An Analysis of China

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AN ANALYSIS OF CHINA-ASEAN FREE TRADE AREA:

AN INTERNATIONAL TREATY LAW PERSPECTIVE

For one decade, has immediately taken place an agreement concerning economic

development and to promote co-operation between Association of South East Asian Nations

(ASEAN) member states and China in investment plane and trade. It is intensively examined by

making agreement, by way of several steps to be seen into an international treaty law

perspective.

As an analysis follows, will examine this agreement whether a form of international

document somewhat treaty or convention. Respectively, it is to be seen into three parts of

explanations. At the first section, what is called an international treaty law itself, the elements,

the form, and who is the subject and what is object of this agreement, subject to or arranged by

international law. Henceforth, will be discussed concerning the substance of China-ASEAN free

trade area in the sense of what is called opportunity and challenges we1confront with. The last

section, concerning the procedure of international treaty is able to entry into force. All the

redaction is cited and affirmed from textbook, the material sources in internet provides and the

opinion of the writer.

Abstraction

International treaty law is one of subject matter that respectively explains as regards the

sources of international law itself. Since, statute of international court of justice has been

established by law, which is accommodated the sources of international law, in the article 38statute of ICJ2. International convention is primarily referral of states to be able to build the

relation to another state so if theres difference between states, they have been bound by the

convention to settle and to act in good and due process in accordance with the convention. In the

case of treaties, the states involved may create new law that would be binding upon them

irrespective of previous practice or contemporary practice.3 The importance advance we will

have acquired if we comprehend this subject is practically examining our convention, the

substance, come into a certain perspective which is involved the broader common interest.

Nowadays, there are so many conventions both multilateral and bilateral, among states in

various interests and issues. For instance, among ASEAN member states and China have agreedthe framework of such a agreement with respect to economic development. What we called as

China-ASEAN Free Trade Area or ACFTA. As a scholar of international law, the first

1 The word we as referred to Indonesia, further implication of this agreement is being debatable and have arisen ascontroversy relating to the development of our small industries and the side of competition is being questioned. Itwill be touched at the second section.2 See article 38 of International Court of Justice statute, below.3 See generally Malcolm. N Shaw,International Law, Cambridge, 2008, pp. 148-157.


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question poses on whether this kind of agreement includes the international treaty law?

Hereinafter, we drift into ACFTA substances briefly, we will analyze the opportunity and

challenge we confront with, and the last we talk about procedures to make a treaty.

Section I

China-Asean Free Trade Area is a form of an international document which is included

an agreement. It can be seen throughout the process and the framework that have been ratified to

all parties. The head of member states of ASEAN and China on November 4 th 2004 in Pnom

Penh, Cambodia has signed The Framework Agreement on Comprehensive Economic Co-

operation between The Association of Southeast Asian Nations and The Peoples Republic of

China (ACFTA)4. In viewpoint of International treaty law can be seen the aspect what is called

treaty itself.

Moreover, Treaty or Convention in accordance with Vienna Convention on The Law and

Treaties 1969 which is clarified by article 2(1) point a that stated as follows:

Treaty means an international agreement concluded between States in written form and

governed by international law, whether embodied in a single instrument or in two or more related

instruments and whatever its particular designation.

The qualification in accordance with this article is distinguished by who is subject or as a

legal person make an agreement, whether between states or international organization, or fellow

international organization. The qualification that is intended as follows:

a. Agreement reached

b. Subject

c. In written form

d. Particular object

e. Comply with or governed by International Law

Accordingly, we can examine ACFTA into the qualification above:

a. All member states of ASEAN and China has agreed to do this agreement by means of

every paces to reach a word of consent the idea to promote and strengthen andeconomic , trade, and investment co-operation among states, liberalization of product

of goods, service, and investment. The evidence lies on due process and procedure

that has been through by ASEAN- China to achieve the word of agreement. It

4 See Firman Mutakin & Aziza Rahmaniar Salam, Economic Review, Number 218, 2011 Staff Trade Department

Republic of Indonesia.


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probably fulfilled by particular interest and politics of each states because it directly

changed over the prosperity of their people.

b. The Subject of this agreement is member states of ASEAN and China, those states

has legal personality to admit their capacity to be deeply involved to make an

agreement. The question is, whether as member states of ASEAN, but ASEAN itselfis included international organization, so which one qualification of definition of

treaty it will be meant to be? An agreement which was committed by China and

Indonesia, Thailand, Singapore, and all member states of ASEAN? Or Between China

and ASEAN itself is standing as an international organization of those states? It

means, there two viewpoints is relating to the definition which is given by Vienna

Convention.

