent with the previous law, Article 48(2) provides that this
does 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’.140
(p. 374) (iv) Fraud
There are few helpful precedents.141 VCLT Article 49 provides that a state which has been
induced to enter into a treaty by the fraud of another negotiating state may invoke the fraud
as invalidating its consent to be bound by the treaty. Fraudulent misrepresentation of a
material fact inducing an essential error is dealt with by the provision relating to error.
The ILC took the view that corruption of representatives was not adequately dealt with as a
case of fraud142 and an appropriate provision appears as VCLT Article 50.143
(v) Coercion
Coercion includes coercion of state representatives144 and of the state itself.145 VCLT
Article 51 provides that ‘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 legal effect’. The concept of coercion extends to blackmailing
threats and threats against the representative’s family.146
As for coercion of a state, the ILC considered that Article 2(4) of the UN Charter, together
with other developments, justified the conclusion that a treaty procured by the threat or use
of force in violation of the Charter is void. VCLT Article 52 so provides.147 An amendment
with the object of defining force to include any ‘economic or political pressure’ was
withdrawn: instead a declaration condemning such pressure appears in the Final Act of the
Conference.148
(p. 375) (vi) Conflict with a peremptory norm
VCLT Article 53 provides that a treaty is void if at the time of its conclusion it conflicts with
a peremptory norm149 of general international law (jus cogens).150 Further, a treaty
becomes void if it conflicts with a peremptory norm of general international law established
after the treaty comes into force,151 but this does not have retroactive effects. The
discussion provoked one of the ‘longest, most heated and disorganized debates’ at the
Vienna Conference.152 Views differed on whether the VCLT provisions correspond to the
existing law;153 but the answer now seems clear enough. A peremptory norm is one from
which no derogation is permitted on the part of one or a few states: the form the attempted
derogation takes must be irrelevant—and thus extends to treaties incompatible with
peremptory norms. These issues are dealt with in chapter 27.
(B) Termination and suspension
VCLT Part V section 3 deals with termination and suspension of the operation of treaties.154
A treaty may specify the conditions of its termination, and may provide for denunciation by
the parties.155 Where a treaty contains no provisions regarding its termination, the
existence of a right of denunciation depends on the intention of the parties, to be inferred
from the terms of the treaty and its subject matter. But, according to the VCLT, the
presumption is that the treaty is not subject to denunciation or withdrawal.156 At least in
certain circumstances denunciation is conditional on a reasonable period of notice. Some
important law-making treaties contain no denunciation clause. Treaties of peace are not
open to unilateral denunciation.
(p. 376) (i) War and armed conflict
Hostile relations do not automatically terminate treaties between the parties to armed
conflict.157 Many treaties, including the UN Charter, are intended to be no less binding in
the case of war, and multipartite law-making agreements such as the Geneva Conventions
of 1949 survive armed conflict or a state of war.158 However, in practice many types of
treaty are regarded as at least suspended in time of war, and war conditions may lead to
termination of treaties on grounds of impossibility or fundamental change of circumstances.
In many respects, the law on the subject is uncertain. Thus, it is not clear to what extent the
illegality of the use or threat of force has had effects on the right (where it may be said to
exist) to regard a treaty as suspended or terminated.159
In 2000, the ILC decided to study the ‘effects of armed conflicts on treaties’.160 A set of 18
draft articles with commentaries was adopted on second reading in 2011.161 The basic
premise of the text is that the ‘existence of an armed conflict does not ipso facto terminate
or suspend the operation of treaties’, whether as between the belligerents or vis-à-vis third
states (Art 3). By inference, however, a treaty may be ‘susceptible to termination,
withdrawal or suspension in the event of an armed conflict’, having regard to its subject
matter and other relevant factors, including in particular ‘the characteristics of the armed
conflict, such as its territorial extent, its scale and intensity, its duration and, in the case of
non-international armed conflict, also the degree of outside involvement’ (Art 6(b)). On the
other hand, the subject matter of some treaties ‘involves an implication that they continue
in operation, in whole or in part, during armed conflict’; an ‘indicative list’ of such treaties
is provided.162 A state is entitled to suspend ‘the operation of a treaty to which it is a Party
insofar as that operation is incompatible with the exercise of’ its right of self-defence (Art
14).
(ii) Denunciation and termination by agreement
Termination or withdrawal may take place by consent of all the parties.163 Such consent
may be implied. In particular, a treaty may be considered as terminated if all the parties
conclude a later treaty which is intended to supplant the earlier treaty or if the later treaty
is incompatible with its provisions.164 The topic of ‘desuetude’, which is probably not a term
of art, is essentially concerned with discontinuance of use of (p. 377) a treaty and its
implied termination by consent.165 However, it could extend to the distinct situation of a
unilateral renunciation of rights under a treaty. Moreover, irrespective of the agreement of
the parties, an ancient treaty may become meaningless and incapable of practical
application.
(iii) Material breach
Material breach by one party entitles the other party or parties to a treaty to invoke the
breach as the ground of termination or suspension (VCLT Art 60).166 However, considerable
uncertainty has surrounded the precise circumstances in which such right of unilateral
abrogation may be exercised, particularly in respect of multilateral treaties. In practice,
material breach has rarely been invoked. In Gabčíkovo-Nagymaros, the Court rejected
Hungary’s argument that Slovakia’s breach of a bilateral treaty entitled it to terminate
under the customary law equivalent of Article 60. Hungary was at the time itself in breach
of the treaty, and was disabled from relying on Slovakia’s subsequent breach, which it had
provoked.167 The treaty thus endured, though both parties were in breach.
It matters under Article 60 which party is trying to get rid of the treaty. In Rainbow Warrior,
the tribunal held that France had committed a material breach but this finding was of little
practical consequence, since New Zealand sought performance, not abrogation, of the
treaty.168
VCLT Article 60 addresses material breach with as much precision as can be reasonably
expected, although its formulation has attracted some criticism.169 Paragraphs 1 and 2 set
out what parties to bilateral and multilateral treaties are entitled to do in response to a
material breach by another party. Paragraph 3 defines a material breach as a repudiation of
the treaty not sanctioned by the VCLT, or the violation of a provision essential to the
accomplishment of the object or purpose of the treaty.170 The focus is on the importance of
the provision violated, not the magnitude of the breach.171 Paragraph 4 stipulates that the
first three paragraphs are without prejudice to any provision in the treaty applicable in the
event of a breach; paragraph 5 excludes the application of (p. 378) the first three
paragraphs to ‘provisions relating to the protection of the human person contained in
treaties of a humanitarian character’.
(iv) Supervening impossibility of performance
VCLT Article 61 provides that a party ‘may invoke the impossibility of performing a treaty
as a ground for terminating it if the impossibility results from the permanent disappearance
or destruction of an object indispensable for the execution of the treaty’.172 Situations
envisaged include the submergence of an island, the drying up of a river, or destruction of a
railway, by an earthquake, or other disaster. The effect of impossibility is not automatic, and
a party must invoke the ground for termination. Impossibility of performance may not be
invoked when it results from the invoking party’s own breach of an obligation flowing from
the treaty.173
(v) Fundamental change of circumstances
The principles by which fundamental change of circumstances may be invoked as a ground
for terminating or withdrawing from a treaty are expressed in VCLT Article 62.174 An
example of a fundamental change would be where a party to a military and political
alliance, involving exchange of military intelligence and information, has a change of
government incompatible with the basis of alliance. The provision reflects the doctrine of
rebus sic stantibus, which originally involved an implied term that the obligations of an
agreement would end if there had been a material change of circumstances. As in municipal
systems, so in international law it is recognized that changes frustrating the object of an
agreement, even if not amounting to actual impossibility, may justify its termination. Some
jurists dislike the doctrine, regarding it as a source of insecurity of obligations, more
especially in the absence of a system of compulsory jurisdiction. But it has been applied
very cautiously, for example in Free Zones.175 Further, the VCLT excludes boundary treaties
from the operation of the principle in order to avoid an obvious source of threats to the
peace.
In Fisheries Jurisdiction (UK v Iceland), the International Court accepted VCLT Article 62 as
a statement of customary law but decided that the dangers to Icelandic interests resulting
from new fishing techniques ‘cannot constitute a fundamental change with respect to the
lapse or subsistence’ of the jurisdictional clause in a bilateral agreement.176 In Gabčíkovo-
Nagymaros, Hungary specified profound changes of a political character, the project’s
diminishing economic viability, the progress of environmental (p. 379) knowledge, and the
development of new norms and prescriptions of international environmental law, as grounds
entitling it to invoke the fundamental change of circumstances principle. The Court recalled
its findings in Fisheries Jurisdiction and rejected the Hungarian argument, holding that:
The changed circumstances advanced by Hungary are, in the Court’s view, not of
such a nature, either individually or collectively, that their effect would radically
transform the extent of the obligations still to be performed in order to accomplish
the Project. A fundamental change of circumstances must have been unforeseen;
the existence of the circumstances at the time of the Treaty’s conclusion must have
constituted an essential basis of the consent of the parties to be bound by the
Treaty.177
Referring to Article 62, the Court concluded that ‘the stability of treaty relations requires
that the plea of fundamental change of circumstances be applied only in exceptional
cases’.178
In contrast, the CJEU applied a relaxed interpretation of the doctrine to uphold the
suspension of the EC–Yugoslavia Cooperation Agreement in Racke v Hauptzollamt Mainz.179
It conceded that the Commission could have continued to grant tariff concessions after the
outbreak of hostilities, but noted that impossibility of performance was not required and
that there was ‘no point’ in continuing to grant preferences in circumstances where
Yugoslavia was breaking up.180
Treaties may also be affected when one state succeeds wholly or in part to the legal
personality and territory of another. The conditions under which the treaties of the latter
survive depend on many factors, including the precise form and origin of the ‘succession’
and the type of treaty concerned.181
(C) Procedure and consequences

