Cag University Law Faculty Faculty of Economics And Administrative Sciences V.

Cag UniversityLaw Faculty

Faculty of Economics And Administrative SciencesV

Validity of Treaties

Pacta suna servanda“Treaties must be observed”

This is a general principle of international law.

But can this principle be followed all the time & in every circumstance?

Sometimes, there will be circumstances or conditions that will invalidate a treaty.

We are not referring to a mere verbal disagreement.

Verbal condemnation is not enough to invalidate an agreement. (pg. 82)

Rather, there are specific circumstances that may be utilized to question validity.

We will look at 11 considerations that play a role in whether or not an agreement is valid.

1. Capacity to Contract

2. Authority granted to agents.

3. Personal duress or intimidation.

4. Use of fraud in negotiation.

5. Corruption of a state agent.

6. Substantial error.

7. Conformity to other agreements.

8. Inconsistency with provisions of UN Charter.

9. Conflict with international law.

10.Immoral object.11.Oral agreement.

1. Capacity to Contract

“A treaty is invalid if one of the parties to a bilateral agreement lacks the capacity to contract.”

To be more specific, if a state is a fully sovereign entity, “then it has a right and ability to conclude binding agreements with others.” (pg. 83)

Treaties: ValidityTreaties: Validity

An international agreement is invalid if it has been conducted by an unauthorized agent.

An agent can be unauthorized in a couple of ways:

- No authority was given to the agent.

- Authority was given, but the agent exceeded the powers granted (other parties must have known of these restrictions up front).

What if the other parties did not know up front?

What if the other parties assumed in good faith that the agent was authorized and competent?

The treaty may still be valid.

3. Personal duress or intimidation(kişisel zorlama veya korkutma)

“A treaty is invalid when personal duress has been brought to bear against the negotiators of one party.” (pg. 83)

What does this mean?

3. Personal duress or intimidation (cont’d)

In other words, a state cannot threaten, severely pressure, or intimidate another state into entering an agreement.

There is one exception . . . Any ideas?

3. Personal duress or intimidation (cont’d)

- Peace treaties are the only exception.

“[T]he particular duress involved in a peace treaty does not negate its validity.” (pg 84)

4. Use of fraud (hile) in negotiation.

“A treaty whose negotiation involved [deliberate] fraud would be considered invalid.” (pg. 84)

Note that the act must be deliberate (kasıtlı)

fraudulent misrepresentation (yalan beyan).

Failure to disclose facts during negotiation is not enough to prove fraud.

5. Corruption (rüşvet/yolsuzluk) of a state agent.

If a state consents to be bound by an agreement because its representative has been corrupted, then the state may point to the corruption as grounds to invalidate its consent.

6. Substantial error.

If, during negotiation and ratification, “an incorrect assumption is made by one or both of the parties,

- then the treaty may lack validity;

- or the party in question may consider it ‘voidable’ and refuse to be bound by the agreement.” (pg. 84)

6. Substantial error (cont’d).

Textbook example: An incorrect map

- What if two states agreed to be bound by a treaty that involved a particular piece of land?

- What if an incorrect (or outdated) map was used (genuine error, not deliberate fraud)?

6. Substantial error (cont’d).

Textbook example (cont’d)

Since the incorrect map was the basis of the agreement,

- the treaty may not be valid;

- or one of the states may consider the treaty ‘voidable’ and may refuse to be bound by it.

7. Conformity to other agreements.

If there is an “inconsistency between a new treaty and earlier agreements between the same parties, the latest agreement prevails.” (pg. 84)

8. Inconsistency with provisions of UN Charter.

“A treaty inconsistent with the provisions of the Charter of the United Nations has to yield to the Charter provided that all parties to the agreement are members of the United Nations.” (pg. 84)

8. Inconsistency with provisions of UN Charter (cont’d).

In other words, if a treaty contains terms that go against (or that conflict with) what is in the UN Charter, then the Charter wins out – but only if all the parties are UN members.

9. Conflict with international law.

What if a treaty conflicts with principles of general customary or conventional international law?

Should the treaty be considered valid or invalid?

