Known as the "treaty on treaties", the VCLT establishes comprehensive, operational guidelines, rules, and procedures for how treaties are drafted, defined, amended, and interpreted.[3] An international treaty is a written agreement between countries subject to international law that stipulates their consent to the creation, alteration, or termination of their rights and obligations, as stipulated in the treaty.[4]
The Vienna Convention on the Law of Treaties was adopted and opened to signature on 23 May 1969,[5][1] became effective on 27 January 1980,[1] and has been ratified by 116 sovereign states as of January 2018.[2] Non-ratifying parties, such as the U.S, have recognized parts of the VCLT as a restatement of customary international law.[6] In treaty law, the VCLT is the authority for resolving disputes about the interpretation of a treaty.[7]
History
The Vienna Convention on the Law of Treaties (VCLT) was drafted by the International Law Commission (ILC) of the United Nations, which began work on the convention in 1949.[5] During the 20 years of preparation, several draft versions of the convention and commentaries were prepared by special rapporteurs of the ILC, which included prominent international law scholars James Brierly, Hersch Lauterpacht, Gerald Fitzmaurice, and Humphrey Waldock.[5]
In 1966, the ILC adopted 75 draft articles, which formed the basis for its final work.[8] Over two sessions in 1968 and 1969, the Vienna Conference completed the convention, which was adopted on 22 May 1969 and opened for signature on the following day.[5][8]
Content and effects
In the practices of international law, the Vienna Convention on the Law of Treaties is the legal authority about the formation and effects of a treaty.[9] The legal standing of the VCLT is recognised by non-signator countries, such as the U.S. and India, as legally binding upon all sovereign states[6] who have recognised the customary-law status of the Vienna Convention.[10]
The VCLT defines a treaty as "an international agreement concluded between [sovereign] states in written form and governed by international law", and affirms that "every state possesses the capacity to conclude treaties." Article 1 of the VCLT restricts the application of the convention to written treaties between states, excluding treaties concluded between the states and international organizations or between international organizations. Article 11 defines "means of expressing consent to be bound by a treaty" including ratification, acceptance, approval or accession. Article 26 defines pacta sunt servanda, that agreements must be kept; Article 53 defines jus cogens, peremptory norm; Article 62 defines Fundamental Change of Circumstance, which determines the validity or invalidity of a treaty; and Article 77 defines depositary, the organisation or person who holds a multilateral treaty.
Scope
The Vienna Convention applies only to treaties agreed after the VCLT was ratified, and to treaties agreed between sovereign states, but does not govern other agreements between sovereign states and international organizations, or between international organizations, if any VCLT rules are independently binding upon such international organizations.[11] In practise, Article 2 and Article 5 of the Vienna Convention apply to treaties between sovereign states and an intergovernmental organization.[12]
As of January 2018, there are 116 state parties that have ratified the convention, and a further 15 states have signed but have not ratified the convention.[2] In addition, the Republic of China (Taiwan), which is currently recognized by only 11 UN member states, signed the Convention in 1970 prior to the UN General Assembly's 1971 vote to transfer China's seat to the People's Republic of China, which subsequently acceded to the convention.[2] There are 66 UN member states that have neither signed nor ratified the convention.
Vienna formula
Signature, ratification and accession
International treaties and conventions contain rules about what entities could sign, ratify or accede to them. Some treaties are restricted to states that are members of the UN or parties to the Statute of the International Court of Justice. In rare cases, there is an explicit list of the entities that the treaty is restricted to. More commonly, the aim of the negotiating states[13] (most or all of which usually end up becoming the founding signatories) is that the treaty is not restricted to particular states and so a wording like "this treaty is open for signature to States willing to accept its provisions" is used (the "all states formula"[14]).