The consequences of invalidity, termination, and suspension will depend on the grounds
relied upon.182 Certain grounds of invalidity must be invoked by the relevant party183 and
so the treaties concerned are not void but voidable. These grounds are: incompetence
under internal law, excess of authority of the state’s representative, error, fraud, and
(probably) corruption. The same is true of certain grounds of termination—material breach,
impossibility, and fundamental change of circumstances. On the other hand, a treaty is void
in the case of coercion of a state (invalidity), and conflict (p. 380) with an existing or
emergent peremptory norm (invalidity or termination). Consent to be bound by a treaty
procured by coercion of the representative of a state ‘shall be without any legal effect’ (Art
51, invalidity). The rules governing separability of treaty provisions (Art 44), that is, the
severance of particular clauses affected by grounds for invalidating or terminating a treaty,
do not apply to the cases of coercion of a representative, coercion of a state, or conflict with
an existing peremptory norm.184 Articles 69–72 deal with the consequences of invalidity,
termination, or suspension.185
7. Conclusion
Treaties are often presented or perceived as fragile flowers, liable to wilt in the heat, and a
reader of the law of treaties might suppose that it is dominated by disputes over such
matters as invalidity, illegality, and unilateral termination. A more careful look, however,
reveals a high measure of stability, with difficulties addressed more through interpretation
than these more drastic concepts. So much so that the greater risk is stagnation, difficulty
of amendment, and a certain inflexibility of treaties once concluded, notably but not only
multilateral treaties.
A second feature is the ubiquity of treaties, even if the era of the great multilateral treaties
is for the time being past. Few arenas of human conflict and collaboration, or of the
interaction of humans with the environment, lack their specific treaty regime with its
penumbra of practice. It says much for the achievement of the 1969 VCLT that it has
continued to be a useful vehicle for the many interpretative and other issues this treaty
barrage continues to generate.
Footnotes:
1
Harvard Research (1935) 29 AJIL Supp; McNair, The Law of Treaties (1961); Jennings
(1967) 121 Hague Recueil 527; Sinclair, The Vienna Convention on the Law of Treaties (2nd
edn, 1984); Rosenne, Developments in the Law of Treaties, 1945–1986 (1989); Thirlway
(1991) 62 BY 2; Thirlway (1992) 63 BY 1; Reuter, Introduction to the Law of Treaties (2nd
edn, 1995); Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties
(2009); Villiger (2009) 344 Hague Recueil 9; Corten & Klein (eds), The Vienna Conventions
on the Law of Treaties (2011); Hollis (ed), The Oxford Guide to Treaties (2012); Aust,
Modern Treaty Law and Practice (3rd edn, 2013); Tams, Tzanakopoulos, & Zimmermann
(eds), Research Handbook on the Law of Treaties (2014); Dörr & Schmalenbach (eds),
Vienna Convention on the Law of Treaties (2nd edn, 2018).
2
In addition to its work on interstate treaties, the ILC produced draft articles on treaties of
international organizations, which became VCLT II, 21 March 1986, 25 ILM 543 (not yet in
force, requiring still three states to ratify or accede; 12 international organizations
including the UN are parties). In 2011, it completed an enormous Guide to Practice on
Reservations to Treaties: A/CN.4/L.779, 19 May 2011. It adopted a first draft of Conclusions
on subsequent agreements and practice in 2016: ILC Ybk 2016/II(1), ch VI. It is also
working on the provisional application of treaties: ibid, ch XII.
3
The principal items are: Reports by Brierly, ILC Ybk 1950/II, 222; ILC Ybk 1951/II, 1; ILC
Ybk 1952/II, 50; Lauterpacht, ILC Ybk 1953/II, 90; ILC Ybk 1954/II, 123; Fitzmaurice, ILC
Ybk 1956/II, 104; ILC Ybk 1957/II, 16; ILC Ybk 1958/II, 20; ILC Ybk 1960/II, 69; Waldock,
ILC Ybk 1962/II, 27; ILC Ybk 1963/II, 36; ILC Ybk 1964/II, 4; ILC Ybk 1965/II, 3; ILC Ybk
1966/II, 1; ILC Final Report, ILC Ybk 1966/II, 172; proceedings of the Vienna Conference,
A/CONF.39/11 and Adds 1–2.
4
22 May 1969, 1155 UNTS 331. See Kearney & Dalton (1970) 64 AJIL 495.
5
Villiger (2009) 24–7.
6
Under Art 4, the VCLT only applies to treaties concluded between states all of which at
that time were already parties to it. Since only 116 states are parties, this means in effect
that the VCLT does not apply as such to most multilateral treaties. In practice, it is applied
as customary international law in any event.
7
Namibia, ICJ Reports 1971 p 16, 47. Also: Jurisdiction of the ICAO Council (India v
Pakistan), ICJ Reports 1972 p 46, 67; Fisheries Jurisdiction (UK v Iceland), Jurisdiction, ICJ
Reports 1973 p 3, 18; Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia), ICJ Reports
2002 p 625, 645–6.
8
E.g. Kadi & Al Barakaat International Foundation v Council & Commission [2008] ECR
I-6351, [291]. Further: Verwey, The European Community and the European Union and the
International Law of Treaties (2004).
9
E.g. US—Gasoline, WTO Doc WT/DS2/AB/R, 29 April 1996, 16–17; US—Gambling, WTO
Doc WT/DS285/AB/R, 7 April 2005, 51; US—Clove Cigarettes, WTO Doc WT/DS406/AB/R, 4
April 2012, 89; Responsibilities and Obligations of States Sponsoring Persons and Entities
