IV.

The Law and Practice as to Treaties

• The Vienna Convention on the Law of Treaties

V. The Settlement of International Disputes.

• Negotiation, Mediation and Good Offices, Inquiry, Settlement by the United Nations,

Conciliation, Arbitration, The International Court of Justice.

VI. International Humanitarian Law.

• International and Non-International Armed Conflicts, Non-International Armed Conflict,

‘Combatant’ and ‘Protected Persons’, Protection of Wounded, Sick and Ship-Wrecked

Persons, POWs, Civilians, Limitations on the Conduct of War, Limits on the Choice of

Methods and Means of Warfare.

Vienna Convention on the Law of Treaties (1969)
1. Applicability and Nature

 Applies to written treaties between states only (Article 1).

 Does not apply retroactively to treaties made before 1980 (Article 4).

 Does not cover oral agreements or those involving international organisations (those are
governed by the 1986 Convention).

“The VCLT does not apply to all international agreements, nor to all subjects of international law.”

 Many provisions are considered customary international law and are binding on non-party
states.

2. Definition of a Treaty (Article 2(1)(a))

 A treaty is “an international agreement concluded between states in written form and governed
by international law.”

“The legal character of a treaty depends not on its title but on its substance and intent to be legally
binding.”

3. Capacity to Conclude Treaties (Article 6)

 All sovereign states have the inherent capacity to make treaties.

 No recognition by other states is necessary for capacity.

4. Treaty-Making Procedure

a. Adoption and Authentication

 Article 9: Treaty is adopted when states agree on the text.

 Article 10: Authentication confirms the final text.

b. Consent to be Bound (Articles 11–15)

 States give consent through:

o Signature,

o Ratification,

o Acceptance or approval,

o Accession.

“Consent is the cornerstone of treaty law. Without it, no treaty obligation can arise.”

c. Entry into Force (Article 24)

 Treaty becomes binding when conditions agreed by states are fulfilled.

5. Reservations (Articles 19–23)

a. Definition (Article 2(1)(d))

 A reservation is a unilateral statement aiming to exclude or modify the legal effect of certain
provisions.

b. Permissibility (Article 19)

 Allowed unless:

o Treaty prohibits it,

o Treaty allows only specific reservations,

o Reservation defeats the object and purpose of the treaty.

c. Objections (Article 20)

 Other states may object within 12 months.

 Objection can prevent the treaty’s application between objecting and reserving state if stated
clearly.

d. Key Case: Reservations to the Genocide Convention (1951)

 ICJ held that reservations are valid as long as they do not undermine the treaty’s purpose.

 Abass quotes the ICJ’s opinion:

“The character of the Genocide Convention... implies that it was intended for the benefit of mankind.”

6. Interpretation of Treaties (Articles 31–33)

a. General Rule (Article 31)

 Treaties shall be interpreted:

o In good faith,

o Using ordinary meaning of terms,

o In light of context, object, and purpose.

b. Supplementary Means (Article 32)

 Includes travaux préparatoires (drafts and negotiation records) when ambiguity remains.

c. Multiple Languages (Article 33)

 All authenticated texts are equally valid unless otherwise agreed.

“Interpretation must not frustrate the common intention of the parties.”

7. Invalidity of Treaties (Articles 46–53)

  Article 46: Violation of internal law, if manifest and relates to competence.

 Article 48: Treaty signed under error.

 Article 49: Treaty obtained by fraud.

 Article 50: Consent secured through corruption.

 Article 51: Coercion of a state representative.

 Article 52: Threat or use of force against a state.

 Article 53: A treaty conflicting with a jus cogens norm is void.

“Jus cogens reflects values that no state can violate, even by agreement.”

8. Termination and Suspension (Articles 54–64)

a. By Agreement (Article 54)

 States may terminate or suspend a treaty by mutual consent.

b. Material Breach (Article 60)

 Serious breach entitles other parties to suspend or terminate the treaty.

c. Impossibility of Performance (Article 61)

 Allowed when an essential object of the treaty disappears permanently.

d. Fundamental Change of Circumstances (Article 62)

 Must be:

o Unforeseen,

o Affecting essential basis of treaty,

o Radically changing obligations.

Abass references Gabcikovo-Nagymaros case:

“The ICJ insisted that the principle of pacta sunt servanda must not be lightly set aside.”

e. Jus Cogens Emergence (Article 64)

 A new jus cogens rule renders incompatible treaties void and terminates them automatically.

9. Jus Cogens (Peremptory Norms)

 Jus cogens norms are universally accepted, non-derogable rules.

 Examples: Prohibition of genocide, slavery, torture, and aggression.

 Article 53: Any treaty violating jus cogens is void ab initio.

