The Sources of International Law
Article 38 of theStatute of the International Court of Justice, considered by someas the "Bible of the Poor" of those who seek quick answers despite of the com-plexity of international relations, constitutes nevertheless a good starting point forthe understanding of the sources of international law. According to this article,international law finds its origin in the following three sources:- international conventions of general or particular nature;- international custom, as evidence of a general practice accepted as law;- the general principles of law recognized by civilized nations.
The International Court of Justice in The Hague, Netherlands.
Most international law experts would rush to add the "unilateral acts" to thesethree sources of law and to declare that Article 38 of the Statute has omitted tomention these unilateral acts for which the United Nations'International LawCommission (ILC)has elaboratedGuiding Principlesin 2006. Contrary to thisopinion, other international lawyers would maintain that these unilateral actsconstitute specific expressions of the will of States leading eventually to agree-

6 ments which are then governed by the rules applicable to international conven-tions.Finally, the idea of justice and equity originating in the philosophy of natural lawis not to be discarded as a source of international law, since it is the opinion oftheInternational Court of Justiceitself that whatever the legal argumentation ofthe judge, his or her decisions have to be just and in that sense must correspondto justice and equity. Moreover, the judges of theInternational Court of Justice are expressly authorized to decide a case ex aequo et bono, if the parties agreethereto, i.e. to found their judgements on arguments of equity (Article 38 (2) oftheStatute of the International Court of Justice).International treaty law as codified byVienna Convention on the Law of Treaties of 1969 is open for considerations of justice too (Preambular para. 4 and 5 andArticle 44 (3)). Moreover, the concept of " jus cogens" seems also to be an angleof incidence for natural law ideas.Since, on the basis of their sovereignty and therefore independence, the equalityof all States constitutes the theoretical foundation of international relations andalthough public international law, by definition, does not belong to civil law, inter-national legal debates are often reminiscent of the discussions known in the lat-ter area, in particular in the context of the law of contracts.However, the analogy with the law of contract ends where measures are takenon the basis ofChapter VII of the Charter of the United Nations. Although theyare foreseen in an international treaty - in particular byArticle 25 of the Charter-these measures deserve to be highlighted because of the legal obligations theyimpose to the whole world, their political significance and the remarkable devel-opment they have undergone since the Gulf War of 1991. The measures takenby theSecurity Counciland which are expressly based on Chapter VII of theCharter encompass not only military as well as economic sanctions against- certain States (Ethiopia, Eritrea, Iraq, Yugoslavia, SierraLeone etc.)- or insurgents (Angola's UNITA, see resolution1173/1998 of 12 June 1998) or even political parties ingovernment (the Afghan faction of the Taliban, see res.1267/1999 of 15 October 1999),but also

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- the creation of special tribunal to prosecute war crimes orcrimes against humanity in the territory of the formerYugoslavia (res. 827/1993 of 25 May 1993) and in Ruanda(res. 955/1994 of 8 November 1994)- or of special administrative zones like in East Timor (seeres. 1272/1999 of 25 October 1999) or in Kosovo (seeres.1244/1999 of 10 June 1999)as well as- measures against terrorism in general (res. 1373/2001 of 28 September 2001).These sources of international law are supplemented by two subsidiary meansfor the determination of rules of law (Article 38 (1)(d) of the Statute), i.e. by- judicial decisions (although even the decisions of theInternational Court of Justicehave binding force only between theparties and in respect of the particular cases submitted to theCourt - Article 59 of the Statute) and- the teachings of the most highly qualified publicists of thevarious nations.The present publication, for its part, is devoted to the international law of treatiesas codified in theVienna Convention. The principles of this convention as well astheir application constitute its main subject-matter.
II) Principles of Treaty Law
Although it is possible to conclude international conventions orally, almost all of them areconcluded in written form.Orginally, the international treaty rules were either part of customary international law orbelonged to the general principles of law; today the rules governing international treatieswhich are concluded between States in written form are codified. The codification govern-ing this legal area is the Vienna Convention on the Law of Treaties (Vienna Convention) of1969 which has entered into force on 27 January 1980. Although the Vienna Convention isnot applicable to treaties concluded before its entry into force (Article 4) it is de facto ap-plied to those too, since it incorporates - at least to a large extent - customary rules which

8 were already applicable before this date. Moreover, the Vienna Convention applies only inthe absence of other applicable agreements and is therefore of subsidiary character.A Vienna Convention on the Law of Treaties between States and International Organiza-tions or between International Organizations dating from 1986 has reproduced the provi-sions of the Vienna Convention. It reflects to a large extent international customary law,too; however, it has not yet entered into force.Finally, a Vienna Convention on Succession of States in respect of Treaties, concluded in1978, entered into force in 1996, but since it has been ratified by 15 States only, it cannotbe considered as a source of universal international law. Furthermore, it has hardly hadany impact on state practice, the noteworthy exception being that practice widely followsthe rule according to which a successor State can establish its status as party of a multi-lateral treaty to which its predecessor State already belonged through a declaration of suc-cession.Generally speaking, one can say that customary international law is rather blurred in thisregard.Basically, two types of treaties are two be distinguished:- bilateral treaties which are concluded between two States onlyand- multilateral treaties concluded between at least three States;the treaties which have attracted the largest numbers ofparties are called universal.Amongst multilateral treaties, one can distinguish between "open" and "restricted" treaties.Whereas every State can become a party to the "open" ones, access to the latter categoryof treaties is excluded for those States which do not belong to the original States Parties,unless an agreement to the contrary has been entered into.Hence, every State can accede to the Vienna Convention (open treaty), but only the signa-tory States of the Convention on the Regulation of the Navigation on the Danube Riverfrom 1948 could originally ratify this (restricted) treaty: hence the accessions of Austria andGermany had to be approved by the original States Parties in 1960 and 1999, respec-tively, by way of supplementary agreements with these two countries.The Vienna Convention which consists of 85 articles, eight parts and an annex includesand materializes five fundamental legal principles, i.e.

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1.free consent 2.good faith 3.pacta sunt servanda 4.rebus sic stantibus 5.favor contractus Free consent and good faith (bona fide in Latin) are the leading principles which ought tobe always followed by States in the course of their relations with one another.The other major principles which also emanate from the Roman Law tradition apply in par-ticular- either to the conclusion of treaties:-pacta sunt servanda(a treaty is binding upon the parties)- or to the interpretation or application of treaties:-omnia conventio intelligitur rebus sic stantibus (viz. the clausula rebus sic stantibus according to which afundamental change of circumstances jeopardizes the validityof treaties)-favor contractus(it is better to seek the maintenance ratherthan the termination of a treaty)These five principles will be subject to closer scrutiny and theapplication of the two majorprinciples (free consent and good faith)will be the object of a separate chapter. Of course,the delimitation between these principles can be vague, but eventually they are mutuallysupportive of each other.
1) Free consent
This international principle is embodied in preambular para. 3 of theVienna Convention.First of all, it is the corollary of the prohibition of the threat and use of force contained inthe Charter of the United Nations (Article 2 (4)) which legitimates such behaviour only inspecific circumstances. The severance or absence of diplomatic (or consular) relations be-