with Respect to Activities in the Area (2011) 150 ILR 244, 263–4. Further: van Damme,
Treaty Interpretation by the WTO Appellate Body (2009).
10
A/CONF.39/11, Add 1, 206–7 (79–1 (France): 19).
11
Gaja (1987) 58 BY 253; Zemanek in Hafner et al (eds), Liber Amicorum Ignaz Seidl-
Hohenveldern (1998) 843; Menon, Law of Treaties between States and International
Organizations (1992); Footer in Orakhelashvili & Williams (eds), 40 Years of the Vienna
Convention on the Law of Treaties (2010) 183; Tomuschat in Cannizzaro (ed), The Law of
Treaties Beyond the Vienna Convention (2011) 206.
12
Vienna Convention on Succession of States in Respect of Treaties, 22 August 1978, 1946
UNTS 3; also chapter 19.
13
A/RES/59/41, 16 December 2004.
14
ILC Ybk 1962/II, 161.
15
On the concept of a treaty: Widdows (1979) 50 BY 117; Thirlway (1991) 62 BY 1, 4–15;
Klabbers, The Concept of Treaty in International Law (1996); Fitzmaurice (2002) 73 BY 141;
Hollis in Hollis (2012) 11, 19–28.
16
The conclusion of treaties in simplified form is increasingly common. Many treaties are
made by an exchange of notes, the adoption of agreed minutes, etc. See ILC Ybk 1966/II,
188; Villiger, Commentary (2009) 181; Corten & Klein (2011) 259–64; Aust (3rd edn, 2013)
94. Also: Aegean Sea Continental Shelf (Greece v Turkey), ICJ Reports 1978 p 3, 38–44;
Military and Paramilitary Activities, ICJ Reports 1986 p 14, 130–2; Qatar v Bahrain,
Jurisdiction and Admissibility, ICJ Reports 1994 p 112, 120–2.
17
E.g. Navigational Rights (Costa Rica v Nicaragua), ICJ Reports 2009 p 213, 234–5.
18
See Mann (1957) 33 BY 20; Mann (1959) 35 BY 34; Fitzmaurice (2002) 73 BY 141, 168;
cf Diverted Cargoes (1955) 12 RIAA 53, 70.
19
McNair (1961) 739–54. On the special role of multilateral treaties: Lachs (1957) 92
Hague Recueil 229, 233–41; Crawford (2006) 319 Hague Recueil 325, 349–420.
20
McNair (1961) 743–9.
21
VCLT, Art 62(2) (fundamental change of circumstances rule inapplicable to boundary
treaties).
22
ILC Ybk 1966/II, 219.
23
Gardiner, Treaty Interpretation (2nd edn, 2015) 161–2.
24
For the history: Lauterpacht, Private Law Sources and Analogies of International Law
(1927) 156–9.
25
ILC Ybk 1962/II, 161.
26
Draft Articles, I, ILC Ybk 1962/II, 167–9 (Art 8); Waldock (1962) 106 Hague Recueil 1,
53–8.
27
ILC Ybk 1966/II, 200; A/CONF.39.11, Add 1, 182–5. Also: Lukashuk (1972) 135 Hague
Recueil 231.
28
Temple of Preah Vihear (Cambodia v Thailand), Preliminary Objections, ICJ Reports
1961 p 17, 31–2.
29
Qatar v Bahrain, Jurisdiction and Admissibility, ICJ Reports 1994 p 112, 120–2; Aust (3rd
edn, 2013) 14–27.
30
ILC Ybk 1966/II, 190–1 (Art 3).
31
Thirlway (1991) 63 BY 1, 18–19; Aust (3rd edn, 2013) 28–54.
32
Somalia v Kenya, Preliminary Objections, ICJ Reports 2017 p 3, 21–2. And see Aust (3rd
edn, 2013) 14–27, esp 20–3.
33
VCLT, Arts 7–11; Waldock, ILC Ybk 1962/II, 38ff; ILC Ybk 1966/II, 189, 193–7; Watts
(1994) 247 Hague Recueil 10, 19; Sabel, Procedure at International Conferences (2nd edn,
2006) 58–67; Korontzis in Hollis (2012) 177, 184–6, 191–4; Bradley, ibid, 208. Further: DRC
v Rwanda, Jurisdiction and Admissibility, ICJ Reports 2006 p 6, 27–9.
34
Heads of state, heads of government, and foreign ministers are not required to furnish
evidence of their authority: VCLT, Art 7(2). Further: Aust (3rd edn, 2013) 71–8.
35
ICJ Reports 2002 p 303, 430.
36
Bosnian Genocide, Preliminary Objections, ICJ Reports 1996 p 595, 661–2. See also
Somalia v Kenya, Preliminary Objections, ICJ Reports 2017 p 3, 21–3.
37
VCLT, Art 10; Korontzis in Hollis (2012) 177, 188–9, 194–7. On adoption: ibid, 186–8.
38
ILC Ybk 1962/II, 171. But cf Lauterpacht, ILC Ybk 1953/II, 108–12; Fitzmaurice, ILC Ybk
1956/II, 112–13, 121–2. Also: Rosenne (2000) 4 EPIL 932; Kolb (2004) 51 NILR 185; Villiger,
Commentary (2009) 181–228; Corten & Klein (2011) 243; Bradley in Hollis (2012) 208, 212–
6; Aust (3rd edn, 2013) 87–94.
39
VCLT, Art 18; Certain German Interests in Polish Upper Silesia (1926) PCIJ Ser A No 7,
30; Palchetti in Cannizzaro (2011) 25; Aust (3rd edn, 2013) 106–10; Dörr in Dörr &
Schmalenbach (2018) 244–5. Note Art 18(a): if a state that has signed a treaty makes it
clear that it does not intend to ratify it, it is released from any obligations under Art 18 and
its signature has no legal effect. The US relied on this to ‘unsign’ the ICC Statute (17 July
1998, 2187 UNTS 3) in May 2002, by lodging a note with the UN to the effect that it did not
intend to become a party: Swaine (2003) 55 Stanford LR 2061; Bradley in Hollis (2012) 208,
216–18. The Russian Federation did the same in 2016.
40
Villiger (2009) 349–58; Corten & Klein (2011) 639–54; Dalton in Hollis (2012) 220, 226–
46; Mertsch, Provisionally Applied Treaties (2012); Krieger in Dörr & Schmalenbach (2018)
441.
41
Energy Charter Treaty, Lisbon, 17 December 1994, 2080 UNTS 95, Art 45. See
Kardassopoulos v Georgia, ICSID ARB/05/18, 3 March 2010; Yukos v Russian Federation,
PCA, 18 July 2014. The Yukos award was set aside by the Hague District Court on 20 April
2016 on the ground that the Russian Constitution did not allow irrevocable consent to
jurisdiction before ratification. The decision is under appeal.
42
A/72/10, ch V (2017), esp Guideline 7.
43
VCLT, Art 14; for other means of expressing consent to be bound: VCLT, Arts 11–17.
44
Cameroon v Nigeria, ICJ Reports 2002 p 303, 429–30; Somalia v Kenya, Preliminary
Objections, ICJ Reports p 3, 22–3.
45