 Article 64: If a new jus cogens norm emerges, all conflicting treaties become void.
 “Jus cogens rules have an overriding authority... and protect the most fundamental interests of the
international community.”

10. Limitations of the VCLT

 Not applicable to:

o Pre-1980 treaties,

o Non-state actors,

o Oral agreements,

o MOUs or soft law instruments.

 Ademola Abass warns:

“Despite its usefulness, the Convention is not a catch-all code of treaty law.”

11. Application in Pakistan

 Pakistan is not a party to the VCLT.

 However, it observes many of its rules as part of customary international law.

 Treaty-making is conducted by the executive.

 Implementation requires domestic legislation.

 Treaties cannot override the Constitution unless enacted through law.

12. Important Cases

 Reservations to the Genocide Convention (1951) – Customary rules on object and purpose.

 Nicaragua v. USA (1986) – Customary international law is autonomous of treaties.

 Gabcikovo-Nagymaros (1997) – Limited use of fundamental change of circumstances.

V. The Settlement of International Disputes

1. Negotiation

Definition:
Negotiation is a direct communication process between disputing states seeking a peaceful resolution
without involving third parties.

Key Features:

 Informal and flexible.

 Parties control the process and outcome.
 Can occur at any stage of the dispute.
Significance:

 Most frequently used and preferred method.

 It respects the sovereignty and equality of states.

Example:

The Camp David Accords (1978) where Egypt and Israel resolved their conflict through prolonged
negotiation under US facilitation.

“Negotiation remains the cornerstone of dispute resolution in international law as it embodies the
principle of sovereign equality and voluntary cooperation.”

2. Mediation and Good Offices

Mediation:

 A third party assists the disputing states in reaching a settlement by facilitating dialogue and
proposing possible solutions
 The mediator’s role is advisory and non-binding.

Good Offices:

The third party provides a neutral space or platform to start discussions but does not actively propose
solutions.

Differences:

Good offices is more passive; mediation is more active in helping parties find solutions.

Example:

Oslo Accords (1993): Norway’s role as mediator helped Israel and the Palestine Liberation Organization
(PLO) move towards peace.

Advantages:

 Maintains confidentiality.
 Preserves state sovereignty.
 Facilitates communication between hostile parties.

“Mediation and good offices serve as valuable tools especially when parties are reluctant to negotiate
directly.”

3. Inquiry

Definition:
Inquiry is an impartial investigation into the facts relevant to a dispute, usually by experts or a
commission.

Purpose:

To clarify factual controversies that may impede negotiations or settlement.

Nature:

Non-binding; inquiry reports provide an objective basis for further negotiations or settlement.

Example:

The International Commission of Inquiry on the Gold Coast (1950s) investigated political disturbances to
provide an impartial fact-finding report.

“Inquiry plays a critical role in illuminating disputed facts but does not impose solutions; it is a
foundation for informed dialogue.”

4. Settlement by the United Nations

UN Charter (Chapter VI):

Emphasizes peaceful settlement through negotiation, mediation, inquiry, and regional arrangements.

Security Council’s Role:

Can recommend procedures and measures for dispute resolution.

General Assembly’s Role:

Provides good offices and facilitates dialogue but lacks enforcement power.

Examples:

UN mediation efforts in Kashmir dispute and Cyprus conflict.

Limitations:

 Relies on state consent.

 Political interests sometimes hinder effective action.

“The UN acts as the premier platform for dispute settlement, but its efficacy is contingent upon the
political will of member states.”

5. Conciliation

Definition:
A process where a commission or conciliator examines the facts and law, then issues a report with
recommendations for settlement.

Nature:

The report is not legally binding.

Procedure:

 Often follows negotiation or mediation attempts.

 Requires parties’ consent.

Example:
The German-Polish Conciliation Commission (1925) after WWI aimed to resolve territorial disputes.

“Conciliation bridges informal negotiation and binding arbitration by offering structured, though non-
binding, solutions.”

6. Arbitration

Definition:
Arbitration is a dispute resolution process where parties submit their conflict to an agreed neutral
tribunal whose decision (award) is binding.

Characteristics:

 Parties retain significant control over the process, including choice of arbitrators and procedural
rules.
 Arbitration awards are final and enforceable in good faith.

Examples:

 Island of Palmas Case (1928): Territorial dispute arbitration confirming sovereignty based on
effective control.
 Trail Smelter Arbitration (1941): Set important precedent on state responsibility for
transboundary pollution.

Advantages:

 Flexibility, confidentiality, finality, and neutrality.

 Avoids political interference.

Limitations:

 Enforcement depends on parties’ willingness or international pressure.

 Limited grounds for appeal.