10 tween two or more States does not prevent the conclusion of treaties between thoseStates (Article 74).According to the principle of free consent, international agreements are binding upon theparties and solely upon themselves. These parties cannot create either obligations orrights for third States without their consent (rule of pacta tertiis nec nocent nec prosunt -Article 34). The only explicit exception to this rule appears in Article 22 (1) which is an ex-pression of the favor contractus principle and concerns the withdrawal of reservations.Another important principle which can be deducted from the free consent rule is expressedby the latin phrase lex posterior derogat legi priori. According to this rule, a later treaty pre-vails over an earlier one when two treaties exist which relate to the same subject-matter(Article 30 para. 3). This principle will be dealt with in the context of treaty amendments.It is understood that by giving its consent, a State binds itself in respect of its entire terri-tory and not retroactively, unless a different intention is established (Articles 28 and 29).
2) Good faith
As well as free consent, good faith is of fundamental importance for the conduct of interna-tional relations in general and is therefore recognized as an international principle accord-ing to the very terms of theVienna Convention(Preambular para. 3). If a State do not be-have in good faith, peace and international security, the supreme goals of the Charter ofthe United Nations might eventualy be put in jeopardy.
In a resolution from July 2001, the International Whaling Commission (IWC) which is con-stituted by more than 40 member countries declared that "good faith requires fairness,reasonableness, integrity and honesty in international behaviour". An abuse of right is con-trary to the principle of good faith (see Article 300 of the United Nations Convention on theLaw of the Sea).
Of course, being a subjective element of behaviour, presence or absence of good faith canbe difficult to prove. In the last analysis, good or bad faith can only be found in the mindsof individuals, in particular of those who happen to have an influence on the conduct of fo-reign policy and, more specifically, of those whose task it is to negotiate and implementinternational conventions (see Articles 26, 31 (1) and 62 (2)(b)).
3) Pacta sunt servanda

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Apart from the fact that it is listed together with good faith among the universally recog-nized principles (preambular para. 3), this rule is also enshrined in Article 26:"Every treaty in force is binding upon the parties to it and must be performed by them ingood faith."In Paul Reuter's words, this principle can be translated by the following formula: treaties"are what the authors wanted them to be and only what they wanted them to be and be-cause they wanted them to be the way they are".A party is not authorized to invoke the provisions of its internal law as justification for itsfailure to perform a treaty (Article 27). Generally speaking, this solid legal link is nor evenweakened in the case severance of diplomatic relations between the parties to a giventreaty (Article 63). The only limit to the "pacta sunt servanda" rule is to be found in the no-tion of "peremptory norm of general international law" (or jus cogens).But apparently States expect increasingly out of realism that the treaties they conclude incertain areas, in particular with regard to the protection of the environment, will not be pro-perly implemented by all States parties just out of respect for the "pacta sunt servanda"rule. This is why several recent treaties contain obligations to cooperate in order to facili-tate compliance with the treaty obligations (see also Article 8 of the Ottawa Convention onthe prohibition of landmines).
4) The rebus sic stantibus clause
According to this principle (understood in a broad sense), extraordinary circumstances canlead to the termination of a treaty. These circumstances can consist either in a materialbreach of a given treaty by one of the States Parties (Article 60), in a permanent disap-pearance of an object indispensable for the execution of the treaty (Article 61) or in a fun-damental change of circumstances (Article 62, clausula rebus sic stantibus understood ina narrow sense).A fundamental change of circumstances can also occur in the case of the outbreak of hos-tilities between the States Parties (see Article 73). However, this fact cannot be invoked asa ground for terminating a treaty, if it has been concluded with regard to the possible out-break of an armed conflict as in the case of the Geneva Conventions of 12 August 1949(so-called Red Cross-conventions) or the Hague Conventions of 1899 and 1907. The In-ternational Law Commission (ILC) has elaborated draft articles on Effects of armed con-flicts on treaty.A further extraordinary circumstance foreseen by the Vienna Convention is the emergenceof "jus cogens" , i.e. of a new peremptory norm of general international law. This circum-stance is distinct from those enumerated above by the fact that it is of normative and not

12 factual nature. The rebus sic stantibus clause can be considered as an implicit reservationgenerally affecting the consent expressed by a State to be bound by a treaty. It seemsworthwhile mentionning in this context that Argentina has made a reservation to Article 62in which it made plain that she would not not accept the idea that a fundamental change ofcircumstances which has occurred with regard to those existing at the time of the conclu-sion of a treaty, and which was not foreseen by the parties, may be invoked as a groundfor terminating or withdrawing from the treaty.However, according to Article 62 (2)(a) (rebus sic stantibus clause understood in a narrowsense), a fundamental change of circumstances may not be invoked in the case of bound-ary treaties, the reason being that putting into question international boundaries can leadto a peace theatening situation, because it jeopardizes the principle of territorial integrity(see Article 2 (4) of the Charter of the United Nations) which is quite fundamental in inter-national relations.Hence, the Vienna Convention on Succession of States in respect of Treaties of 1978 hasrestated the rule that a succession of States does not affect as such a boundary or anyother territorial regime established by a treaty.
5) Favor contractus
This principle expresses the preference of international treaty law for the maintenance andthe conclusion of treaties over expiry for reasons of form.Hence, unless the treaty otherwise provides, a multilateral treaty does not terminate byreason only of he fact that the number of the parties falls below the number necessary forits entry into force (Article 55).The Vienna Convention also sanctions the prohibition to denounce a treaty or to withdrawfrom it, if it does not foresee itself these forms of termination. This applies, of course, un-less the parties did not wish, be it by tacit understanding, a different solution (see Article56).Likewise, in order to uphold the validity of treaties, Article 68 allows parties to revoke atany time before they take effect notifications or instruments designed to lead to invalidity,even this is done only in relationship to one single other party.In practice, however, the most important expression of the favor contractus principle iscontained in the provisions of the Vienna Convention concerning reservations; this publi-cation will devote to them a separate chapter. In particular, whereas a reservation has tobe accepted implicitly or explicitly by at least one other State Party (Article 20 (2),(4)(c)and (5)), it can be withdrawn at any time without the consent of the State or States which

13 had accepted it in the first place (Article 22 (1)). This is the only explicit exception to thefree consent principle.The favor contractus principle can be found in Article 74, too. This provision clarifies thatthe severance or absence of diplomatic or consular relations does not prevent concernedStates to conclude treaties between themselves.
III) Application of Treaty Principles (free consent & good faith)
1) with regard to the conclusion of treaties
a) The expression of free consentthe Vienna Convention which governs agreements concluded in written form between Sta-tes, confirms in its Article 6 that every State possesses capacity to conclude treaties. Thewill of a State finds its expression through persons who are authorized to do so or who areconsidered to be state representatives.Since international treaty law in its entirety is subject to the free consent principle. it is qui-te logical that the Vienna Convention offers a broad choice of possibilities to express con-sent (Article 11), i.e.- signature,- exchange of instruments constituting a treaty(in the case of bilateral treaties this often happens through theexchange of notes),- ratification,- acceptance,- approval,- accession or- by any other means if so agreed.A typical clause of entry into force can be found in Article 84 of the Vienna Convention it-self which reads:"1. The present Convention shall enter into force on the thirtieth day following the date ofdeposit of the thirty-fifth instrument of ratification or accession.2. For each State ratifying or acceding to the Convention after the deposit of the thirty-fifthinstrument of ratification or accession, the Convention shall enter into force on the thirtiethday after deposit by such State of its instrument of ratification or accession."

