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Chapter 5 The Law of Treaties

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    Chapter Five The Law of Treaties

Topics:

    1. Introduction

    2. Making of Treaties

    3. Reservations to Treaties (条约的保留)

    4. Entry into Force, Deposit (交存), and Registration

    5. Invalidity of Treaties (条约的无效)

    6. Withdrawal, Termination, and Suspension of Treaties (条约的退出、终止、和中止施行)

    7. Invalidity, Termination, and Suspension: General Rules

    8. Application and Effects of Treaties

    9. Amendments and Modifications of Treaties (条约的修正和修改)

    10. Treaty Interpretation (条约的解释)

Reading Material:

    thBrownlie, Principles of Public International Law (6 ed, Oxford Uni. Press, 2003), pp. 579-607

    27 THE LAW OF TREATIES

    11. INTRODUCTION

    A great many international disputes are concerned with the validity and interpretation of international agreements, and the practical content of state relations is embodied in agreements. The great international organizations, including the United Nations, have their legal basis in multilateral agreements. Since it began its work the International Law Commission (国际法委员

    ) has concerned itself with the law of treaties, and in 1966 it adopted a set of seventy-five draft

    articles.

    These draft articles formed the basis for the Vienna Conference which in two sessions (1968 and 1969) completed work on the Vienna Convention on the Law of Treaties (维也纳条约法公约),

    consisting of eighty-five articles and an Annex (附件). The Convention entered into force on 27

    January 1980 and not less than ninety-one states have become parties.

    The Convention is not as a whole declaratory of general international law: it does not express itself so to be (see the preamble). Various provisions clearly involve progressive development of

     1 The principal items are: the Vienna Conv. on the Law of Treaties (see n. 3); the commentary of the International Law Commission on the Final Draft Articles, Yrbk. ILC (1966), ii. 172 at 187-274; Whiteman, xiv. 1-510;

    Rousseau, i. 61-305; Guggenheim, i. 113-273; McNair, Law of Treaties (1961); Harvard Research, 29 AJ (1935),

    Suppl.; O'Connell, i. 195-280; Sørensen, pp. 175-246; Jennings, 121 Hague Recueil ( 1967, II), 527- 81; Répertoire

    suisse, i. 5-209; Elias, The Modern Law of Treaties (1974); Reuter, Introduction au droit des traités (2nd edn.,

    1985); id., Introduction to the Law of Treaties (1989). See further: Rousseau, Principes généraux du droit

    international public, i (1944); Basdevant, 15 Hague Recueil (1926, V), 539-642; Detter, Essays on the Law of

    Treaties ( 1967); Gotlieb, Canadian Treaty-Making (1968); various authors, 27 Z.a.0. R. u.V. (1967), 408-561; ibid. 29 (1969), 1-70, 536-42, 654-710; Verzijl, International Law in Historical Perspective, vi (1973), 112-612;

    Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed. (1984); Thirlway, 62 BY (1991), 2-75; id., 63 BY

    (1992), 1-96; Oppenheim, i. 1197-1333; Rosenne, Developments in the Law of Treaties, 1945-1986 (1989); Aust,

    Modern Treaty Law and Practice (2000).

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    the law; and the preamble affirms that questions not regulated by its provisions will continue to be governed by the rules of customary international law. Nonetheless, a good number of articles are essentially declaratory of existing law and certainly those provisions which are not constitute presumptive evidence (推定证据) of emergent rules of general international law. The provisions of the Convention are normally regarded as a primary source: as, for example, in the oral

    *proceedings before the International Court in the Namibia (纳米比亚) case. In its Advisory

    Opinion in that case the Court observed: 'The rules laid down by the Vienna Convention ... concerning termination of a treaty relationship on account of breach (adopted without a dissenting vote) may in many respects be considered as a codification of existing customary law on the subject'.

    7The Convention was adopted by a very substantial majority at the Conference and constitutes a

    comprehensive code of the main areas of the law of treaties. However, it does not deal with (a)

    **treaties between states and organizations, or between two or more organizations; (b) questions of

    state succession; (c) the effect of war on treaties. The Convention is not retroactive in effect.

    A provisional draft of the International Law Commission defined a 'treaty' as: any international agreement in written form, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (名称) (treaty, convention, protocol, covenant,

    charter, statute, act, declaration, concordat (协定), exchange of notes(换文), agreed minute (商定

    记录), memorandum of agreement, modus vivendi (临时协定) or any other appellation [名称]),

    concluded between two or more States or other subjects of international law and governed by international law.

The reference to 'other subjects' of the law was designed to provide for treaties 'concluded by

    international organizations, the Holy See (梵蒂冈), and other international entities such as

    insurgents.

    In the Vienna Convention, as in the Final Draft of the Commission, the provisions are confined to treaties between states (Art. 1). Article 3 provides that the fact that the Convention is thus limited shall not affect the legal force of agreements between states and other subjects of international law or between such other subjects of international law. Article 2(1)(a) defines a treaty as 'an international agreement concluded between States in written form and governed by international

    law, whether embodied in a single instrument or in two or more related instruments and whatever

    its particular designation(名称)'. ***

    2. CONCLUSION OF TREATIES

    (a) Form

    The manner in which treaties are negotiated and brought into force is governed by the intention

     * I.C.J. Reports 1971 -- Editors note. 7 79 votes in favour; 1 against; 19 abstentions. ** Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations (1986). On August 1, 2008, the UN Treaty Database listed 40 parties to the Convention,

    but only 28 states. As a result the Convention is not yet in force.

