Vienna convention 1969 on the law of treaties and vietnamese laws on treaty conclusion and application

HANOI LAW UNIVERSITY LUND UNIVERSITYFACULTY OF LAW VIENNA CONVENTION 1969 ON THE LAW OF TREATIES AND VIETNAMESE LAWS ON TREATY CONCLUSION AND APPLICATION SPECIALTY: INTERNATIONAL AND C

NGUYEN THÏ TUYET VAN

HANOI LAW UNIVERSITY LUND UNIVERSITY

FACULTY OF LAW

VIENNA CONVENTION 1969

ON THE LAW OF TREATIES AND VIETNAMESE LAWS ON TREATY

CONCLUSION AND APPLICATION

SPECIALTY: INTERNATIONAL AND COMPARATIVE LAW

3 V IE T N A M E S E L A W S ON C O N C L U S IO N A ND A P P LIC A T IO N OF T R E A T IE S 31 3.1 O V E R V IE W 31 3.2 B A S IC R E G U L A T IO N S ON T R E A T Y C O N C L U S IO N 3 3

The thesis is “Vienna Convention 1969 on the law o f treaties and

V ietnam ese laws on treaty conclusion and application”

The thesis aims improving Vietnamese laws on treaty conclusion and application To reach this aim, this thesis seeks to analyze some légal basic issues on treaty according to Vienna Convention 1969 The thesis is directed tow ard Vietnamese current laws on conclusion and application o f treaty by

m eans o f international treaty The thesis points out strong points and weak point o f this légal system The thesis gives some opinions for improving

V ietnam ese légal framework on treaty conclusion and application in order to correspond w ith Vienna Convention 1969

The first chapter provides an overview about the thesis In this chapter, the author point out necessary task o f reseaching, purpose, limitation, m ethod and m aterial, and position o f thesis

In the second chapter, the author points out basic issues on treaty according

to V ienna Convention 1969 in order to clarify such as concept, classification, characteristics, réservation, entry into force, conclusion and application o f treaties Additionally, the author seeks to present the relation between treaties and other sources o f law as custom and dom estic law and points out solving relation between treaty and domestic law o f some countries in the world

In the third chapter, provisions o f Vietnamese légal system on treaty conclusion and application are analysed

In the fouth chapter, strong and weak points o f V ietnam ese laws on conclusion and application o f treaties and as well as the author’s opinions to improve Vietnamese laws on conclusion and application o f treaties in order

to correspond with Vienna Convention 1969 are clearly presented

In the end chapter, conclusion will be placed in their context in order tosynthesize the whole thesis subject

In preparing my work, I feel greatly indebted to my supervisor Prof Kjell.A.Modeer I would wish to register my spécial im m easurable thanks and appréciation to him He is so kindly and always sent m e his w arm ly encouragement, guided me with valuable instructions and comm ents

My thanks are due to my Vietnamese supervisor D octor Le M ai A nh -who always extended her coopération and kind guidance, w henever I need

I want to send a lot o f appréciation to ail my teachers w ho imparted me valuable knowledge and broadened my vision

I would like to thanks the S taff at library o f Faculty o f Law o f Lund University who help me enthusiastically look for the material resources for

my thesis

I also wish thank the SIDA project and ail the supportive S taff o f faculty o f law for providing me with a chance to study in Lund University, a so nice place full o f classical culture and academic atmosphère A lthough the tim e I stay in Lund University is not long but it is an unforgettable period tim e for

me with beautiful souvenirs

Lastly, I would like to thank my family Thanks to m y friends and colleagues encouragements I have come over ail difficulties to finish my thesis

Bristish Yearbook o f International Law Convention on the Elimination o f Ail Forms

o f Discrimination Against Women Constitution o f the Socialist Republic o f Vietnam 1992 amended from 2001 European Community

European Union International Law Commission International Court o f Justice International Law Commission International treaty

Vienna Convention on the law o f treaties

Vienna Convention on the Law o f treaties between States and International

Organisations or between International Oraganisations 1986

United NationYearbook o f International Law Commission

W orld Trade Organization

1 Introduction

In recent years, globalization is taking place speedily and strongly M any countries in the w orld have taken part in the trend o f intem ation and régional corporation Treaties, one o f basic sources o f international law are used as an essential instrument to regulate international relationship Treaties and the issue o f treaty conclusion and im plem entation, therefore, take an especially important position, and become on o f the basic sign o f national sovereignty

International treaty conclusion and application is im portant and becom e légal framework for expanding and promoting international friendship and co-operation N ow adays, treaties may concluded ranging from the traditional issue o f peace and security to trade, economic régulation, taxation, the environm ent, human right and so on Treaties are essential part

o f law system in général

As seen from the law o f laws, Vienna Convention on the law o f treaties betw een states from 1969 (Vienna Convention 1969) set out the law and procédure for the m aking, opération and termination o f a treaty It points out général principles, rights and obligations o f State parties in treaty conclusion and application V ienna C onventionl969 on the law o f treaty channels the expression by the state o f consent to be bound and defines the com m itm ents they enter into It is basic régulation, contains substantial provisions applicable to other conventions Therefore, Vienna Convention 1969 on the law o f treaties is the authoritative treaty on the international law o f treaties, and is the part o f international law M ost states have ratified this treaty, their conclusion and application, especially, express their consent to be bound vary considerably, depending on constitutional, légal and political condition which reflect the history, the légal culture o f each country

Nowadays, in V ietnam , the légal provisions concem ing international treaty conclusion and application can be found in many différent légal docum ents, including Act, Ordinance, and D ecree A main docum ent in this area is Ordinance on conclusion and application o f treaty enacted by N ational Assembly Standing Committee from 1998 However, in im plem enting process, this law revealed quite many shortcomings, which need to be corrected V ietnam has an Amendment o f 1992 Constitution from 2001, and especially, Vietnam expressed consent to be bound by V ienna C onvention

1969 on the law o f treaty by accession from 2001 Therefore, provisions on treaty conclusion and application must be considered and changed to suit with the Constitution 1992 (amendment) and Vienna Convention 1969 on the law o f treaties which Vietnam is a state party

This thinking, at the same time, means that national provision on conclusion and application shall be amended in order to agree with international provisions, mainly with Vienna Convention on the law o f treaties from

1969 B y this law changing, we can actively contribute to the national ail field renovation and raise the position o f Vietnam in international community.

From the awareness about international treaty is important rôle m entioned above, it could be said that, the issue o f researching and improving

V ietnam ese laws on conclusion and application becomes an essential question in the process implementing international agreement o f Vietnam

Actually, in Vietnam, there is still no project studying the conclusion and application o f treaty, but ju st some short articles or small ideas in the large project relating to relationship between international law and dom estic law With the scientific and practical background m entioned above, I chose the

subject namely: “ Vienna Convention 1969 on the law o f treaties and

Vietnamese laws on treaty conclusion and application

I hope that my thesis shall have some contributions into im proving Vietnam ese laws on conclusion and application o f treaties in the globalization circumstance for present and for coming time as well

1.1 Purpose

The thesis aims improving Vietnamese laws on treaty conclusion and application To reach this aim, the thesis focuses on clarification o f the basic légal issues conceming treaty according to Vienna C onventionl969 on the Law o f treaty And, activities, the current Vietnamese légal provisions on treaty conclusion and application shall be analysed

Through the results o f research, the thesis shall m ention achievem ent and weaknesses o f Vietnamese laws on treaty conclusion and application The author would also like to give some assessments relating to treaty implementation o f Vietnam Therefore, the thesis shall make proposai to improve Vietnamese laws on conclusion and application o f treaties

