Vienna Convention on the Law of Treaties (VCLT)

In this article we will discuss about the Vienna Convention on the Law of Treaties (VCLT).

(i) Background:

The rules under the Vienna Convention on the Law of Treaties (VCLT) apply to all international treaties, including tax treaties. The Vienna Convention on the Law of Treaties (VCLT) was adopted on May 22, 1969 and entered into force on January 27, 1980. At the international level, the VCLT is binding on treaties among States, which are signatories after it entered into force.

As of 2004, there are 96 parties, who have ratified, acceded or succeeded to the VCLT, and 45 signatories, who have signed but not become parties to the Convention. Under the Vienna Convention, a “party” means a State that has consented to be bound by the treaty and for which the treaty is in force.

The VCLT does not have retroactive effect. However, since it essentially codifies the existing norms of customary international law on treaties, it is also considered to be binding on non-signatories and applicable to both past and future treaties. As a result, the Convention does not have to be specifically incorporated in the domestic law.

(ii) Extracts from the VCLT:

1. For purposes of the present Convention:

a. “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.

b. “Party” means a State, which has consented to be bound by the treaty, and for which the treaty is in force.

c. “Third State” means a State not a party to the treaty.

Article 26: Pacta sunt servanda:

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 27: Internal law and observance of treaties:

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.

Article 28: Non-retroactivity of treaties:

Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to the party.

Article 29: Territorial scope of treaties:

Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.

Article 30: Application of successive treaties relating to the same subject matter:

1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs.

2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.

3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59 (VCLT), the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.

4. When the parties to the later treaty do not include all the parties to the earlier one:

(a) As between States party to both treaties the same rule applies as in paragraph 3;

(b) As between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

5. Paragraph 4 is without prejudice to article 41 (VCLT), or to any question of the termination or suspension of the operation of a treaty under article 60 (VCLT) or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.

Article 31: General rule of interpretation:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b) Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There should be taken into account, together with the context:

(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions:

(b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32: Supplementary means of interpretation:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31:

(a) Leaves the meaning ambiguous or obscure; or

(b) Leads to a result that is manifestly absurd or unreasonable.

Article 33: Interpretation of treaties authenticated in two or more languages:

1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text will prevail.

2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

3. The terms of the treaty are presumed to have the same meaning in each authentic text.

4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty shall be adopted.

Article 34: General rule regarding third States:

A treaty does not create either obligations or rights for a third State without its consent.

Article 42(2): Validity and continuance in force of treaties:

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

2. The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty.

Article 46: Provisions of internal law regarding competence to conclude treaties:

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

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 in good faith.

Article 60: Termination or suspension of the operation of a treaty as a consequence of a breach:

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.

2. (Omitted)

3. A material breach of a treaty, for the purposes of this article, consists in:

(a) A repudiation of the treaty not sanctioned by the present Convention; or

(b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty.

4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.

5. (Not applicable to tax treaties)

Article 61: Supervening impossibility of performance:

1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of a treaty. If the impossibility is temporary, it may be revoked only as a ground for suspending the operation of the treaty.

2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that other party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

Article 62: Fundamental change of circumstances:

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) If the treaty establishes a boundary; or

(b) If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

Article 63: Severance of diplomatic or consular relations:

The severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations established between them by the treaty except in so far as the existence of diplomatic or consular relations is indispensable for the application of the treaty.

Article 64: Emergence of a new peremptory norm of general international law (jus cogens):

If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

(iii) Philosophy of the Vienna Convention Rules:

Interpretations under international law follow one or more of the following approaches:

(a) “Textual” approach:

Interpretation according to the ordinary meaning of the words of the treaty. Under this approach, the treaty is interpreted through an analysis of what the treaty negotiators mention in the text, which is presumed to be final, authentic and the most reliable expression of the intent.

(b) “Subjective” approach:

Interpretation according to the intentions of the treaty negotiators. This approach relies on “travaux preparatoires” (negotiating history) relating to the treaty to determine the intentions of the negotiators. The text is only the starting point for the interpretation.

(c) “Teleological” approach:

Interpretation according to the treaty’s purpose and objectives. This approach examines the overall object and purpose of the treaty and follows the interpretation that best fulfils them. The VCLT follows the “textual” approach.

Under its rules, the objectively expressed intent in the actual text of the agreements, rather than the subjective intent either of the negotiators or the parties, should be applied for treaty interpretation. It rejects the process of independently examining the motivation and intent of the negotiators or the parties in favour of the relative certainty of the textual approach.