In my humble opinion, ASEAN is an association of more than ten states, which has

established the interrelation in every sector especially in cultural-education,

economic, politics field, which has a competence to make conventions among thestates and capacity to be involved with external power in making agreement. The

important thing is focused on whether ASEAN has legal personality because it

consists of states that dont situate above the states themselves. ASEAN is nearly

resemble of European Union which has broader authority upon their member states

and it can adopt not only legal act binding upon member states but also act having

direct effect within domestic legal systems.

I think it will be prudently accepted the fact that we have ratified a kind of convention

with China under the legal institution which is called ASEAN that constitute the

framework of our commitment as a primer member states-Indonesia. So, it means wehave committed an agreement between two parties: China as states and ASEAN as

international organization and Indonesia as the primer states definitely involved the

making of this kind of agreement and after the ratification has been committed, it

will be entered into force in each member states of ASEAN and China in the other

side-pacta sunt servanda adopts within the document.

c. In written form, it is manifested into a consent word authentically into written

materials and give a legal binding for all the parties. The states or as parties

unanimously written into a form of document or what is called agreement or

arrangement that affirms, give a clarity, and law certainty for the parties or the thirdparty that possibly in particular time will involve in this agreement.

Moreover, the question emerges, whether theres a difference of using term

agreement, arrangement, convention, and treaty? Because it similar

apparently, in the context of meaning.


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Treaty is a term that has been commonly used for international convention among

states that the substance is importantly classified for the party. Convention is also a

term which is commonly used in Indonesian language. Generally, the term

convention is referred to multilateral international agreement that governs

concerning the big issues and interest, importantly related to conduct as rule of

international law, widely entry into force both regional and general. Whereas,

Agreement or Arrangement is often used to an international convention that is

considered to the substance material aspect, its more administrative and technical.

Comparatively, convention and treaty are respect with bigger problems and

important, if agreement or arrangement is respect with technically problem and

relatively smaller scopes5.

d. Particular Object, accordingly, object of ACFTA, is clearly crusaded in economic

development which is broadly presented by ASEAN purposes to strengthen the

economic sector within member states and external party that probably increased the

opportunity of new trade area. This substance will be further examined in the second

section.

e. The last element signs that every party or states that act all the procedure to ratify the

agreement should subject to the general principle of international law, and the

international law generally which by means of there is no unlawful act and wrongful

conduct in processing to bear an agreement or such a convention against the

international law generally perspective.

Section II

Nowadays, ACFTA has been entered into force by the government, the big question is

how far this agreement can improve any positive side in facing the economic challenge in

Indonesia. Previously and continuously, this agreement is being debated, there are many

controversy rising up both negative and positive sides upon our society. Because the substance

that is governed by this agreement has been being involved a big common interest which is

included the prosperity, wealth and paradigm of our economy. Even simply putted into effect,

this agreement should have given such benefits for our people, because of that is just it we will

do a negotiation in order to get into an idea regarding economic development in togetherness.

We should come into an optic of social and politics itself. This agreement gives direct and

indirect impact, short and long term effect to all Indonesian people.

The issue has arisen up along these years, after we ratified the agreement and implement

it to the concrete power of economic within our society. In my opinion, we should see the

positive impacts will be acquired by this agreement to our developing country and the other side

5 See generally I Wayan Parthiana in Hukum Perjanjian International: Bagian I, Mandar Maju, 2002, Bandung, pp.26-32.


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has issued the negative impacts, we truly believe that both side should has advantage for

economic development.

We come into the positive side, the question emerges that whether the substance that is

contained by this agreement will give the positive impacts for our people? The answer is about to

enlarge market size and enhance market, improve investment prospect,

The Economic Benefits to ASEAN of the ASEAN-China Free Trade Area (ACFTA) [1] by Raul L. Cordenillo

Studies Unit

Bureau for Economic Integration

ASEAN Secretariat

18 January 2005

Introduction

In November 2004, at the 10 th ASEAN Summit in Vientiane, Lao PDR, the Economic Ministers of ASEAN andChina signed the Agreement on Trade in Goods (TIG) of the Framework Agreement on Comprehensive EconomicCooperation between ASEAN and China. This occasion is a major step towards the realisation of an ACFTA forgoods, which is set to be established by 2010 for ASEAN 6[2] and China, and by 2015 for the newer ASEANMember States.[3]

This ACFTA in goods would soon be augmented by services and investments with negotiations onagreements on these relevant areas being aggressively pursued in 2005.

In order to understand the economic relevance of the ACFTA, this brief will highlight its net benefits to the

ASEAN region.

Enlarged Market Size and Enhanced Trade

Outright, this ACFTA will create an economic region with 1.7 billion consumers, a regional Gross DomesticProduct (GDP) of about US$2 trillion and total trade estimated at US$1.23 trillion. This makes it the biggest FTA inthe world in terms of population size.
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And as any in other FTA, the ACFTA will bolster ASEAN-China trade, which has risen at a dramatic pace,indicating the growing economic interdependence of ASEAN and China, as illustrated in Table 1 below.