To gain these aims, the objective o f this study focuses on resolving some questions, consisting of:

1 W hat is a treaty under Vienna Convention 1969?

2 W hat are légal basic issues on treaty under Vienna Convention 1969? (Such as characterictics, conclusion, réservation, implementation o f treaty, relation between treaty and custom , treaty and domestic law )

3 W hich basic régulations o f current Vietnam ese laws refer to conclusion and application o f treaty?

4 W hat are strong points and weak points o f Vietnam ese current laws

on conclusion and application o f treaty? (basing on synthesis and analysis o f Vietnamese current laws on this field)

5 W hich solutions will be applied for improving Vietnam ese laws on conclusion and application o f treaties?

1.2 Limitation

Law o f treaty is a very large field This thesis seeks to analyze some légal basic issues on treaty according to Vienna Convention 1969 Therefore, provisions o f treaty such as characteristics o f treaty, the treaty conclusion process, consent to be bound, entry into force and im plem etation o f treaty

w ill be clarified Besides, the issues o f relation betw een treaties and other sources o f law such as custom international law, dom estis law will be discussed

The thesis is directed toward Vietnamese current laws on conclusion and application o f treaties by means o f international treaty The thesis points out strong points and weak point o f this légal system The thesis gives some opinions for im proving Vietnamese légal framework on treaty conclusion and application in order to correspond with Vienna Convention 1969 On this point, narrowly, the thesis also studies treaty im plem entation o f Sweden, French, and Rusia as representing the civil law culture and England, A m erica as representing the common law culture

Issues, w hich are concem ing Vienna Convention between states and international organization or between international organizations from 1986 and evalution o f V ienna Convention 1969, will be left out

1.3 Method and material

1.3.1 Method

In chapter 2, under Vienna Convention 1969, this thesis seeks to analyse some basic issues on treaty The object o f analysis is légal characteristics o f treaty Therefore, the working method chosen analyses w here the aim is to elaborate on the current understanding o f the concept o f treaty in the context

o f Vienna Convention 1969 and elaborate characteristics and rôle o f treaty generally

In this chapter 3, descriptive and analysis methods are made use to clarified Vietnamese laws on conclusion and application o f treaties in order to have

an overview for the research

In the chapter 4, this thesis points out achivements and shortcom ings o f this légal system This chapter aims to make proposai based on analysis and synthetic m ethods in order to improve Vietnamese Laws on treaty conclusion and application

Finally, conclusion o f this thesis will in brief be presented through synthetic method in the final chapter

1.3.2 Material

The resources will be used consist of:

United Nation Charter

Vienna Convention 1969 on the law o f treaty

Constitution o f Socialist Republic o f Vietnam o f 1992

- Ordinance on conclusion and application o f treaty, which is enacted

by National Assembly Standing Committee from 1998

M ainly som e authoritative books on the subject cover the chosen material for the treaty and treaty conclusion and application:

Anthony Aust, M odem treaty law and practice, Cam bridge, 2000 Council o f Europe and Bristish Institute o f International and Comparative Law, Treaty making-expression o f consent by states to

be bound by a treaty, Kluwer Law International edn, 2001

P Reuter, Introduction to the law o f treaties, 2nd, English edn, 1995 Tran Van Thang- Le M ai Anh, International Law, l st, The Education Press, 2001

M alcolm N.Shaw, International Law, 4th, Cam bridge U niversity Press, 2004

Beside, some articles and other material from Internet web are m ade use

In the third chapter, provisions o f Vietnamese légal system on treaty conclusion and application are analysed Therefore, generally, author seeks

to synthesize basis current régulations o f Vietnamese laws on this fïeld.The fourth chapter goes on with the results o f chapter 2 and chapter 3 In this chapter, strong and weak points o f Vietnamese laws on conclusion and application o f treaties and as well as the author’s opinions to improve Vietnamese laws on conclusion and application o f treaties in order to correspond with Vienna C onventionl969 are clearly presented This is also implementing obligations that Vietnam consents to be bound by this Convention

In the end chapter, conclusion will be placed in their context in order to synthesize the whole thesis subject

2 Basic légal issues on treaty

Convention 1969

V ienna C onvention 1969 on the law o f treaties concluded on 23 M ay 1969, (com e into force on 27th January 1980) played an im portant rôle o f international m orden law It is not only the resuit o f successful codify process o f custom ary international rules but also creates a basic international légal frame to regulate relation between states on conclusion and application

o f treaties

A lthough the V ienna Convention 1969 does not occupy the w hole ground o f the law o f treaties, it covers the important areas and is starting point for any description o f the m odem law and practice o f treaties1 The fom ation o f

V ienna C onvention 1969 enhanced effectiveness o f treaty usage as légal instrum ent to adjust international coopération relationship am ong states; it is also an im portant légal basis to determine international légal obligation o f one state to agreem ent binding which were legally established This is one

o f essiential conditions in terms o f légal for a state to integrate into the trend

o f globalization and régional alignment The process o f conclusion and application o f treaty creates multisided effects to practical benefits o f each state in international coopération

2.1 Term “treaty” according to Vienna

Convention 1969

2.1.1 The définition of treaty

In international law science, the term treaty is used w idespread to define a resouce o f international law, formed by order and procédure terminate rights, duties and légal responsibilities among international law ’s subjects when they taking part in international légal relations

The term “treaty” has regularly been used as a generic term em bracing ail instruments binding at international law concluded between international entities, regardless o f their formai désignation.2 The fom ation and developm ent history o f international law point out that treaty exists under a lot o f names such as Agreement, Protocol, Charter, and Convention

However, it is difficult to see légal scientific criteria enough to determine which a treaty document is in order to distinguish between treaty and other international instruments On the other hand, many international

1 A n thony A ust, pp 6.

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undertaking and foreign policy statements, such as unilatéral statem ents o f intent, jo in t com m uniques and final acts o f conférences, are not intended to

be legally binding and are not considered treaties

Therefore, Art 2(1 a) o f Vienna Convention 1969 defines treaty as follow:

“Treaty " mean an international agreement concluded between states in written fo rm and governed by international law, whether em bodied in a single instrum ent or in two or more related instrument and whatever its

pa rticular désignation

The com préhension o f this définition allows confirm ing that treaty is

“ agreem ent with international factors” Thus, international factors with légal agreem ent need understanding under which criteria?

The constitution, law and practice o f some states divide treaties variously into catégories such as inter-state, inter-govemmental, inter-m inisterial or adminiestrative Treaties can also be described as “universal” and

“régional”, but this has no légal signficance The Convention does not recognise such distinctions Intemationally, once in force, treaties are binding on the parties and become a part o f international law 4 Therefore, international factors o f légal document shoud are assessed in the relation o f created law am ong states, through the process o f conclusion, application and term ination o f treaty In the other words, the international agreem ent is the com bination o f factors in terms o f form, content and certain international légal procédure, related to the formation o f treaty instrument

In the définition o f Vienna Convention 1969, treaty is an agreem ent in

w ritten form and concluded by states Vienna Convention 1969 limits adjustment scope to originated treaty relation betw een states is due to the formation history o f Vienna Convention 19695 Vienna C onvention 1969 does not apply to such treaties, which are the subject o f V ienna Convention

1986 on the law o f treaties between states and international organizations and international organizations, which in effect, applies to such treaties the provisions o f the Vienna Convention 1969, suitably adapted Thus, Vienna Convention 1969 that confirms this limitation doesn’t affect international légal value o f agreements concluded by international organizations or between states and international organizations This is one o f the disadvantages o f Vienna Convention 1969 under aspect o f the developm ent

o f international laws in général and laws o f treaty in particular6

Defining treaty as agreement in written form between states, Vienna Convention 1969 tacitly points out that international légal nature o f treaty is the resuit o f agreement on nations’ will In international relations, agreem ent

1 S u p ra N I , pp 15

4 C o n g ressio n al R e se a c h S erv ice L ibrary o f C ongress, p p l

5 V ien n a C o n v e n tio n 1969 has not regulate relation betw een states and in te rn a tio n a l

o rg an iz atio n s and in te rn atio n a l organizations R elation b etw e en states and in te rn a tio n a l

o rganizations are reg u la te d by V ienna C o n vention 1986.

