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INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES


INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES :


GENERAL PROVISIONS : Validity and Continuance in force of a treaty may only be questioned on the basis of the provisions in the Vienna Convention.[ Article 42.]


GENERAL RULE : A state may withdraw/ suspend from the operation of a treaty as a whole, not in particular parts of it, unless


WHEN A STATE CANNOT WITHDRAW/SUSPEND THE OPERATION OF A TREATY ? A state cannot suspend/terminate/withdraw after becoming aware of the facts, it expressly agreed that the treaty is valid or remains in force or by reason of its conduct may be deemed to have acquiesced in the validity of the treaty or its continuance in force.


INVALIDITY OF TREATIES:


MUNICIPAL LAW:


You are not allowed to say that X, an International treaty, cannot be implemented in my territory as it may breach my constitutional provisions/statutes. ​


A state cannot plead a breach of its constitutional provisions as to the making of treaties as a reason for invalidating an agreement.


EXCEPTION : WHEN THE VIOLATION IS MANIFEST + SUCH RULE OF ITS INTERNAL LAW HAS FUNDAMENTAL IMPORTANCE. Violation will be regarded as manifest if it would be ‘objectively evident’ to any state conducting itself in the matter in accordance with normal practice, and in good faith.


B. ERROR : (ART.48) There is a limited ground to invalidate a treaty on the grounds of the “error” ; if such error relates to a fact or situation which was assumed by that state to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. If the party committed its own error or it could have been prevented, in such cases this article cannot be invoked. (Art.48)​


C. FRAUD: ART.49 : Where a state consents to be bound by a treaty as a result of the fraudulent conduct of another negotiating state, that state may under article 49 invoke the fraud as invalidating its consent to be bound.


D. CORRUPTION ART.50 : Where a negotiating state directly or indirectly corrupts the representative of another state in order to obtain the consent of the latter to the treaty, that corruption may under article 50 be invoked as invalidating the consent to be bound.


E. COERCION : It has long been an accepted rule of customary international law that coercion exercised against a representative concluding a treaty has been a ground for invalidating the treaty. Accordingly, article 52 of the Convention provides that ‘[a] treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations’.


ANALYSIS : Judge Padilla Nervo in the International Court in the Fisheries Jurisdiction case when he stated that: “ there are moral and political pressures which cannot be proved by the so-called documentary evidence, but which are in fact indisputably real and which have, in history, given rise to treaties and conventions claimed to be freely concluded and subjected to the principle of pacta sunt servanda…”


F. JUS COGENS : Article 53 of the Convention provides that:


[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law having the same character.


Article 64 declares that ‘[i]f a new peremptory norm of general inter-national law emerges, any existing treaty which is in conflict with that norm becomes void and terminates’.


CONSEQUENCES OF INVALIDITY : Article 69 provides that an invalid treaty is void and without legal force.


THE TERMINATION OF TREATIES : There are a number of methods available by which treaties may be terminated or suspended.


A. TERMINATION BY TREATY PROVISION OR CONSENT :

MATERIAL BREACH :

1)You can terminate or suspend the treaty

  • in accordance with a specific provision in that treaty

  • by consent of all the parties after consultation.

WHAT HAPPENS WHEN THERE IS NO PROVISION FOR TERMINATION OR WITHDRAWAL? Still you can do so. But you need to find where the parties intention to admit such a possibility or where the right may be implied by the nature of the treaty.


B.MATERIAL BREACH : ​ There are two approaches to be considered.

  1. First, if one state violates an important provision in an agreement, it is not unnatural for the other states concerned to regard that agreement as ended by it.

  2. Second, revoking the treaties because of breach of minor provision will put other states participating in a treaty in rather a vulnerable position.Therefore it should be material breach..

  3. WHEN A BREACH IS “MATERIAL” : Article 60(3) declares that a material breach of a treaty consists in either a repudiation of the treaty not permitted by the Vienna Convention or the violation of a provision essential to the accomplishment of the object or purpose of the treaty.


a)NOT APPLICABLE TO HUMANITARIAN TREATIES


b)NOT APPLICABLE FOR EVENTS YET TO HAPPEN:


C.SUPREVENING IMPOSSIBILITY OF PERFORMANCE : ​

1.Article 61 of the Convention is intended to cover such situations as the submergence of an island, or the drying up of a river where the con-sequence of such events is to render the performance of the treaty impossible.


2.NOT APPLICABLE WHEN SUCH EVENT IS TEMPORARY.


D.FUNDAMENTAL CHANGE OF CIRCUMSTANCES : The doctrine of rebus sic stantibus is a principle in customary international law providing that where there has been a fundamental change of circumstances since an agreement was concluded, a party to that agreement may withdraw from or terminate it. ​

  • Before the doctrine may be applied, the Court continued, it is necessary that such changes ‘must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that originally undertaken’.

A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: if the treaty establishes a boundary; or if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.


CONSEQUENCES OF TERMINATION /SUSPENSION OF A TREATY ;

Article 70 provides that: Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

  1. releases the parties from any obligation further to perform the treaty; does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

  2. If a state denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that state and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.

Article 72 provides that: Suspension of the treaty : releases the parties the obligation to perform the treaty.

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