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The States Parties - primarily the contracting States (see Article 2 (1)(f)) - can also agreeto apply a treaty provisionally pending its entry into force (Article 25). This agreement canbe laid down in the treaty itself or in another way. If this done in the treaty itself, theagreement enters into force with its signature (and which in this case remains, of course,subject to ratification).For reasons to be found in their own domestic legislation it is not possible for some States- Austria, for instance - to apply international conventions provisionally.Finally, it should be mentioned that there are constitutions like that of Portugal (see Artikel8) which do not authorize States to express their consent through all of the means enu-merated in Article 11 of the Vienna Convention; hence, for Portugal there is only a possi-bility to ratify or approve a treaty. Since this is the result of a domestic provision, a consentwhich would be expressed in a different manner would not be flawed from point of view ofinternational treaty law, because the ways and means to express consent are already de-termined by customary international law and not only by the Vienna Convention.b) Pacta tertiis nec nocent nec prosuntA treaty binds the parties and only the parties; it does not create obligations for a third Sta-te without its consent (Article 34), since sovereignty implies that there is no agreementwithout free consent. "Third State" means a State which not a party to a given treaty (Arti-cle 2 (1)(h)).The acceptance of an obligation by a third State must be expressed both expressly and inwriting (Article 35), in order to avoid doubts as to the extent of the obligation which hadbeen previously defined by others.A consent which as been expressed in such a way can be qualfies as quasi-contractual.Hence, it is only logical that the obligation can only be revoked or modified with the con-sent of all parties to the treaty as well as of the third State, unless it is established that theyhad otherwise agreed (Article 37(1)).Although a third State cannot be granted a right without its approval, its assent is never-theless presumed (Article 36(1)). A third State which exercising such a right is under anobligation to comply with the conditions for its exercise provided for in the treaty or estab-lished in conformity with the treaty (Article 36(2)). The rights granted to a third State can berevoked by the States Parties unless it is established that the right was intended not to berevocable or subject to modification without the consent of the third State. In such a case,the burden of proof lies with the third party benefiting of the right or rights.The principle according to which a treaty cannot create rights or obligations for a third par-ty without its consent is expressed in Latin by the phrase "pacta tertiis nec nocent nec pro-

15 sunt". This rule also applies when two or more parties of a multilateral convention con-clude an agreement to modify the convention only in relation to each other, since theyhereby exclude third States from their agreement inspite of the fact that the latter are par-ties to the original treaty (see Article 41).c) Designation of treatiesAs it appears from the definition of Article 2 (1)(a) of the Vienna Convention, the legallybinding nature of a treaty is not affected by its particular designation. In order to be legallybinding, the parties must have had the intention to be bound legally and not "only" througha political commitment.Nevertheless, the designation of a particular agreement indicates the political importancethe parties attach to it, though it cannot be considered as conclusive evidence.With regard to bilateral agreements, the term "Treaty" suggests that the agreement sodesignated is considered to be of great importance. Friendship treaties, although outdatedin many cases today, are an example thereof. The nowadays most utilized designationseems to be "Agreement". It is utilized so often that it is impossible to conclude from therewhich political value it has for the parties. The term "memorandum of agreement" is wide-spread, too.With regard to multilateral agreements, the terms "Charter" or, here again, "Treaty" arechosen in general for the most important conventions as it is the case for- the Charter of the United Nations of 1945,- the Charter of the Organization of American States(1948),- the Charter of the Organisation of the Islamic Conference (2008) or- the European Charter for Regional or Minority Languages (1992).In spite of its solemn title, the Charter of Fundamental Rights of the European Union,which has been proclaimed in Nice on 7 March 2000 is not a legally binding instrument,although it is designed to become the common reference of fundamental values on whichthe members of the European Union intend to develop their further integration.As to the designation of a text as "Treaty", here are some examples:- the North Atlantic Treaty (the NATO-Treaty) of 1948,- The Treaty on the Non-Proliferation of nuclear Weapons(NPT - 1968) and

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- the Treaty on the European Union of 1992 (as amended by theTreaty of Nice of 2001).In most cases, multilateral treaties are called "Conventions". This is the most general des-ignation which is also used by Article 38 of the Statute of the International Court of Justice.They are often concluded under the auspices of an international organization such as- the Convention for the Protection of Human Rights andFundamental Freedoms of 1950 (so-calledEuropean Human Rights Convention concludedunder the auspices of the Council of Europe),- the United Nations Convention on the Law of the Sea (1982)- the Universal Copyright Convention as revised at Paris on24 July 1971 (concluded under the auspices of theUnited Nations Educational, Scientific and Cultural Organization- UNESCO)As in the case of bilateral treaties, the very general term "Agreement" is also frequentlyused for multilateral conventions. It has been used in the following examples:- the European Agreement on continued Payment of Scholarshipsfor Students Studying Abroad of 1969,- the Agreement Governing the Activities of States on the Moon andOther Celestial Bodies (1979) or- the North American Free Trade Agreement (1992).The designation "Protocol" is usually used for legally binding agreements which are addi-tional or complementary to main agreements or which have a supporting role.As additional agreements they are added to the original treaties as it is the case with theProtocols Additional to the Geneva Conventions of 12 August 1949.As complementary agreement, they are in general already foreseen in the original conven-tion. This technique is frequently used in environmental treaties where the protocols setout detailed provisions on the basis of an more general article in a framework agreementas it is the case of the Cartagena Protocol on Biosafety to the Convention on BiologicalDiversity which has been adopted in 1999 on the basis of Article 19 (3) of the conventiondating from 1992.Finally, As supporting agreements, they help to implement the main agreement as in thecase of the Optional Protocol to the International Covenant on Civil and Political Rights of1966, through which access to an intergovernmental body has been given to individuals.

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In the present context, it is worthwhile mentioning that in the present publication, we havealso encountered the terms- "Statute" (Statute of the International Court of Justice,Rome Statute of the International Criminal Court of 1998)and- "Covenant" (International Covenant on Civil and Political Rights,International Covenant on Economic, Social and Cultural Rights).
2) With regard to the termination of treaties
a) By consensusIn the same way as States can conclude treaties, they can also terminate them by mutualconsent. Their consent can be expressed either in the treaty itself which they had originallyconcluded (expiry date, denunciation clause) or thereafter (article 54), in particular throughthe conclusion of a later treaty aiming at achieving this very purpose (Article 59, explicittermination), or through the conclusion of a treaty relating to the same subject-matter (seeArticle 30 (3), implicit termination). The same rules apply for the termination as well as forthe suspension of treaties (Article 57 and 59 (2)).With regard to multilateral treaties, the Vienna Convention authorizes two or more partiesto suspend the operation of treaty provisions- temporarily and- as between themselves alone,as long as this does not entail a limitation of rights or obligations of the other parties (Arti-cle 58 (1); applicaton of the principle "pacta tertiis nec nocent nec prosunt").Unless the treaty otherwise provides, the parties in question have to notify the other par-ties of their intention to conclude the agreement and of those provisions of the treaty theoperation of which they intend to suspend (Article 58 (2)).As a matter of course, where a treaty contains a denunciation clause, the parties can availthemselves of the possibility offered by it and withdraw from the treaty. The unilateral de-nunciation is not in contradiction to the principle of free consent, since the possibility ofsuch a denunciation had been agreed upon by the parties in the treaty.b) Termination of treaties as a consequence of a defect of consent

