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INTERPRETATION OF TREATIES; Principles and Practice

Treaties are the f irst and f oremost source of International law. Whenever an International Court has to decide an international dispute, its f irst endeavor is to f ind out whether there is an international treaty on the point or not. In case there is an international treaty governing the matter under dispute, the decision of the court is based on the provisions of the treaty. International treaties occupy the same signif icant position in the f ield of international law as the legislation occupies in the municipal law. Unlike municipal law, the various methods by which rights and duties may be created in international law are relatively unsophisticated. States transact a vast amount of work by using the device of treaty . For instance, wars will be terminated, disputes settled, territory acquired, special interests determined, alliances established and international organizations created all by means of treaties. So treaties are a more direct and f ormal method of international law creation. T here lies the importance of treaties. 2. Def initions of Treaty Prof . Oppenheim: International treaties are agreements of a contractual character between States or Organizations of States creating legal rights and treaties. Prof . Schwarzenberger: Treaties are agreements between subjects of international law creating a binding obligation in international law. McNair: A written agreement by which two or more States or International organization create or intend to create relations between themselves operating within the spheres of International Law. T he term treaty has also been def ined in the Vienna Convention on the Law of Treaties, 1969. Article 2(1) (a) of the Convention def ines treaty as an international agreement concluded between States in written f orm and governed by international law. T he Vienna Convention on the Law of Treaties came into f orce on 27th January, 1980. 3. Basis of the Binding Force of International Treaties

In the view of the Italian jurist, Anzilotti, the binding f orce of international treaty is on account of the f undamental principle known as Pacta Sunt Servanda. According to this principle, States are bound to f ulf ill in good f aith the obligations assumed by them under treaties. T he principle was reaf f irmed in Article 26 of the 1969 Convention, and underlies every international agreement. Every treaty in f orce is binding upon the parties to it and must be perf ormed by them in good f aith . 4. NOMENCLAT URE OF Treaties Protocol: T his signif ies an agreement less f ormal than a treaty or convention proper. T he term covers the f ollowing instruments also; an instrument subsidiary to a convention, an ancillary instrument to a convention, an altogether independent treaty, Process-Verbal.

Agreement: an instrument less f ormal than a treaty or convention proper, and generally not in heads of state f orm. Convention: T his is the term ordinarily reserved f or a proper f ormal instrument of a multi-lateral character. Arrangement: T he observations above as to Agreements apply here.

Process-Verbal: T his term originally denoted the summary of the proceedings and conclusions of a diplomatic conf erence, but is now used as well to mean the record of the terms of some agreement reached between the parties. Statute: A collection of constituent rules relating to the f unctioning of an international institution, eg; the statue of I.C.J. Declaration: An inf ormal instrument appended to a treaty or convention interpreting or explaining the provisions of the latter. Modus Vivendi: an instrument recording an international agreement of a temporary or provisional nature intended to be replaced by an arrangement of a more permanent and detailed character. Exchange of notes (or letters): an inf ormal method, very f requently adopted in recent years, whereby states subscribe to certain understandings or recognize certain obligations as binding them. Ratif ication is not usually required here. General Act: is really a treaty but may be of a f ormal or inf ormal character. Final Act: is the title of the instrument which records the winding up of the proceedings of the Conf erence summoned to conclude a convention. 5. Compartmentalization of Treaties McNair has classif ied treaties under the f ollowing heads: Treaties having the character of conveyances; Treaty contracts; Law-making treaties; and Other treaties, such as, the treaty of Universal Postal Union. 6. Parties Competent to Make a Treaty Generally, only Sovereign States are competent to make a treaty. In accordance with the principle of sovereignty sovereign states have unlimited powers to make treaties. T hose States which are not completely sovereign are not competent to make it. T he Permanent Court of International Justice in Wimbledon case observed: the capacity of entering into international engagements is an attribute of state sovereignty.