Table 1. ASEAN-China Total Trade

2000-2003

(in US $ billions)

Year 2000 2001 2002 2003Total Trade 39.5 41.6 42.8 55.2

Source: ASEAN Trade Statistics Database

Moreover, the share of China in ASEANs total trade has grown from 2.1 per cent in 1994 to 7% in 2003,making China the 4th largest trading partner of ASEAN after the European Union (11.5%), Japan (13.7%) and theUnited States of America (14%).

This trade volume is expected to grow further with the implementation of the Early Harvest Programme ofthe ACFTA in January 2004, as well as the implementation of the tariff reduction programme under the normal trackof the TIG Agreement by the mid-2005. Already by July 2004, the value of the Early Harvest Programmeproducts[4]traded between ASEAN and China reached US$1.11 billion representing an increase of 42.3% over thesame period of 2003, amongst which ASEAN exports to China were US$ 0.68 billion, an increase of 49.8% over

that same period.Amongst ASEANs top exports to China include electrical equipment, computer/machinery,

lubricants/fuels/oil, organic chemicals, plastics, fats & oils and rubber. Notably these products are mostlyintermediate goods to Chinas exports to Third Countries. Thus, it can be expected that in the process of Chinaseconomic expansion and with the ACFTA in place, it will import more from ASEAN countries for its requiredinputs in its production processes and for its needs as its income and standard of living improves.

Removal of Trade Barriers, Specialisation and Enhanced Economic Efficiency

A key feature of the TIG Agreement is the non-maintenance of quantitative restrictions and the elimination of non-tariff barriers.[5] The removal of these trade impediments will lower the costs of trade transactions, further increaseASEAN-China trade and enhance economic efficiency. As low-cost imports under the FTA flow from one memberto another, specialisation in production ensues, thereby boosting real income in both ASEAN and China as resourcesflow to sectors where they can more efficiently and productively utilised.

Simulations[6] conducted by the ASEAN Secretariat suggest that an ACFTA will increase ASEANsexports to China by 48 per cent and Chinas exports to ASEAN by 55.1 percent. The FTA increases ASEANs GDPby 0.9 percent or by US$5.4 billion while Chinas real GDP expands by 0.3 percent or by US 2.2 billion in absoluteterms.

However, it must be noted that the ensuing intensified competition in each regions domestic market giventhe similarity in industrial structures of ASEAN and China may entail short-run costs in the form of displacement of

workers and rationalisation of some industries and firms. And as such, there would be the need for adjustmentsamongst workers and enterprises, particularly the small and medium enterprises.

This is particularly poignant in the case of Thailand, which undertook a bilateral FTA with China and inturn, experienced a surge of 117 percent for apple imports, 346 percent for Chinese pear imports and 4,300 percentfor grape shipments. However, they also experienced an increase of 986 percent for fresh longan exports, 21,850percent for durian exports, 1,911 for mangosteen and 150 percent for mango. Thus clearly illustrating that withfierce competition, specialisation would occur as enterprises from FTA members are inclined to produce those
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products, where they have comparative advantage. Ultimately, the surviving enterprises would become globallycompetitive with their own niches in the world market.

Improved Investments Prospects

The formation of an ASEAN-China Investment Area should also aid in generating more investments for ASEAN.Not only will more ASEAN and Chinese companies be willing to investment within the integrated market, sincemarket risk and uncertainty are lowered, but US, European and Japanese companies, which are interested in makinginroads into the Asian market, will also be attracted to invest in the integrated market.

On its own, China has been successful in luring investors into its growing economy for it has the essentialinvestment determinants in place. Chinas market potential is already well established and its performance inrelation to some indicators of institutional quality and macroeconomic and political stability is better than othermembers of ASEAN. And despite the perceived inadequate legal framework, high inflation and the pervasiveness ofbureaucratic red tape and corruption, foreign investors are looking at the long-term benefits of investing in Chinamore than its short problems.

As such, the integration of ASEAN with China can entice more foreign corporations, which each market

alone cannot otherwise attract. With a larger market, more intense competition, increased investment and economiesof scale, investors will be more inclined to locate in the integrated region.

Justice without might is helpless, might without justice is tyrannical

Pascal, Penses

Nowadays as in the past, treaties play a fundamental role in international relations. Thepresent website aims at offering to an interested public an introduction to international treatylaw, i.e. the law of the treaties concluded between States in written form and governed bypublic international law.

In proceeding by deduction, the author's intention is to present international treaty law bystarting from its inherent principles as embodied in theVienna Convention on the Law ofTreaties of 1969. This convention has entered into force on 27 January 1980 and has beenratified by more than 100 countries.