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Every person invested with appropriate full powers has the authority to express the con-sent of the State which he represents to be bound by a given treaty. If this authority hasbeen made subject to a specific restriction which has then not been observed by the rep-resentative, the State may invoke this fact as invalidating its consent. However, this possi-bility only exists, if the restriction had been notified to the other negotiating States beforethe expression of consent (Article 47), because if this prior notification did not take place, itwould be easy to invoke defect of consent by mere political opportunism which, in return,would constitute a behaviour contrary to the principle of good faith.The other defects of consent are enumerated exhaustively in the Articles 48 to 52 of theVienna Convention. They are the consequence of- an error (Article 48)- deceit (Articles 49 and 50) or- coercion (Articles 51 and 52).ErrorAn error (Article 48) is a mistaken impression of facts which nullifies consensus. A Statemay invoke an error if it relates to a fact or situation which was assumed by that State toexist at the time when the treaty was concluded and formed an essential basis of its con-sent to be bound (Article 48). This provisions echoes the adage "omnis conventio intelligi-tur sic stantibus": A genuine consensus only exists where all essential facts were equallyknown by all parties. Nevertheless, a State may only invoke an error, if it has not contrib-uted to it by his own conduct.DeceitLike an error, fraud (Article 49) leads to a mistaken impression of reality, but unlike theformer it is the consequence of a deception by the other party or parties. The State Partyvictim of such an act is entitled to invoke fraud as invalidating its consent to be bound bythe treaty.The corruption of a State representative (Article 50) perverts the relationship of agency ex-isting between this person and the State from which he has the authorization to act on itsbehalf. Corruption can occur either directly or indirectly, and in order to be invoked, it mustbe at the origin of the expression of a consent to be bound by a given treaty.Within the boundaries set by Article 44 (4) deceived States are entitled to invalidate eitherthe whole treaty or only parts thereof. In cases of coercion (see below) or of treaties con-flicting with jus cogens, the possibility of making such a choice is no foreseen; hence, onlythe treaty as a whole is voidable (Article 44 (5)).

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CoercionThe most quoted example of a coercitive measures taken against a State representative(Article 51) are the threats formulated against the Czechoslovak President Hacha in orderto have him agree on the end of a independent Czechoslovakia."A treaty is void if its conclusion has been procured by the threat or use of force in violationof the principles of international law embodied in the Charter of the United Nations." (Arti-cle 52). Such a coercion is indeed prohibited by Article 2 (4) of the Charter of the UnitedNations. Since consensus for the inclusion of a definition of "threat" in the Vienna Conven-tion itself was lacking, the United Nations Conference on the Law of Treaties adopted attogether with the Vienna Convention a "Declaration on the Prohibition of Military, Politicalor Economic Coercion in the Conclusion of Treaties". Paragraph one of this legally non-binding declaration "solemny condems the threat or use of pressure in any form, whethermilitary, political, or economic, by any State in order to coerce another State to performany act relating to the conclusion of a treaty in violation of the principles of the sovereignequality of States and freedom of consent".However, in the context of diplomatic protection the question of the legitimacy of the use offorce is disputed. Therefore, for some there is no defect in the consent of a State whichhas been brought about under such circumstances. As a matter of course, such an argu-mentation is very dangerous, since it furthers aggressive behaviour shown under the pre-text that is is legitimated by the international law of diplomatic protection. But how arepeace treaties to be judged in the light of Article 52, since most of them are the result ofarmed conflicts ?c) No derogation of jus cogensWith the exception of the provision contained in Article 22, para.1 which emanates fromthe favor contractus principle, only peremptory norms of general international law (Latin: jus cogens) can stand in the way of an agreement which has been freely entered into. In-deed, Article 53 of the Vienna Convention specifies that a treaty conflicting with jus cogensat the time of its conclusion is void. Similarly, a treaty becomes void and terminates, if it isin contradiction with a peremptory norm of international which has newly emerged (jus co-gens superveniens - Article 64)In that context we are in the presence of quite obscure provisions despite the definition of jus cogens contained in Article 53: According to it, a peremptory norm of general interna-tional law is a norm accepted and recognized by the international community of States asa whole as a norm from which no derogation is permitted and which can be modified onlyby a subsequent norm of general international law having the same character.

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As the International Law Commission (ILC) nevertheless remarked itself in 1969 in itscommentary on the draft articles for the international law of the treaties, there is no simplecriterion which would allow to determine whether a rule belongs to jus cogens.This state of affairs has hardly evolved, although it seems that certain international normsfor which criminals will have to stand before the International Criminal Court after havingbreached them constitute to a large extent the body of these sought jus cogens rules.These penal provisions concern the prohibition of genocide, war crimes, crimes againsthumanity and the crime of aggression.Eventually, jus cogens seems to be a concept invented by international law experts whohad been pursuing the aim of allowing natural law ideas to irrupt into the legal regime ofinternational treaties.
3) With regard to the amendment of treaties
The rules concerning the conclusion of treaties (Articles 6 to 25) equally apply for the a-mendment of treaties (Article 39). Because of the pronciple of free consent, the StatesParties are free to create specific norms for the amendment of their treaty or treaties. Suchan agreement can be entered into- either implicitly- or explicitly,both orally or in written form (the Vienna Convention, however, is only applicable foragreements concluded in written form). This agreement can authorize the amendment ofthe original treaty as well as it can prohibit or restrict amendments. Nevertheless, agree-ments concerning the amendment of treaties can also be subject to amendments them-selves.a) The implicit amendmentAn amendment is done implicitly when the States Parties conclude successive treaties re-lating to the same-subject-matter. Unless otherwise provided for in an agreement, the ear-lier treaty applies only to the eits provisions are compatible with the later treaty (in confor-mity with the latin maxim lex posterior derogat legi priori according to which the later treatyprevails over an earlier one if both regulate the same subject-matter, Article 30 (3)).In view of the provisions concerning e x p l i c i t amendments between certain parties only(Article 41) the implicit amendment must be considered as problematic, since it does notwarrant the same transparency in the course of a negotiation:

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In particular, parties which want to modify a treaty in accordance with Article 41, para. 2have to notify the other parties of their intention. This provisions aims at ensuring that ne-gotiations are conducted in good faith with parties being aware of the relevant circum-stances.b) The explicit amendmentFor bilateral treaties the rule incorporated in Article 39 according to which a treaty can beamended by agreement between the parties seems sufficient. As for multilateral treaties,one can envisage two types of situation:- either two or more States make a proposal for an amendmentdesigned to enter into force for all States parties- or they intend to modify the treaty only between themselves.In both cases, in view of the good faith principle, the acting parties have to notify the oth-ers of their intention to conclude the agreement and of the envisaged modification to thetreaty (Article 40 (2) and42 (2)).According to the principle that agreements do not bind parties which are not privy to it (Ar-ticle 34, repeated in Article 30 (4)(b) - pactatertiis nec nocent nec prosunt), a modification agreed upon between certain States cannotbind other States which have not approved the modification or amendment (Article 40 (4)),despite the fact that the latter are parties to the original treaty.Out of respect for the principles of free consent and good faith, an agreement aiming atmodifying a multilateral treaty only between certain of its parties, must not infringe- neither upon the rights and obligations of the parties to the originaltreaty- nor upon its object and purpose (Article 41(1)(b)(ii) - a vagueconcept, which is reiterated in the Articles 18, 19 and 31(1)).Finally, it is worthwhile noting that the Vienna Convention distinguishes between amend-ments which are valid for all parties to a given treaty and modifications which are only re-levant for a restricted number of them.