Draft Articles, I, ILC Ybk 1962/II, 161, 171–3; Waldock, ILC Ybk 1962/II, 48–53. Also:
ILC Final Report, ILC Ybk 1966/II, 187–9, 195–9, 201.
46
Korontzis in Hollis (2012) 177, 199–201; Hoffmeister in Dörr & Schmalenbach (2018)
217–36.
47
McNair (1961) 153–5.
48
VCLT, Art 24(2). The International Court has described Art 24 as declaratory of the
general rule: Cameroon v Nigeria, Preliminary Objections, ICJ Reports 1998 p 275, 293–4;
Right of Passage over Indian Territory (Portugal v India), Preliminary Objections, ICJ
Reports 1957 p 125, 145–7. Also: Korontzis in Hollis (2012) 177, 201–5.
49
VCLT, Arts 76–7; Rosenne (1967) 61 AJIL 923; Rosenne (1970) 64 AJIL 838; Hinojal-
Oyarbide & Rosenboom in Hollis (2012) 248, 250–66.
50
The first of Wilson’s Fourteen Points Address, delivered at a joint session of Congress on
8 January 1918, called for ‘open covenants of peace, openly arrived at’: US Department of
State, Papers Relating to the Foreign Relations of the United States 1918—Supplement 1,
The World War (1933) 12, 15; Schwietzke, ‘Fourteen Points of Wilson (1918)’ (2007)
MPEPIL: Donaldson (2017) 111 AJIL 575.
51
If an agreement is between international legal persons it is registrable even if governed
by a particular municipal law; cf Higgins (1963) 329.
52
But see Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v
Nicaragua), Judgment, 2 February 2018, declaration of Judge Simma.
53
VCLT, Arts 19–23; further: Lauterpacht, ILC Ybk 1953/II, 123–36; Fitzmaurice (1953) 2
ICLQ 1; McNair (1961) ch 4; Draft Articles, I, ILC Ybk 1962/II, 161, 163, 175–82 (Arts 1(1)
(f), 18–22); Waldock, ILC Ybk 1966/II, 27, 60–8; ILC Final Report, ILC Ybk 1966/II, 189–90,
202–9 (Arts 2(1)(d), 16–20); Bowett (1976–7) 48 BY 67; Sinclair (2nd edn, 1984) 51–82;
Greig (1995) 16 AYIL 21; Villiger (2009) 344 Hague Recueil 9, 77–112; Pellet & Müller in
Cannizzaro (2011) 37; Corten & Klein (2011) 405–627; Swaine in Hollis (2012) 277; Walter
in Dörr & Schmalenbach (2018) 263–420. Further: reports of the Special Rapporteur on
Reservations to Treaties (Pellet) e.g. A/CN.4/647, 26 May 2011; ILC Ybk 2011/II(2), ch IV.
54
E.g. the Swiss declaration regarding the European Convention on Human Rights
(ECHR), 4 November 1950, ETS 5, Art 6(1): Belilos v Switzerland (1988) 88 ILR 635, 636.
On the difficulty in some cases of distinguishing interpretative declarations from
reservations: ibid, 663–6.
55
On this contractual conception of treaties, a reservation would constitute a counter-offer
requiring a new acceptance, failing which the state making the counter-offer would not
become a party to the treaty. See Reservations to the Genocide Convention, ICJ Reports
1951 p 15, 21, 24.
56
Ibid, 29.
57
ILC Ybk 1951/II, 128–31.
58
GA Res 598(VI), 12 January 1952.
59
GA Res 1452A(XIV), 7 December 1959.
60
ILC Ybk 1962/II, 175–81.
61
Special provisions concerning the making of reservations may present problems of
interpretation. See UK–French Continental Shelf (1977) 54 ILR 6, 41–57; Bowett (1976–7)
48 BY 67.
62
Waldock, ILC Ybk 1962/II, 65–6; ILC Ybk 1966/II, 205; Sinclair (1970) 19 ICLQ 53;
McCall-Smith (2014) 16 Int Comm LR 263, 268–70. Further: Milanovic & Sicilianos (2013)
24 EJIL 1055, 1056–7.
63
E.g. Bowett (1976–77) 48 BY 67, 70–5; Redgwell (1993) 64 BY 245.
64
See Ziemele & Leide (2013) 24 EJIL 1135, 1138–44; McCall-Smith (2014) 63 ICLQ 599,
611–22.
65
Belilos v Switzerland (1988) 88 ILR 635. Further: Cameron & Horn (1990) 33 GYIL 69;
Marks (1990) 39 ICLQ 300.
66
Loizidou v Turkey, Preliminary Objections (1995) 103 ILR 622. For a similar approach
under the Inter-American system: Radilla-Pacheco v Mexico, IACtHR C/209, 23 November
2009, §§299–312.
67
Centre for Civil and Political Rights (CCPR), General Comment 24 (1994) CCPR/C/21/
Rev.1/Add.6. The UK government was critical: (1995) 66 BY 655. Also: Hampson, E/CN.4/
Sub.2/1999/28, 28 June 1999; Simma in Hafner et al (1998) 659; Helfer (2002) 102 Col LR
1832. Further: Armed Activities (2002 Application) (DRC v Rwanda), Jurisdiction and
Admissibility, ICJ Reports 2006 p 6, 69–70 (Judges Higgins, Kooijmans, Elaraby, Owada, and
Simma, sep op).
68
ILC Report, ILC Ybk 2011/II(2), ch IV. Further: Milanovic & Sicilianos (2013) 24 EJIL
1055; Pellet (2013) 24 EJIL 1061; Wood (2013) 24 EJIL 1099; McCall-Smith (2014) 16 Int
Comm LR 263.
69
Commentary to Guideline 4.5.2.
70
Guideline 4.5.3, para 2.
71
Guideline 4.5.3, para 1.
72
Commentary to Guideline 4.5.3.
73
VCLT, Art 42. Also: ILC Ybk 1963/II, 189–90; ILC Final Report, ILC Ybk 1966/II, 236–7.
74
VCLT, Art 26; ILC Final Report, ILC Ybk 1966/II, 210–11; Villiger, Commentary (2009)
361–8; Corten & Klein (2011) 659–87; Schmalenbach in Dörr & Schmalenbach (2018) 467.
75
VLCT, Art 27; Villiger, Commentary (2009) 369–75; Corten & Klein (2011) 688–717;
Schmalenbach in Dörr & Schmalenbach (2018) 493.
76
VCLT, Art 28; Villiger, Commentary (2009) 379–86; Corten & Klein (2011) 718–30; von
der Decken in Dörr & Schmalenbach (2018) 507.
77
VCLT, Art 29; Villiger, Commentary (2009) 387–94; Corten & Klein (2011) 731–63;
Karagiannis in Hollis (2012) 305, 305–9, 317–24.
78
Generally: ILC Ybk 1964/II, 185–92; ILC Final Report, ILC Ybk 1966/II, 214–17; Jenks
(1953) 30 BY 401; Sciso (1987) 38 ÖZföR 161; Binder, Treaty Conflict and Political
Contradiction (1988); Kohen (2000) 106 RGDIP 577; Sadat-Akhavi, Methods of Resolving
Conflicts between Treaties (2003); Villiger, Commentary (2009) 395–411; Klabbers in