THE SOURCES OF INTERNATIONAL LAW

Article 38 of the Statute of the International Court of Justice, considered by some as the"Bible of the Poor" of those who seek quick answers despite of the complexity ofinternational relations, constitutes nevertheless a good starting point for the
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understanding of the sources of international law. According to this article, internationallaw 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.

Most international law experts would rush to add the "unilateral acts" to these threesources of law and to declare that Article 38 of the Statute has omitted to mention theseunilateral acts for which the United Nations' International Law Commission (ILC) haselaboratedGuiding Principles in 2006. Contrary to this opinion, other international lawyerswould maintain that these unilateral acts constitute specific expressions of the will ofStates leading eventually to agreements which are then governed by the rules applicableto international conventions.

Finally, the idea of justice and equity originating in the philosophy of natural law is not tobe discarded as a source of international law, since it is the opinion of the International

Court of Justice itself that whatever the legal argumentation of the judge, his or herdecisions have to be just and in that sense must correspond to justice and equity.Moreover, the judges of the International Court of Justice are expressly authorized todecide a case ex aequo et bono, if the parties agree thereto, i.e. to found their

judgements on arguments of equity (Article 38 (2) of the Statute of the International Courtof Justice).

International treaty law as codified by Vienna Convention on the Law of Treaties of 1969is open for considerations of justice too (Preambular para. 4 and 5 and Article 44 (3)).Moreover, the concept of "jus cogens" seems also to be an angle of incidence for naturallaw ideas.

Since, on the basis of their sovereignty and therefore independence, the equality of allStates constitutes the theoretical foundation of international relations and although publicinternational law, by definition, does not belong to civil law, international legal debates areoften reminiscent of the discussions known in the latter area, in particular in the context ofthe law of contracts.

However, the analogy with the law of contract ends where measures are taken on thebasis ofChapter VII of the Charter of the United Nations. Although they are foreseen inan international treaty - in particular by Article 25 of the Charter- these measures deserveto be highlighted because of the legal obligations they impose to the whole world, theirpolitical significance and the remarkable development they have undergone since the

Gulf War of 1991. The measures taken by the Security Council and which are expresslybased onChapter VII of the Charterencompass not only military as well as economicsanctions against

- certain States (Ethiopia, Eritrea, Iraq, Yougoslavia, SierraLeone etc.)

- or insurgents (Angola's UNITA, see resolution1173/1998 of 12 June 1998) or even political parties in
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government (the Afghan faction of the Taliban, see res.1267/1999 of 15 October 1999),

but also

- the creation of special tribunal to prosecute war crimes orcrimes against humanity in the territory of the formerYougoslavia (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. 1373/2001of 28 September 2001).

These sources of international law are supplemented by two subsidiary means for thedetermination of rules of law (Article 38 (1)(d) of the Statute), i.e. by

- judicial decisions (although even the decisions of the International Court of Justice have binding force only between the

parties 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.

This website, for its part, is devoted to the international law of treaties as codified in theVienna Convention. The principles of this convention as well as their applicationconstitute its main subject-matter.

PRINCIPLES OF TREATY LAW

Although it is possible to conclude international conventions orally, almost all of them are

concluded 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 governingthis 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 applied
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to those too, since it incorporates - at least to a large extent - customary rules which werealready applicable before this date. Moreover, the Vienna Convention applies only in theabsence of other applicable agreements and is therefore of subsidiary character.

A Vienna Convention on the Law of Treaties between States and InternationalOrganizations or between International Organizations dating from 1986 has reproduced theprovisions of the Vienna Convention. It reflects to a large extent international customarylaw, 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 had anyimpact on state practice, the noteworthy exception being that practice widely follows the ruleaccording to which a successor State can establish its status as party of a multilateral treatyto which its predecessor State already belonged through a declaration of succession.

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 on Diplomatic Relations (opentreaty), but only the signatory States of the Convention on the Regulation of the Navigationon the Danube Riverfrom 1948 could originally ratify this (restricted) treaty: hence theaccessions of Austria and Germany had to be approved by the original States Parties in1960 and 1999, respectively, by way of supplementary agreements with these twocountries.

The Vienna Convention which consists of 85 articles, eight parts and an annex includes andmaterializes five fundamental legal principles, i.e.

1. 1.free consent2. 2.good faith3. 3.pacta sunt servanda4. 4.rebus sic stantibus5. 5.favor contractus
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Free consent and good faith (bona fide in Latin) are the leading principles which ought to bealways 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 inparticular

- 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 on this website and the application ofthe two major principles (free consent and good faith) will be the object of a separatechapter. Of course, the delimitation between these principles can be vague, but eventuallythey are mutually supportive of each other.

