International treaties are formal agreements established between subjects of International Law with the aim of generating legal effects. They are fundamental instruments in the realm of International Law that allow for cooperation, development, and peaceful coexistence among the subjects of International Law. For these agreements to have legal effects and to be recognized internationally, they must comply with certain conditions of validity. Likewise, the presence of defects during their negotiation, signing, or ratification can affect their legitimacy and effectiveness, leading to various legal consequences. The conditions necessary for the validity of treaties and the defects that can compromise their integrity, as well as the legal implications of the latter according to the Vienna Convention on the Law of Treaties of 1969 (VCLT/69), are explored below.
Check out all articles on International Treaties:
- Definition, Synonyms, and Types
- Conditions of Validity and Defects
- Stages of Conclusion
- Effects, Amendments, Withdrawal, Suspension, and Termination
Conditions of Validity of Treaties
An international treaty is considered valid if it meets four essential conditions:
- The contracting parties must be capable of concluding treaties.
- The signatories must be authorized to sign treaties.
- The subject matter of the treaty must be lawful and possible.
- The contracting parties must consent to the treaty freely.
The parties entering into a treaty must be subjects of International Law with the capacity to conclude treaties. A variety of entities have this capacity, such as states, international organizations, the Holy See, territories under international trusteeship, belligerent communities or insurgents, and national liberation movements. In contrast, individuals, for example, cannot conclude treaties but only represent other subjects of International Law in the treaty-conclusion process.
Moreover, the representatives of the parties in a treaty must be duly authorized to act on their behalf, having the quality of plenipotentiaries. These are the people who possess a letter or instrument that grants them full powers to conclude treaties, or who do not need this document because they have implicit capabilities.
According to article seven of the VCLT/69, there are three types of individuals who, due to their high relevance, are suitable to participate in any phase of the drafting of treaties, even without a letter of full powers: the Head of state, the Head of Government, and the Minister of Foreign Affairs of any country. Additionally, there are exceptions that allow the participation of certain individuals up to the stage of adoption of a treaty: the heads of diplomatic missions accredited in a state, regarding treaties with that state, and representatives accredited by a state to an international organization or conference, with respect to the adoption of treaties in that context. Furthermore, the secretaries-general of an international organization and their deputies are also considered plenipotentiaries implicitly.
The VCLT/69 establishes that acts carried out by individuals not considered plenipotentiaries will not have legal effects unless they are confirmed by whoever truly represents the state. If the limitations on a representative’s attributions are violated, a treaty could be subject to annulment. This ensures that the signatories have the necessary authority to commit the parties to the terms of the treaty.
In addition, the subject matter of the treaty must be lawful and possible. The treaty must not contravene morality or the peremptory norms of International Law, known as jus cogens. Likewise, the subject matter of the treaty must be capable of being executed; otherwise, it will not create legal obligations.
Finally, the consent of the parties to enter into a treaty must be obtained freely, without the presence of defects that could affect the validity of consent. This underscores the importance of voluntary and conscious agreement among the parties as the foundation of any valid treaty.
Defects in Treaties
The defects in international treaties and their legal consequences are aspects regulated by the VCLT/69, which establish the bases for determining the validity or nullity of international agreements. All defects affect the legitimacy and execution of a treaty, but each produces a different legal consequence, depending on its nature.
According to Article 53 of the VCLT/69, if a treaty is established in violation of a peremptory norm of international law, i.e., jus cogens, it is null with ex tunc effects. In this case, the treaty is considered null from the outset, and everything that changed as a result of it must return to the initial situation. On the other hand, according to Articles 64 and 71, second paragraph, of the VCLT69, if the treaty conflicts with a peremptory norm established after its conclusion, it is declared null with ex nunc effects, affecting only the provisions of the treaty that violate the jus cogens. Thus, the rest of the treaty’s rights and obligations may remain valid.
In accordance with Article 69 of the VCLT/69, the use of force or unlawful military pressure against a state constitutes an act of coercion against the state. Any contracting party of the agreement can express their opposition to that action and demand the nullity of the entire treaty, with ex tunc effects — from its inception. However, acts carried out in good faith before the annulment of the treaty are not affected. Additionally, it is worth noting that mere use of political and economic pressures is not considered coercion, just as the conclusion of peace treaties or unequal treaties is permitted.
Similarly, when force or pressure is used against a representative of a state, there is also coercion, but its legal effects are different. Since the other contracting parties of the treaty were not coerced, this defect affects only the consent of the state whose representative has been pressured. Therefore, the nullity of the vitiated consent will occur, with ex tunc effects, and the treaty will remain valid for the other parties.
Another defect in treaties is error, which occurs when a party does not have all the information about the treaty in question, or when the available information is not perfect. As provided in the VCLT/69, a substantial error regarding a fundamental aspect of the treaty can lead to the annulability of the consent given by the state, with ex nunc effects. However, such error cannot be attributable to the party invoking it, cannot be merely a drafting error, and cannot affect the core of the treaty. It is also important to emphasize that the error must have been made by a human mistake, and not as a result of ignorance of international norms.
Fraud is the defect that occurs when a contracting party uses deception or tricks to induce the other to conclude a treaty. It will result in the annulment of the consent given by the state, with ex nunc effects, provided that it was practiced by a contracting party and was determinative for the conclusion of the treaty with the other party.
Corruption refers to the undue influence exerted on the representative of a state during the negotiation and signing process of a treaty. This defect occurs when a representative of the state is induced, through bribes or any other form of corruption, to act in a way that benefits one party in the treaty to the detriment of the legitimate interests of their own state. A treaty concluded under the influence of corruption may be considered annulable by the affected state, with ex nunc effects.
Finally, imperfect ratification occurs when a state proceeds to ratify a treaty in manifest violation of a fundamental norm of its domestic law related to the competence to conclude treaties. For example, if a state’s constitution requires parliamentary approval for the ratification of treaties and a treaty is ratified without that approval, it would be considered an imperfect ratification. This defect has the implication of annulling the consent of the state, with ex nunc effects. However, the domestic law norm that has been violated cannot be merely procedural — for instance, rules about deadlines or voting turns.
Conclusion
International treaties constitute an indispensable tool for managing international relations, establishing obligations and rights between the parties. The VCLT/69 provides a detailed legal framework to ensure the validity of these agreements and to address possible defects that may arise during their formation. The integrity of the treaty-making process is crucial, as any irregularity can compromise the validity of consent and, consequently, the effectiveness of the treaty. The rigorous application of the provisions in this legal framework ensures that international treaties continue to be a reliable and effective pillar for international cooperation.
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