Anthony Aust. Handbook of International Law
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circumstances which existed at the time it was signed (in English common law, the doctrine of
frustration),
185
has been acknowledged to apply also to treaties. Article 62 is in restrictive terms,
strictly defining the (cumulative) conditions under which a change of circumstances may be invoked
as a ground for terminating a bilateral treaty or withdrawing from a multilateral treaty. The principle
has been invoked many times, and is recognised by treaties,
186
but it has not so far been applied by
an international tribunal.
187
In Gabcikovo, the International Court of Justice rejected the argument
that profound political changes, diminishing the economic viability of a project, progress in
environmental knowledge and the development of new norms of international environmental law
constituted a fundamental change of circumstances. The Court emphasised that the stability of treaty
relations requires that Article 62 be applied only in exceptional cases.
188
In addition, Article 62(2)
provides that the principle cannot be invoked if the treaty establishes a boundary.
Severance of diplomatic or consular relations
The severance of diplomatic or consular relations does not affect the legal relations established by a
treaty, except in so far as those relations are indispensable for the application of the treaty (Article
63). This rule applies to both bilateral and multilateral treaties. In fact, the severance of diplomatic
relations may not make a substantial difference.
189
Outbreak of hostilities
The legal effect of the outbreak of hostilities between parties to a treaty is still uncertain,
190
and the
only comprehensive treatment of the subject is now out-of-date.
191
The topic is outside the scope of
the Convention (Article 73). But, it is clear that there is no presumption that hostilities, however
intensive or prolonged, will necessarily have the effect of terminating or suspending the operation of
treaties between the parties to the conflict.
185. See Halsbury’s Laws of England, 4th edn, re-issue, vol. 9(1), 1998, para. 897.
186. Oppenheim, para. 651, n. 2.
187. See Oppenheim, para. 651, n. 8.
188. ICJ Reports (1997), p. 7, para. 104; ILM (1998) 162; 116 ILR 1.
189. See p. 154 below.
190. Oppenheim, para. 655.
191. Oppenheim, 7th edn, vol. , para. 99. See also McNair, pp. 693–728; and O’Connell, pp. 268–71.
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The situation is somewhat analogous to that of severance of diplomatic relations, so that treaties may
continue to apply except in so far as their operation is not possible during a period of hostilities.
Certain commercial treaties, such as air services agreements, may be suspended. Treaties creating
special regimes or fixing boundaries will continue in force. As between even the belligerent parties,
multilateral treaties whose purpose is to regulate the affairs of belligerents (such as the Geneva
Conventions 1949) will of course apply. Once the conflict is over, the parties will need to assess to
what extent the hostilities have affected their treaty relations. They may have to go though a joint
process similar to that which some states carry out on a succession of states.
192
Can one validly withdraw from a treaty and immediately become a party again?
Trinidad and Tobago acceded to the International Covenant on Civil and Political Rights 1966
(ICCPR) in 1978, and to the Optional Protocol to it in 1980.
193
Parties to the Protocol agree to
individuals communicating with (i.e. petitioning) the Human Rights Committee established by the
Covenant. By 1998, Trinidad and Tobago had decided that this procedure was being increasingly
‘abused’ by prisoners sentenced to death. That year, it withdrew from the Protocol but at the same
time deposited an instrument of reaccession. It included a reservation that the Human Rights
Committee would not be competent to receive and consider communications from such prisoners.
Guyana did the same in 1999. The stratagem may be seen as a single transaction, the only purpose of
which was to enter a late (and therefore probably invalid) reservation.
194
Following objections to the
reservation,
195
in 2000 Trinidad and Tobago withdrew from the Optional Protocol. Despite some
objections, Guyana did nothing.
Desuetude
A treaty may be regarded as no longer in force by virtue of disuse
196
or obsolescence.