FREE CONSENT

This international principle is embodied in preambular para. 3 of the Vienna Convention.First of all, it is the corollary of the prohibition of the threat and use of force contained in theCharter of the United Nations (Article 2 (4)) which legitimates such behaviour only inspecific circumstances. The severance or absence of diplomatic (or consular) relationsbetween 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 or rightsfor third States without their consent (rule of pacta tertiis nec nocent nec prosunt - Article34). The only explicit exception to this rule appears in Article 22 (1) which is an expressionof 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
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prevails 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 territoryand not retroactively, unless a different intention is established (Articles 28 and 29).

GOOD FAITH

As well as free consent, good faith is of fundamental importance for the conduct ofinternational relations in general and is therefore recognized as an international principleaccording to the very terms of the Vienna Convention (Preambular para. 3). If a State do not

behave in good faith, peace and international security, the supreme goals of the Charter ofthe United Nations might eventually be put in jeopardy.

In a resolution from July 2001, the International Whaling Commission (IWC) which wasthen already constituted by more than 40 member countries declared that "good faithrequires fairness, reasonableness, integrity and honesty in international behaviour". Anabuse of right is contrary to the principle of good faith (see Article 300 of the United NationsConvention on the Law 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 minds ofindividuals, in particular of those who happen to have an influence on the conduct of foreignpolicy and, more specifically, of those whose task it is to negotiate and implementinternational conventions (see Articles 26, 31 (1) and 62 (2)(b)).

PACTA SUNT SERVANDA

Apart from the fact that it is listed together with good faith among the universally recognizedprinciples (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 in good faith."

In Paul Reuter's words, this principle can be translated by the following formula: treaties "are whatthe authors wanted them to be and only what they wanted them to be and because they wantedthem to be the way they are".

A party is not authorized to invoke the provisions of its internal law as justification for its failure toperform a treaty (Article 27). Generally speaking, this solid legal link is nor even weakened in the
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case severance of diplomatic relations between the parties to a given treaty (Article 63). The onlylimit to the "pacta sunt servanda" rule is to be found in the notion of "peremptory norm of generalinternational law" (or jus cogens).

But apparently States expect increasingly out of realism that the treaties they conclude in certainareas, in particular with regard to the protection of the environment, will not be properly implemented

by all States parties just out of respect for the "pacta sunt servanda" rule. This is why several recenttreaties contain obligations to cooperate in order to facilitate compliance with the treaty obligations(see also Article 8 of theOttawa Convention on the prohibition of landmines).

THE REBUS SIC STANTIBUS CLAUSE

According to this principle (understood in a broad sense), extraordinary circumstances can lead tothe termination of a treaty. These circumstances can consist either in a material breach of a giventreaty by one of the States Parties (Article 60), in a permanent disappearance of an objectindispensable for the execution of the treaty (Article 61) or in a fundamental change ofcircumstances (Article 62, clausula rebus sic stantibus understood in a narrow sense).

A fundamental change of circumstances can also occur in the case of the outbreak of hostilitiesbetween the States Parties (see Article 73). However, this fact cannot be invoked as a ground forterminating a treaty, if it has been concluded with regard to the possible outbreak of an armedconflict as in the case of theGeneva Conventions of 12 August 1949 (so-called Red Cross-conventions) or the Hague Conventions of 1899 and 1907. The International Law Commission (ILC)has elaborateddraft articles on Effects of armed conflicts on treaties.

A further extraordinary circumstance foreseen by theVienna Conventionis the emergence of "juscogens" , i.e. of a new peremptory norm of general international law. This circumstance is distinctfrom those enumerated above by the fact that it is of normative and not factual nature. The rebus sicstantibus clause can be considered as an implicit reservation generally affecting the consentexpressed by a State to be bound by a treaty. It seems worthwhile mentioning in this context thatArgentina has made a reservation to Article 62 in which it made plain that she would not not acceptthe idea that a fundamental change of circumstances which has occurred with regard to thoseexisting at the time of the conclusion of a treaty, and which was not foreseen by the parties, may beinvoked as a ground for terminating or withdrawing from the treaty.

However, according to Article 62 (2)(a) (rebus sic stantibus clause understood in a narrow sense), afundamental change of circumstances may not be invoked in the case of boundary treaties, the

reason being that putting into question international boundaries can lead to a peace threateningsituation, because it jeopardizes the principle of territorial integrity (see Article 2 (4) of the Charter ofthe United Nations) which is quite fundamental in international relations.

Hence, the Vienna Convention on Succession of States in respect of Treaties of 1978 has restatedthe rule that a succession of States does not affect as such a boundary or any other territorial regimeestablished by a treaty.

FAVOR CONTRACTUS
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This principle expresses the preference of international treaty law for the maintenance and theconclusion of treaties over expiry for reasons of form.

Hence, unless the treaty otherwise provides, a multilateral treaty does not terminate by reason onlyof he fact that the number of the parties falls below the number necessary for its entry into force(Article 55).