In the case of regional organizations, such as the Council of Europe or the Organization of American States, the set of negotiating states that once agreed upon may sign and ratify the treaty is usually limited to its own member states, and non-member states may accede to it later.[15] However, sometimes a specific set of non-member states or non-state actors may be invited to join negotiations. For example, the Council of Europe invited the "non-member States" Canada, the Holy See (Vatican City), Japan, Mexico and the United States to "participate in the elaboration" of the 2011 Istanbul Convention and specifically allowed the European Union (described as an "International Organisation", rather than a "State") to sign and ratify the convention, rather than accede to it, and "other non-member States" were allowed only accession.[16][17]
The act of signing and ratifying a treaty as a negotiating state has the same effect as the act of acceding to a treaty (or "acceding a treaty") by a state that was not involved in its negotiation.[13] Usually, accessions occur only after the treaty has entered into force, but the UN Secretary-General has occasionally accepted accessions even before a treaty went into force.[13] The only downside of not being a negotiating state is that one has no influence over the contents of a treaty, but one is still allowed to declare reservations concerning specific provisions of the treaty that one wishes to accede to (Article 19).
Statehood question
When a treaty is open to "States", it may be difficult or impossible for the depositary authority[18] to determine which entities are States. If the treaty is restricted to Members of the United Nations or Parties to the Statute of the International Court of Justice, there is no ambiguity. However, a difficulty has occurred as to possible participation in treaties when entities that appeared otherwise to be States could not be admitted to the United Nations or become Parties to the Statute of the International Court of Justice because of the opposition for political reasons of a permanent member of the Security Council or have not applied for ICJ or UN membership. Since that difficulty did not arise as concerns membership in the specialized agencies, on which there is no "veto" procedure, a number of those States became members of specialized agencies and so were in essence recognized as States by the international community. Accordingly, to allow for as wide a participation as possible, several conventions then provided that they were also open for participation to state members of specialized agencies. The type of entry-into-force clause used in the Vienna Convention on the Law of Treaties was later called the "Vienna formula," and various treaties, conventions and organizations used its wording.[19]
Some treaties that use it include provisions that in addition to these States any other State invited by a specified authority or organization (commonly the United Nations General Assembly[citation needed] or an institution created by the treaty in question) can also participate, thus making the scope of potential signatories even broader.
— Vienna Convention on the Law of Treaties, Article 81, Signature
Interpretation of treaties
Articles 31–33 of the VCLT entail principles for interpreting conventions, treaties, etc. These principles are recognized as representing customary international law, for example by the International Law Commission (ILC).[20]
The interpretational principles codified in Article 31 are to be used before applying those of Article 32, which explicitly states that it offers supplementary means of interpretation.
The European Court of Justice has also applied the interpretational provisions of the VCLT in different cases, including the Bosphorus Queen Case (2018),[21] in which the court interpreted the extent of the term "any resources" in Article 220(6) of UNCLOS.[22]
The VCLT is often relied upon in investment arbitration cases.[23]
^ abcduntreaty.un.org, Law of treatiesArchived 17 October 2013 at the Wayback Machine, International Law Commission, last update: 30 June 2005. Consulted on 7 December 2008.
^Aust, Anthony (2006). "Vienna Convention on the Law of Treaties (1969)". Vienna Convention on the Law of Treaties (1969). Max Planck Encyclopedias of Public International Law. doi:10.1093/law:epil/9780199231690/e1498. ISBN9780199231690.
^ILC, Fragmentation of international law: difficulties arising from the diversification and expansion of international law, Report A/CN.4/L.682 (presented at the 58th session in Geneva, 1 May – 9 June and 3 July – 11 August 2006) 89, para 168
^Case C-15/17 Bosphorus Queen Shipping Ltd Corp vs Rajavartiolaitos, ECLI:EU: C:2018:557, para 67.
^Interpreting the "discharge-term" of article 218 (1) of UNCLOS following article 31 of the VCLT to allow the term to encompass emissions has also been discussed. See Jesper Jarl Fanø (2019) Enforcing International Maritime Legislation on Air Pollution through UNCLOS. Hart Publishing.