197
In 1990,
Austria declared that certain provisions
192. See, for example, p. 400 below.
193. ICCPR and Optional Protocol, 1999 UNTS 171 (No. 14668); ILM (1967) 368; UKTS (1977) 6.
194. See p. 67 above.
195. See UN Multilateral Treaties, Ch. .5, note to Trinidad and Tobago.
196. See McNair, pp. 516–18 and 681–91.
197. But see H. Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’
(1992) BYIL 94–6.
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of the Austrian State Treaty 1955
198
had become obsolete. There were no objections.
199
In Uppsala
in April 2004, Sweden and the United Kingdom celebrated the 350th anniversary of the Treaty of
Peace and Commerce concluded by Queen Christina and Oliver Cromwell. But, although the treaty
was expressed to be of indefinite duration, some subsequent treaties like the Treaty of Rome, the
WTO Agreement, etc., may have overtaken it.
Invalidity
This is the least important part of the law of treaties. An invalid treaty is a rarity, there being a
natural presumption that a treaty is valid.
The violation of an internal law on competence to conclude treaties is probably the one basis for
invalidity that could be of some practical importance. Given the overriding need for certainty in
treaty relations, Article 46 provides that:
A state may not invoke the fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to conclude treaties as invalidating
its consent unless that violation was manifest and concerned a rule of its internal law of
fundamental importance.
1.
A violation is manifest if it would be objectively evident to any state conducting itself in the matter
in accordance with normal practice and in good faith.
2.
The negative formulation emphasises the exceptional character of the rule. There are a number of
procedures in treaty-making, such as ratification, which enable a state to reflect fully before deciding
whether or not to become a party, and to comply with any constitutional requirements. States are
entitled to regard other states as having acted in good faith when its representatives express their
consent to be bound. A state cannot claim that its consent has been expressed in violation of its
internal law regarding competence to conclude treaties if the consent has been expressed by its head
of state, head of government or foreign minister, since they each have indisputable authority to
express consent (Article 7(2)). If a state seeks
198. 217 UNTS 223 (No. 2249); UKTS (1957) 58; TIAS 3298.
199. Kennedy and Specht, ‘Austrian Membership in the European Communities’ (1990) Harvard
International Law Journal 407.
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to invoke constitutional defects after the treaty has entered into force and after it has been carrying it
out, it will be estopped (prevented) from asserting the invalidity of its consent.
200
There could, however, be occasions when an overseas territory has concluded a treaty in its own
name and without any authority from the parent state.
201
Whether the territory’s lack of competence
to conclude the treaty was manifest will depend on the circumstances, but a foreign ministry should
be able to distinguish overseas territories from sovereign states.
Article 46 must be distinguished from Article 27, which provides that a party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.
202
That rule will
always apply, unless the treaty has been held to be invalid.
Articles 47–53 contain other grounds for invalidity, including error, fraud, corruption, coercion
and conflict with a jus cogens norm.
203
‘Unequal treaties’
So-called ‘unequal’ or ‘Leonine’ treaties are those which are said to have been forced upon a weaker
state by a stronger one. The Convention does not mention them, and the idea has never been
accepted in international law. In discussing it, most writers have generally relied on certain
nineteenth-century treaties, such as the so-called capitulation treaties,
204
and were heavily
influenced by the effect of decolonisation, and to some extent by the views of the Soviet Union and
other communist regimes of Eastern Europe.
205
It is a cornerstone of international law that all states
are equal: that is equal before the law, even if not equal politically, economically or militarily. One
has to accept that very few states are ever equal in power. To allow a state to avoid its treaty
obligations on the ground of inequality would undermine the stability of treaty relations. The
presumption that treaties are valid is not easy to rebut, especially if one cannot find facts to satisfy
one of the many specific grounds of
200. See p. 9 above.
201. As to authority, see p. 58 above.
202. See p. 79 above.
203. See further Aust, pp. 253–6. For jus cogens, see p. 11 above.
204. See McNair, pp. 514, 527–31 and 662–4; Chiu, ‘Communist China’s Attitude towards International
Law’ (1966) AJIL 239–67.
