Capacity of States to conclude treaties?? Under the Convention, every State possesses capacity to conclude treaties.  Since States are represented by persons, the Convention provides rules to ensure that persons representing States have the power(full power) to adopt or authenticate the text of a treaty, or to express the consent of the State bound by a treaty.  

Meaning of instrument of full power?? full powers’ means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of a State to be bound by a treaty, or for accomplishing any other act with respect to a treaty.

Persons no need to produce full power.   (1)    Heads of States, heads of governments and the ministers for foreign affairs, for the purpose of performing all acts related to the conclusion of a treaty; (2)     Heads of diplomatic missions, for the purpose of adopting the text of a treaty between their States; (3)     Representatives accredited by States to an international conference or to international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.   

Requirement of instrument of full powers?? 1. The instrument of full powers must be signed by one of the three above-mentioned authorities and must unambiguously empower a specified person to sign the treaty. 2. Full powers are usually limited to one specific treaty and must indicate the title of the treaty. If the title of the treaty is not yet agreed, the full powers must indicate the subject matter and the name of the conference or the international organization where the negotiations are taking place. 3. Full powers must state the full name and title of the representative authorized to sign.

4. Date and place of signature must be indicated. 5. Signature/Official seal.

MODEL INSTRUMENT OF FULL POWERS I, [name and title of the Head of State, Head of Government or Minister for Foreign Affairs], HEREBY AUTHORIZE [name and title] to [sign *, ratify, denounce, effect the following declaration in respect of, etc.] the [title and date of treaty, convention, agreement, etc.] on behalf of the Government of [name of State]. Done at [place] on [date]. [Signature]

Cont- of instrument of full powers I have the honour to inform you that I am MOHAMED ABDULLAHI FARMAJO, President of the Federal Republic of Somalia, have given full powers to the Honourable Ms .ABDIFITAH OMER GELLE, Minister of Interior and Federal Affairs Affairs, to sign on behalf of Federal Republic of Somalia the United Nations Convention against Transnational Organized Crime and the following two Protocols to be opened for signature in Palermo, Italy, from 12th to 15th April 2017: i. Protocol against the smuggling of migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organized Crime. ii. Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime. This note constitutes the full powers empowering the Honourable ABDIFITAH OMER GELLE to sign the above-stated Convention and Protocols. The Hon. MOHAMED ABDULLAHI FARMAAJO, President of the Federal Republic of Somalia[Signature]

Treaty making process/Treaty formation 1. Negotiation 2) Adoption and auhtentication of the text 3) Consent of the States 4) Entry into force 5) Registration and Publication

1. Negotiation The stage of negotiation is the most crucial stage in the formation of a treaty where the participating States put forth proposals for discussions. After detailed deliberations, the proposals are harmonized and the parties arrive at a tentative agreement and drafting the text .

2) Adoption and authentication of the text a)Adoption of the text: Once a draft of a treaty has been agreed upon by the competent persons, the text of the treaty has to be adopted.  The adoption of the text of a treaty implies that the form and content of the text of the proposed treaty are settled Article 9 (2) of the Vienna Convention provides that adoption of the text of a treaty at an international conference takes place by two-thirds of the states present and voting, unless by the same majority they decide to apply a different rule.

B) Authentication of the text: Authentication is a procedural step whereby the text of the treaty is established as correct and genuine, and not subject to alteration.  It is necessary to enable the States parties to the treaty to know definitively its content so that there will be no confusion as to its exact terms.  

3). Consent of the States The treaties may bind states only when they have given their consent. Some of the ways in which a State may express its consent to be bound by a treaty are by means of signature, exchange of instruments, ratification or accession.

Signature The effect of signature of a treaty depends on whether or not the treaty is subject to ratification. If the treaty is subject to ratification, signature means no more than an authentication of its text. If the treaty is not subject to ratification, or is silent on this point, the better opinion is that, in the absence of contrary provision, the instrument is binding upon signature.

Examples of signature the Agreement on International Railways in the Arab Mashreq, 2003, provides in its article 5 (2) that members under paragraph 5 (1) may become parties by: (a) Signature not subject to ratification, acceptance or approval (definitive signature); (b) Signature subject to ratification, acceptance or approval, or (c) Accession

Article 48(2) Human rights Covenant on Civil and political Rights reads as follow:- The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations

Exchange of Instruments Under Article 13 of the Vienna Convention ,A State may be regarded as consented to a treaty by an exchange of instruments constituting a treaty when the treaty provides that the exchange of such instrument has that effect, or when it is established that the States were agreed that the exchange of the instrument should have that effect.   Nowadays, often each State signs an instrument constituting a treaty and sends it to the other State (or States) for its signature.