The Vienna Convention also sanctions the prohibition to denounce a treaty or to withdraw from it, if itdoes not foresee itself these forms of termination. This applies, of course, unless the parties did notwish, be it by tacit understanding, a different solution (see Article 56).

Likewise, in order to uphold the validity of treaties, Article 68 allows parties to revoke at any timebefore they take effect notifications or instruments designed to lead to invalidity, even this is doneonly in relationship to one single other party.

In practice, however, the most important expression of the favor contractus principle is contained inthe provisions of the Vienna Convention concerning reservations; this website will devote to them aseparate chapter. In particular, whereas a reservation has to be accepted implicitly or explicitly by atleast one other State Party (Article 20 (2),(4)(c) and (5)), it can be withdrawn at any time without theconsent of the State or States which had accepted it in the first place (Article 22 (1)). This is the onlyexplicit exception to the free consent principle.

The favor contractus principle can be found in Article 74, too. This provision clarifies that the

severance or absence of diplomatic or consular relations does not prevent concerned States toconclude treaties between themselves.

APPLICATION OF TREATY PRINCIPLES(FREE CONSENT & GOOD FAITH)

... with regard to the conclusion of treaties

a)The expression of free consent

b)Pacta tertiis nec nocent nec prosunt

c)Designation of treaties
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The Vienna Convention which governs agreements concluded in written form between States,confirms in its Article 6 that every State possesses capacity to conclude treaties. The will of a Statefinds its expression through persons who are authorized to do so or who are considered to be staterepresentatives.

Since international treaty law in its entirety is subject to the free consent principle. it is quite logicalthat the Vienna Convention offers a broad choice of possibilities to express consent (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 theVienna Conventionitself whichreads:

"1. The present Convention shall enter into force on the thirtieth day following the date of deposit ofthe 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 thirtieth day afterdeposit by such State of its instrument of ratification or accession."

The States Parties - primarily the contracting States (see Article 2 (1)(f)) - can also agree to apply atreaty provisionally pending its entry into force (Article 25). This agreement can be laid down in the

treaty itself or in another way. If this done in the treaty itself, the agreement enters into force with itssignature (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 ofPortugal (see Artikel 8) whichdo not authorize States to express their consent through all of the means enumerated in Article 11 oftheVienna Convention; hence, for Portugal there is only a possibility to ratify or approve a treaty.Since this is the result of a domestic provision, a consent which would be expressed in a differentmanner would not be flawed from point of view of international treaty law, because the ways andmeans to express consent are already determined by customary international law and not only bytheVienna Convention.

... with regard to the conclusion of treaties

a)The expression of free consent

b)Pacta tertiis nec nocent nec prosunt


A treaty binds the parties and only the parties; it does not create obligations for a third Statewithout its consent (Article 34), since sovereignty implies that there is no agreement without
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free consent. "Third State" means a State which not a party to a given treaty (Article 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 qualifies as quasi-contractual.Hence, it is only logical that the obligation can only be revoked or modified with the consentof all parties to the treaty as well as of the third State, unless it is established that they hadotherwise agreed (Article 37(1)).

Although a third State cannot be granted a right without its approval, its assent isnevertheless presumed (Article 36(1)). A third State which exercising such a right is underan obligation to comply with the conditions for its exercise provided for in the treaty orestablished in conformity with the treaty (Article 36(2)). The rights granted to a third Statecan be revoked by the States Parties unless it is established that the right was intended not

to be revocable or subject to modification without the consent of the third State. In such acase, 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 partywithout its consent is expressed in Latin by the phrase "pacta tertiis nec nocent necprosunt". This rule also applies when two or more parties of a multilateral conventionconclude 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 partiesto the original treaty (see Article 41).

a)The expression of free consentb)Pacta tertiis nec nocent nec prosunt


As it appears from the definition of Article 2 (1)(a) of theVienna 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" through apolitical 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" iswidespread, too.
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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 Nationsof 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).

Inspite of its solemn title, the Charter of Fundamental Rights of the European Union, whichhas been proclaimed in Nice on 7 March 2000 is not a legally binding instrument, although itis designed to become the common reference of fundamental values on which the membersof 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

- the Treaty on the European Union of 1992 (as amended by the Treaty of Nice of 2001).

In most cases, multilateral treaties are called "Conventions". This is the most generaldesignation which is also used by Article 38 of the Statute of the International Court ofJustice. They are often concluded under the auspices of an international organization suchas

- 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) or the- the Universal Copyright Convention as revised at Paris on24 July 1971 (concluded under the auspices of theUnited Nations Educational, Scientific and Cultural Organization-UNESCO) or the

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 and Other Celestial Bodies(1979) or

- the North American Free Trade Agreement (1992).
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The designation "Protocol" is usually used for legally binding agreements which areadditional 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 originalconvention. This technique is frequently used in environmental treaties where the protocolsset out detailed provisions on the basis of a 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 2000 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 Rightsof1966, through which access to an intergovernmental body has been given to individuals.