Cannizzaro (2011) 192. Further: Ranganathan, Strategically Created Treaty Conflicts and
the Politics of International Law (2014).
79
TFEU [2016] OJ C 202/47. A recurring issue is whether intra-EU bilateral investment
treaties (BITs) have been superseded by the Treaty of Lisbon: e.g. Micula v Romania, ICSID
Case ARB/05/20, 11 December 2013; Decision on Annulment, 26 February 2016. See now
Case C-284/16 Achmea v Slovak Republic, ECLI:EU:C:2018:158, where the CJEU held that
they have been.
80
Al Jedda v UK (2011) 147 ILR 107, 174–6.
81
McNair (1961) chs 20–9; Fitzmaurice (1971) 65 AJIL 358; Thirlway (1991) 62 BY 1, 16–
75; Thirlway (2007) 77 BY 1; Berman (2004) 29 Yale JIL 315; Kolb, Interprétation et
creation du droit international (2006); Orakhelashvili, The Interpretation of Acts and Rules
in Public International Law (2008); Villiger (2009) 344 Hague Recueil 9, 113–34; van
Damme (2009); Villiger in Cannizzaro (2011) 105; Corten & Klein (2011) 804–86; Gardiner
in Hollis (2012) 475; Alland (2013) 362 Hague Recueil 41, 130–222; Waibel in Tams,
Tzanakopoulos, & Zimmermann (2014) 375; Linderfalk (2015) 26 EJIL 169; de Brabandere
& van Damme in Mitchell, Sornarajah, & Voon (eds), Good Faith and International Economic
Law (2015) 37; Bianchi, Peat, & Windsor (eds), Interpretation in International Law (2015);
Gardiner (2nd edn, 2015); Dörr in Dörr & Schmalenbach (2018) 559–651.
82
Certain Expenses of the United Nations, ICJ Reports 1962 p 151, 163.
83
Fitzmaurice (1951) 28 BY 1.
84
On interpretation of treaties authenticated in two or more languages: Art 33; James
Buchanan and Co Ltd v Babco (UK) Ltd [1977] AC 141; Young Loan (1980) 59 ILR 494;
LaGrand (Germany v US), ICJ Reports 2001 p 466, 502. Also Korontzis in Hollis (2012) 177,
189–91.
85
‘If the relevant words in their natural and ordinary meaning make sense in their context,
that is an end of the matter’: Admission of a State to the United Nations, ICJ Reports 1950 p
4, 8. Also: Territorial Dispute (Libya v Chad), ICJ Reports 1994 p 6, 21–2; Qatar v Bahrain,
Jurisdiction and Admissibility, ICJ Reports 1995 p 6, 18; Pulau Ligitan/Sipadan, ICJ Reports
2002 p 625, 645; Bosnian Genocide, ICJ Reports 2007 p 43, 109–10. Further: Fitzmaurice
(1957) 33 BY 203, 203–38; Thirlway (1991) 62 BY 1, 18–37; Gardiner (2nd edn, 2015) 14–
17.
86
E.g. Territorial Jurisdiction of the International Commission of the River Oder (1929)
PCIJ Ser A No 23, 261. On restrictive interpretation generally: Lauterpacht (1949) 26 BY
48; Crook (1989) 83 AJIL 278, 304–7; Orakhelashvili (2003) 14 EJIL 529; Crema (2010) 21
EJIL 681.
87
E.g. Navigational Rights, ICJ Reports 2009 p 213, 237–8.
88
Generally: Waldock, Mélanges offerts à Paul Reuter: le droit international, unité et
diversité (1981) 535; Klabbers (2001) 34 Vand JTL 283; Jonas & Saunders (2010) 43 Vand
JTL 565, 581.
89
On evolutive interpretation: Alland (2013) 362 Hague Recueil 41, 207–15; Bjorge, The
Evolutionary Interpretation of Treaties (2014); Merkouris (2014) 45 NYIL 121; McKeever
(2015) 64 ICLQ 405, 406–9; Djeffal, Static and Evolutive Treaty Interpretation (2015);
Bjorge in Bianchi, Peat, & Windsor (2015) 189.
90
ICJ Reports 2009 p 213, 343.
91
International Status of South West Africa, ICJ Reports 1950 p 128; South West Africa,
Preliminary Objections, ICJ Reports 1962 p 319; Namibia, ICJ Reports 1971 p 16, 47–50.
Also: Certain Expenses, ICJ Reports 1962 p 151, 198–215 (Judge Fitzmaurice).
92
See Golder v UK (1975) 57 ILR 200, 245–6. Also: Letsas, A Theory of Interpretation of
the European Convention on Human Rights (2nd edn, 2009); Dothan (2014) 3 CJICL 508.
93
ILC Ybk 1966/II, 219.
94
Ibid, 218–19.
95
E.g. Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), ICJ Reports 1991 p 53,
70; Pulau Ligitan/Sipadan, ICJ Reports 2002 p 625, 645; Avena (Mexico v US), ICJ Reports
2004 p 12, 48; Bosnian Genocide, Preliminary Objections, ICJ Reports 2007 p 43, 109–10;
Maritime Dispute (Peru v Chile), ICJ Reports 2014 p 3, 28; Croatia v Serbia, ICJ Reports
2015 p 3, 64.
96
Cf Somalia v Kenya, Preliminary Objections, ICJ Reports p 3, 30: ‘These elements of
interpretation—ordinary meaning, context and object and purpose—are to be considered as
a whole.’
97
(1925) PCIJ Ser B No 11, 37.
98
VCLT, Art 31(2); further: Conditions of the Labour of Persons Employed in Agriculture
(1922) PCIJ Ser B Nos 2 and 3, 23; Free Zones (1932) Ser A/B No 46, 140; South West
Africa, Preliminary Objections, ICJ Reports 1962 p 319, 335; Young Loan (1980) 59 ILR 494,
534–40, 556–8; Arbitral Award of 31 July 1989, ICJ Reports 1991 p 53. Also: Bernhardt
(1967) 27 ZaöRV 491, 498; Gardiner (2nd edn, 2015) 184–5.
99
US Nationals in Morocco, ICJ Reports 1952 p 176, 183–4, 197–8; Pulau Ligitan/Sipadan,
ICJ Reports 2002 p 625, 645–6, 651–3; Obligation to Prosecute or Extradite (Belgium v
Senegal), ICJ Reports 2012 p 442, 449, 454, 460; Whaling in the Antarctic (Australia v
Japan: New Zealand Intervening), ICJ Reports 2014 p 226, 250–2, 294. See also Linderfalk
(2007) 205.
100
Grisbadarna (Norway v Sweden) (1909) 11 RIAA 159; Namibia, ICJ Reports 1971 p 16,
31.
101
US Nationals in Morocco, ICJ Reports 1952 p 176, 189.
102
For critical comment on the concept of ‘plain meaning’: Lauterpacht, Development
(1958) 52–60.
103
Gabčíkovo-Nagymaros Project (Hungary v Slovakia), ICJ Reports 1997 p 7, 35–46.
104
Aust (3rd edn, 2013) 212–14.
105
