The 1969 Vienna Convention on the Law of Treaties - Essay Example

Public International Law-Academic Year – Problem Question Explain if and why the 1969 Vienna Convention on the Law of Treaties is applicable to the above disputes. The 1969 Vienna Convention on the Law of Treaties is a treaty governing the international laws of treaties, or in other words, a treaty on treaties. It was adopted by its convening states on 22 May 1969 and opened for signatures from 23 May 1969. However, it came to force only from January 27, 1980. While states and countries of the world have ratified this treaty, some others have refrained from ratifying it due to country- specific reasons. Case Scenario involving States A, B, C and D: This dispute, prima facie, falls well within the ambit of the 1969 Vienna Convention on the Law of Treaties. This is because it fulfils and satisfies all the terms and conditions that are necessary to invoke the provisions of this treaty. For one thing, this treaty came into force in the year 2000, that is, after the date of enforcement of Vienna Convention on January 27, 1980. Besides, it is also a written covenant and belongs to the genre of multilateral treaty having four different countries, A, B, C and D as signatories, whose governments would have, on the date of affirmation of contractual agreement in year 2000, agreed to be bound by the provisions of this economic covenant among these four countries for furthering mutual co-operation and accord. However, one aspect of this multilateral agreement stands out like a sore thumb, which is the aspect of peremptory norm. It is seen that under the Vienna Convention on the Law of Treaties, any covenant that is in direct confrontation with a peremptory law is void ab initio. However, it does delineate that the rule of force or coercion for gaining consent for multilateral treaties is not permissible. This aspect is also in direct conflict with the spirit of United Nations Organisation UNO) which prohibits the use of force or coercion in reaching global accords and contracts. In this case, it is believed that State D has decided to terminate its participation in the treaty, claiming that its ratification of the 2000 treaty was gained through coercion by the threat of economic sanctions by states A, B, and C. In the event that this contention is true, the agreement becomes void and in direct violation of Article 52 of Vienna Convention 1968, which states that “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” (Vienna Convention on the Law of Treaties 18). However, it would be incumbent upon State D to prove that coercion has indeed taken place. However, the present government in State D contends that it was the government that was in power in 2000 which ratified the treaty, and it has now been overthrown. Thus that the new regime is not bound by the treaties entered in to by the previous government. Under the provisions of the Vienna Convention 1968, since the contract emerged out of mutual understanding and accord, and perhaps in the use of full powers of the representatives of said states, unless anything contrary is mentioned in the agreement, the rules regarding termination, denunciation, suspension or withdrawal contained in Articles 56 to 59 need to be honoured. 2. Taking the reservation appended by State A into account, how does the 2000 treaty operate in the relations between: (a) States A and C (b) States A and B (c) States B and C. The reservation issue taken up by State A is an important one, considering as it does, the condition that this reservation considers economic factors of exceptional circumstances threatening the security of the state party concerned. But apparently, C views this reservation as objectionable and detrimental to the real goals and objectives of the treaty. The state needs to substantiate this with facts and figures and prove how economic factors under trying circumstances which is what the reservation of State A is all about, goes against the principles of object and purpose of the 2000 Treaty. This is an important aspect since in the event this debate cannot be remedied it could result in termination, suspension, or even annulment of the 2000 treaty. It is first necessary to consider how the 1969 Vienna Convention on the Law of Treaties views reservations placed by member states in contractual agreements, or treaties. The convention has defined reservation as meaning “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” (Vienna Convention on the Law of Treaties 3). The provisions relating to reservations are found in Articles 19 to 23 of the Convention. It is believed that reservations in treaties could be acceptable as long as the convention does not specifically prohibit them, or in the event the reservations are considered not in conformity, or compatibility with objectives and purposes of the said treaty. Besides according to the provisions of the convention, where reservations are authorised and permissible, specific acceptability of the member states is not required, until and unless categorically called for. Reservations may not be acceptable in the event it is detrimental to the aims, objectives or purpose of treaty. Again the proviosns of this convention are emphatic on the point wherein the pursuit and achievement and aim and objectives need consensus and joint efforts from all parties, to the treaty. It is also necessary that acceptance of all parties be realised. Again, according to provisions of 1969 Vienna Convention on Law of Treaties, the fact that objections to reservations have been raised by one state does not prevent the implementation of the act from taking place, unless there is a definite clause to this effect in the treaty. Besides, a reservation could be deemed to have been set forth if, upon gaining notice of the reservation made by one state, at least one member state accepts and ratifies it. (a) States A and C: Coming first to the relations between A and C, it appears that State A has appended a reservation when it ratifies the treaty, providing that economic cooperation can be suspended in case of exceptional circumstances threatening the security of the state party concerned. State C objected to this reservation three months after it had been notified of it, claiming that the reservation is incompatible with the object and purpose of the 2000 Treaty and opposing the entry into force of the treaty between itself and State A unless the reservation is withdrawn. However, State A refuses to withdraw the reservation. As per the Vienna Convention 1968, unless expressly prohibited, States could validate treaties with reservations that they deem fit. It is believed that other states accept the reservations made by any one or more states. In this case, it is seen that the reservation made by State A modifies its relations with State C to the extent of such reservations made. However, considering the fact that in a treaty of this kind, the acceptance of the other parties is also necessary for the right conduct of this treaty. In this case, it is seen that State C who objects to the reservation, had, in the first place, opposed the treaty between C and A, and therefore in as far as the relations between A and C is concerned the reservations do not hold good between these two states in terms of the reservation. Again, it is