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4) With regard to the interpretation of treaties
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to begiven to the terms of the treaty in their context and in the light of its object and purpose."(Article 31 (1); here again, as in the Articles 18, 19, 20 (2), 41 (1)(b)(ii) and 58 (1)(b)(ii), wefind again the vague concept of "object and purpose of a treaty").The context includes, in addition to the treaty text itself, the preamble and the annexes aswell as other agreements and documents which are considered by the parties as being in-struments related to the treaty (Article 31 (2)). Furthermore, any subsequent practice in theapplication of the treaty which establishes the agreement of the parties regarding its inter-pretation has to be taken into account, too.According to the "Appellate Body", the highest dispute settlement organ of the World Tra-de Organization (WTO), the context of a legal instrument is also constituted by the othertreaties its parties adhere to. Hence, in the case concerning "Standards for Reformulatedand Conventional Gasoline" the Appellate Body explained that the Marrakesh AgreementEstablishing the World Trade Organization (the "WTO Agreement") "is not to be read inclinical isolation from public international law". That means, in particular, that the tradeprovisions of the WTO Agreement have also to be interpreted in the light of conventionsfor the protection of the environment, provided that they are in force between the StatesParties of the WTO Agreement.Finally, there are supplementary means of interpretation as, for instance, the preparatorywork of the treaty (so called "travaux préparatoires") and the circumstances of its conclu-sion (Article 32).A specificty of international conventions lies in the fact that they are authenticated in sev-eral languages (see Article 33). With regard to treaties concluded under the auspices ofthe United Nations, these languages are regulary: Arabic, Chinese, English, French, Span-ish and Russian.The terms of the treaty are presumed to have the same meaning in each authentic text(Article 33 (3)). In the case of several Protocols to the Convention for the Protection of theAlps (the Alpine Convention) there were so many difrences in the texts authenticated inFrench, German, Italian and Slovene that a separate conference had to be convened forthe purpose of their harmonization (see Article 79 (3)).The LaGrand case revealed a divergence between the equally authentic English andFench versions of Article 41 of the Statute of the International Court of Justice. Hence, theCourt had to examine the object and purpose of the Statute together with the context ofArticle 41. In this way, the Court, in its judgement of 27 June 2001, "reached the conclu-sion that orders on provisional measures under Article 41 have binding effect".

23
5) Specific application of the good faith principle (bona fide)
A State is entitled to invoke a deficiency of intention if he other States Parties knew that itsconsent had been expressed in manifest violation of a fundamental rule of internal law re-garding competence to conclude treaties. In this case, the other parties cannot pretendbona fide that the State genuinely wished to be bound by the treaty in question. Accordingto Article 46 (2), a violation is manifest if it would be objectively evident to any State con-ducting itslef in the matter in accordance with normal practice and good faith.It this provision, the meaning of the term "objectively evident " remains to be clarified aswell as whether there really is a general practice one can refer to and which is applicablein each and every case. Moreover, the concept of "objective evidence" relies upon theterm "good faith" which is a subjective element which therefore is dificult to prove.Luckily, the value of this provision rests to a large extent with theory. It is almost always inthe course of the application and implementation of treaties that the conceept of bona fidecomes ino play. If a State does not implement a treaty in good faith by violating at leastone of its substantial provisions, the Vienna Convention authorizes the other parties to in-voke the breach as a ground for terminating the treaty or suspending its operation in wholeor in part (Article 60).A bona fide application or implementation can also have a legitimizing effect in case thetreaty is invalidated: According to Article 69 (2)(b), acts performed in good faith before theinvalidity was invoked are not rendered unlawful by reason only of the invalidity of the trea-ty.As a matter of course, there cannot be a legitimizing effect for a party to which fraud, anact of corruption or coercion is imputable (Article 69(3)). The injured party or parties arethen entitled to require any other party to establish as far as possible in their mutual rela-tions the position that would have existed if the acts had not been performed.A State Party who wishes to impeach the validity of a treaty, to terminate it, to withdrawfrom it of to suspend its operation must notify the other parties of its claim in order to givethem an opportunity to raise an objection against it. For this purpose, the Vienna Conven-tion foresees a time limit of three months after the receipt of the notification (Article 65(2)).After the end of this time limit, the State can declare the invalidity of the treaty through adocument signed by one of its representatives.With the exception of cases of special urgency, this instrument cannot be communicatedbefore the end of the period of three months foreseen in Article 65 (2). If, however, an ob- jection has been raised by at least one other party, the States Parties are under an obliga-

24 tion to seek a solution through the means indicated in Article 33 of the Charter of the Uni-ted Nations.
IV) Reservations
According to Article 2 (1)(d) the term "reservation" means a unilateral statement, howeverphrased or named, made by a State, when signing, ratifying, accepting, approving or ac-ceding to a treaty whereby it purports to exclude or modify the legal effects of certain pro-visions of the treaty in their application to that State.The legal regime of reservations has been codified in the Articles 19 to 23 of the ViennaConvention. Since this regime does not always give clear answers on how to deal withreservations, the International Law commission (ILC) provisionally adopted „draft guide-lines“ on this issue.One of the great difficulties is how to distinguish reservations from interpretative declara-tions. The Vienna Convention does not explicitly deal with the latter, but since the way areservation is phrased or named does not matter, a large number of so-called interpreta-tive declarations would seem to be in fact covered by the provisions of the Vienna Con-vention on reservations.In the same way as reservations, interpretative declarations are unilateral acts, but unlikethe former, such declarations can be made at any time whereas a reservation must beformally confirmed by the State at the time of expressing its consent to be bound by a gi-ven treaty (Article 23 (2)), viz. when ratifying, accepting or approving it.By an interpretative declaration, a State aims at clarifying what meaning or extent it attrib-utes to a given treaty or to some of its provisions. The qualification of an unilateral declara-tion as reservation or interpretative declaration depends on the legal effects it intends toproduce, a matter which is far from being always clear.In the case of a State not qualifying itself its declaration as reservation or interpretativedeclaration, it is sometimes the depositary who chooses one of the two designations whencommunicating the declaration to the other States Parties in accodance with Article 77(1)(e) or with any other provision of a particular treaty relevant in the given circumstances.The favor contractus principle has a double impact on the legal regime of reservations:- In order to facilitate both the entry into force of a convention anda wide participation to it, the Vienna Convention establishes