T he main steps in the f ormation of a treaty are: 7.1 Accrediting of persons who conduct negotiations on behalf of the contracting states (Arts.7 & 8 of Vienna Convention) Once a state has decided to commence negotiations with another state or other states f or a particular treaty, the f irst step is to appoint representatives to conduct the negotiations. In practice a representative of a state is provided with a very f ormal instrument given either by the head of state or by the Minister of Foreign Af f airs showing his authority in various regards. T his instrument is called the Full Powers or Pleins Pouvoirs. 7.2 Negotiation and adoption (Art.9) T he accredited persons of contracting parties enter into negotiations f or the adoption of the treaty. Af ter the matters are settled, the treaty is adopted. Authentication ,signature and exchange of instruments When the f inal draf t is agreed upon, the instrument is ready f or signature. Unless there is an agreement to dispense with signature, this is essential f or a treaty, principally because it serves to authenticate the text. T his rule is stated in Article 10 of the Vienna Convention. T he ef f ect of signature of a treaty depends on whether or not the treaty is subject to ratif ication, acceptance, or approval. If the treaty is subject to ratif ication, acceptance, or approval, signature means no more than that the delegates have agreed upon a text and are willing to accept it and ref er it to their governments f or such action as those governments may choose to take in regard to the acceptance or rejection of the treaty. Where a treaty is constituted by instruments exchanged by representatives of the parties, such exchange may result in the parties becoming bound by the treaty. Ratif ication T he next stage is that the delegates who signed the treaty ref er it back to their governments f or approval, if such f urther act of conf irmation be expressly or impliedly necessary. Ratif ication means the international act .whereby a state establishes on the international plane its consent to be bound by a treaty. T he power of ref using ratif ication is deemed to be inherent in state sovereignty, and accordingly at international law there is neither a legal nor a moral duty to ratif y a treaty. Accessions and adhesions: In practice when a state has not signed a treaty it can only accede or adhere to it. T he practice of the States shows that those states which have not signed the treaties may also accept it later on. T his is called accession. A treaty becomes a law only af ter it has been ratif ied by the prescribed number of State parties. Even af ter the prescribed number of State parties have signed, the other States may also accept or adhere to that treaty. T his is called adhesion. Entry into f orce T he entry into f orce of a treaty depends upon the provisions of the treaty or upon what the contracting states have otherwise agreed upon . Registration and publication Art.102 of the United Nations Charter provides that the registration and publication of every international treaty entered into by the members is essential. It is made clear in this Article that if an international treaty or agreement is not registered, it cannot be invoked bef ore any organ of the United Nations. 7.8 Application and enf orcement

T he f inal stage of the treaty making process is the actual incorporation of the treaty provisions in the municipal law of the state parties, and the application by such states these provisions, and, also, any required administration and supervision by international organs. 8. Reservation of a Treaty A state may be willing to accept most of the provisions of a treaty, but it may, f or various reasons, object to other provisions of the treaty. I n such cases states of ten make reservations when they become parties to a treaty. T he term reservation has been def ined in Article 2(1) of the Vienna Convention on the Law of Treaties, 1969. It runs as f ollows; Reservation means a unilateral statement ..Made by a State when signing, ratif ying, accepting, approving or acceding to a treaty, whereby, it purports to exclude or modif y the legal ef f ects of certain provisions of the treaty in their application to the State. 9. T ERMINAT ION OF T REAT IES A treaty can be terminated by (1) the operation of law and by the (2) act or acts of the state parties. 9.1 By the Operation of Law: It includes the f ollowing: 9.1.1 Expiry of time If the treaty has been concluded f or a f ixed period of time, the expiration of the f ixed term will automatically terminate the treaty. 9.1.2 Fulf illment of object In case of treaties imposing no continuous obligation, it may cease to operate on the f ulf illment of the object. 9.1.3 Extinction of the parties If one of the parties is extinguished by annexation or merger, it may cease to operate. For e.g.: the treaty between USA and Tripoli came to an end when the latter was annexed by Italy in 1912. 9.1.4 Outbreak of War T he treaties may be suspended or terminated at the outbreak of the war. T he treaties between the belligerent states f or which general, political and good relations are essential, cease at war. Treaties relating to complete situations such as f ixation of boundaries shall not cease. T he treaties relating to the rule of war remain in f orce and binding upon the parties. Some multilateral treaties relating to health, service, protection of industrial property do not completely end. T hey remain suspended and revived at the end of the war. 9.1.5 Impossibility of Perf ormance Article 61 of the Vienna convention stated that the impossibility of perf ormance is a valid ground f or the termination of the treaty. 9.1.6 Rebus Sic Standibus