0 A cc o id in g to C o m m e n ta ry o f ILC, treaties w hich is co n c lu d e d b y in te rn atio n a l

o gam zations has a lot o f specific characteristics, and IC L said that, ii is v e ry co m p lic a te and

m ake slow ly for d ra ff o f V ien n a C onvention 1969 if it regulate relations in te rn atio n a l oganizations.

is the meeting, exchange, negotiation, compromise, and concession in order

to corne to an agreement on issues that subjects o f international law take into considération Therefore, this relation needs to have the participation o f

at least two subjects Légal traits o f agreement express in the results o f the successful agreement This resuit, in aperance, is acknow ledged under international légal norm, directly adjusting rights, légal duties o f contracting states

This above explanation allows distinguishing treaty that is the self- binding

o f international law ’s subjects to certain international légal duty with other international commitments This binding is implemented through unilatéral légal deed or agreement between international law ’s subjects In one treaty, duties originated from treaty are commited to im plement by contracting

states on the basis o f principles pacta sunt servanda and other principles

acknow ledged by Vienna Convention 1969

Besides, in ail sides, the process o f giving State wills to treaty content is différent to giving state will to State légal document in national law The agreem ent o f contracting states to création o f treaty has dialectical relation

w ith such régulations o f national law, due to the binding o f state benefits In the existence and development o f each state, the conclusion and application

o f treaty is one o f basic légal activities, belonging to the scope o f

im plem enting international law subject’s rights in practice W ith the term

“ treaty”, V ienna Convention 1969 set a basis for the defining o f légal value for treaty, as well as having the meaning o f création légal fram ew ork on treaty, playing the rôle o f independent law source belonging to m odem international légal system

2.1.2 Classification of treaty

For its part, Vienna Convention 1969 “takes a cautions approach, avoiding any systematic classification o f treaties and restricting itself to a few distinctions o f limited scope Treaties present a great variety o f différent aspects according to whether one considers their elaboratation, interprétation, modification, effects, violation and so forth, ail o f which call for a spécifié analysis”7 It is possible to relatively current treaty by giving common criteria according to traditional ways Among such criteria, quatity

o f subjects are regarded as one o f basic criteria In this way, treaty is distinguished by bilatéral treaty and multilatéral treaty

A multilatéral treaty has several parties, and establishes rights and obligations between each party and every other party M ultilatéral treaties are often, but not always, open to any state; others are régional8

Bilatéral treaties by contrast are negotiated between a limited num ber o f states, most commonly only two, establishing légal rights and obligations between those two states only It is possible however for a bilatéral treaty to have more than two parties; consider for instance the bilatéral treaties

7 P R euter, pp 35

8 h ttp :// w w w fact-index.com /t/tr/treaty.htm l

betw een Switzerland and the EU following the Swiss rejection o f the EEA agreem ent9.

T h e substantive features o f treaties ought to have pride o f place in the classifications o f treaties In m any cases, it will prove difficult even to define the object and purpose o f a treaty10 However, based on substantive feature o f treaty it is possible to classify treaty with criteria on mutual dependence among légal duties set in this treaty and sim ilar ones It can be classified into treaty on politics, economy, society, technology, and envirom ent I f based on application scope o f treaty, it can be classified into bilatéral treaty, régional and global one, or war and peace time one, contracting or law one can also be shown différent view o f classification1Law in each country has différent classification Vietnam ese laws on treaty conclusion and application are divided treaties into for 4 kind: first, international agreem ent on b eh alf o f the Socialist Republic o f V ietnam (on

b e h a lf o f the State); second, international agreement on b eh alf o f the Governm ent; thirdly, international agreem ent on behalf o f the M inistry,

D epartm ent and fourth, international agreem ent concluded by the Supreme

P eo p le’s Court and the P eople’s Office o f Supervision and Control with

th eir granted power

In whole, the classification o f treaty according to domestic law mainly creates favoured conditions for conclusion, application and m anagem ent o f treaty In the V ienna C onvention 1969 ’s approach, the treaty concluded in

w hatever level still bears the nam e o f state, it means states is the m em ber o f its treaty

2.2 Basic characteristics of treaty

U nder international law an international agreement is generally considered

to be a treaty and binding on the parties if it meets some criteria:

- The parties intend the agreem ent to be legally binding and the agreem ent is subject to international law

- The agreement deals w ith signficant matters

- The agreement clearly and specifically describes the légal obligations o f the parties

- The form indicates an intention to conclude a treaty, although the substance o f the agreem ent rather than the form is the govem ing factor

A dditional, an international agreem ent is considered to be a treaty if it have som e criteria under V ienna Convention 1969:

o f nations, form o f one instrum ent is asserted to be agreem ent between states in written form In other words, the original text o f a treaty must be typed or printed V ienna Convention 1969 does not apply to oral agreem ent1 It also does not define other forms such as telegram , telex, fax,

m essage or even e-mail, or rather, constituted by an exchange o f such com m unications w hich are the resuit o f technology developm ent Such

w ork as not apply other forms partly avoid m isunderstanding when exchanging com m unication by conversation like orall agreement, making phonecall and partly it is because at this point o f prom ulgation, Vienna

C onvention 1969 can not calculate such trend o f scientific development

H ow ever, the overw hem ing advantages o f w ritten form and abilities in the confirm ation o f binding rights and duties o f states in an exact, clear way

c a n ’t be denied and it can be restored them as a concrete evidence o f consent by states to be bound by a treaty

T reaty is an only instrum ent but can be two or m ore instrum ents related to each other and does not depend on names o f these instruments In this issue, Recom m endation o f ILC o f U N clearly confirm ed that there is no diffence

o f légal force o f international treaty w hether em bodied in a single instrum ent or in two or more related instruments

Basically, such treaty in w ritten form has signs as follows:

* Names o f treaty instrument:

Treaty has various nam es and the nam ing for instrum ents totaly depends on

w ill o f parties There is no distinction force value betw een treaty according

o f names In practice, a lot o f treaty has the same content and characteristics but not can be named, exam ple, Protocol, Exchange o f notes, Convenant,

M odus vivendi, Arrangem ent

* Structure o f treaty13:

A lm ost every treaty is built into 3 parts: Introduction, Content, Conclusion

In Introduction part, treaty is not divided into articles, clauses, chapters and does not contain concrete norms to determ ine rights, duties o f participants This part only defines reasons o f treaty, purpose o f treaty, or nam e o f parties

The Content o f treaty is the m ost im portant which is divided into parts, chapters, sections, articles in order to adjust rights, obiligations o f parties.The Conclusion consists o f articles in terms o f condition, date o f entry into force, duration and territorial application, language, the depositary

Although treaty is divided into chapters, sections, articles, clauses it is not

a compulsory requirem ent in form to every treaty For instance, such treaty

as Déclaration Bangkok 1967 o f ASEAN is one o f treaty that doesn’t have

s u c h structure

* Language in which the treaty is written:

