The 1960 Vienna Convention of Treaties - Essay Example

Scenario The Vienna Convention: The 1960 Vienna Convention of Treaties may be applicable to this scenario because it applies to “treaties between States.”1 This Convention has codified the international law on treaties between States. Since the issues involved in this case concern disputes between the four states A to D, all parties to the Treaty, the provisions of the Vienna Convention may apply. Although the Vienna Convention may have no legal force for non parties, most States regard it as the authoritative declaration of international treaty law, and therefore hold themselves bound by it.2 Reservation appended by State A: The Vienna Convention 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 of the treaty in application to that State.”3 At the outset the question that needs to be examined is whether the reservation appended by State A is valid. The Vienna Convention in dealing with reservations, points out that a State may formulate a reservation, unless such reservation “is prohibited by the treaty.”4 In the case dealing with reservations to the Genocide Convention5, the International Court of Justice attempted to achieve a balance between the sovereign right of a State to make a reservation versus the apparent rising tide of reservations that went against the spirit of the treaty and the right of parties not to be bound to a treaty if they didn’t wish to be. There is a similar conflict posed in this case. The purpose of the Treaty between States A to D, is cooperation on economic matters, but State A in reserving the option to suspend economic cooperation, which is against the very purpose of the Treaty and contravenes Article 19 cited above. The 2000 Treaty does not specifically prohibit reservations, but since the purpose of the treaty is economic cooperation, a reservation seeking to withdraw economic cooperation may be questionable, especially in the context of the ICJ decision stated above which prevents States from making such incompatible reservations. The frequency of reservations has increased in the twentieth century and some examples of Conventions that prohibit reservations in treaties are the 1952 Universal Copyright Convention and the 1964 Convention for the Unification of Certain Rules Relating to the International Carriage by Air.6 In this instance, since State A has specified that the withdrawal of economic cooperation will occur only in exceptional circumstances where its security is threatened, it may possibly a compatible reservation. State C’s opposition to the reservation: Bishop also points out that the decision rendered by the ICJ in regard to the Genocide Convention case mentioned above, allows other States to resist a compatible reservation only for substantive reasons.7 Assuming that the reservation appended by A is considered a valid reservation, State C’s grounds for resistance qualify as being prohibited by the Treaty, per Article 19.8 The Convention does not set out the criteria required to determine compatibility, rather each State has to make this determination based upon the circumstances and upon its own interpretation of the purpose of the Treaty.9 There are only four States participating in this Treaty and the Convention stipulates that when there are few parties, then the unanimity rule will apply10, i.e, the reservation must be acceptable to all the States and such reservation should be a minor one in terms of its impact on the Treaty before it can be accepted. This condition of unanimity is not satisfied in the operation of the Treaty between States A and C, because C cannot be said to have accepted the Treaty with the reservation specified by A. The Convention states: “a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation.”11 But State C is objecting to the reservation three months after it has been notified of it and raising the valid objection that the reservation is incompatible with the purpose of the treaty itself, i.e, economic cooperation between the parties. On this basis, the existence of the treaty between States A and C will become questionable, because the Treaty with the reservation proposed by A is not acceptable to C. The reservation appended by A may also not hold good under the unanimity rule and may be dismissed altogether from the Treaty. If it did exist however, State A’s reservation would not apply to State C. The reservation applicable to State B: In the case of State B, it must be noted that the period of 12 months as cited above has been exceeded. This is akin to a tacit acceptance of the Treaty with the reservation, since tacit acceptance without objection is also the most common form of acceptance.12 Since 13 months have passed, this in effect means that the reservation has been accepted by State B. Furthermore, State B has also not expressed its objection strongly enough13 or offered specific grounds for rejection, the way State C has. It has only offered a general critique, hence this may not be adequate to establish its resistance to the reservation and the treaty, as actionable between States A and B, will also contain the reservation. States B and C: Where