ILC Ybk 1966/II, 221; Air Transport Services Agreement (US v France) (1964) 38 ILR
182, 245–8, 256–8; Young Loan (1980) 59 ILR 494, 541–3; ibid, 573–4 (Robinson, Bathurst,
& Monguilan, diss). Also: Fitzmaurice (1951) 28 BY 1, 20–1; Fitzmaurice (1957) 33 BY 203,
223–5 (commending subsequent practice for its ‘superior reliability’ as an indication of
meaning); Villiger, Commentary (2009) 431–2; Aust (3rd edn, 2013) 214–16; Nolte (ed),
Treaties and Subsequent Practice (2013); ILC Report 2013, A/68/10, 12–48; ILC Report
2014, A/69/10, 170–217; ILC Report 2015, A/70/10, 86–103, esp 89–103; ILC Report 2016,
A/71/10, ch VI.
106
E.g Eritrea-Ethiopia Boundary Delimitation (2002) 130 ILR 1, 34–42, 66–74, 87–104,
110–13; cf Whaling in the Antarctic, ICJ Reports 2014 p 226, 257.
107
Admissions, ICJ Reports 1950 p 4, 9; Constitution of the IMCO Maritime Safety
Committee, ICJ Reports 1960 p 150, 167–71; Certain Expenses, ICJ Reports 1962 p 151.
108
Certain Expenses, ICJ Reports 1962 p 151, 187 (Judge Spender); 201–3 (Judge
Fitzmaurice); Namibia, ICJ Reports 1971 p 16, 52–3.
109
Aust (3rd edn, 2013) 216–17.
110
Oil Platforms (Iran v US), ICJ Reports 2003 p 161, 182–3.
111
In her separate opinion, Judge Higgins accused the majority of invoking the concept of
treaty interpretation to displace the applicable law, with the result that the text of the treaty
itself was ignored: ibid, 237–8 (Judge Higgins).
112
On fragmentation: e.g. Simma (2004) 25 Mich JIL 845; Pauwelyn (2004) 25 Mich JIL
903; Fragmentation of International Law: Difficulties Arising From the Diversification and
Expansion of International Law, Report of the Study Group of the ILC, ILC Ybk 2006/II(2)
176–84; Buffard in Buffard et al (eds), International Law between Universalism and
Fragmentation (2008) 13; Borgen in Hollis (2012) 448; Crawford, Chance, Order, Change
(2014) 275–309; Greenwood in Andenas & Bjørge (eds), A Farewell to Fragmentation (2015)
37.
113
McLachlan (2005) 54 ICLQ 279; Merkouris, Article 31(3)(c) VCLT and the Principle of
Systemic Integration (2015).
114
E.g. Dupuy (2002) 297 Hague Recueil 9; Pauwelyn, Conflict of Norms in Public
International Law (2003); Simma & Pulkoswki (2006) 17 EJIL 483; Higgins (2006) 55 ICLQ
791; Vanneste, General International Law before Human Rights Courts (2010); van Aaken &
Motoc (eds), The European Convention on Human Rights and General International Law
(2018).
115
French (2006) 55 ICLQ 281.
116
ILC Ybk 1966/II, 222–3. See also Bosnian Genocide, Preliminary Objections, ICJ Reports
2007 p 43, 109–10.
117
Admission of a State to Membership in the United Nations, ICJ Reports 1948 p 57, 63;
Competence of the General Assembly, ICJ Reports 1950 p 4, 8; and see Fitzmaurice (1951)
28 BY 1, 10–13; (1957) 33 BY 203, 215–20.
118
See Employment of Women during the Night (1932) PCIJ Ser A/B No 50, 380; Libya v
Chad, ICJ Reports 1994 p 6, 27–8; Peru v Chile, ICJ Reports 2014 p 3, 30–1; Croatia v
Serbia, ICJ Reports 2015 p 3, 69–70; Somalia v Kenya, Preliminary Objections, ICJ Reports
2017 p 3, 41–3. See also Banković v Belgium (2001) 123 ILR 94, 110–11.
119
A/CONF/39/11, 167–8 (McDougal).
120
ILC Ybk 1966/II, 219–20.
121
VCLT, Arts 34–8; ILC Ybk 1964/II, 180–5; ILC Final Report, ILC Ybk 1966/II, 226–31;
Lauterpacht, Development (1958) 306–13; Chinkin, Third Parties in International Law
(1993) 25–114; Tomuschat (1993) 241 Hague Recueil 195; Villiger, Commentary (2009)
465–504; Corten & Klein (2011) 887–960; Bederman in Hollis (2012) 328, 328–46, esp 336–
41; Proelss in Tams, Tzanakopoulos, & Zimmermann (2014) 222; Proelss in Dörr &
Schmalenbach (2018) 655–754.
122
See O’Keefe (2010) Cam RIA 1, 9.
123
ICC Statute, 17 July 1998, 2187 UNTS 3 (currently 123 parties). For analysis of US
arguments about the ‘third-party effect’ of the ICC Statute, see O’Keefe (2010) 23 Cam RIA
1.
124
See McNair (1961) 310. Cf Vienna Convention on Succession of States in Respect of
Treaties, 22 August 1978, 1946 UNTS 3, Arts 11, 12; Gabčíkovo-Nagymaros, ICJ Reports
1997 p 7, 70–3; Klabbers (1998) 11 LJIL 345, 352–5.
125
VCLT, Art 38; ILC Final Report, ILC Ybk 1966/II, 230–1.
126
ILC Ybk 1966/II, 227.
127
The Law of the United Nations (1951) 106–10; cf Bindschedler (1963) 108 Hague
Recueil 307, 403–7. Also: McNair (1961) 216–18.
128
Ibid, 265–8. On international waterways see: chapter 14.
129
VCLT, Arts 39–41; ILC Ybk 1964/II, 193–9; ILC Final Report, ILC Ybk 1966/II, 231–6;
Hoyt, The Unanimity Rule in the Revision of Treaties (1959); Zacklin, Amendment of the
Constitutive Instruments of the United Nations and Specialized Agencies (1968, repr 2005);
Kontou, Termination and Revision of Treaties in Light of New Customary International Law
(1994); Villiger, Commentary (2009) 507–38; Corten & Klein (2011) 961–1011; Brunnée in
Hollis (2012) 347; von der Decken in Dörr & Schmalenbach (2018) 757–86.
130
ILC Ybk 1966/II, 236 (Art 38).
131
A/CONF.39/11, 207–15. Also: Kearney & Dalton (1970) 64 AJIL 495, 525.
132
McNair (1961) chs 30–5; Haraszti, Some Fundamental Problems of the Law of Treaties
(1973) 229–425; Thirlway (1992) 63 BY 63; Villiger, Commentary (2009) 541–798; Corten &
Klein (2011) 1015–642; Klabbers in Hollis (2012) 551; Aust (3rd edn, 2013) 273–82;
Rensmann in Dörr & Schmalenbach (2018) 837–935; Schmalenbach in Dörr &
Schmalenbach (2018) 937–1012, 1201–8; Giegerich in Dörr & Schmalenbach (2018) 1015–
199.
133
On the relationship between the law of treaties and the law of state responsibility