205. Brownlie, p. 591, and compare with Oppenheim, pp. 1291–2. See also Koshevnikov, International
Law, p. 281; Lester, ‘Bizerta and the Unequal Treaty Theory’ (1962) ICLQ 847; Sinha, ‘Perspective of the
Newly Independent States on the Binding Quality of International Law’ (1965) ICLQ 123; Detter, ‘The
Problem of Unequal Treaties’ (1966) ICLQ 1069; and Caflisch, ‘Unequal Treaties’ (1992) GYIL 52–80.
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invalidity in the Convention, and there are very few examples of those grounds being successfully
invoked.
The depositary
The exacting and thankless role of a depositary (not depository) is vital to the effective functioning
of multilateral treaties, ensuring throughout their life that the necessary formalities and procedures
are properly performed, recorded and notified. The rules are in Articles 76–79.
Designation of a depositary
The depositary may be a state or an international organisation. When it is a state, the duties should
be carried out only by the foreign ministry, never subcontracted to another government department,
or public or private agency. Being a depositary neither prevents the state becoming a party, nor
obliges it to become one.
Most multilateral treaties are now adopted within an international organisation or at an
international conference convened by one, and the chief administrative officer of the organisation
will usually be designated the depositary. Other treaties are usually deposited with the state that
hosted the conference.
The UN Secretary-General is the depositary of treaties adopted within the United Nations or at
conferences convened by it. But just because all treaties have to be registered with the United
Nations does not mean that the UN Secretary-General is willing to be the depositary of any treaty;
registration and depositary functions are quite separate. He will agree to be the depositary of other
treaties only if satisfied that they are intended to be open to all states. He is the most experienced
depositary, over 500 treaties having been deposited with him. The Summary of Practice of the
Secretary-General as Depositary of Multilateral Treaties (ST/LEG/7/Rev.1) is an invaluable guide
on the depositary practice of the United Nations, and essential reading for any depositary. An up-to-
date version is available at http://untreaty.un.org/english/treaty.asp.
Multiple depositaries
During the Cold War, for political reasons
206
certain treaties, such as the Partial Test-Ban Treaty
1963
207
had three depositaries: the Soviet Union,
206. See p. 17 above.
207. 480 UNTS 43 (No. 6964); UKTS (1964) 3; TIAS 5433.
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the United Kingdom and the United States.
208
A state wishing to sign, ratify or accede to such
treaties was (and still is) able to do so with any one of them.
Duty to act impartially
It is a fundamental principle that a depositary must at all times act impartially. A depositary state
must keep a clear distinction between its views and national interests as a state and its functions as
depositary. When a depositary receives an instrument from an entity which it does not recognise as a
state, it must not seek to judge the validity of the instrument. Instead, it must notify interested states
without comment. It is for the latter to form a view as to the legal position. But, where it is
indisputable that an instrument is unacceptable, the duty of the depositary is simply to refuse it: if,
for example, only UN Members are eligible to become parties to the treaty and the entity is
obviously not one. The corollary of impartiality is that nothing that a state does as a depositary will
prejudice it as a state.
Functions of the depositary
Subject to any provisions in the treaty or as may be agreed by the contracting states, the principal
functions are listed in Article 77. Now that depositary functions are so well established and largely
codified in the Convention, it is enough simply to designate a depositary on the understanding that
the duties will be performed in accordance with the law of treaties and established practice.
Correction of errors
Due to their length and complexity, and the time pressure under which many are negotiated today, it
is common for multilateral treaties to have textual errors: typographical, spelling, punctuation,
numbering or cross-referencing, or a lack of concordance between the authentic language texts.
There may be a simple drafting mistake, such as use of inconsistent terminology. But correcting
anything that is more than an obvious ‘physical’ error or mistake of spelling or numbering may
affect the substance.
208. See Schwelb, ‘The Nuclear Test Ban Treaty and International Law’ (1964) AJIL 642 at 651–3;
Oppenheim, vol. , para. 50, n. 6; (1980) UN Juridical YB 207–8.