25 practically no obstacles to the declaration of reservations,although this is done at the price of the integrity of the treaties.Furthermore, silence amounts to agreement (Article 20 (5))so that in the reality of treaty relations, in particular with regardto universal treaties, the entry into force of a reservation can bealmost automatically assumed.- However, a return to treaty integrity is made even easier, since areservation can be withdrawn at any time even without theconsent of those States which had previously accepted(Article 22 (2)). In that case, the favor contractus principlesupersedes the free consent rule.In accordance with the free consent principle the issue of the permissibility of reservationsdoes not arise when a treaty straightforwardly prohibits them.The issue is of minor importance when a treaty accepts only specific reservations; in thatcase one has to question whether a specific reservation is still covered by the authoriza-tion expressed in the treaty.The matter gets complicated when one has to decide whether a reservation is compatiblewith object and purpose of the treaty in question (see Article 19 (c)).Since the Advisory Opinion of the International Court of Justice of 28 May 1951 concern-ing Reservations to the Convention on the Prevention and Punishment of the Crime ofGenocide, it is this compatibility with object and purpose of the treaty which constitutes thetouchstone of its admissibility.Despite its vague content - but in default of a better alternative - the "incompatibility withthe object and purpose of the treaty"-formula has been included into the Vienna Conven-tion not in its Article 19(c) but also in its Articles 18, 20 (2), 31 (1) and 33 (5). According tothis formula the States decide for themselves whether the reservation declared by anotherState Party is to be considered compatible with the object and purpose of a given treaty ornot.If a State Party comes to the conclusion that the reservation made by another State is notpermissible, then it can raise an objection by the end of a period of twelve months after itwas notified of the reservation (Article 20 (5)). The objection's effect is that the provisionsto which the reservation relates do not apply to the extent of the reservation as betweenthe State which has made the reservation and the one which has raised an objection.However, if the State which raises the objection wants to exclude the entry into force of thewhole treaty between itself and the reserving State, it has to do it explicitly (Article 21 (3)).It is only in that case that there is a difference between the legal effects following from theacceptance of a reservation and those which are the consequences of objecting to it.Paradoxically, the legal consequences are otherwise the same.

26
Eventually, disputes concerning the admissibility of reservations can only be solvedthrough a dispute settlement mechanism. Such a procedure has to be foreseen either inthe concerned treaty or in an agreement otherwise entered into by the States Parties.A very controversial issue in this regard is whether a reservation incompatible with the aimand purpose of a treaty is to be considered as lack of agreement or whether it is only thereservation itself which has to be considered null and void.This is a particularly thorny issue in case of reservations made to human rights treaties.This question can even lead to ideological confrontations when a State makes a reserva-tion which declares the priority of islamic law (Sharî'a) over the provisions of such treaties.In general, the procedure to be followed in case of reservations is characterized by the factthat for reasons of legal security the various unilateral declarations, i.e.- the reservations themselves, the objections to themas well as- the withdrawal of reservations and objectionsmust be formulated in writing (Article 23 (1) and (4)).If a reservation is formulated when signing the treaty without expressing at the same timethe consent of the State to be bound by it, the reservation must be formally confirmedwhen the State expresses its consent to this effect (Article 23 (2)).In multilateral treaty practice, it is the task of the various depositaries to receive the reser-vations, the objections and the withdrawals and to inform the other States Parties aboutthese communications (Article 77 (1)(c) and (e)).
V) Procedures
1) The State‘s will
a) With regard to the conclusion of treatiesIn view of their tasks, the following persons are considered to be States' representatives:- the Head of States,- the Head of governments and- the Ministers for foreign affairs.

27
As a rule, other persons are not allowed to express the consent of a State to be bound bya treaty, unless he or she can produce appropriate full powers which have been issued bythe authority authorized to do so according to its domestic legislation (Article 7 (1)(c) and 2(1)(c). However, it can appear from the practice of the States concerned by a given treatyor from other circumstances that their intention was to consider a particular person as rep-resenting his or her State and to dispense with full powers (Article 7 (1)(b)).Free consent overrules any formality (production of full powers), a situation which is proneto confusion in today's world where one can witness multiple contacts between bureaucra-cies of all kind.An act relating to the conclusion of a treaty performed by a person who cannot be consid-ered as authorized to represent a State for that purpose is without legal effect unless af-terwards confirmed by that State (Article 8).b) With regard to the termination of treatiesSymmetrically to the conclusion of a treaty, a withdrawal, suspension or declaration of in-validity must be declared in a document signed- either by a Head of State,- a Head of government or- a Minister of Foreign Affairs.If the instrument is not signed by the Head of State, Head of Government or Minister forForeign Affairs, the representative of the State communicating the termination may be cal-led upon to produce full powers (Article 67 (2)).There is no explicit rule in the Vienna Convention as to whether the termination of a treatydeclared without appropriate full powers can be subsequently confirmed; however, there isno reason why Article 8 which foresees such a possibility in the case of conclusion couldnot be applied by analogy on the basis of the general principles of law recognized by civi-lized nations (cf. Article 38 (1)(c) of the Statute of the International Court of Justice).

28
2) The depositary and the registration of treaties
The documents by which States express their consent to be bound by a treaty (instru-ments of ratification, acceptance etc.) are kept by an organ designated by the respectivetreaties, the "depositary". His tasks are enumerated in Article 77 of the Vienna Conventionand can be compared to those of notary public in the context of civil law.The Director General of the International Atomic Energy Agency (IAEA) or the SecretaryGeneral of the United Nations are examples of such organs who act, inter alia, as deposi-taries of various conventions; since 1945 more than 500 multilateral treaties have beendeposited with the latter. Nevertheless, this task can also be conferred upon a governmentas in the case of the Switzerland which acts as depositary for more than 75 treaties. Thefunctions of the depositary of a treaty are international in character and the depositary isunder an obligation to act impartially in their performance (Article 76 (2)).According to Article 102 of the Charter of the United Nations no party to an internationalagreement which has not been registered it with the Secretariat of the United Nations mayinvoke that agreement before any organ of the United Nations and in particular not beforethe International Court of Justice. The Treaty Section of the Office of Legal Affairs of theUnited Nations registers approximately 4000 treaties and related actions annually.
3) Settlement of disputes
The Vienna Convention considers the invalidity of a treaty being claimed by one or moreparties, but contested by other States Parties as the most likely case for a dispute settle-ment (Article 65 (3)). Since the Vienna Convention does not intend to be prejudicial to o-ther dispute settlement mechanisms which might have been agreed upon between theStates (Article 65 (4)), it expresses its preference for a dispute settlement through one ofthe means listed in Article 33 of the Charter of the United Nations, i.e.- negotiation,- enquiry,- mediation,- conciliation,- arbitration,- judicial settlement,- resort to regional agencies or arrangements- or other peaceful means of their own choiceIn the special case of a dispute concerning the issue of a conflict between a treaty on onehand and a peremptory norm of general international law on the other (jus cogens, see Ar-ticles 53 and 64), the Vienna Convention, as a recourse of last resort, provides for the

29 mandatory settlement of the dispute by the International Court of Justice. Of course, theStates Parties can also submit such a dispute by common consent to arbitration (Article 66(a)).Any other dispute concerning the invalidity, the termination or the suspension of a treatycan, upon a request addressed to the Secretary-General of the United Nations, be submit-ted to the conciliation commission foreseen in the Annex to the Vienna Convention (Article66 (b)). Three out of the five conciliators constituting the conciliation commission must bechosen by the parties from a list held by the Secretary-General. Until today, the concilia-tion commission has not entered into function.