generally: Dupuy (1997) 43 AFDI 7; Crawford & Olleson (2000) 21 AYIL 55; Simma &
Pulkowski (2006) 17 EJIL 483; Verhoeven in Crawford, Pellet, & Olleson (eds), The Law of
International Responsibility (2010) 105; Krieger in Dörr & Schmalenbach (2018) 1331–65.
134
See de Visscher, De la conclusion des traités internationaux (1943) 219–87;
Lauterpacht, ILC Ybk 1953/II, 141–6; McNair (1961) ch 3; Waldock, ILC Ybk 1963/II, 41–6;
ILC Ybk 1963/II, 190–3; ILC Final Report, ILC Ybk 1966/II, 240–2; de Visscher (1972) 136
Hague Recueil 1, 94–8; Meron (1978) 49 BY 175; Villiger, Commentary (2009) 583–94;
Rensmann in Dörr & Schmalenbach (2018) 837.
135
This was the position of the ILC in 1951: ILC Ybk 1951/II, 73.
136
ILC Ybk 1966/II, 240–2.
137
See Cameroon v Nigeria, ICJ Reports 2002 p 303, 430; Somalia v Kenya, Preliminary
Objections, ICJ Reports 2017 p 3, 23–4.
138
See ILC Ybk 1963/II, 193; Waldock, ILC Ybk 1963/II, 46–7; ILC Final Report, ILC Ybk
1966/II, 242–3; Villiger, Commentary (2009) 595–602. Further: Phillips Petroleum Co, Iran v
Iran, National Iranian Oil Co (1982) 70 ILR 483, 486; Amoco Iran Oil Co v Iran (1982) 70
ILR 490, 492.
139
ILC Ybk 1966/II, 243–4, and see Lauterpacht, ILC Ybk 1953/II, 153; Fitzmaurice (1953)
2 ICLQ 25, 35–7; Waldock, ILC Ybk 1963/II, 48–50; Oraison, L’Erreur dans les traités (1972);
Thirlway (1992) 63 BY 1, 22–8; Villiger, Commentary (2009) 603–12; Rensmann in Dörr &
Schmalenbach (2018) 879.
140
Temple, ICJ Reports 1962 p 6, 26–7; ibid, 57–9 (Judge Fitzmaurice).
141
Lauterpacht, ILC Ybk 1953/II, 152; Fitzmaurice, ILC Ybk 1958/II, 25, 37; Waldock, ILC
Ybk 1963/II, 47–8; ILC Final Report, ILC Ybk 1966/II, 244–5. Further Oraison (1975) 75
RGDIP 617; Villiger, Commentary (2009) 613–22; Corten & Klein (2011) 1142–66;
Rensmann in Dörr & Schmalenbach (2018) 899.
142
ILC Ybk 1966/II, 245.
143
Villiger, Commentary (2009) 621–8; Corten & Klein (2011) 1169–78; Rensmann in Dörr
& Schmalenbach (2018) 915. The matter is not dealt with in the UN Convention against
Corruption, 21 October 2003, 2349 UNTS 41, Art 34. Further on consequences of
corruption, see World Duty Free Co Ltd v Kenya (2006) 17 ICSID Reports 212, 255 (a case
governed by Kenyan law); Llamzon, Corruption in International Investment Arbitration
(2014).
144
Fitzmaurice, ILC Ybk 1958/II, 26, 38; Waldock, ILC Ybk 1963/II, 36, 50; ILC Final
Report, ILC Ybk 1966/II, 245–6; Villiger, Commentary (2009) 629–37.
145
ILC Ybk 1963/II, 197–8; Waldock, ILC Ybk 1963/II, 51–2; Lauterpacht, ILC Ybk 1953/II,
147–52; Fitzmaurice, ILC Ybk 1957/II, 32, 56–7; Fitzmaurice, ILC Ybk 1958/II, 26, 38–9;
McNair (1961) 206–11; Caflisch (1992) 35 GYIL 52. Also: Fisheries Jurisdiction (UK v
Iceland), Jurisdiction, ICJ Reports 1973 p 3, 14; Thirlway (1992) 63 BY 1, 28–31.
146
Sharjah v Dubai (1981) 91 ILR 543, 571.
147
Also: ILC Final Report, ILC Ybk 1966/II, 246–7; Kearney & Dalton (1970) 64 AJIL 495,
532; Villiger, Commentary (2009) 638–50; Corten & Klein (2011) 1201–23; Schmalenbach in
Dörr & Schmalenbach (2018) 937.
148
A/CONF.39/11, Add 1, 168–9.
149
De Visscher (1971) 75 RGDIP 5; Gaja (1981) 172 Hague Recueil 271; D’Amato (1990) 6
Conn JIL 1; Charney (1993) 87 AJIL 529; Kolb (2005) 109 RGDIP 305; Tomuschat &
Thouvenin (eds), The Fundamental Rules of the International Legal Order (2006) 83;
Orakhelashvili, Peremptory Norms in International Law (2006); Saul (2015) 5 Asian JIL 26;
Kolb, Peremptory International Law (2015); Cannizzaro (ed), The Present and Future of Jus
Cogens (2015); Costelloe, Legal Consequences of Peremptory Norms in International Law
(2017). For the ILC’s recent work on the subject, see ILC Report 2017, ch VIII.
150
ILC Final Report, ILC Ybk 1966/II, 247–9; Gaja (1981) 172 Hague Recueil 271, 279–89;
Villiger, Commentary (2009) 661–78; Corten & Klein (2011) 1224–35; Schmalenbach in Dörr
& Schmalenbach (2018) 965.
151
VCLT, Art 64. See Fitzmaurice, ILC Ybk 1957/II, 29–30, 51; ILC Ybk 1963/II, 211;
Waldock, ILC Ybk 1963/II, 77, 79; ILC Final Report, ILC Ybk 1966/II, 261; Villiger (2009)
344 Hague Recueil 9, 135–41.
152
Villiger (2009) 344 Hague Recueil 9, 137.
153
E.g. Gaja (1981) 172 Hague Recueil 271, 279; cf Villiger (2009) 344 Hague Recueil 9,
140–1.
154
E.g. Corten & Klein (2011) 1236–454; Helfer in Hollis (2012) 634; Aust (3rd edn, 2013)
245–72; Lekkas & Tzanakopoulos in Tams, Tzanakopoulos, & Zimmermann (2014) 312;
Giegerich in Dörr & Schmalenbach (2018) 1015–199; Schmalenbach in Dörr &
Schmalenbach (2018) 1201–8.
155
If it is a bilateral treaty, denunciation by one party will terminate it; if it is multilateral,
the withdrawal of the denouncing party will usually not terminate the whole treaty. Treaties
may also be terminated at any time by the consent of all the parties, after consultation,
irrespective of what the treaty says. See VCLT, Art 54; ILC Final Report, ILC Ybk 1966/II,
249; Briggs (1974) 68 AJIL 51; Helfer (2005) 91 Va LR 1579; Binder (2012) 25 LJIL 909,
922–6; Aust (3rd edn, 2013) 245.
156
VCLT, Art 56; Fitzmaurice, ILC Ybk 1957/II, 22; ILC Ybk 1963/II, 200–1; Waldock, ILC
Ybk 1963/II, 63–70; ILC Final Report, ILC Ybk 1966/II, 250–1; Widdows (1982) 53 BY 83;
Plender (1986) 57 BY 133, 143; Villiger, Commentary (2009) 695–706. See also
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, ICJ
Reports 1980 p 73, 94–6, 128–9 (Judge Mosler), 159–62 (Judge Ago), 176–7 (Judge El-