“Arbitration offers an effective balance between sovereignty and binding legal resolution, crucial for
peaceful dispute settlement.”

7. The International Court of Justice (ICJ)

Role:
The ICJ is the UN’s principal judicial organ tasked with adjudicating disputes between states and giving
advisory opinions.

Jurisdiction:

Based on explicit consent by states via:

 Special agreements,
 Treaty clauses, or
 Optional clause declarations (Article 36(2) of ICJ Statute).

Procedure:
  Written pleadings and oral hearings.
 Binding judgments without appeal.

Enforcement:

Security Council may enforce rulings but political considerations can limit effectiveness.

Key Cases:

 North Sea Continental Shelf Cases (1969): clarified principles of treaty interpretation and
customary law.
 Corfu Channel Case (1949): established principles of state responsibility for breaches of
sovereignty.
 Nicaragua v. USA (1986): addressed unlawful use of force and reaffirmed customary law’s
autonomous role.

“The ICJ epitomizes the rule of law in international relations but remains constrained by the need for
state consent and political realities.”

INTERNATIONAL HUMANITARIAN LAW

1. Classification of Armed Conflicts

1.1 International Armed Conflict (IAC)

Definition: Armed conflict between two or more states, regardless of a formal declaration of war.

Legal Basis: Common Article 2, Geneva Conventions (1949).

Scope: Includes full-scale wars, border skirmishes, invasions, and occupation.

Applicability: All Four Geneva Conventions and Additional Protocol I (1977).

Abass writes, “As long as one state uses armed force against another, an international armed conflict
exists. No minimum level of violence is required.”

Example: 2003 U.S.-led invasion of Iraq.

1.2 Non-International Armed Conflict (NIAC)

Definition: Armed conflict within a state between governmental forces and organized armed groups, or
between such groups.

Legal Basis: Common Article 3, Geneva Conventions and Additional Protocol II (1977).

Threshold (Tadić Case, ICTY): Requires (1) intensity of violence and (2) organization of armed groups.

“Mere internal tensions or riots do not meet the threshold of NIAC. There must be sustained hostilities
and structured groups.”

Examples:

Syrian Civil War

Sri Lanka's conflict with the LTTE

2. Status of Persons in Armed Conflicts

2.1 Combatants (in IAC)

Definition: Members of armed forces who are entitled to participate directly in hostilities.

Criteria (AP I, Art. 43):

 Commanded by a responsible person.

 Have a fixed distinctive sign.
 Carry arms openly.
 Conduct operations in line with IHL.

Rights of Combatants:

May not be prosecuted for lawful acts of war.

If captured, entitled to POW status under Geneva Convention III.

“Combatants enjoy a unique duality—they are both agents of violence and subjects of legal protection.

2.2 Unlawful Combatants / Non-Privileged Fighters

Includes:

 Civilians taking direct part in hostilities

 Mercenaries (AP I, Art. 47)
 Non-state fighters in NIACs

Legal Consequences:

 Not entitled to POW status

 Can be prosecuted under domestic law
 Still protected by Common Article 3 and Human Rights Law

Example: Guantanamo Bay detainees—classified as unlawful enemy combatants by the U.S.

3. Protected Persons under International Humanitarian Law

3.1 Wounded and Sick (GC I & II)

Protection: Must be collected and cared for without discrimination.

Medical Units: Protected under the Red Cross/Crescent emblems.

Legal Basis: Geneva Convention I (land); GC II (sea).

“Care for the wounded is an absolute obligation under IHL.”

3.2 Shipwrecked Persons

Scope: Applies during armed conflict at sea.

Protection: No attack allowed on hospital ships or those out of combat due to shipwreck.

Legal Basis: Geneva Convention II.

3.3 Prisoners of War (POWs) – GC III

Who Qualifies: Captured lawful combatants.

Rights:

 Humane treatment
 No torture or coercion
 Right to communicate with families
 Judicial safeguards

“The rights granted to POWs reflect a balance between military necessity and human dignity.”

Example: Treatment of POWs in World Wars.

3.4 Civilians – GC IV & AP I

General Rule: Must not be targeted.

Protection: From murder, torture, hostage-taking, collective punishment.

In Occupied Territories: Enjoy additional rights (Art. 49, GC IV prohibits forcible transfers).

Loss of Protection: Civilians lose protection if and while they directly participate in hostilities (AP I, Art.
51(3)).

“Civilian immunity is the bedrock of IHL.”

Case: ICJ Nuclear Weapons Advisory Opinion (1996) – emphasized protection of civilians as fundamental.

4.1 Principle of Distinction

Obligation: Parties must always distinguish between civilians and combatants, and civilian objects and
military objectives.