In the present context, it is worthwhile mentionning that on this website we have alsoencountered 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).

... with regard to the termination of treaties

a)By consensus

b)Termination of treaties as a consequence of a defect of consent

c)No derogation of jus cogens

In the same way as States can conclude treaties, they can also terminate them by mutual

consent. 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 parties tosuspend the operation of treaty provisions
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- temporarily and- as between themselves alone,

as long as this does not entail a limitation of rights or obligations of the other parties (Article58 (1); application of the principle "pacta tertiis nec nocent nec prosunt").

Unless the treaty otherwise provides, the parties in question have to notify the other partiesof 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 unilateraldenunciation 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.

vb)Termination of treaties as a consequence of a defect of consent


Every person invested with appropriate full powers has the authority to express the consentof the State which he represents to be bound by a given treaty. If this authority has beenmade subject to a specific restriction which has then not been observed by therepresentative, the State may invoke this fact as invalidating its consent. However, thispossibility only exists, if the restriction had been notified to the other negotiating Statesbefore the expression of consent (Article 47), because if this prior notification did not takeplace, it would be easy to invoke defect of consent by mere political opportunism which, inreturn, 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).

Defects of consent

Error

An 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 itsconsent to be bound (Article 48). This provision echoes the adage "omnis conventiointelligitur sic stantibus": A genuine consensus only exists where all essential facts wereequally known by all parties. Nevertheless, a State may only invoke an error, if it has notcontributed to it by its own conduct.

Deceit
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Like 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 by thetreaty.

The corruption of a State representative (Article 50) perverts the relationship of agencyexisting 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 treatiesconflicting with jus cogens, the possibility of making such a choice is no foreseen; hence,only the treaty as a whole is voidable (Article 44 (5)).

Coercion

The most quoted example of a coercitive measures taken against a State representative(Article 51) are the threats formulated against the Czechoslovak President Hacha in order tohave 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." (Article52). 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 "theat" in the ViennaConvention itself was lacking, the United Nations Conference on the Law of Treatiesadopted together with the ViennaConvention a "Declaration on the Prohibition of Military, Political or Economic Coercion inthe Conclusion of Treaties". Paragraph one of this legally non-binding declaration

"solemny condems the threat or use of pressure in any form, whether military, political, oreconomic, by any State in order to coerce another State to perform any act relating to theconclusion of a treaty in violation of the principles of the sovereign equality of States andfreedom of consent".

However, in the context of diplomatic protection the question of the legitmacy of the use offorce is disputed. Therefore, for some there is no defect in the consent of a State which hasbeen brought about under such circumstances. As a matter of course, such anargumentation is very dangerous, since it furthers aggressive behaviour shown under the

pretext that is is legitimated by the international law of diplomatic protection. But how arpeace treaties to be judged in the light of Article 52, since most of them are the result ofarmed conflicts ?


With the exception of the provision contained in Article 22, para.1 which emanates from thefavor contractus principle, only peremptory norms of general international law (Latin: jus
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cogens) can stand in the way of an agreement which has been freely entered into. Indeed,Article 53 of the Vienna Conventionspecifies that a treaty conflicting with jus cogens at thetime of its conclusion is void. Similarly, a treaty becomes void and terminates, if it is incontradiction with a peremptory norm of international law which has newly emerged (juscogens superveniens - Article 64)

In that context we are in the presence of quite obscure provisions despite the definition ofjus cogens contained in Article 53: According to it, a peremptory norm of generalinternational law is a norm accepted and recognized by the international community ofStates as a whole as a norm from which no derogation is permitted and which can bemodified only by a subsequent norm of general international law having the same character.

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 norms

for 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. Recently, a debate started on whether the prohibitionto proliferate nuclear weapons constitutes a peremptory norm of international law.

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.

The rules concerning the conclusion of treaties (Articles 6 to 25) equally apply for theamendment of treaties (Article 39). Because of the principle 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,

agreements concerning the amendment of treaties can also be subject to amendmentsthemselves.

a) The implicit amendment

An amendment is done implicitly when the States Parties conclude successive treatiesrelating to the same subject-matter. Unless otherwise provided for in an agreement, theearlier treaty applies only to the extent its provisions are compatible with the later treaty (in
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conformity with the latin maxim lex posterior derogat legi priori according to which the latertreaty prevails 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: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 thatnegotiations are conducted in good faith with parties being aware of the relevantcircumstances.

b) The explicit amendment

For 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 othersof their intention to conclude the agreement and of the envisaged modification to the treaty(Article 40 (2) and 42 (2)).