12 Supra N 1, pp 16

11 S u p ra N i l , pp 76

Language used in instrument o f treaty is approved by m em ber states, on the basis o f being suitable and having equality between parties How ever, the agreem ent on language use in bilatéral treaty can have différences to

m ultilatéral treaty For example, with bilatéral treaty, two parties agree to use languages o f two parties or international language On the contrary, with

m ultilatéral treaty, language to be chosen will be the official language o f

UN like English, French, Russian, Spanish, Arabian and Chinese Instruments compiled by chosen language are original ones and have similar légal value Language o f instrument can be regulated in article o f treaty like régulation at Article 111 o f UN Charter, Article 53 o f V ienna Convention

1961 on Diplomatie Relation

2.2.2 Subject of treaty

C onclusion treaty is one o f fundamental rights o f an independent and sovereign State On the other word, “the making o f treaties is one o f the oldest and most characterictic exercises o f independence or sovereignty on the part o f states”14 “Every state possesses the capacity to conclude treaties” 15 When taking part in treaty relations, state have enough rights in the carrying out o f making-treaty process as negotiation, signature, ratification, approval, termination, révocation

In international law, capacity o f subject to treaties are one o f im portant factors affected légal value o f instrument According to V ienna Convention

1969, subjects to treaty must be states16 The Convention does not apply to ail international agreement, only those between states Therefore, international agreements between state and physical person or légal person

as international or multinational companies are not treaties17

States implement own subject’s rights through authoried bodies or person

on behalf o f State.Various représentatives o f the state have an authority at international law Article 7 o f Vienna Convention 1969 has classified représentative o f one state including the représentatives with full pow er and représentatives without full power A person which are considered as représentatives o f a State not have to procédure full powers such as Heads

o f State, Heads o f Government and M inisters for Foreign Affair; heads o f diplom atie missions; représentatives accredited by states to an international conférence or an international organization A person or other officiais who is considered as représentative o f a State has full pow er for the purpose

o f adopting or authenticating the text o f treaty or for the purpose o f

14 M cN air, L a w o f treaty, (1961), 2nd edn, p p 35

15 V ien n a C onvention 1969, A rt 6

16 Ibid, A rt 2(1)

17 See A nglo- Iranian O il C om pany (U n ited K in g d o m v Iran) (P re lim in a ry O b je c tio n s) IC J

R eports (1 9 5 2 ),p p 93,112; See C G reen w o o d , ”T h e L ibyan O il A rb itra tio n s” , B Y IL

(1 982), pp 27-81 T he International C o u rt o f Ju stice has held th at an oil c o n c e s sio n g ran ted

by a state to a foreign com pany was n o t a treaty because the state o f n a tio n a lity o f the

co m p an y was not party to the concession E v en w hen, as so m e tim es h ap p en s, a n ag re em e n t

b etw e en a state and a com pany provides that it shall be in terpreted in w h o le o f in p a rt by referen ce to rules o f international law , that d o e s n ’t m ake it a treaty.

18 V ien n a C onvention 1969, A rt 7

expressing the consent o f the State to be bound by a treaty, except the treaty has other régulations.

Therefore, based on légal value o f singning deed, Vienna Convention 1969 gives requirement o f représentatives their state There is no différence in international law betw een a treaty concluded on b eh alf o f States and one concluded on b ehalf o f Government or M inistry binds the states, and changes o f Government will not affect its binding force.19

The production o f “full powers” is a fundamental safeguard for treaty at international level and national level The Commentary o f the ICL on this provision makes clear that it seeks to combine two aspects o f compétence

on conclusion o f treaty First, recognise and respect the self- déterm ination

o f each state to determine représentative o f a States; and second to ensure that the security o f treaties should not be undermined by the danger o f complex and uncertain limitations on délégation for conclusion o f treaty under national law.20

2.2.3 Content of treaty

An essential element o f a treaty is the intention o f the parties to enter into a légal relationship So, the content o f treaty has close relation to contracting states’s intention Content o f treaty defines rights, duties and international responsibilities o f state parties According to the ILC ’s Commentary, treaty and treaty conclusion and application govemed by international law ’ embraces the element o f an intention to create obligations under international law I f there is no such intention the instrum ent w ill not be a treaty Thus intention must be gathered from the terms o f the instrument itself and the circumstances o f its conclusion, not from w hat the parties say afterwards was their intention21

Basically, the treaty content is expressed through différent norms such as ju s

congens norm, alternative norm, adjustment norm and conflict norm

However, the treaty content mainly contains direct adjustment norms to parties’ rights and duties Légal trait is specilized by content o f the above- mentioned norms Based on content treaty can be distinguished from political instrument declared by states in international coopération

2.2.4 Law of treaty

Characteristics o f treaty on formation, content, subject are closely related to conditions on applied law for légal relationship o f treaty conclusion and application An agreement between states will be no value if this it was not regulated by international law Therefore, the treaty - m aking process must

be carried out on the basic o f international law régulations, especially, the régulations in Vienna Convention 1969 States may, however, make

9 A nth o n y A ust, pp 48

:0 Y B IL C (1 9 6 6 ) V ol.II, pp 240-242

J IC J R eports, Q uata and B ahrain, 1994, p p l 12

agreem ents between themselves that are subject to some national law and not to international law It is convenient to make agreements o f this sort about, example, the sale o f commodities or arms, or lease o f property, when some third party not a subject o f international law is closely involved in the transaction Although such agreements are in a sense “international”, they are not govem ed by international law, and are not treaties but state contracts.

2.2.5 The rôle of treaty

International relationships between states take place in various condition, diffrent from cultural and political, economic, social condition Developing

in this condition, treaty has the function o f maintaining and settling international légal order, taking care o f equal relation between states, ensuring international benefit and national benefit harmoniously, ensuring fundem ental principle to be implemented and enforced

Treaty concluded by states aims at reaching and saving national benefits in particular and common international benefit in général The agreement o f states expressed in treaty’s content is important légal basis for the

im plem entation o f parties and solving disputes raised in treaty implementing process

N owadays, treaty confirmed its rôle as important légal tool used by international community to lay foudation and promote the rapid developm ent o f international coopération relation, link nations together.Besides, treaties also push up development o f international law and dom estic law This issue expresses by means o f rôle o f treaty, which is a source o f international law and domestic law

2.3 Conclusion of treaty

99

The birth o f a treaty involves various stages In practice, the treaty making process involves 3 stages: first, the création o f a treaty as an international instrument and seconlly, the expression o f consent by states to be bound by

a treaty and thirdly, implementation o f treaty

“Conclusion” may have quite a number o f meanings, the narrowest o f which should be considered first: a treaty is “concluded” once the States have

'yx

expressed their defmitive intention to be bound Therefore, conclusion o f treaty is made by a lot o f légal activities such as negotiation, adoption, signing, ratification, approval and acception, accession Ail the actions just mentioned are actions at the international level

‘2 N A M a ry a n G reen M A , L L B (C antab), pp 164

S upra N 5 , p p 55

2.3.1 Formation of treaty instrument

A treaty is concluded succesfully after process o f création o f treaty instrument and expression o f consent by states to be bound by this treaty

T he stage o f instrument formation includes negotiation, adoption and authentication o f the text

N egotiation is considered the first period o f treaty- m aking process Draft instrum ent is prepared earlier by the states participating and after negotiation successfully, the states will compile official instrument for adoption The real point o f negotiation is agreement and unify parties’ will States agreed equally on rights and duties to reach the com m on benefit and protect benefits o f each party In many ways the process o f negotiating is the

m ost crucial phase o f treaty making as it relates to the substance o f the oblibigation envisaged24 This is time-consuming phase so in order to avoid the lengthening or deadlock o f agreement, negotiation needs good will from negotiating states