Erian), 184–9 (Judge Sette-Camara); Nicaragua, Jurisdiction and Admissibility, ICJ Reports
1984 p 392, 419–20.
157
McNair (1961) ch 43; Caflisch in Boschiero et al (eds), International Courts and the
Development of International Law (2013) 31; Pronto (2013) 2 CJICL 227; Ronen in Tams,
Tzanakopoulos, & Zimmermann (2014) 541.
158
Masinimport v Scottish Mechanical Light Industries (1976) 74 ILR 559, 564.
159
ILC Ybk 1963/II, 187, 189.
160
Brownlie was appointed Special Rapporteur; he was succeeded by Caflisch in 2009.
161
ILC Report, ILC Ybk 2011/II, ch VI.
162
Art 7 and Annex. The list is lengthy, and includes humanitarian law and human rights
treaties, dispute-settlement treaties, and treaties ‘creating or regulating a permanent
regime or status or related permanent rights, including treaties establishing or modifying
land and maritime boundaries’.
163
VCLT, Art 54. See ILC Ybk 1963/II, 203–4; ILC Final Report, ILC Ybk 1966/II, 251–2.
164
VCLT, Art 59. See ILC Ybk 1963/II, 203–4; ILC Final Report, ILC Ybk 1966/II, 252–3;
Plender (1986) 57 BY 133, 153–7. Also: Electricity Co of Sofia and Bulgaria (1939) PCIJ,
Preliminary Objection, Ser A/B No 77, 92 (Judge Anzilotti).
165
Fitzmaurice, ILC Ybk 1957/II, 28, 47–8, 52; ILC Final Report, ILC Ybk 1966/II, 237;
Thirlway (1992) 63 BY 1, 94–6; Kohen in Cannizzaro (2011) 350. Also: Nuclear Tests
(Australia v France), ICJ Reports 1974 p 253, 337–8 (Judges Onyeama, Dillard, Jiménez de
Aréchaga, and Sir Humphrey Waldock, diss), 381 (Judge de Castro, diss), 404, 415–16
(Judge ad hoc Barwick, diss).
166
ILC Ybk 1963/II, 204–6; Waldock, ILC Ybk 1963/II, 72–7; ILC Final Report, ILC Ybk
1966/II, 253–5. Also McNair (1961) ch 36; Rosenne, Breach of Treaty (1985); Hutchinson
(1988) 58 BY 151; Kirgis (1989) 22 Cornell ILJ 549; Kontou (1994); Gomaa, Suspension and
Termination of Treaties on Grounds of Breach (1996); Laly-Chevalier, La Violation du traité
(2005); Villiger (2009) 344 Hague Recueil 9, 144–59; Corten & Klein (2011) 1350–81;
Simma & Tams in Hollis (2012) 576, 582–95; Giegerich in Dörr & Schmalenbach (2018)
1095.
167
ICJ Reports 1997 p 7, 60–2, 65–7.
168
(1990) 82 ILR 499. Cf Somalia v Kenya, Preliminary Objections, ICJ Reports 2017 p 3,
51–3.
169
E.g. Simma (1970) 20 ÖZföR 5; Klabbers in Tupamäki (ed), Essays on International Law
(1998) 20.
170
This definition was applied by analogy in Namibia, ICJ Reports 1971 p 16, 46–7, in
respect of South African violations of the Mandate for South West Africa and the
consequent revocation of the Mandate by the General Assembly.
171
For comment: Simma (1970) 20 ÖZföR 5, 61.
172
ILC Ybk 1963/II, 206–7; ILC Final Report, ILC Ybk 1966/II, 255–6. Also: Villiger,
Commentary (2009) 752–61; Fitzmaurice in Hollis (2012) 605, 606–12; Aust (3rd edn, 2013)
261; Giegerich in Dörr & Schmalenbach (2018) 1127.
173
Gabčíkovo-Nagymaros, ICJ Reports 1997 p 7, 63–4.
174
ILC Ybk 1963/II, 207–11; Waldock, ILC Ybk 1963/II, 79–85; ILC Final Report, ILC Ybk
1966/II, 256–60. Also Thirlway (1992) 63 BY 1, 75–82; Villiger, Commentary (2009) 762–81;
Corten & Klein (2011) 1411–36; Fitzmaurice in Hollis (2012) 605, 612–24; Giegerich in Dörr
& Schmalenbach (2018) 1143.
175
(1932) PCIJ Ser A/B No 46, 156–8.
176
Merits, ICJ Reports 1974 p 3, 20–1. Also: Fisheries Jurisdiction (Germany v Iceland),
Jurisdiction, ICJ Reports 1973 p 49; and Briggs (1974) 68 AJIL 51.
177
Gabčíkovo-Nagymaros, ICJ Reports 1997 p 7, 65.
178
Ibid.
179
(1998) 117 ILR 399.
180
Ibid, 442. For criticism, Klabbers (1999) 36 CMLR 179.
181
VCLT, Art 73. In its work on the law of treaties the ILC put this question aside: ILC Ybk
1966/II, 267–8. See also chapter 19.
182
See VCLT, Part V, sections 3–4. Further: Cahier (1972) 76 RGDIP 645, 672–89; Binder
(2012) 25 LJIL 909, 914–15.
183
VCLT, Arts 65–68. Further: David, The Strategy of Termination (1976); Thirlway (1992)
63 BY 1, 85; Villiger, Commentary (2009) 799–891; Prost in Corten & Klein (2011) 1483–
508; Krieger in Dörr & Schmalenbach (2018) 1211–62.
184
ILC Ybk 1966/II, 238–9, 261. For comment: Sinclair (1970) 19 ICLQ 67.
185
See Villiger, Commentary (2009) 853–91; Corten & Klein (2011) 1571–642; Wittich in
Dörr & Schmalenbach (2018) 1265–327.

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Part VI International transactions, 16 The law of

From: Brownlie's Principles of Public International Law (9th Edition)

Previous Edition (8 ed.)

Content type: Book content

(A) Definition of ‘treaty’

any international agreement in written form, whether embodied in a single

(C) Participation in treaties

2. Conclusion of Treaties

(B) Full powers and signature

a document emanating from the competent authority of a State designating a

(C) Provisional application

(E) Accession, acceptance, and approval

(F) Entry into force, deposit, and registration

(A) Historical background

(B) Impermissible reservations

(C) The ILC Guide (2011)

(B) Application of treaties

(C) Interpretation of treaties

(a) any subsequent agreement between the parties regarding the

4. A special meaning shall be given to a term if it is established that the

Recourse may be had to supplementary means of interpretation, including the

(a) leaves the meaning ambiguous or obscure; or

(D) Obligations and rights for third states

5. Amendment and Modification of Treaties

6. Invalidity, Termination, and Suspension of Treaties

(C) Procedure and consequences

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