When the f undamental or material circumstance under which a treaty is concluded or change, it gives room f or the termination of the treaty. T here may be situations in which the continued application of treaty may be both contrary to the shared expectations on the parties and an intolerable burden on them. 9.1.7 Jus Cogens A treaty may be declared void if it conf licts with a preemptory norm (jus cogens) of international law. According to Article 53 of the Vienna Convention the treaty is void, if at the time of conclusion it conf licts with peremptory norm of international law. By T he Act of State Parties Consent of T he Parties According to Article 54 of the Vienna convention, it will be considered as terminated, if all the parties to it conclude a subsequent treaty relating to the same subject matter. Notice of Termination or by Act of Denunciation If a state party wishes to withdraw f rom a treaty, it usually does so by notice of termination or by denunciation. T he term denunciation means notif ication by a state to the other state parties that it intends to withdraw f rom the treaty. Ordinarily the treaty itself provides denunciation, or state concerned may, with the consent of other parties, have reserved a right of denunciation. 10. Interpretation of Treaties With regard to the interpretation of treaties there are agencies to interpret the treaties. Agencies of Interpretation T here may be courts such as International Court of Justice, T he Court of Justice of T hree European Communities (T he European Coal and Steel Community, T he European Economic Community (common market) and the European Atomic Energy Community (EURAT ON)). T hey have the jurisdiction to interpret the Treaties of 18th April 1951and 25th march 1957 establishing these three communities. T he other agencies which would interpret the treaties are the International Labour Of f ice (f or the of f ices interpretation of labour convention). T he various organs of UN recognized at the San Francisco Conf erence which in 1945 drew up the UN Charter that each organ of UNs would have largely to do its interpretation works. Executive directors and board of governors of the Indian Monetary f und. And also the ref erence of point to the Adhoc committee. Instruments of Interpretation T he diplomatic conf erences which adopt treaties are only conscious about the draf ting def ects. To avoid the dif f iculties arising out of the construction of particular clauses or articles, an instrument such as a protocol, or process-verbal or f inal act is of ten annexed to the main convention containing detailed interpretation or explanation of the doubtf ul provisions. Multilingual Treaties

T he treaties are of ten draf ted in two or more languages. Multilateral conventions, including conventions of ILO are usually concluded in French and English and it is provided that both the texts shall be authoritative. It may prevail in the event of conf lict. T he UN Charter of 1945 was drawn in 5 languages such as English, French, Russian, Spanish and china. Article III of the UN Charter stated, that all f ive texts are equally authentic. T he Article 33 of the Vienna Convention is dealing with the conditions f or the authentications of the treaties. T hey are the f ollowing: If a treaty is authenticated in several languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that one particular text is to prevail in case of divergence. T he terms of the treaty are presumed to have some meaning in each text. A construction is to be given which best reconciles the texts having regard to object and purpose of the treaty. General Principles T here are numerous rules, canons and principles have been laid down international tribunals and by writers to interpret the treaties. To serve it as usef ul, indeed measures, guidelines to the draf ting of treaty provisions. All these rules and canons are not absolute f ormulae but they are related to particular text and to the particular problem. T heir weight depends on cumulative application of several, rather than the application of one singly. Grammatical Interpretation and Intention of Parties In treaties the words and phrases are to be construed according to their plain and natural meaning. If a grammatical interpretation result in absurdity, or marked inconsistency with other portions of treaty, it should not be adopted. While interpreting the treaty the f ollowing things are to be noted: T he purpose or plan of the parties in negotiating the treaty. It should not restrict unduly the rights intended to be protected by law. T he interpreter should look into the ostensible intention of parties mentioned in f our corners of the text. Special meaning should be given to a particular term, if it is established that parties so intended. Object and Content of Treaty If particular words and phrases are doubtf ul, their construction should be governed by the general object of treaty. Art 31, para 1 of the Vienna Convention stated that treaty should be interpreted with ref erence to its object and purpose. For the interpretation it include preamble, annexes to the treaty and related agreements or instruments made in connection with the conclusion of the treaty. Reasonableness and Consistency T he interpretation should be done in such a manner in which reasonable meaning of words and phrases is pref erred. By the term consistency, it means that it should be interpreted in the light of the existing International law. If the state entering into a treaty is unwilling to limit their sovereignty, ambiguous meaning should be given, which is least restrictive upon a partys sovereignty or in conf lict between the special and general law. If there is a conf lict between general and special law the special law will prevail over the other. Principle of Ef f ectiveness