“The adoption o f the text o f a treaty, usually, takes place by the consent o f ail the states participating in its drawing up”25 with the m eans o f the formai act The adoption o f the text is not an act to express the consent to be bound

by a treaty, exclude treaty which applied other priciples W hen the negotiators o f the treaty finalise the text, the text is adopted This m ay occur

at a specially- called conférence, or at a meeting o f a body such as the UN General Assembly

The création o f treaty instrument is ended by authentication A uthentication

is also formai act, it is usually done by initiating, expreesing acceptence o f the accuracy o f the written text And authentication o f the text is a necessary requiem ent before whether states consent to be bound to a treaty Authentication is done by an act or a procédure26 Once a treaty has been authenticated, states cannot unilaterally change its provisions It is clearl that the term to which the parties may be prepared to agree the treaty text, must

be elaborated Then the provisional text so agreed upon must in some

m anner be authenticated, so that there may be no mistake or confusion as to its exact term

So, offical instrument o f a treaty is created after being negotiated, adopted and authenicated by contracting state After these steps, a new international instrument has come into existence, but this does not mean that it has entered into force

2.3.2 The expression of consent by states to be

bound by a treaty

According to Vienna Convention 1969 (Art 15), acts express consent by states to be bound by a treaty are various such as signature, exchange o f

24 C ouncil o f EU and B ristish Institute o f International and C o m p arativ e L aw , p p 29.

25 V ienna C onven tio n 1969, A rt 9

:b Supra N I, p p 71

instruments constituting a treaty, ratification, approval or acceptance, accession or by any other means if so agreed These acts have the same légal effect because they ail have the same purpose o f creating common force for treaty However, they still have certain distinction in ternis o f validity o f each act.

Signature is theis step indicates an intention to become a party to a treaty, and does not usually establish consent to be bound by the terms o f the treaty, unless the treaty provides for the signature having that effect27 So, signature are divided into 2 kinds: définitive signature (not subject to ratification) and simple signature (subject to ratification)28 Nowaday, in international relationship, a lot o f treaties regulate this treaty will corne into force after a füll signature29.

Ratification is defined as if the “international act” whereby a state indicates its consent to be bound to a treaty Ratification, usually, is the highest expression o f consent by a state to be bound by a treaty In the case o f bilatéral treaties, ratification is usually accomplished by exchanging the requisite instruments, while in the case o f multilatéral treaties the usual procédure is for the depositary to collect the ratification o f ail states keeping ail parties informed o f every situation The institution o f ratification grants states the necessary time - frame to seek the requied approval for the treaty

on domestic level and to enact the necessary législation to give domestic effect to that treaty Ratification activity can come into force o f treaty to a state or not, depend on this treaty’s régulation, example, Vienna Convention

1969 itself regulate “the present Vienna Convention 1969 is subject to ratification”30.

Acceptance and approval o f treaty have the same légal effect as ratification and consequently express the consent o f states to be bound by a treaty In the practice o f certain states, acceptance and approval have been used instead o f ratification when, at national level, constitutional law does not require the treaty to be ratified by the Head o f States.

Accession is the act whether by a state accepts the offer or the opportunity

to become a party to a treaty already negotiated and signed by other states It has the same leal effect as ratification Accession usually occurs after the treaty has entered into force The Secretary - General o f the UN, in his function as depositary, has also accepted accessions to some treaties before their entry into force, example, Vienna Convention 1969 “shall enter into force on the thirtieth day following the date of deposit o f the thirty-fifth instrument o f ratification or accession”31 The conditions under which accession may occur and the procédure involved depend on the provisions

o f the treaty A treaty might provide for the accession of ail other states or for a limited and defined number o f states In the absense o f such a

provision, accession can only occur where the negotiating states were

agreed o f subsequently agree on it in the case o f the State in question

An important point made by Vienna Convention 1969 for parties related to the process express consent to be bound by a treaty is the duty not to be against object and purpose o f the treaty and this issue was applied before the treaty cornes into force It is necessary to stress that provision because “the control o f contracting states for the unimplementation can ruin oject or purpose o f treaty in case this treaty hasn’t come into effect Acceptance treaty with its form and content is a necessary assuarance for the common benefits o f treaty relation that is being or will be formed” 32

2.4 Réservation of treaty

A state may w ish to become a party to a treaty with réservations, that is to accept to be bound by most, but not ail, o f the provisions o f the treaty The importance o f the réservation will naturally depend on its scope and on the object and purpose o f the treaty

In accordance w ith the benefit o f parties, the Vienna Convention 1969 admit that réservation is the right o f the subjects while conclusion o f treaty

“Réservation means a unilatéral statement, however phrased or named, made by a State, when signing, ratifing, accepting, approving or acceding to

a treaty, w hereby it purports to exclude or to modify the légal effect o f certain provisions o f the treaty in their application to that State”33 Although the Vienna Convention 1969 does not distinguish or indicate the réservation applied in w hich type o f treaty, it is obvious that the réservation is only set

up for m ultilatéral treaty The bilatéral treaty can not set up réservation because it is the resuit o f the successful agreement between two subjects On the other hand, a réservation to a bilatéral treaty (a treaty to which there are only tw o parties) has the same effect ans an amendment (except that a réservation m ay be withdrawn at any tim e)34

A state becom ing a party to a multilatéral treaty may be able to formulate réservations, indicating that it will not be bound by one or other o f the provisions The subject o f réservation to multilatéral treaties is one o f unusual- in fact baffling-com plexity35 Réservation is limited because it can ’t be applied absolutely36 The parties have the right o f réservation but can only carried when the states does the affirming act o f its agreement State parties can not formulate a réservation if the réservation is prohibited

by a treaty, as such U N Convention on the Law o f the Sea 1982 (Art 309)

In some other cases, state parties may only formulate a determinate réservation if the réservation is not prohibited by a treaty, example, Chicago Convention on Law o f Civil Aviation Art 24(1,2)

32 L e M ai A nh, F u n d a m e n ta l légal issues u n d erV ien n a C onvention 1969 a n d law s

c o n c e r n in g in te rn a tio n a l treaties c o n c lu d e d b etw een nations, pp 45-50

33 V ien n a C o n v e n tio n 1969, A rt 2 ( l)( d )

34 N A M a ry a n G re e n M A , L L B (C antab), pp 167

35IC L Y ea rb o o k (1 9 5 3 ),v o l.II(A /C N 4 /6 3 ), pp.124;

30 N g u y e n T hi T h u an , pp 27-31

The réservation influences directly on the effect value o f treaty So, the déclaration o f réservation, getting out réservation, acceptance o f and objection to réservation have to expressed by texts and informed to concem ing parties An objection by another contracting state to a réservation does not preclude into force o f the treaty as between the objecting and reserving states unless a contraty intention is defmitely

37expreesed by the objecting states Besides, each différent act o f réservation activity will lead to the différent légal effect such as withdrawn o f réservation and o f objection to reservation.Unless the treaty otherwise provides, withdrawn o f réservations and o f objection to réservations m ay be

at any time

2.5 The entry into force

The entry into force o f treaty plays an important rôle in the content o f Vienna Convention 1969, relating to the implementation o f treaty, because, every treaty in force is binding upon the parties to it and must be performed

in good faith However, the entry into force o f the treaty must be distinguished from the entry into force o f the treaty in relation to a particular state

