Comment: The Vienna Convention on the Law of Treaties and its Contribution to Peace

Gerhard Hafner

I. Introduction

The presentation by Dr. Vermeer-Künzli quite rightly puts emphasis on the question to what extent the Vienna Convention on the Law of Trea-ties (VCLT) contributes to stability in international relations as one of the necessary requirements for the establishment and maintenance of peace. It raises the fundamental question as to whether stability induc-ing predictability as an element of international relations between States constitutes a necessary means to avoid tensions and conflicts between these actors. If that is so, and there can hardly be any doubt, the subse-quent question is whether treaties contribute to the creation, enhance-ment or strengthening of such stability. This enquiry is characterized by a complex ramification and raises questions that require answers on dif-ferent levels.

At the top level, the question needs to be raised whether the smooth development of international relations needs more stability or flexibil-ity, a question similar to that whether peace or justice is the first target to be achieved. This is a question of fundamental nature affecting the whole essence of international relations and international law, which is too broad to be dealt with any further here.

II. Codification vs. Customary International Law

It is to be asked at the next level whether codification of international law contributes to peace through ensuring stability of flexibility and

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which positive effects such a consolidation of international law is able to produce. Constituting a codification, the VCLT is confronted with customary international law (CIL). Hence, one has to balance the ad-vantages and disadvantages of codification against those of CIL.

As to the creation of these two categories of rules, the creation of cus-tomary international law is much more exposed to the exercise of power than a codification process as the creation of customary interna-tional law depends on the major States that through their power influ-ence this law-creating process1. In contrast, the creation of a codifica-tion convention is much more influenced by the democratic process where all states can participate, irrespective of their power. Seen from this perspective, codification is better able to contribute to a smooth development of international relations. However, this democratic prin-ciple is stressed in particular by the need to come to a general agreement or consensus before a vote can be taken so that such a democratic par-ticipation frequently results in the adoption of the lowest common de-nominator. Further advantages of codification are that it systematizes legal regulations, helps harmonize them, broadens their knowledge, and contributes to conflict prevention through the facilitated access to the legal regulations and through a more formal procedure of enforcement than customary law, which frequently is spelled out in the relevant in-strument itself.

Nevertheless, codification also entails disadvantages that consist in pet-rifying the law at a given moment, with only limited mechanisms for adaptation, a general lack of means of dynamic adjustment or even a detrimental effect on the evidence of customary law of latter differs from the codification. One example in this regard is the United Nations Convention on Jurisdictional Immunity of States and their property. In the process of the elaboration of this convention that was conceived as a codification it was queried whether this convention should also provide an exception to immunity in the case of claims against a state in foreign courts for massive violations of human rights, torture as e.g. it is pro-vided in the American legislation. However, the view was expressed that such a denial of immunity was not yet generally accepted by the State Community so that it could not be included in the Convention

1 When discussing the creation of customary law, doctrine regularly pro-

ceeds from the assumption of an equality of the States. Such an assumption does not conform to reality since the practice of States, which is required for the creation of customary international law, is first of all the practice of the power-ful States, which influence the practice of other States.

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since its inclusion would have jeopardized its general acceptability. The result, however, is that presently certain NGOs are criticising the Con-vention and trying to convince states not to ratify because of this – in their view – deficiency and lack of progressive development. This dis-cussion undoubtedly illustrates the problem of the codification process that could impede further developments.

Although the meaning of codification is not entirely clear as it can ex-tend to a continuum which reaches from the written reflection of exist-ing customary law (exchange of the legal basis) and its systematization to the formulation of new legal rules of general-abstract nature (incl. “soft law”), one cannot deny that, despite certain progressive elements reflected in it, the VCLT is a classical codification and as such a child of its time and governed or at least influenced by the particular situation at that time. Hence, the VCLT has to be assessed in the context of the time of its creation, which provides it with a certain relative nature. The two sessions of the Codification Conference took place in 1968 and 1969, at the time of the “Prague spring” and its aftermath, the Czechoslovakian situation. It was the time of the Cold War or at least of the East-West tensions and the different approaches to international law, which can be seen reflected in the text of the Convention. So, for instance, the legal regime elaborated in this Convention relating to the reservations was the result of the Soviet view that any state can make any reservation at any time to any treaty. This approach resulted from a certain apotheosis and exaggeration of the sovereignty of the state. Although this Soviet approach is no longer maintained we have nevertheless to live with it. The difficulties arising from this legal regime forced the International Law Commission to deal again with this issue and kept it busy for more than ten years.

Apart from the topic of reservations, State practice has already shown that the VCLT has its deficiencies; so e.g. it does not contain a rule on lex specialis and some States have already referred to legal tools outside the VCLT in order to get rid of treaty provisions e.g. through obsoles-cence. Here, it can be seen that even the cornerstone of codification of IL, the VCLT, is not immune against further developments outside the regime established by it.

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III. The Vienna Convention on the Law of Treaties: Stability or Flexibility

1. The Vienna Convention as an Instrument of Stabilization

The essential question here and the main issue of the report of Dr. Ver-meer-Künzli is, however, whether the VCLT is more on the side of sta-bility or flexibility. It seems that the Vienna Convention is rather gov-erned by a spirit of stability since it emphasizes in particular stability and does not stress so much the possibilities to adjust treaties to new circumstances resulting from a change over time. To mention only one issue, the Vienna Convention remains silent on the lex specialis rule al-though it embodies the lex posterior rule in its Article 30. One explana-tion for this silence is that the authors of the Vienna Convention con-centrated in particular on the relation of the parties to the treaties and not on the content of the treaty and therefore they did not deal with the lex specialis rule.