According to the PCIJ, the interpretation as a whole make the treaty most ef f ective and usef ul. T he PCIJ applied this principle in US diplomatic and Consular staf f in Tehran ICJ 1980. T he principle of ef f ectiveness enabled the treaties to work and have appropriate ef f ects. It is very important in case of multilateral conventions containing the constituent rules of international organizations. It warrants an interpretation which works a revision of a convention, or any result contrary to the letter and spirit of treaties. Recourse to Extrinsic Material T he international tribunal is limited to the context of treaty, provided that clear words are not thereby contradicted. T he f ollowing points are relevant: Past history and historical usages Preparatory work, i.e. preliminary draf ts, records of conf erence discussion, draf t amendments etc. Interpretation protocols, Resolutions, Committee reports. T he subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions (Article 31(3) of Vienna Convention). T he subsequent conduct of the state parties, intention of parties and their conception of the treaty. Other treaties, in parimateria, in case of doubt. Disputes Clause T he dispute clause is inserted in the multilateral conventions to settle the disputes arising as to interpretation or application of convention. T he methods used f or such settlements are the arbitration, conciliation and the judicial settlement. 11. DOMEST IC IMPLEMENTAT ION OF INT ERNAT IONAL T REAT IES Introduction Indian government as member of the world community has always played its role in quite an ef f ective manner by duly undertaking the implementation of the relevant international treaties. Article 51(c) of the Constitution of the country speaks about f ostering respect f or international law and treaty obligations in the dealings of organised people with one another. T his project tries to look into the ef f orts made by the dif f erent wings of the government towards maintaining an international consciousness in the country and the mechanisms which are available as of now f or the said purpose. Why should India ratif y and adopt treaties Prior to looking into the implementation mechanisms available in the country, it is necessary to look into the reasons which would make such an implementation necessary. T he Courts of our country have opted f or adopting principles f rom international treaties on the event of insuf f iciency of the existing laws prevailing in the domestic scenario. Owing to the high level of deliberations and issues addressing, international treaties guarantee a great amount of knowledge regarding contemporary af f airs across the world and the legal protections ensuing. It will help to supplement any national law making mechanisms which may have def ects inherent in themselves or which could not perf orm their responsibilities as expected or desired f or reasons best known to them. Judiciary And International treaties

