The Vienna Convention on the Law of Treaties

International legal issues of today relate to the idea of legal personality. These include international rights, legal capacities of states, non-state actors and transnational bodies. However, when we face these issues, different institutions provide diverse opinions on personality. These institutions consider various aspects related to the international person. In addition, there are also different methods for qualifying an entity as an international person and with various consequences. Various authors try to simplify different positions on international personality, underlying assumptions, and legal practices behind such status. We may ask whether this implies that the concept of international personality is elusive, or what should be the norm in international personality, and what factors influence the emergence of international law and personality.

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In addition, we may also seek whether to rely on provisions of international law or domestic courts in order to define the concept of international personality. In all, we must look at international law as a system that provides no special privileges for any given body to enjoy international personality and approach it with the concept of inclusiveness (Harris, 2010). The Vienna Convention on the Law of Treaties (VCLT) provides constitutional importance through basic rules that guide treaties relations, and validity of treaties among parties. The VCLT is useful in interpretation, application, validity, withdrawal, guidance on treaties formation, and the place of the third party in reference to a treaty. Harris sees most contents of VCLT as declarations of customary international law. VCLT looks at issues of reservation of treaties and legal implications of such actions (Law Society of New South Wales, 2010).

What are treaties? How are they made?

Treaties are agreements negotiated among parties, and in most cases voluntary. In Australia, treaties are all agreements that Australia makes with other international bodies for the purpose of binding parties in the agreement.

What are the requirements for the validity, entry into force and termination of treaties?

Treaties are only valid if they originate from bodies with the authority of entering into treaties, and do not violate peremptory norm (jus cogens). Further, validity also depends on lack of contests, misrepresentation of basic facts, and none of the parties practices unacceptable conducts.

Treaties come into force by an act of being a party to them. However, this might not be the case in some situations. Thus, some treaties may require implementation into domestic laws.

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Apart from self-terminating treaties, termination of treaties can occur when a party or parties conduct a serious violation or breach of agreements. Changes in situations of the basis of treaties may also prompt termination.

How are treaties interpreted? By whom?

Courts or practitioners may provide an interpretation of a treaty. Interpretation of a treaty is a ‘holistic exercise’. In Australian courts, VCLT applies in interpretations by relying on provisions of Articles 31 and 32 (Law Society of New South Wales, 2010).

The holistic approach to the interpretation of treaties looks at the text, context, object, and the purpose of the treaty so as to ascertain its true meaning. Interpretation of text is the basis and initial step of treaties’ interpretation.

What are the shortcomings of each model of interpretation?

In some cases, the language of the treaty may not be clear. Thus, the VCLT assumes that interpretation of treaties should be on “good faith” with reference to text, object, and purpose.

There is also the “principle of maximum effectiveness” with regards to treaties’ fullest force and effects as legally binding among parties (Law Society of New South Wales, 2010).

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These interpretations of treaties have shortcomings. For instance, in Australia, the courts may disregard a treaty that the country is not a party to and has no legislative implementation. Australian courts can also dismiss treaties that do not provide rights to their citizens. It can also not substitute or modify the statutory definition to fit requirements of treaties. In addition, a treaty language may not conform to the rules of international law, and may only act as an aid to local laws in cases of ambiguity, and treaty cannot curtail, or abrogate human rights and fundamental freedom.

References

Harris, D. (2010). Cases and Materials on International Law (7th ed). London: Sweet and Maxwell.

Law Society of New South Wales. (2010). The Practitioner’s Guide to International Law: New South Wales Young Lawyers International Law Committee. Riverwood, NSW: Ligare Pty Ltd.

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