2. Grounds for Adjustment not Foreseen in the Vienna Convention

Despite the fact that the list of the grounds for determinations and sus-pensions embodied in the VCLT is exhaustive according to Article 42 (2), other procedures have already been developed and applied in order to terminate certain treaty provisions. So for instance a book was de-voted to a large extent to desuetudo and how to conform it to the VCLT because of the latter’s silence on the desuetudo2.

Another legal device is obsolescence. When Finland and Austria wanted to get rid of certain provisions, with regard to Finland certain provi-sions of the Treaty of Peace of 19473, with regard to Austria several provisions of the State Treaty for the Re-Establishment of an Independ-ent and Democratic Austria of 19554, there was no other possibility than to apply a legal device not foreseen in the VCLT, namely obsoles-cence, since the grounds for the termination of treaties or of parts

2 W. Karl, Vertrag und spätere Praxis im Völkerrecht – Zum Einfluß der

Praxis auf Inhalt und Bestand völkerrechtlicher Verträge, 1983. 3 Australian Treaty Series, 1948 No. 2. 4 BGBl. Nr. 152/1955.

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thereof embodied in the VCLT did not correspond to the political situation given at that moment5.

Another case in which it was necessary to resort to unusual means of changing a treaty was the United Nations Convention on the Law of the Sea. In order to save the Convention, an additional agreement was attached in order to adjust the Convention to the changed position of certain States. This was done under rather unusual circumstances that were not in complete conformity with the Vienna Convention. As to the Lisbon Treaty on the European Union, although we do not know as yet how its acceptability by all Member States will develop, it cannot be excluded that we have also to look for different methods and perhaps to invent some new legal tools in order to overcome the present deadlock caused by the negative Irish referendum.

Still another issue concerns the provisional application of treaties. The VCLT deals very briefly in one article (Article 25) with such kind of application without furnishing a precise understanding of such applica-tion. When the Vienna Convention of 1978 on Succession of States in Respect of Treaties was being negotiated, the question regarding the provisional application of treaties was raised, but, in light of the relative scarcity of cases, was not considered as particularly important. In the meantime the situation has changed since a growing number of treaties are applied provisionally, among them the Energy Charta Treaty, but also other agreements by the European Community that increasingly resorts to this legal tool in order to accelerate the application of these agreements. But despite the increasing use of provisional application, the precise meaning and effect of provisional application remain un-clear.

3. Conclusion

More than ever panta rhei, everything is moving even more rapidly than before. The various cases mentioned above serve as sufficient evidence

5 See inter alia Helmut Türk, “Die Wende 1989/90 und die Obsoleterklä-

rung einiger Artikel des Staatsvertrages” in: A. Suppan/G. Stourzh/W. Müller (eds.), Der österreichische Staatsvertrag 1955. Internationale Strategie, rechtli-che Relevanz, nationale Identität, 2005, 821; G. Hafner, “L’Obsolescence de Certaines Dispositions du Traité d’État Autrichien de 1955”, AFDI 37 (1991), 239 et seq.

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to prove that the Vienna Convention is much more on the side of stabil-ity as seems recommendable. There is obviously a felt need to apply more mechanisms of adjustment than the VCLT offers. It can be de-rived therefrom that a rigid application of the methods of the VCLT could rather generate conflicts than avoid them. If the VCLT were re-negotiated today, claims would undoubtedly be raised that these vari-ous legal devices should be reflected and elaborated in the Convention.

As long as the VCLT stands, there is a need to think about what can be done in order to adjust treaties to changed circumstances. Different so-lutions could be thought of in order to accommodate this need:

IV. The Need for Change: A Proposal

One possibility that already exists is to preserve the system of the VCLT reflecting the stability of treaty regimes, but to supplement it with an obligation on the authors of treaties to provide the treaties with some mechanisms permitting a review of the treaty after a given time. This technique, for instance, has been used in the Rome Statute of the International Criminal Court (Article 123), the United Nations Con-vention on the Law of the Sea (Article 312), or the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conserva-tion and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Article 36), to name only few examples. These Conven-tions provide a review mechanism either through an amendment con-ference (e.g. United Nations Law of the Sea Convention) or a review conference after a certain number of years (e.g. Rome Statute on the In-ternational Criminal Court). Such a review mechanism only offers a possibility to discuss whether there is a need to amend a convention, it does not prescribe an obligation to amend it so that the States remain free in their decision.

For this reason it seems worthwhile to venture the proposal to include even in a codification treaty a review clause since it would not be detri-mental to the codification. So far, the International Law Commission has always abstained from including a review clause in codifications as the view prevailed that a codification reflecting customary international law cannot be made subject to change. But even customary interna-tional law changes very quickly so that the inclusion of a review clause even in codification conventions would open up the possibility that

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such conventions keep pace with the rapid development of international relations. Such a clause could ensure a smoother development of inter-national relations; it could remove or at least assuage the tensions be-tween the legal regimes established by such conventions and the reali-ties of our daily life and contribute to avoiding the risk of a conflict be-tween them.