possible to bring action for annulment of the treaty between A and C. Again, C’s objection has come within the mandatory 12 months as laid down in Article 20 (5) and is, therefore, tenable under the convention law. Moreover, since the issue is between A and B and A and C, the other parties do not come into the picture in this case scenario. (b)States A and B: State B has also has issued an objection to State A’s reservation 5 months after it was notified of it, this merely criticizes the reservation. In this case, it is seen that State B who objects to the reservation, had, in the first place, not opposed the coming into force of the treaty between B and A, and therefore in as far as the relations between A and B is concerned, the reservations do hold good between these two states in terms of the reservation made by State A. Had B also made allegations on the lines made by State C, it is possible that joint annulment, cancellation, suspension or amendment of the treaty could have resulted. However, in as far as the relations between States A and B are concerned, there is no need for any kind of modifications since there have only been derogations and not demands for annulling the treaty. (c) States C and B: There are no disputes between the States C and B and they are not involved in the reservation issue plaguing States A and B. Therefore, prima facie, there is no modification of the relationships between B and C, since this is outside the purview of reservation initiated by State A. While reservation could be accepted since these are within the sanctions of the convention, and not categorically banned like termination, there are certain norms regarding reservations that must be met by the contracting parties to enforce the reservations. For one thing, “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 or by the date on which it expressed its consent to be bound by the treaty, whichever is later.” (Vienna Convention on the Law of Treaties 9). State B has raised an objection within 5 months of being notified of it, which is valid since it is within the 12 months mandatory period. But, interestingly, B has not questioned the validity of the existing treaty as State C has, and therefore applying the Convention Rules, there is no need for any modifications in the contract between C and A. Again, according to Article 21 (3), “When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State; the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.” (Vienna Convention on the Law of Treaties 9). Again, in so far as Article 21 (2) is concerned it is mentioned that the reservation does not change the provisions of the treaty for the other parties, which is B and C among themselves. Thus, there is no modification, or changes in relations between B and C in this case scenario, since only A and B are main parties. 3. Can State D terminate its participation in the 2000 treaty as it has indicated? To answer this question, it is necessary to consider the provisions contained in Article 56 of the Vienna Convention 1968. It is mentioned in this article that a treaty which does make scope for termination or which does not also have denunciation and withdrawals, cannot be so denounced or withdrawn until and unless the following aspects are present: The contracting parties wished to explore the possibilities of denunciation, or withdrawal from the contract or, the privilege of disparaging or withdrawing from the contract could be inferred from the terms and condition of the contract itself, or in other words there are expressed or implied provisions that provide for easement of dissatisfied parties from contractual obligations. Again there is also a mandatory clause that the aggrieved party should provide 12 months notice of the decision to terminate participation or seek withdrawal from contractual obligation. In this specific case, it has been clearly mentioned that the treaty does not contain any clause for withdrawals, and thus it may be construed that there is no prevention clause for withdrawal. When interpreting Art. 56 in this light, it is seen that only one State D, challenged the validity of this treaty on the grounds of being induced through coercion and was thus voidable, being against public policy. Further, there is nothing to suggest that the contract has sub provisions for withdrawals of the kind conducted by State D. Besides, the notice period of twelve months also need to be provided under the provisions of Article 56(2) of Vienna Convention 1968. It is apparent that the above-mentioned conditions relating to withdrawals have not been complied with by State D, and only if these conditions are fulfilled could it be possible to terminate its membership and participation in the 2000 treaty between State A,B,C and D. 4.) Can State B terminate its participation as a consequence of State D’s alleged material breach of the 2000 treaty? To answer this question, it is necessary to consider the provisions contained in Article 60 of the Vienna Convention 1968. Under these provisions, a major breach or contravention of a treaty by one of the parties could render the other Parties to use this apparent breach as a basis for terminating, suspending or revoking the treaty, depending upon the circumstances and scenario surrounding the case. In other words, material breach by one of the parties could render the following: (1)Other parties could, through majority decision, decide to suspend the operation of the treaty either in part or in full or even terminate the contract in toto This could be done either with themselves vis-à-vis the defaulting State or between the contracting parties as is delineated below: (a) Further it is possible that a party expressly affected by the contravention to call upon it as a view for suspending the operation of the treaty, either in whole or in part, vis-à-vis its relations with the defaulting state. (b) Again, it is also possible that should the breach be of such significance and material bearing on the whole treaty as a whole, affecting all parties, the other party or parties may suspend operations on the treaty, either wholly or in part (c) “A material breach of a treaty, for the purposes of this article, consists in: (a) A repudiation of the treaty not sanctioned by the present convention; or (b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty.” (Vienna Convention on the Law of Treaties 21). Thus, should there be nothing contrary to it in the Treaty or the Convention; it is quite within the legal rights of State B, under Vienna Convention 1968, to terminate its participation as a consequence of State D’s alleged material breach of the 2000 treaty. However, it is also necessary for the other States A, C, E to be taken into confidence in this action, including joint consensus and action on joint and concerted efforts of remainder states. Conclusions: Over the years it is seen that the major provisions of the convention need to be amended from time to time in order to keep it at par with current legislation and business interests. In this case scenario, if the worst occurs, A and D would opt out of the contract and a fresh treaty, annulling the earlier one would need to be made having only B and C as its signatories. Works Cited Vienna Convention on the Law of Treaties. United Nations. 2005. Web. 16 Nov. 2010. . Read More