2.5.1 Condition for a treaty to corne into force

Objectively, once treaty only cornes into force when it meets the prerequisite conditions that follow basic principles o f international law and

o f Vienna Convention 1969 According to these principles, the conclusion

and application o f treaty are not conflict ju s congens norm and coercion o f a

state by the threat or use force

According to Art 53 o f Vienna Convention 1969, a treaty is void if, at the time o f its conclusion, it conflicts with a peremptory norm o f général

international law (jus congens) A peremptory norm o f général international

law is a norm accepted and recognized by the international community o f states as a w hole as a norm from which no dérogation is permitted and which can be modified only by a subséquent norm o f général international law having the same character

So, although Vienna Convention 1969 has not listed in détail ju s congens’s belonging, any treaty even consisting o f one norm conflict ju s congens norm

can be absolute invalidity Besides, one treaty only come into force when the conclusion is done through légal act o f authority subjects under international law and law o f state parties.The overriding need for certainly

in treaty relations is clearly reflected in the wording o f Art 46, which provides that, a state may not invoke the fact that its consent to be bound by

a treaty has been expressed in violation o f a provision o f its internai law regarding compétence to conclude treaties as invalidating its consent unless

37 V ienna C o n v e n tio n 1969, A rt 20(4)(b)

that violation was m anifested and concemed a rule o f its internai law o f fundam ental im portance.This treaty will be o f no validity if it does not conflict w ith international law and internai law on authority o f représentative o f a states; on free consent and good fair principle and it does not order to procédure o f conclusion.

H ow ever, it is necessary to define the limitation o f effect o f treaty in order

to enhance the rôle o f treaty The effect o f treaty is an influence scope o f treaty limited according to duration, territorial scope, and objects o f treaty

2.5.2 Duration and territorial scope of treaty

2.5.2.1 Duration of treaty

In principle, a treaty enter into force in such m aner and upon such date as it

m ay provide or as the negotiating states may agee Those provisions o f the treaty relating to entry into force which must précédé its entry into force apply as from the adoption o f the text These include the manner and date o f the treaty’s entry into force The treaty nearly always does contain a provision about entry into force If it does not, and if the negotiating states have not agreed otherw ise, the treaty will enter into force only after consent

to be bound has been established for ail the negotiating states

In the case o f bilatéral treaty, it is good practice to confirm the date in the Certificate o f Exchange or Instrument o f Ratification In the case o f

m ultilatéral treaties, states can be state parties o f treaty by différent ways; thus, date o f entry into force o f treaty to every state parties can be not in the same time It is usual to provide that the date o f entry into force will be a specified num ber o f days, week o f months following the deposit o f the last instrument o f ratification which is need to bring the treaty into force38 Treaty can entry into force when it has enough certain number o f states parties according to treaty provisions39 or the effective o f treaty is regulated

by treaty itself If the state parties don’t reach the agreement an on date o f the treaty enter into force o f treaty, the Depositary bodies determine or consult state parties to the date o f entry into force If a multilatéral treaty require that state parties has to carry out the ratifying procédure, the effect

o f treaty can be fixed in its document or determine the concrete time by after docum ent40

However, the real effect o f a treaty can appear before treaty entry into force officially The som e provisions o f a treaty can be applied from the time o f the adoption o f its text In the other word, provisions on the authentiacation

o f its text; consent o f states to be bound by a treaty; the manner or date o f its entry into force; réservation; the function o f the depositary and other matters arising necessarily will be implemented before the entry into force Besides,

if a treaty itself so provides or the negotiating states have in some other

18 A c c o rd in g to V ie n n a C o n v e n tio n 1969 itself, A rticle 84 (1)

-w Ibid, A rt 84

4U E xam ple: T he E u ro p e a n C o n v e n tio n , A rt 45

m anner so agreed, this treaty or a part o f treaty is applied provisionally pending its entry into force41.

Existing duration o f a treaty is from the entry into force o f the treaty to the term ination or révocation o f the treaty The treaty without effect is the treaty

o f no binding value to State parties Treaty, ail or a part, can be considered to suspend or revoke to the opération o f treaty Reasons for term ination or révocation are various This can be based on the agreement o f ail parties or one party; can be regulated in advance or not; can be objective cause or subjective cause Part V o f the Vienna Convention 1969, Art 42-45 and 54-64, set out the various circum stances in w hich a treaty can be denounced, term inated or its opération suspended, other than on grounds o f invalidity.Alm ost every treaty regulated the duration and term ination o f treaty However, m any bilatéral treaties make no provisions for duration and their subject m atter is such that they could rem ain in force indefinitely but, since

it is possible that either o f the parties m ay w ant to term inate it at som e time, they include a term ination clause42 W hen the parties are not sure the duration o f treaty, treaty can be a provision created with enclosed régulation

o f expanding o f duration o f treaty43

Articles 28 o f V ienna C onvention 1969 regulate non- retroactivity o f treaties A ccording to this article, unless a différent intention appears from the treaty or is otherw ise established, C onvention's provisions do not bind a party in relation to any act or fact w hich took place o f any situation w hich ceased to exist before the date o f the entry into force o f the treaty w ith respect to that party So, treaty followed the com m on raies o f law that is not adjusting social relation raised after the légal docum ent cornes into force

2.5.2.2 Territorial scope of treaty

Influential scope o f a treaty depend on bilatéral or m ultilatéral treaty U nless

a différent intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect o f its entire territory So, limitation territorial scope o f treaties is defmed is embraces ail the land, internai waters and territorial sea, and the airspace above them, over w hich a party has sovereignty o f state parties

However, in practice, a treaty m ay apply to an overseas teritory Such treaties (like treaty in alignm ent am ong states) have effect applied for activities o f countries outside its territory Some bilatéral treaties have provisions for extending them to overseas territories They are typically found in treaties on m atters such as double taxation, extradition, narcotic drugs, mutual légal assistance and investm ent protection44 In m ultilatéral

41 V ien n a C o n v e n tio n 1969, A rt 25

42 T y p ic ally , this p ro v id e s: e ith e r p a rty m a y te rm in a te this trea ty b y a w ritte n n o tic e to the

o th e r party T e rm in a tio n s sh a ll ta k e e ffe c t six m o n th s fo lio w in g th e d ate o f n o tific atio n

U K -U S T re a ty on M u tu a l L ég al A ssita n c e in C rim in a l M a tte r 1994 (U K T S (1 9 9 7 )1 4 ) 4‘’ T h e S lo v en ia- U n ite d K in g d o m C u ltu ra l C o -o p era tio n A g re em en t 1996

44 A n th o n y A ust, pp 163

treaty, although it is not always, a lot o f them allow states to limit their overseas territorial scope without application o f treaty45.