30
Further reading ...
AUST, Anthony
"Modern treaty law and practice"
Cambridge University Press, 2000
VILLIGER, Mark E.
Commentary on the 1969 Convention on the Law of Treaties,
Brill, Leiden, 2009
COUNCIL OF EUROPE &
BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW (Ed.)
"Treaty Making - Expression of Consent by States to be bound by a Treaty; Conclusiondes traités - Expression par les États du consentement à être liés par un traité",
Kluwer Law International, Den Haag 2001
NEUHOLD,Hanspeter; HUMMER, Waldemar; SCHREUER, Christoph (Hrsg.)
"Österreichisches Handbuch des Völkerrechts"
4. Auflage, Manzsche Verlags- und Universitaetsbuchhandlung, Wien 2004
PERRIN, Georges J.
"Droit international public -Sources, sujets, caractérisriques"
Schulthess Polygraphischer Verlag, Zürich 1999
DAILLIER, Patrick; PELLET, Alain
"Droit international public"
7ème édition, LGDJ, Paris 2002
REUTER, Paul
"Introduction au droit des traités"
3ème édition revue et augmentée par Philippe Cahier, puf, Paris 1995

31
Weblinks
Vienna Convention on the Law of Treaties http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf Vienna Convention on the Law of Treaties between States and International Or-ganizations or between International Organizations http://treaties.un.org/doc/Treaties/1986/03/19860321%2008-45%20AM/Ch_XXIII_03p.pdf Vienna Convention on Succession of States in Respect of Treaties http://treaties.un.org/doc/Treaties/1996/11/19961106%2005-51%20AM/Ch_XXIII_02p.pdf United Nations (UN):... Treaty collection http://treaties.un.org/Pages/Home.aspx?lang=en ... International law website http://www.un.org/en/law/ ... Charter of the United Nations http://www.un.org/en/documents/charter/ ... International Court of Justice http://www.icj-cij.org/ ... International Law Commission (ILC) http://www.un.org/law/ilc/ ... Office of Legal Affairs / TreatySection - Technical Assistance http://untreaty.un.org/OLA/div_treaty_techassist.aspx?section=treaty ... Electronic Legal Resources on International Terrorism (UNODC) https://www.unodc.org/tldb ... Treaty Reference Guide http://untreaty.un.org/English/guide.asp ... UNITAR http://www.unitar.org/ ... United Nations University http://www.unu.edu/ Electronic Information System for International Law (EISIL) http://www.eisil.org/ 32
International Development Law Organization (IDLO)http://www.idlo.int/ Glossary of treaty terms (UK Foreign and Commonwealth Office) http://www.fco.gov.uk/en/about-the-fco/publications/treaties/practice-procedures/glossary-treaty-terms Ministries of Foreign Affairs http://hostings.diplomacy.edu/baldi/mofa.htm 33
DOCUMENTS
Vienna Convention on the Law of Treaties
The States Parties to the present Convention,Considering the fundamental role of treaties in the history of international relations,Recognizing the ever-increasing importance of treaties as a source of international lawand as a means of developing peaceful co-operation among nations, whatever their con-stitutional and social systems,Noting that the principles of free consent and of good faith and the pacta sunt servandarule are universally recognized,Affirming that disputes concerning treaties, like other international disputes, should be set-tled by peaceful means and in conformity with the principles of justice and internationallaw,Recalling the determination of the peoples of the United Nations to establish conditionsunder which justice and respect for the obligations arising from treaties can be maintained,Having in mind the principles of international law embodied in the Charter of the UnitedNations, such as the principles of the equal rights and self-determination of peoples, of thesovereign equality and independence of all States, of non-interference in the domestic af-fairs of States, of the prohibition of the threat or use of force and of universal respect for,and observance of, human rights and fundamental freedoms for all,Believing that the codification and progressive development of the law of treaties achievedin the present Convention will promote the purposes of the United Nations set forth in theCharter, namely, the maintenance of international peace and security, the development offriendly relations and the achievement of co-operation among nations,Affirming that the rules of customary international law will continue to govern questions notregulated by the provisions of the present Convention,Have agreed as follows:PART I INTRODUCTIONArticle 1 Scope of the present ConventionThe present Convention applies to treaties between States.

34
Article 2 Use of terms1. For the purposes of the present Convention:(a) "treaty" means an international agreement concludedbetween States in written form and governed byinternational law, whether embodied in a singleinstrument or in two or more related instruments andwhatever its particular designation;(b) "ratification", "acceptance", "approval" and "accession"mean in each case the international act so namedwhereby a State establishes on the international plane itsconsent to be bound by a treaty;(c) "full powers" means a document emanating from thecompetent authority of a State designating a person orpersons to represent the State for negotiating, adoptingor authenticating the text of a treaty, for expressing theconsent of the State to be bound by a treaty, or foraccomplishing any other act with respect to a treaty;(d) "reservation" means a unilateral statement, howeverphrased 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 legaleffect of certain provisions of the treaty in theirapplication to that State;(e) "negotiating State" means a State which took part in thedrawing up and adoption of the text of the treaty;(f) "contracting State" means a State which has consentedto be bound by the treaty, whether or not the treaty hasentered into force;(g) "party" means a State which has consented to bebound by the treaty and for which the treaty is in force;(h) "third State" means a State not a party to the treaty;(i) "international organization" means an intergovernmentalorganization.2. The provisions of paragraph 1 regarding the use of terms in the present Convention arewithout prejudice to the use of those terms or to the meanings which may be given to themin the internal law of any State.Article 3 International agreements not within the scope of the present ConventionThe fact that the present Convention does not apply to international agreements con-cluded between States and other subjects of international law or between such other sub- jects of international law, or to international agreements not in written form, shall not affect:

35
(a)the legal force of such agreements;(b)the application to them of any of the rules set forth in the present Convention to which theywould be subject under international law independently of the Convention;(c)the application of the Convention to the relations of States as between themselves underinternational agreements to which other subjects of international law are also parties.Article 4 Non-retroactivity of the present ConventionWithout prejudice to the application of any rules set forth in the present Convention towhich treaties would be subject under international law independently of the Convention,the Convention applies only to treaties which are concluded by States after the entry intoforce of the present Convention with regard to such States.Article 5 Treaties constituting international organizations and treaties adopted within aninternational organizationThe present Convention applies to any treaty which is the constituent instrument of an in-ternational organization and to any treaty adopted within an international organizationwithout prejudice to any relevant rules of the organization.Part II Conclusion and entry into force of treatiesSection 1. Conclusion of treatiesArticle 6 Capacity of States to conclude treatiesEvery State possesses capacity to conclude treaties.Article 7 Full powers1. A person is considered as representing a State for the purpose of adopting or authenti-cating the text of a treaty or for the purpose of expressing the consent of the State to bebound by a treaty if:(a)he produces appropriate full powers; or(b)