Ratification Article 2(1) (b) of the Vienna Convention on the Law of Treaties 1969 defines ratification as ‘the international act so named whereby a States establishes on the international plane its consent to be bound by a treaty”

What makes Ratification is necessary Article 14 of the Vienna Convention provides that the consent of a State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such consent to be expressed by means of ratification; (b) it is otherwise established that the negotiating States were required that ratification should be required; (c) the State’s representative has signed the treaty subject to ratification; or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

Why ratification is required?  That can be for two reasons: (1) A state requires an opportunity of re-examining the whole effect of the treaty upon national interests;. (2) According to the constitutional law of many states, treaties are not valid without some kind of consent on the part of Parliaments. (EX. Somali Constitution).

Procedure for ratification Ratification involves two steps: The first step is the signing by competent authorities and sealing of the instrument of ratification.  The second step differs: In the case of a bilateral treaty, the exchange of the instrument of ratification produced by the other party. • In the case of a multilateral treaty, to deposit all instruments of ratification in a central headquarters such as the Foreign Office of the state where the treaty was signed. • With regard to treaties concluded under the auspices of the UN, the instruments of ratification are to be deposited with the SG of the UN.

Effect of a treaty before ratification According to Article 18 of VLC a state is obliged to refrain from acts which would defeat the object and purpose of a treaty when: it has signed the treaty or exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force ----- not unduly delayed.

MODEL INSTRUMENT OF RATIFICATION, ACCEPTANCE OR APPROVAL WHEREAS the [title of treaty, convention, agreement, etc.] was [concluded, adopted, opened for signature, etc.] at [place] on [date], AND WHEREAS the said [treaty, convention, agreement, etc.] has been signed on behalf of the Government of [name of State] on [date], NOW THEREFORE I, [name and title of the Head of State, Head of Government or Minister for Foreign Affairs] declare that the Government of [name of State], having considered the above-mentioned [treaty, convention, agreement, etc.], [ratifies, accepts, approves] the same and undertakes faithfully to perform and carry out the stipulations therein contained. IN WITNESS WHEREOF, I have signed this instrument of [ratification, acceptance, approval] at [place] on [date]. [Signature]

Accession Accession is “a traditional method whereby a state which has not signed a treaty subsequently becomes a party to it”

MODEL INSTRUMENT OF ACCESSION WHEREAS the [title of treaty, convention, agreement, etc.] was [concluded, adopted, opened for signature, etc.] at [place] on [date], NOW THEREFORE I, [name and title of the Head of State, Head of Government or Minister for Foreign Affairs] declare that the Government of [name of State], having considered the above-mentioned [treaty, convention, agreement, etc.], accedes to the same and undertakes faithfully to perform and carry out the stipulations therein contained. IN WITNESS WHEREOF, I have signed this instrument of accession at [place] on [date]. [Signature]

Reservation Definition of reservation: A reservation is defined by Article 2(1)(d) of the VCLT “a unilateral statement, however phrased or named, by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effects of certain provisions of the treaty in their application to that State

Somalia Reservations(convention of the child):        “The Federal Republic of Somalia does not consider itself bound by Articles 14, 20, 21 of the above stated Convention and any other provisions of the Convention contrary to the General Principles of Islamic Sharia.”

VCLT Reservation Requirements Article 19 of the Vienna Convention 1969 specifies that a State may, when signing, ratifying, accepting, approving or acceding to a treaty, make a reservation unless: (a) The reservation is prohibited by the treaty; (b) The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) –if the reservation is incompatible with the object and purpose of the treaty

Examples of Reservation Some treaties specifically prohibit all reservations, for example: Statute of the International Criminal Court; Many disarmament treaties deposited with the SG (Comprehensive Nuclear-Test-Ban Treaty, Chemical Weapons Convention, Anti-Personnel Mines Convention); Most environmental treaties deposited with the SG (Montreal Protocol, Kyoto Protocol, Rotterdam Convention, Stockholm Convention, Cartagena Protocol, etc.)

Time for formulating reservations Formulating reservations upon signature, ratification, acceptance, approval or accession Article 19 of the Vienna Convention 1969 provides for reservations to be made at the time of signature or when depositing an instrument of ratification, acceptance, approval or accession. If a reservation is made upon simple signature (i.e., signature subject to ratification, acceptance or approval), it is merely declaratory and must be formally confirmed in writing when the State expresses its consent to be bound.