It is worth to be considered that India has been keen on ratif ying those international treaties which could be brought within the gamut of f undamental rights as is existing in the country. T hus, Indian judiciary, executive and legislature have acted in f avour of adopting principles of human rights, laws of war, environmental rights etc into the system. In many situations, the application of international principles into Indian scenario have appeared to be a less cumbersome task, because of the open mindedness exhibited by the judiciary of the country. Honourable Courts have tried to locate the provisions of many conventions and treaties within the f ramework of already existing rights. T his was considered to be the easiest way of broadening the scope and ambit of f undamental rights. For example, in Visakha and Ors v. State of Rajasthan and Ors , right to work with human dignity and promotion of gender justice, guaranteed under Convention on Elimination of Discrimination against Women at Work Places, to which India is a party was read along with Articles 14, 15, 19(1) (g) and 21 of the Constitution of India. Again in M.C. Mehta v. Union of India , precautionary principle and polluter pays principle was accepted as part of the Law of the Land through Article 21 of the Constitution. In Sunil Batra v. Delhi Administration and Ors. etc , the Supreme Court ref erred to the international consciousness regarding human rights. In Rev. Mons. Sebastiao Francisco Xavier dos Remedios Monteiro v. T he State of Goa , the court discussed the concepts of annexation and occupation as is prevalent in international law and held that Conventions Act of 1960 does not provide special remedy under domestic law but gives indirect protection by providing f or the penal repression of breaches of the Conventions. R. Kapur v. State of Punjab However, if a conf lict arises between the municipal law and international law, the f ormer would prevail . Indian Status on ratif ying International Treaties India has been party to around 27 treaties on environment protection which includes the convention on biological diversity, climate change etc and again has signed and ratif ied dif f erent treaties pertaining to protection of wild lif e and migratory animals. As regards the implementation of the International Covenant on Civil and Political Rights, India has exhibited its dedication by submitting periodic national reports to the Human Rights Council ref lecting the national implementation mechanisms. Legislations such as Human Rights Act 1993, Chemical Weapons Convention Act 2000 etc prevalent in the country are the outcome of the ef f orts to implement the international obligations and principles in the Indian scenario. T hus, in many ways the international treaties and other instruments have worked as f actors encouraging the nation to perf orm and protect the rights of its citizens in a better manner. As f ar as treaties on international humanitarian laws are concerned, India has ratif ied f our main treaties. However, it has not been a party to Additional Protocols I, II and III of the Geneva Conventions 1949 till date. As regards International Human Rights regime is concerned, India is party to the major ones like CEDAW, CRC, and Disability Rights Convention. On other areas like Use of Weapons, Terrorism, International Criminal Law, Racial discrimination, Slavery, Status of women etc., it has acceded to major treaties available at the international context. It has also ratif ied to the SAARC Convention on Suppression of Terrorism, 1993 and its additional protocol in 2004. India has ratif ied around 30 ILO conventions, as the status report of 2005 indicates. It has even ratif ied conventions during pre independence period which makes it very clear that British India has always maintained a level of international consciousness. However, it is not a party to many of the optional protocols accompanying to many of these conventions. Whether this is to be attributed to intentional aloof ment or reluctance to reduce the international inf luence on the country or the way to protect the sovereignty of the country is to be checked. But what could be inf erred while cross examining the list of treaties ratif ied by India is that, the Government has shown reluctance in ratif ying treaties which may hinder its supremacy or those which may conf er more status to the individual in the international context. Likewise, it has not signed treaties which work towards prevention of torture, ensuring rights to ref ugees. Similarly, it has also not ratif ied the Rome Statute, 1998 resulting in the establishment of International Criminal Court. More than the legal importance of these matters, the ratif ication of a treaty could be considered as policy matters of the government. However, it is not a party to many of the optional protocols accompanying to many of these conventions. Whether this is to be attributed to intentional aloof ment or reluctance to reduce the international inf luence on the country or the way to protect the sovereignty of the country is to be checked.

However, in the context of the emerging trade regime, India has expressed its willingness to go by the policies of liberalization and globalization, which started in the early 90s and is a party to major treaties on international trade, intellectual property rights etc. For example, India is a party to the intellectual property treaties like WIPO, T RIPS, Patent Co-operation Treaty, Paris Convention f or the Protection of Industrial Property, Budapest Treaty etc. India has been a f ounder member of GAT T and also of its successor WT O since January 1, 1995.

CONCLUSION

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