- Most writers believe that it should be invalid.

Art 53 VCLT (jus cogens)

‘A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law...’

10. Immoral object.

“Is a treaty void or voidable because it has an immoral object as its substance?”

10. Immoral object (cont’d).

On this, the views are divided:

- Some say yes,

- Some others are not so certain and

- question states’ abilities to agree on what is moral and what is immoral.

11. Oral agreement.

Is it possible to have a verbal agreement that is binding?

11. Oral agreement (cont’d).

- Yes, it is possible.

“An agreement is not invalid simply because it is an oral agreement rather than a written instrument.

An agreement reached verbally . . . is quite sufficient, provided the evidence confirms that the individuals in question intend at the time to conclude a binding agreement.” (pg. 85)

In other words, verbal agreements can be binding if there is evidence that proves the existence of such an intent.

Note, however, that although verbal agreements are possible, written agreements are preferable.

It is also important to remember that no allegations regarding validity can be made without consulting the provisions laid out in Article 42 (1) of the Vienna Convention on the Law of Treaties (Vienna Convention).

Article 42. Validity And Continuance In Force Of Treaties

1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.

Treaties: TerminationTreaties: TerminationThere are seven basic ways to terminate a treaty (p. 86):

1. According to the terms of the treaty itself

2. By explicit or tacit agreement of the parties concerned.

[Explicit agreement generally is a known agreement.

Tacit agreement is implied by actions (indirect).]

3. Violation of the provisions of the agreement by one party, the second party then asserting … that it considers the violation as termination

4. Termination by one party on the grounds that fundamental conditions on which the treaty rests have changed.

5. Through the emergence of a new peremptory (jus cogens) norm of general international law conflicting with the treaty.

6. Through the outbreak of hostilities between parties.

7. The disappearance (extinction) if one of the parties.

Convention Regarding The Regime of the Straits Signed At Montreux, July 20th, 1936.

Article 28.

The present Convention shall remain in force for twenty years from the date of its entry into force.

Treaties: TerminationTreaties: Termination

1. According to the terms of the treaty itself

3. Violation as a Cause for Termination

In a bilateral treaty, does a violation by one party automatically make the treaty invalid or void?

3. Violation as a Cause for Termination (cont’d)

No, it does not.

“States may not unilaterally cancel a mutual obligation.” (pg. 87)

Nevertheless, options are available to the injured party.

For instance, violation may prompt a suspension of performance.

In other words, the violation of State X may cause or give State Z the right to stop performing its part of the agreement.

Another option may be to explore a measure of punishment.

However, this avenue is rarely taken because of the potential effects it may have on other foreign relationships and interests. (refer to pg 87-88)

4. Termination by one party on the grounds that fundamental conditions on which the treaty rests have changed.

For example, if a treaty was made based on a set of conditions, and those conditions no longer existed, termination could occur due to this change.

- Example: Convention Relating to the Régime of the Straits, Annex of Lausanne Peace Treaty (1923) is terminated by Turkey.

5. Through the emergence of a new peremptory (jus cogens) norm of general international law conflicting with the treaty.

In other words, if a new fundamental rule in int’l law comes about and it conflicts with the treaty, then the treaty is terminated.

6. Through the outbreak of hostilities between parties.

7. The disappearance (extinction) if one of the parties.

Often, treaties will contain provisions regarding termination.

If so, those provisions usually mention just 3 basic causes:

- Lack of performance

- Arrival of a fixed termination date

- Denunciation of the agreement (anlaşmanın feshi) (pg 86)

Terminology: Denunciation (or renunciation)

Usually, there is a minimum duration of an agreement.

After the minimum time is over, the agreement can continue in force until it is renounced by either party.

After denunciation (or renunciation), termination occurs after a specified interval of time.

In other words, there is a time frame between notice and the actual end of the treaty.

Other methods of termination may include:

- actual performance

- a specific expiration date

- mutual consent (such as a written declaration that states the parties’ intention to terminate)

Note that some of the above may overlap with previous methods.

Cag University Law Faculty Faculty of Economics And Administrative Sciences V.

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