Formulating reservations after ratification, acceptance, approval or accession Where the Secretary-General, as depositary, receives a reservation after the deposit of the instrument of ratification, acceptance, approval or accession that meets all the necessary requirements, the Secretary-General circulates the text of the reservation to all

Legal effect of reservation The effect of a reservation depends on whether it is accepted or rejected by the other parties to a treaty, and this matter differs whether a treaty is bilateral or multilateral one.  A reservation to a bilateral treaty presents no problem since it constitutes a counteroffer which may reopen the negotiation between the two parties concerning the terms of the treaty; and unless the reservation is accepted by the other party, no treaty will be concluded.   However, a reservation to a multilateral treaty causes a problem because it may be accepted by some parties and rejected by others.  

In such a case- a reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides, In such a case the treaty makes an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

Form of reservations I, HASSAN NUR HALE, Minister for Foreign Affairs, HEREBY DECLARE that the Government of the federal Republic of Somalia makes the following reservations in relation to article s 14, 20, 21 of the Convention on the Rights of Child adopted in 1990: [The Federal Republic of Somalia does not consider itself bound by Articles 14, 20, 21 of the above stated Convention and any other provisions of the Convention contrary to the General Principles of Islamic Sharia ] IN WITNESS WHEREOF, I have hereunto set my hand and seal. Done at [Mogadishu] on 10 March 2017. Minister of foreign Affairs of Somalia HALANE

Objections to Reservations Only States which are signatories or parties to a treaty may object to a reservation. Where a reservation has been circulated, States concerned have 12 months to object, beginning on the date of the depositary notification or on the date on which the State expressed its consent to be bound by the treaty (See art. 20 (5) VCLT) An objection lodged after the end of the 12-month period is circulated by the depositary as a “communication”.

Effect of Objections An objection “… does not preclude the entry into force of the treaty ... unless a contrary intention is definitely expressed by the objecting State”. To avoid uncertainty, an objecting State specifies whether its objection precludes the entry into force. If a State does not object to a reservation made by another State, it is deemed to have tacitly accepted the reservation. An objection need not be signed by one of the recognized authorities.

Objection Examples With regard to the reservations made by the Federal Republic of Somalia upon ratification:        “The Government of Austria has examined the reservation made by the Federal Republic of Somalia upon ratification of the United Nations Convention on the Rights of the Child.        Austria considers that by referring to the General Principles of Islamic Sharia Somalia has made a reservation of a general and indeterminate scope. This reservation does not clearly define for the other States Parties to the Convention the extent to which the reserving State has accepted the obligations of the Convention.        Austria therefore considers the reservation to be incompatible with the object and purpose of the Convention and objects to it.        This objection shall not preclude the entry into force of the Convention between the Republic of Austria and the Federal Republic of Somalia.

Withdrawal of Objection The withdrawal of an objection becomes operative only when notice of it has been received by the reserving State. In practice, notice is provided by a depositary notification (CN) and the date of the depositary notification is deemed the date of constructive notice. A withdrawal of an objection does not need to be signed by one of the 3 authorities

Declarations Interpretative declarations A State may make a declaration about its understanding of a matter contained in or the interpretation of a particular provision in a treaty. Interpretative declarations of this kind, unlike reservations, do not purport to exclude or modify the legal effects of a treaty. The purpose of an interpretative declaration is to clarify the meaning of certain provisions or of the entire treaty.

Optional declarations Many human rights treaties provide for States to make optional declarations that are legally binding upon them. In most cases, these declarations relate to the competence of human rights commissions or committees .

for example, article 41 of the International Covenant on Civil and Political Rights, 1966: A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant.

Mandatory declarations: Where a treaty requires States becoming party to it to make a mandatory declaration, the Secretary-General, as depositary, seeks to ensure that they make such declarations.

Article 3 (2) of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 2000, provides: Each State Party shall deposit a binding declaration upon ratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced

Time for formulating declarations Declarations are usually deposited at the time of signature or at the time of deposit of the instrument of ratification, acceptance, approval or accession. Sometimes, a declaration may be lodged subsequently.

Does declaration require formal authorization and full power?? Since an interpretative declaration does not have a legal effect similar to that of a reservation, it need not be signed by a formal authority as long as it clearly emanates from the State concerned. However, it is preferably to be signed by the Head of State, Head of Government or Minister for Foreign Affairs or a person having full powers for that purpose issued by one of the above authorities

Optional and mandatory declarations impose legal obligations on the declarant and therefore must be signed by the Head of State, Head of Government or Minister for Foreign Affairs or by a person having full powers for that purpose issued by one of the above authorities.

4) Entry into force      Normally, treaties specify that they will enter into force upon a certain fixed date or after a determined period following the last ratification.  Multilateral treaties, usually, provide for entry into force upon ratification by a specified number of States.    The Vienna Convention on the Law of Treaties, for example, provides that it will come into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession

5) Registration and Publication      After the entry of a treaty into force, the Vienna Convention requires that the treaty to be transmitted to the Secretariat of the United Nations for registration or filling and recording, as the case may be, and for publication. Article 102 of the Charter provides that every treaty and every international agreement entered into by any Member of the United Nations must, as soon as possible, be registered with the Secretariat and published by it.