Therefore, the Vienna Convention 1969, specifically, has not given out lim itation force on territorial scope o f treaty This issue is determ ined by parcitipating states, basing on agreement o f state parties

2.5.3 Treaties and third parties

In theory, influence objects o f légal text consits o f individuals, institutions and relations Commonly, légal texts affect ail objects in territory scope that the has force in time and space45 In principle, the treaties apply only to the state parties to them This consent by state to be bound is expressed by différent activities as signature, ratification, approval and acceptence, exchange docum ent, accession The général raie is rather obivious: a treaty does not create either oblibigations or rights for a third state w ithout its consent47 However, in practice, the raie o f Vienna C onvention 1969 rests firmly on the sovereignty and independence o f state Thus, w hether bilatéral

or m ultilatéral treaties cannot create rights or obligations for a third party without its consent

Third states, w hich have not become parties to a treaty by orgininal signature followed by ratification or acceptance, but w hich w ish to becom e

a party to it, m ay have the right accorded under the treaty to accédé or

adhéré to the text and thereby become bound by it Art 35 and Art 26 o f

Vienna C onvention 1969 clarified common principle b y setting out those circum stances in w hich a treaty can apply to a third state O bligations o f the third state is only formed with two conditions: first, the parties m ust intend the provision to be the mean o f establishing the obligation o f the third state; secondly, the third state must have expressly accepted the obligation in writting The third state, even, does not become a party to the treaty w hen a third state has accepted an obligation in a treaty

Besides, there is not any raie that international law w hich prevents two or more states by treaty a right in favour o f a third state, i f these rights are not against com m on principle o f international law and d o n ’t violate global security This is the case the treaty give right to the third state or a group o f state if ail relevant state agree The Vienna Convention 1969 also adjusted the révocation or modification o f obligations or rights o f third state w ith the consent o f the parties to the treaty and o f the third state, unless it is established that they had otherwise agreed

Vienna C onvention 1969 does not prevent non-party from quoting any régulation o f treaty In this case, régulation o f treaty is applied under form

o f international customary law In practice ail régulation o f Vienna

45 T h e In tern atio n al L ab o u r O rg a n isa tio n C onstitution, A rt 35 (8) p ro v id e s th a t its req u ie s

m em bers to give rea so n s if th ey do not extend an ILO to one or m ore o f th e ir o v erse as territories.

46 H an o i L aw U n iv ersity , S ta te a n d L aw T heory Textbook, pp 137

47 V ien n a C o n v e n tio n 1969, A rt 34

Convention 1969 is quoted by states that not consent to be bound by this Convention in conclusion and application o f treaty.

2.6 Application of treaty

Treaties are made to be perform ed The im plementation o f treaty provisions

is duty o f state parties Every treaty in force is binding upon the parties to itAQand must be perform ed in good faith The im plementation o f treaty is always set in the interrelation w ith the national benefit

The final stage o f the treaty-m aking process is the actual incorporation, where necessary, o f the treaty provisions in the municipal o f the states parties, and the application by such states o f these provisions.Under international law, it is up to each state and its Constitution to ensure the correct application o f treaties49 The V ienna Convention 1969 stipulated that the implementation o f treaty in every nation has to obey basic principles:

first, the pacta sunt servanda principle; second, a party may not invoke the

provision o f its internai law as justification for its failure to perform a treaty; thirdly, a treaty is binding upon each party in respect o f its entire territory, unless a différent intention appears from the treaty or is otherwise established

The implementation o f treaty o f state parties is carried in any way, those state parties have to obey the com m on principle o f international law Each nation has its own m echanism in order to im plem ent the treaty depending on the conditions o f economy- society, politics, jurisdiction o f that nation, thus, there is no shared model for ail nation in this issue However, the some broad approaches to the législation needed to implement treaties are:

- no législation is required

- the statute gives direct effect to the treaty text by using a formula to the effect that the treaty provisions “have the force law ” in the country in question

- the statute uses some o f the w ording o f the treaty, incorprorated into the body o f the relevant area o f law, or indicates in some other way its treaty origins

- the substance o f the treaty is incorporated into the body o f the law, without any obivious sign that it has happened

Thus, if new law or m odification to existing law, is need in order to carry out the obligations w hich will be laid upon it by the treaty, a negotiating state should ensure that this is done at least by the time the treaty enters into force for it If this is not done, not only will the state risk being in breach o f its obiligations, but also it will be aliable in international law to another party if as a resuit that party, or its nationals, is later damaged Even if the treaty does not enter into force for the state at the time it consents to be bound, the date o f entry into force m ay come earlier than expected It is

48 V ien n a C on v en tio n 1969, A rt 26

J,) P R euter, p p 22

therefore desirable that any necessary législation is made before the state give its consent, through the actual coming into force o f the législation can certainly be postponed until the entry into force o f the treaty50 So, state parties have indeed adopted extrem ely varied solutions, ail, which in their own w ay aim at ensuring the best possible implementation o f treaty rules.However, international law and V ienna Convention 1969 require ail states parties have to carry out some activités such as registration, publication, and interprétation o f treaty These express implemtation o f treaty by states:

The registration o f the treaty is a requirement o f Charter o f United

N ations:“All the treaty and agreements signed by any mem ber o f UNO after this Charter becom e effective have to be registered at the Secrétariat and is declared by this Secrétariat as soon as possible”51 The UN stipulâtes the registration o f treaty in détail Follow, the basic principles such as the time o f the registration is not lim ited and any party can make it

On the principle, a treaty registered or not will affect on treaties valid so that the registration depends on each nation However, if the treaty is not registered, neither sides o f that treaty can quote that treaty under Art 102 (2)

o f UN Charter On the other hand, a state party to such an unregistered treaty cannot rely upon it in proceedings before the International Court o f Justice or in meetings o f the General Assem bly or Security Council

A pparently the provisions does not invalidate an unregistered treaty, or prevent such a treaty from being invoked before bodies or courts other than

UN organs

Publication o f treaty is regulated international and domestic law U nder international law, the duty o f publication by the Secrétariat is perform ed by puslishing the instrum ents concem ed in the UN Treaty Sériés, together w ith lists from time o f ratifications, acceptances, etc Convention 1969 (Art 80) requires that any treaty, after it entry into force, be trasmitted to the Secrétariat o f the UN for registration and for publication Under domestic law, treaties are often requied to be prom ulgated or published officially International agreements concluded by Sweden w ith other states or with international organisations are published in the sériés Sveriges internationella overenskom m elser since 1991 according to the Ordinance on

the Publication o f Sw eden’s International Agreem ent (SFS 1900:1070)52 According to France laws, the text o f treaty must be published in the Official Gazette (“Journal Officiel”) to be valid

The treaty interprétation is a part o f the implementation o f treaty The purpose o f interpreting texts o f légal significance is to establish the meaning

o f the expressions and phrases used in it and therefore to analyse how the parties wanted the text to be applied under the circumstances related to a given question o f interprétation The treaty interprétation is the responsibility o f the sides Thus, the m ost important actors o f interprétation are the state, w hich also express their interprétation sim ply by applying treaty

50 A n th o n y A ust, pp 144

M U N C harter, A rt 102 (1)

‘ " M ichael B o g d a n (ed ito r), p p 56

The rôle o f interprétation is not only the interprétation o f the normal meaning o f the terms in the texts but also the direction toward the inbom logic o f the treaty, in order to affirm and clarify the items that the participating nations want to get The logic can be found through the term treaties is quoted in treaty 53 The principles and the interpretating techniques o f the treaty interprétation were shown in the international légal science and there are many approaches54 The textual approach was adopted

in the Art 31 and Art 32 o f Vienna Convention 1969: the subject o f interprétation is the intention as expressed in the text, which “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the term s o f the treaty”, unless this resuit in a meaning

im com patible w ith the spirit, purpose, context for the clause o f instrument in

w hich the w ords are contatined The context itself is not only predetermined

by the text o f the treaty, but also by preamble, annexes and other documents related to the treaty Ail those issues have to be seen ”in the light o f the rules

o f général international law, in force at the time o f its conclusion and in the light o f the contenporaneous meaning o f the term s” and ” in the light o f the purpose o f the treaty” Another aspect o f interprétation is included in Art 33 (1) o f V ienna Convention 1969 It stipulated that a treaty is authentic in

m ore than one language, the text is equally authoritative in each language

In brief, the interprétation always has to define the objects and the purpose

o f treaty is the basic foundation to explain The basic principle in the interprétation is the good will o f the nations, directly reflecting the principal