States B and C are concerned, the question of the reservation does not arise at all. As a result, the provisions of the treaty for economic cooperation as originally framed, will apply between these two parties. Since neither of these parties has registered an objection to the treaty on its general grounds, these will be held to exist and both States will be bound by the provisions of the original treaty. State D’s proposal to terminate treaty participation: State D would find it difficult to terminate its participation in the 2000 Treaty on the basis of its subordinate argument that the Government in power in 2000, which ratified the treaty, has been overthrown. Article 14 of the Vienna Convention specifically states that a State consents to the Treaty when “the representative of the State has signed the treaty subject to ratification.”14 Since the representative of State D signed the treaty on behalf of the entire State, the process of ratification of the treaty cannot be reversed merely by a subsequent change in leadership. The Convention states that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”15 Furthermore, it must also be noted that the treaty has also been in force in State D for several years, from 2000 to the present. The Convention states that “the consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification.”16 When State D accepted the Treaty and has been following it for the last several years, then a defacto consent to the Treaty will be assumed from a legal perspective. It will be difficult for State D to terminate its participation in the Treaty and State B may also have valid grounds to claim a breach by State D. Cassesse argues that some forces of economic aggression may be so comparable to military aggression and use of force that an injured State can exercise a right to collective self defense.17 While there is no stipulation in the Vienna Convention defining the use of force, it may be argued that a use of a threat of economic sanctions is equivalent to the threat of use of force. The Vienna Convention states under Article 52 that a treaty can be declared void only if its use has been brought about by “the threat or use of force” in violation of international principles. On this basis, it may be argued that the threat of economic sanctions has undermined the rights of State D and this has resulted in a form of coercion into the treaty. The long duration between the ratification of the Treaty and D’s voicing of objections will however, hinder its prospects of withdrawing from the Treaty. Objections to the Treaty are to be voiced within a period of 12 months or before ratification of the Treaty. While D may have valid grounds of economic duress which forced it to participate in the Treaty, those objections should have still been voiced before ratifying the Treaty. After ratification, “every treaty in force is binding upon the parties to it and must be performed by them in good faith.”18 State B’s proposal to terminate participation: State B can certainly take legal action against State D for its alleged breach of the treaty, but this may not necessarily mean that State B can also terminate its participation in the Treaty. A ratified Treaty becomes binding on the State and must continue to be performed in good faith19. While the terms of a treaty can be modified between two parties on the basis of a mutual agreement, this can occur only if (a) it does not affect the enjoyment of the treaty by other parties to the treaty and (b) it does not relate to provisions that may be incompatible with the purpose of the treaty as a whole20. The treaty has been in force for some years and is bonding on all partiers, unless they all get together and agree to dissolve it or amend and modify it in some manner. B’s reason for wanting to withdraw is motivated solely by State D’s move to withdraw. While State D may claim economic duress, the withdrawal of one State from a Treaty cannot constitute grounds for another State to also withdraw from a Treaty. This would be in violation of B’s obligations under the Treaty and terminating its membership would equate to a unilateral revocation of membership in the Treaty, which could attract legal action. 1662 words Footnotes: 248 Total 1910 words Bibliography * Bishop Jr, William W, 1961. “Reservations to Treaties”, 103 Recueil de Cours de lAcademie du Droit International de la Haye, 253. * Briggs, Herbert W, 1979. “United States ratification of the Vienna Treaty Convention”, 73, American Journal of International Law, 470 at 471 * Cassesse, Antonio, 1986. “The current legal regulation of the use of force”, Martinus Nijhoff Publishers. * Gamble, Jr, John K, 1980. “Reservations to multilateral treaties: A macroscopic view of State Practice”, 74, American Journal of International Law, 372 at 376-8 * Ruda, J.M., 1975. “Reservations to Treaties”, 146 Recueil de Cours de lAcademie du Droit International de la Haye, 115 * Vienna Convention on the Law of Treaties. untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf; Case cited: * Advisory Opinion on Reservations to the Genocide Convention, 1951 I.C.J, 15 (Advisory Opinion, May 28) Read More