36 it appears from the practice of the States concerned or from other circumstances that theirintention was to consider that person as representing the State for such purposes and todispense with full powers.2. In virtue of their functions and without having to produce full powers, the following areconsidered as representing their State:(a)Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose ofperforming all acts relating to the conclusion of a treaty;(b)heads of diplomatic missions, for the purpose of adopting the text of a treaty between theaccrediting State and the State to which they are accredited;(c) representatives accredited by States to an international conference or to an interna-tional organization or one of its organs, for the purpose of adopting the text of a treaty inthat conference, organization or organ.Article 8 Subsequent confirmation of an act performed without authorizationAn act relating to the conclusion of a treaty performed by a person who cannot be consid-ered under article 7 as authorized to represent a State for that purpose is without legal ef-fect unless afterwards confirmed by that State.Article 9 Adoption of the text1. The adoption of the text of a treaty takes place by the consent of all the States partici-pating in its drawing up except as provided in paragraph 2.2. The adoption of the text of a treaty at an international conference takes place by the vo-te of two-thirds of the States present and voting, unless by the same majority they shalldecide to apply a different rule.Article 10 Authentication of the textThe text of a treaty is established as authentic and definitive: (a)by such procedure as may be provided for in the text or agreed upon by the States partici-pating in its drawing up; or(b)failing such procedure, by the signature, signature ad referendum or initialling by the rep-resentatives of those States of the text of the treaty or of the Final Act of a conference in-corporating the text.Article 11 Means of expressing consent to be bound by a treatyThe consent of a State to be bound by a treaty may be expressed by signature, exchangeof instruments constituting a treaty, ratification, acceptance, approval or accession, or byany other means if so agreed.

37
Article 12 Consent to be bound by a treaty expressed by signature1. The consent of a State to be bound by a treaty is expressed by the signature of its rep-resentative when:(a)the treaty provides that signature shall have that effect;(b)it is otherwise established that the negotiating States were agreed that signature shouldhave that effect; or(c)the intention of the State to give that effect to the signature appears from the full powers ofits representative or was expressed during the negotiation.2. For the purposes of paragraph 1:(a)the initialling of a text constitutes a signature of the treaty when it is established that thenegotiating States so agreed;(b)the signature ad referendum of a treaty by a representative, if confirmed by his State, con-stitutes a full signature of the treaty.Article 13 Consent to be bound by a treaty expressed by an exchange of instruments con-stituting a treatyThe consent of States to be bound by a treaty constituted by instruments exchanged be-tween them is expressed by that exchange when:(a)the instruments provide that their exchange shall have that effect; or(b)it is otherwise established that those States were agreed that the exchange of instrumentsshould have that effect.Article 14 Consent to be bound by a treaty expressed by ratification, acceptance or ap-proval1. The consent of a State to be bound by a treaty is expressed by ratification when:(a)the treaty provides for such consent to be expressed by means of ratification;(b)it is otherwise established that the negotiating States were agreed that ratification shouldbe required;(c)the representative of the State has signed the treaty subject to ratification; or(d)

38 the intention of the State to sign the treaty subject to ratification appears from the full pow-ers of its representative or was expressed during the negotiation.2. The consent of a State to be bound by a treaty is expressed by acceptance or approvalunder conditions similar to those which apply to ratification.Article 15 Consent to be bound by a treaty expressed by accessionThe consent of a State to be bound by a treaty is expressed by accession when:(a)the treaty provides that such consent may be expressed by that State by means of acces-sion;(b)it is otherwise established that the negotiating States were agreed that such consent maybe expressed by that State by means of accession; or(c)all the parties have subsequently agreed that such consent may be expressed by that Sta-te by means of accession.Article 16 Exchange or deposit of instruments of ratification, acceptance, approval or ac-cessionUnless the treaty otherwise provides, instruments of ratification, acceptance, approval oraccession establish the consent of a State to be bound by a treaty upon:(a)their exchange between the contracting States;(b)their deposit with the depositary; or(c)their notification to the contracting States or to the depositary, if 50 agreed.Article 17 Consent to be bound by part of a treaty and choice of differing provisions1. Without prejudice to articles 19 to 23, the consent of a State to be bound by part of atreaty is effective only if the treaty so permits or the other contracting States so agree.2. The consent of a State to be bound by a treaty which permits a choice between differingprovisions is effective only if it is made clear to which of the provisions the consent relates.Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry intoforceA State is obliged to refrain from acts which would defeat the object and purpose of a trea-ty when:(a)

39 it has signed the treaty or has exchanged instruments constituting the treaty subject to rati-fication, acceptance or approval, until it shall have made its intention clear not to become aparty to the treaty; or(b)it has expressed its consent to be bound by the treaty, pending the entry into force of thetreaty and provided that such entry into force is not unduly delayed.Section 2. ReservationsArticle 19 Formulation of reservationsA State may, when signing, ratifying, accepting, approving or acceding to a treaty, formu-late a reservation unless:(a)the reservation is prohibited by the treaty;(b)the treaty provides that only specified reservations, which do not include the reservation inquestion, may be made; or(c)in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible withthe object and purpose of the treaty.Article 20 Acceptance of and objection to reservations1. A reservation expressly authorized by a treaty does not require any subsequent accep-tance by the other contracting States unless the treaty so provides.2. When it appears from the limited number of the negotiating States and the object andpurpose of a treaty that the application of the treaty in its entirety between all the parties isan essential condition of the consent of each one to be bound by the treaty, a reservationrequires acceptance by all the parties.3. When a treaty is a constituent instrument of an international organization and unless itotherwise provides, a reservation requires the acceptance of the competent organ of thatorganization.4. In cases not falling under the preceding paragraphs and unless the treaty otherwiseprovides:(a)acceptance by another contracting State of a reservation constitutes the reserving State aparty to the treaty in relation to that other State if or when the treaty is in force for thoseStates;(b)an objection by another contracting State to a reservation does not preclude the entry intoforce of the treaty as between the objecting and reserving States unless a contrary inten-tion is definitely expressed by the objecting State;

40
(c)an act expressing a State's consent to be bound by the treaty and containing a reservationis effective as soon as at least one other contracting State has accepted the reservation.5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a re-servation is considered to have been accepted by a State if it shall have raised no objec-tion to the reservation by the end of a period of twelve months after it was notified of thereservation or by the date on which it expressed its consent to be bound by the treaty, whi-chever is later.Article 21 Legal effects of reservations and of objections to reservations1. A reservation established with regard to another party in accordance with articles 19, 20and 23:(a)modifies for the reserving State in its relations with that other party the provisions of thetreaty to which the reservation relates to the extent of the reservation; and(b)modifies those provisions to the same extent for that other party in its relations with the re-serving State.2. The reservation does not modify the provisions of the treaty for the other parties to thetreaty inter se.3. When a State objecting to a reservation has not opposed the entry into force of the trea-ty between itself and the reserving State, the provisions to which the reservation relates donot apply as between the two States to the extent of the reservation.Article 22 Withdrawal of reservations and of objections to reservations1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time andthe consent of a State which has accepted the reservation is not required for its with-drawal.2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn atany time.3. Unless the treaty otherwise provides, or it is otherwise agreed:(a)the withdrawal of a reservation becomes operative in relation to another contracting Stateonly when notice of it has been received by that State;(b)the withdrawal of an objection to a reservation becomes operative only when notice of ithas been received by the State which formulated the reservation.Article 23 Procedure regarding reservations

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