pacta sunt servanda noted in Art 26 o f Vienna Convention 1969 Through

the points o f treaty interprétation, it is able to say that the Convention has the specifïc régulations the interprétation o f the content o f the treaty but not

m entioning explaining procédure This m atter is left open for the national laws to stipulate Thus, the reality o f treaty interprétation is very various but almost the countries stipulate that the interprétation o f treaty content is belonged to the connotation o f the concept in the implementation o f treaty

so this action m ust be executed by the national law

2.7 The relation between treaty and some

other sources of law

2.7.1 Treaty and custom

From scientific point o f view, custom international law is a source o f international law The essence o f custom according to Article 38 o f Statute

o f International Court o f Justice is that it should constitute “evidence o f a général practice accepted as law” These rules o f customary are formed by différent ways, from the fact o f international relations Thus, it is possible to

v’ O C o n n ell, p p 253

54 S inclair, p p 114-115

cletect two basic elements in the make up o f a custom These are the material facts, that is, the actual behaviour o f states, and the psychological or subjective belief that such behaviour is “law” This psychological element

required to form custom international law is known as opinio ju r is 55

N ow aday, an international custom can be formed rapidly in m odem international condition because the booming o f communication showed time

is not decisive factors

Treaties and custom are the main sources o f international law56, and they having the same légal value57 The Vienna Convention 1969 affirmed that

“ the rules o f custom international law will continue to govem questions not regulated b y provisions o f the present Vienna Convention 1969” So, states that have not expressed consent to be bound by this Convention can still quote norm s o f this treaty under custom norms International custom with its traditional and complexily charaterictics are particular advantages Custom,

o f couse, is taken into considération by states when choosing applied sources This is partly explains légal and practice value o f international custom

Applying any sources o f international law depend on the agreement o f participant state in international relation, in which, the application o f treaty

is totally suitable The priority o f treaty application showed the change in structure o f international légal norms Because, compared with international custom , treaty has m any overwheming advantages The advantages o f treaty com pared with international custom express level o f the binding on rights and duties agreed by states Stimutaneously, treaty in written form can be well kept and it is a basic to quote légal norms convincingly On the contrary, custom ary international law can be difficult to prove conclusively Custom ary international law is often somewhat vague and open to conflicting interprétations But, this is does not mean the rôle o f international custom will be reduced in the adjustment o f international relations

Treaty and international custom have diatetic relation The relation is shown

by some basic characterictics:

Firsly, the conditions for their formation, existence and termination are such that the rules o f one source do not depend for their formation on the rules o f

r o

the other source On the other words, the existence o f treaty doesn’t m ean

to om it applied value o f international légal custom with the similar content, although, in a lot o f cases, treaty has m any well features such as clear, fast formation, favoured application

Secondly, the interaction between treaties and custom has already been touched upon several times A treaty contributes to the emergance o f a custom ary rule and vice versa A later custom prevail over an earlier treaty

ju st as a treaty may modify o f abrogate an earlier customary rule59 Thus,

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56 A n th o n y A ust, pp 10

17 P R euter, pp 140

58 M ark E V illger, p a ra 86

59 S upra N 57, pp 140

international eustom norms will beeome an important part in the content o f treaty O n the cotrary, many norms o f treaty are quoted or applied under international custom characterictics In this case, in essence, custom can create conditions to expand the force o f treaty.

Thirdly, international custom norms can be changed revocated by treaty In particular, treaty can be changed or revocated by international légal custom

such as the case appearance o f new ju s congens norm o f international law

under the form o f international custom

Conclusion, w hile customary law develops through the évolution o f state practice, treaties is in wrriten form o f contracts binding upon the signatories The influence o f the executive is generally o f greater impact where treaty law is concem ed than is the case with customary law60

2.7.2 Treaty and domestic law

According to légal aspect, there are différent theories, ”m onism” and

"dualism ”, w hich seek to explain the relationship between treaty and dom estic law The relation between treaty and domestic law is one o f basic theory issues and is usually légal scieneific theme o f many controversy This issue is the basis for the solution o f treaty position, closely related to the im plem entation o f treaty o f state parties, because, “treaties are made to

be perform ed”61

In légal nature, application o f treaty is compulsary obligation o f state parties and transform ation is process o f realization o f rights and duties from treaty

to the dom estic law Codes belong to domestic law that is newly enacted or

am ended needs building correspond with treaty provisions Even when a treaty has not effect at the time the state expressed consent to be bound by this treaty, dom estic law needs necessary adjustment in order to reach the com patibility w ith the treaty The improving domestic law in order to be suitable for international raies It is shown profound influence o f treaty to the developm ent process o f domestic law In the other words, treaty has been prom oting the development o f national law and creating favoured conditions for intergration among countries- one o f expressions o f globalization process However, from rôle o f treaty, it can be confirm that, treaty still holds independent place compared with national légal document system The independence o f treaty expressed in force o f territorial application o f state parties in a w ay that if there is any différence between treaty norms and nation légal norms, treaty norm is priority applied

However, in V ienna Convention 1969, there is no concrete régulation between treaty and domestic law, because, in overview, Vienna Convention

1969 adjust basic régulation with the characterictics o f légal frame on conclusion and application o f treaty Vienna Convention 1969 has not regulated “incorporation” issue, which is obligation o f state parties The Vienna Convention 1969 only requires “a part may not invoke the

M a lc o lm N S haw , p p l 10

61 S upra N 57, p p 20

provisions o f its internai law as justification for its failure to perform a treaty”62 and this rule is without prejudica to provisions o f internai law regarding com pétence to conclude treaties.

The conclusion o f a treaty primarily resuit in obligations for state parties at the international level W hether a treaty be affect the dom estic légal systems

o f the state parties will largely depend on their constitutional approaches tow ards international law There are three approaches toward expressing the

im plem entation o f treaty such as automatic intégration; formai incorporation; substantive incorporation

Som e states apply automatic intergation approach such as France, Italia,

N etherland, Spain Therefore, a treaty which has been approved by the states and w hich has entered into force on the international plan autom atically becom es part o f domestic law without any separate act o f incorporation being required

The treaties to which France is a party are automatically incorporated into the dom estic légal system Once a treaty has come into force it overrides any conflicting domestic législation even if such législation happens to be passed subséquent to the ratification o f the treaty63 Art 55 o f the France

C onstitution defined that:”Duly ratified or approved treaties or agreements shall, upon their publication, have higher authority than statutes, subject, in respect o f each agreem ent or treaty, to its application by the other party”

C onstitution 1993 o f Russian Fédération regulate that treaties are an intégral part o f the légal system, and prevail over inconsistent dom estic law Besides, New Fédéral Law on International Treaties o f R ussia closely follows the V ienna Convention 1969 A treaty has direct effect for R ussia if

it has been published officially and does not require législation in order to

im plem enting it64

In formai incorporation category, a treaty will have no effect in the national légal system untill its incorporation by a législative or executive act However, once the necessary parliamentary approval has been given or the executive order has been made, a treaty has full légal effect In Austria, treaties are im plem ented into domestic law by a général incorporation order embodied in the act o f publication According to A rt 59 (2) o f the Basic Law (Germ an Constitution), a treaty will become an intergal part o f the German légal system once it has been ratified and is in force, w here it has been approved by Parliament or depending on the content o f the treaties, is the subject o f an administrative order65

Under substantive approach, the effect o f a treaty depends on the process o f substantive incorporation The treaty itself has no effect in national law, and

it is only given effect by the national act which incorporâtes it Therefore, treaty is concluded by the United Kingdom, Australia, Canada, Sweden,

N orw ay and Iceland always require législation o f adm inistrative action in