Treaties
Notion of a Treaty
Treaties are governed by the VCLT 1969 (there is also Convention on the Law of Treaties between States
and International Organisations or between International Organisations 1986, which is not in force).
There are ~114 parties who have ratified VCLT – does not include US, France, India, SA.
Note Somalia v Kenya (ICJ 2017) – neither party was part to VCLT, so governed by CIL. Under CIL,
a written international agreement between status constitutes a treaty (Cameroon v Nigeria
(2002)).
VCLT is not retroactive – only applies to treaties formed after 1980 (entry into force, Jan 27); for treaties
prior, must determine extent of VCLT represented in custom.
- E.g. Gabcikovo-Nagymaros case (VCLT not applicable, but provisions on invalidity, termination
and suspension recognized as CIL – Articles 60-62)
VCLT Art 2(1)(a): "Treaty" means 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
VCLT does not govern oral agreements or agreements between states and other IL subjects, but
this does not affect the legal force of these agreements (Art 3(a)) or the application of CIL
overlapping with VCLT to these agreements (3(b)). VCLT can apply to agreements between
States and other international law subjects only as between states (3(c)). VCLT does cover
treaties which are constituent documents of IOs.
To determine whether it is a treaty, ILC commentary says identify intent to create legal relations
– not explicit in VCLT, indicated by ‘governed by international law’. The actual form of the
document does not matter; terms and circumstances are key.
- Qatar v Bahrain (1994) (signed minutes of meeting outlining commitment can be a treaty)
- Aegean Sea Continental Shelf (Greece v Turkey) (“have regard above all to its actual terms
and to the particular circumstances in which it was drawn up”)
Some agreements are intended to be non-binding (soft law) (eg Iran Nuclear Deal is mere
political commitment, not binding treaty – Trump withdrew); alternatively some agreements will
not be governed by IL, but by municipal or private law – to be a treaty, must be wholly governed
by IL. A provision in a binding treaty may be so general it is non-binding, only used for
interpretation (Oil Platforms (Preliminary Objections)).
VCLT functions as a default – in treaties, States can specify their own alternative arrangements.
Registration of treaties
Treaties can be bilateral or multilateral, regional or universal, contracts or pledges, lawmaking or
contractual. There are +40,000 treaties registered with UN under Art 102 UNC. Only ~560 multilateral.
Art 102 UNC says all treaties entered into by member states must be registered and published by the
Secretariat – Art 80 VCLT provides for treaties to be sent to UN Secretariat. Art 102 is designed to have a
Notion of a Treaty
Treaties are governed by the VCLT 1969 (there is also Convention on the Law of Treaties between States
and International Organisations or between International Organisations 1986, which is not in force).
There are ~114 parties who have ratified VCLT – does not include US, France, India, SA.
Note Somalia v Kenya (ICJ 2017) – neither party was part to VCLT, so governed by CIL. Under CIL,
a written international agreement between status constitutes a treaty (Cameroon v Nigeria
(2002)).
VCLT is not retroactive – only applies to treaties formed after 1980 (entry into force, Jan 27); for treaties
prior, must determine extent of VCLT represented in custom.
- E.g. Gabcikovo-Nagymaros case (VCLT not applicable, but provisions on invalidity, termination
and suspension recognized as CIL – Articles 60-62)
VCLT Art 2(1)(a): "Treaty" means 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
VCLT does not govern oral agreements or agreements between states and other IL subjects, but
this does not affect the legal force of these agreements (Art 3(a)) or the application of CIL
overlapping with VCLT to these agreements (3(b)). VCLT can apply to agreements between
States and other international law subjects only as between states (3(c)). VCLT does cover
treaties which are constituent documents of IOs.
To determine whether it is a treaty, ILC commentary says identify intent to create legal relations
– not explicit in VCLT, indicated by ‘governed by international law’. The actual form of the
document does not matter; terms and circumstances are key.
- Qatar v Bahrain (1994) (signed minutes of meeting outlining commitment can be a treaty)
- Aegean Sea Continental Shelf (Greece v Turkey) (“have regard above all to its actual terms
and to the particular circumstances in which it was drawn up”)
Some agreements are intended to be non-binding (soft law) (eg Iran Nuclear Deal is mere
political commitment, not binding treaty – Trump withdrew); alternatively some agreements will
not be governed by IL, but by municipal or private law – to be a treaty, must be wholly governed
by IL. A provision in a binding treaty may be so general it is non-binding, only used for
interpretation (Oil Platforms (Preliminary Objections)).
VCLT functions as a default – in treaties, States can specify their own alternative arrangements.
Registration of treaties
Treaties can be bilateral or multilateral, regional or universal, contracts or pledges, lawmaking or
contractual. There are +40,000 treaties registered with UN under Art 102 UNC. Only ~560 multilateral.
Art 102 UNC says all treaties entered into by member states must be registered and published by the
Secretariat – Art 80 VCLT provides for treaties to be sent to UN Secretariat. Art 102 is designed to have a