According to the principle that agreements do not bind parties which are not privy to it(Article 34, repeated in Article 30 (4)(b) - pacta tertiis nec nocent nec prosunt), amodification agreed upon between certain States cannot bind other States which have notapproved the modification or amendment (Article 40 (4)), despite the fact that the latter areparties to the original treaty.

Out of respect for the principles offree consent andgood 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 theVienna Convention distinguishes between

amendments which are valid for all parties to a given treaty and modifications which areonly relevant for a restricted number of them.

"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").
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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 beinginstruments related to the treaty (Article 31 (2)). Furthermore, any subsequent practice inthe application of the treaty which establishes the agreement of the parties regarding itsinterpretation has to be taken into account, too.

According to the "Appellate Body", the highest dispute settlement organ of theWorld TradeOrganization (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 ofconventions forthe protection of the environment, provided that they are in force between the States Partiesof the WTO Agreement.

Finally, there are supplementary means of interpretation as, for instance, the preparatory

work of the treaty (so called "travaux prparatoires") and the circumstances of its conclusion(Article 32).

A specificty of international conventions lies in the fact that they are authenticated in severallanguages (see Article 33). With regard to treaties concluded under the auspices of theUnited Nations, these languages are regulary: Arabic, Chinese, English, French, Spanishand Russian.

The terms of the treaty are presumed to have the same meaning in each authentic text(Article 33 (3)). In the case ofseveral Protocols to the Convention for the Protection of theAlps (the Alpine Convention) there were so many differences in the texts authenticated inFrench, German, Italian and Slovene that a separate conference had to be convened for thepurpose of their harmonization (see Article 79 (3)).

The LaGrand caserevealed a divergence between the equally authentic English and Fenchversions ofArticle 41 of the Statute of the International Court of Justice. Hence, the Courthad to examine the object and purpose of the Statute together with the context of Article 41.In this way, the Court, in itsjudgement of 27 June 2001, "reached the conclusion that orderson provisional measures under Article 41 have binding effect".The rules of interpretation of the Vienna Convention on the Law of Treatieshave even beenreferred to by judicial bodies of the United Nations when interpreting texts other thantreaties (see UN Dispute Tribunal, judgment Warren UNDT/2010/015, footnote 1, orUNAdministrative Tribunal,judgement No. 1225, para.VI).

Specific application of the good faith principle (bona fide)

A State is entitled to invoke a deficiency of intention if the other States Parties knew that itsconsent had been expressed in manifest violation of a fundamental rule of internal law

regarding 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. According
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to Article 46 (2), a violation is manifest if it would be objectively evident to any State

conducting itself 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 as well

as whether there really is a general practice one can refer to and which is applicable in each

and every case. Moreover, the concept of "objective evidence" relies upon the term "goodfaith" which is a subjective element which therefore is difficult to prove.

Luckily, the value of this provision rests to a large extent with theory. It is almost always in

the course of the application and implementation of treaties that the concept ofbona fidecomes ino play. If a State does not implement a treaty ingood faith by violating at least one

of its substantial provisions, the Vienna Convention authorizes the other parties to invokethe breach as a ground for terminating the treaty or suspending its operation in whole or in

part (Article 60).

A bona fideapplication or implementation can also have a legitimizing effect in case the

treaty is invalidated: According to Article 69 (2)(b), acts performed ingood faith before the

invalidity was invoked are not rendered unlawful by reason only of the invalidity of thetreaty.

As a matter of course, there cannot be a legitimizing effect for a party to which fraud, an act

of corruption or coercion is imputable (Article 69(3)). The injured party or parties are thenentitled to require any other party to establish as far as possible in their mutual relations 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 withdraw

from 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

Convention foresees a time limit of three months after the receipt of the notification (Article65(2)). After the end of this time limit, the State can declare the invalidity of the treaty

through a document signed by one of its representatives.

With the exception of cases of special urgency, this instrument cannot be communicated

before the end of the period of three months foreseen in Article 65 (2). If, however, anobjection has been raised by at least one other party, the States Parties are under an

obligation to seek a solution through the means indicated inarticle 33 of the Charter of theUnited Nations..

RESERVATIONS

According to Article 2 (1)(d) the term "reservation" means a unilateral statement, however phrasedor named, made by a State, when signing, ratifying, accepting, approving or acceding to a treatywhereby it purports to exclude or modify the legal effects of certain provisions of the treaty in theirapplication to that State.
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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, theInternational Law Commission (ILC) provisionally adopted draft guidelines onthis issue.

One of the great difficulties is how to distinguish reservations from interpretative declarations. The

Vienna Convention does not explicitely deal with the latter, but since the way a reservation isphrased or named does not matter, a large number of so-called interpretative declarations wouldseem to be in fact covered by the provisions of the Vienna Convention on reservations.

In the same way as reservations, interpretative declarations are unilateral acts, but unlike theformer, such declarations can be made at any time whereas a reservation must be formallyconfirmed by th

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