Prohibited: Indiscriminate attacks.

Case: Prosecutor v. Stanislav Galić (ICTY) – conviction for targeting civilians in Sarajevo.

Limits on the Choice of Methods and Means of Warfare

International Humanitarian Law (IHL) imposes strict limitations on how war is fought, specifically
concerning the methods (how warfare is conducted) and means (weapons used). These limitations are
derived from the Geneva Conventions, Additional Protocols, customary international law, and various
treaty instruments.

1. Core Principles Governing Warfare

1.1 Principle of Distinction

Parties must always distinguish between:

 Combatants and civilians

 Military objectives and civilian objects

Indiscriminate attacks are prohibited.

Legal Basis: Additional Protocol I, Article 48

“The ability to distinguish is the backbone of lawful warfare.”

1.2 Principle of Proportionality

Incidental civilian harm must not be excessive in relation to the concrete and direct military advantage
anticipated.

Legal Basis: AP I, Article 51(5)(b)

1.3 Principle of Military Necessity

 Permits only that degree of force necessary to achieve a legitimate military objective.

 Prohibits unnecessary destruction or suffering.

1.4 Principle of Humanity

 Prohibits the use of methods and means of warfare that cause superfluous injury or unnecessary
suffering.

 Reflected in Hague Regulations and Customary IHL.

2. Prohibited Means of Warfare (Weapons)

2.1 Weapons Causing Superfluous Injury or Unnecessary Suffering

Banned under Hague Regulations (1899, 1907) and AP I, Article 35(2).

2.2 Specific Prohibited Weapons

Biological Weapons

Completely banned by the 1972 Biological Weapons Convention (BWC).

Chemical Weapons

Banned by the 1993 Chemical Weapons Convention (CWC).

Example: Use in Syria prompted UN investigations and global condemnation.

Blinding Laser Weapons

Prohibited under Protocol IV (1995) to the Convention on Certain Conventional Weapons (CCW).

Anti-Personnel Landmines

 Prohibited under the Ottawa Treaty (1997).

  Still used in some conflicts, despite condemnation.

Cluster Munitions

 Prohibited by the Convention on Cluster Munitions (2008).

 Notorious for leaving unexploded submunitions harmful to civilians.

Nuclear Weapons

Not expressly prohibited under IHL, but their legality was questioned in the ICJ Nuclear Weapons
Advisory Opinion (1996).

“The use of nuclear weapons presents inherent IHL challenges, particularly in meeting the tests of
distinction and proportionality.”

3. Prohibited Methods of Warfare

3.1 Perfidy

Prohibited by AP I, Article 37.

Includes acts like:

 Feigning surrender
 Misusing protective signs (e.g., Red Cross)
 Pretending civilian status

Perfidy = treachery disguised as protection.

3.2 Indiscriminate Attacks

 Attacks that are not directed at a specific military objective or use means that cannot be
controlled.

 Legal Basis: AP I, Article 51(4)

3.3 Starvation of Civilians

 Use of starvation as a method of warfare is absolutely prohibited.

 Legal Basis: AP I, Article 54

3.4 Attacks on Cultural Property and Environment

 Cultural objects are protected under the 1954 Hague Convention.

 AP I, Article 53 prohibits attacks on religious, historical, or cultural sites.

 AP I, Articles 35(3) & 55 prohibit methods causing widespread, long-term, and severe damage to
the environment.

3.5 Denial of Quarter

 It is prohibited to declare that no quarter (no survivors) will be given.

  Legal Basis: Hague Regulations, Article 23(d)

3.6 Use of Human Shields

 Using civilians to render military objectives immune from attack is prohibited.

 Legal Basis: AP I, Article 51(7)

4. Emerging Issues and Customary Law

4.1 Autonomous Weapons Systems (AWS)

 Not yet prohibited by treaty, but raise legal and ethical questions under the principles of
distinction and proportionality.

 Ongoing debates at the UN CCW Meetings.

4.2 Cyber Warfare

 Not directly covered by existing treaties but must comply with IHL principles.

 Example: Disabling a hospital’s life-support systems would violate IHL.

5. Case Law and Jurisprudence

ICJ Nuclear Weapons Advisory Opinion (1996)

 Affirmed that IHL applies to all means and methods of warfare, including nuclear weapons.

 Declared any method failing to distinguish or causing unnecessary suffering as unlawful.

Prosecutor v. Galić (ICTY)

 Accused convicted for indiscriminate shelling and sniping in Sarajevo—violating distinction and
proportionality.

“The constraints on the means and methods of warfare reflect a legal and moral imperative: that even
war must have limits. The law does not ban war, but insists it be waged with humanity.”