What is purpose of Treaty Registration   This requirement is intended to prevent States from entering into secret treaties and in general to ensure publicity for treaties.

What is legal effect if not registered?? Under this article, non-registered treaty or agreement remains valid but the parties to it may not invoke it before any organ of the United Nations, including the International Court of Justice.

Observance and Application of Treaties: Observance of Treaties :        The Latin principle “Pacta Sunt Servanda”, which means that treaties shall be observed, is the fundamental principle of the customary law of treaties and the very foundation of International Law.  This principle is included in the Preamble and Article 26 of the 1969 Vienna Convention on the Law of Treaties, which states that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.”  .

Another long-standing principle of customary international law included in Article 27 of the Convention is that “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

Application of Treaties              Under the Vienna Convention on the Law of Treaties, the application of treaties is subject to the following rules: (1)  Non-Retroactivity of Treaties       The Vienna Convention provides that the provisions of a treaty-do not bind a party to it 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 regard to that party.  The general rule here is that a treaty does not operate retroactively; any fact, action or situation must be assessed in the light of the rules of law that are contemporary with it, not of the provisions of the subsequent treaty, unless a contrary agreement so provides.

(2)  Territorial Scope of Treaties:                The Vienna Convention provides that unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect to its entire territory.  This is a general rule, but it is possible for a State to stipulate that the treaty will apply only to part of its territory.

(3) Application of successive treaties on the same subject matter (Article 30) • 1. Subject to Article 103 of the Charter of the U N, the rights and obligations of States parties to successive treaties … shall be determined in accordance with the following paragraphs…. • a. When all the parties to the earlier treaty are parties also to the later treaty … the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. • [If parties are identical: Lex posterior derogat legi priori applies.] .b. If parties are not identical: Art. 30 (4) applies. It is actually based on the rule pacta tertiis nec nocent nec prosunt(treaty creates neither right nor obligation for third States). Therefore, 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 govern their rights and obligations. Art. 30 (4)(b)]  

Hierarchy among treaties “In the event of a conflict between the obligations of the Members of the UN under the present Charter and their obligations under any other international agreements, the obligations under the present Charter shall prevail.”

INTERPRETATION OF TREATIES: According to Fitzmaurice, there are three traditional schools of treaty interpretation: (1) “Textual school”– interpretation in accordance with the ordinary meaning of the words of the treaty; (2) “Intention school” – interpretation in accordance with the intention of the parties; (3) “Teleological school” – interpretation in accordance with the aims and purposes of the treaty

INVALIDITY OF TREATIES • We will discuss only five important grounds of invalidity: (1) Violation of internal law on competence to conclude treaties(Lack of appropriate full powers); (2) Error; (3) Corruption; (4) Coercion of a State; and (5) Conflict with jus cogens

Termination and Suspension of the Operation of Treaties A.  Termination of a Treaty         Termination of a treaty means the end of the operation of a treaty, resulting in depriving all the parties of all the rights, and in releasing them from performing further obligations, under the treaty. Suspension of the operation of a treaty means the making of a treaty temporary inoperative in regard to either all or a particular party   

The Convention specifies the reasons for terminating a treaty.    First, a treaty may be terminated by the conclusion of a later treaty related to the same subject-matter, Second, a treaty may be terminated as a consequence of its breach in the violation of a provision essential to the accomplishment of the object or purpose of the treaty entitles the other parties to terminate the treaty.  

Third, a treaty may be terminated by the impossibility of performance resulting from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.    Forth, a treaty may be terminated when a fundamental change of circumstances occurs with regard to those existing at the time of the conclusion of that treaty.   Fifth, a treaty may be terminated by reason of the severance of diplomatic or consular relations between parties to the treaty.

Parties of a treaty Preamble of a treaty or Convention : It may clarify the context and the circumstances in which these instruments have been negotiated and adopted. Generally, the preamble does not contain legal norms and does not have immediate legal significance. However, it can be significant to the interpretation of the treaty. .

The main body The main body is the principal part of the treaty. It specifies the instrument's material scope and relevant definitions should be included immediately after the preamble. It also contain provisions allowing member States to modify the extent of their obligations in respect of the instrument they have ratified

Final Clauses: The final clauses are part of the main body of the treaty but require particular attention. It normally covers the following subjects of a treaty: (a) entry into force of the Convention; (b) denunciation/ withdrawal clause; (c)Amendment/ revision of the Convention; (d) depositary clause (e): dispute settlement clause (e) authoritative language clause.

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