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    and consent of the parties. There are no substantive requirements of form, and thus, for example, an agreement may be recorded in an exchange of letters or the minutes of a conference. In practice form is governed partly by usage, and thus form will vary according to whether the agreement is expressed to be between states, heads of states, governments (increasingly used), or particular ministers or departments. The Vienna Convention applies only to agreements 'in written form' but

    Article 3 stipulates that this limitation is without prejudice to the legal force of agreements 'not in written form'. Obviously substantial parts of the Convention are not relevant to oral agreements:

    the fact remains that important parts of the law, for example, relating to invalidity and termination, will apply to oral agreements.

(b) Full powers (全权证书) and signature (签字)

    The era of absolute monarchs and slow communications produced a practice in which a sovereign's agent would be given a Full Power to negotiate and to bind his principal. In modern practice, subject to a different intention of the parties, a Full Power involves an authority to negotiate and to sign and seal a treaty. In the case of agreements between governments Full Powers (全权证书), in the sense of the formal documents evidencing these and their reciprocal

    24examinations by the negotiators, are often dispensed with.

The successful outcome of negotiation is the adoption and authentication (认证) of the agreed text:

    Signature has, as one of its functions, that of authentication, but a text may be authenticated in

    other ways, for example by incorporating the text in the final act of a conference or by initialing (草签). Apart from authentication, the legal effects of signature are as follows. Where the signature is subject to ratification (批准), acceptance (接受), or approval (赞同) (see infra),

    signature does not establish consent to be bound. However, signature qualifies the signatory state

    to proceed to ratification, acceptance, or approval and creates an obligation of good faith to refrain

    25from acts calculated to frustrate the objects of the treaty. Where the treaty is not subject to

    ratification, acceptance, or approval, signature creates the same obligation of good faith and establishes consent to be bound. Signature does not create an obligation to ratify. In recent times signature has not featured in the adoption of all important multilateral treaties: thus the text may be adopted or approved by the General Assembly of the United Nations by a resolution and

    27submitted to member states for accession (加入).

(c) Ratification

Ratification involves two distinct procedural acts: the first is the act of the appropriate organ of the

    state, which is the Crown in the United Kingdom, and may be called ratification in the constitutional sense; the second is the international procedure which brings a treaty into force by a formal exchange or deposit (交存) of the instruments of ratification. Ratification in the latter sense is an important act involving consent to be bound. ***

     24 Other exceptions exist in modern practice. Thus heads of state, heads of government, and Foreign Ministers are not required to furnish evidence of their authority. 25 See Vienna Conv. Art. 18; *** 27 See the Conv. on the Privileges and Immunities of the United Nations, infra, pp. 652-3.

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(d) Accession, acceptance, and approval

'Accession, 'adherence', or 'adhesion' (参加) occurs when a state which did not sign a treaty,

    already signed by other states, formally accepts its provisions. Accession may occur before or after

    the treaty has entered into force. The conditions under which accession may occur and the procedure involved depend on the provisions of the treaty. Accession may appear in a primary role as the only means of becoming a party to an instrument, as in the case of a convention approved

    by the General Assembly of the United Nations and proposed for accession by member states. Recent practice has introduced the terms 'acceptance' and 'approval' to describe the substance of accession. Terminology is not fixed, however, and where a treaty is expressed to be open to signature 'subject to acceptance', this is equivalent to 'subject to ratification'.

(e) Expression of consent to be bound

    Signature, ratification, accession, acceptance, and approval are not the only means by which consent to be bound may be expressed. Any other means may be used if so agreed, for example an exchange of instruments constituting a treaty.

    3. RESERVATIONS

In the Vienna Convention, a reservation is defined as 'a unilateral statement, however phrased or

    named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State'. This definition begs the question of validity, which is determined on a contractual and not a unilateral basis. The formerly accepted rule for all kinds of treaty was that

    reservations were valid only if the treaty concerned permitted reservations and if all other parties accepted the reservation. On this basis a reservation constituted a counter-offer (反要约) which

    required a new acceptance (承诺), failing which the state making the counter-offer would not

    become a party to the treaty. This view rests on a contractual conception of the absolute integrity of the treaty as adopted.

In the period of the League of Nations (国际联盟) (1920-46) the practice in regard to multilateral

    conventions showed a lack of consistency. The League Secretariat, and the later the Secretary-General of the United Nations, in his capacity as depositary (保管机关) of conventions

    concluded under the auspices of the League, followed the principle of absolute integrity. In

    contrast the members of the Pan-American Union (泛美联盟), later the Organization of American

    States, adopted a flexible system which permitted a reserving state to become a party vis-a-vis

    non-objecting states. This system, dating from 1932, promotes universality at the expense of depth of obligation. Thus a state making sweeping reservations could become a party though bound only in regard to two or three non-objecting states and, even then, with large reservations.

    Following the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide (防止及惩治灭绝种族罪公约) by the General Assembly of the United Nations in 1948,

    a divergence of opinion arose on the admissibility of reservations to the Convention, which

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    contained no provision on the subject. The International Court was asked for an advisory opinion, and in giving its opinion stressed the divergence of practice and the special characteristics of the Convention, including the intention of the parties and the General Assembly that it should be universal in scope. The principal finding of the Court was that 'a State which has made … a

    reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention....' In 1951 the International Law Commission rejected the

    'compatibility' criterion as too subjective and preferred a rule of unanimous consent. However, in 1952 the General Assembly requested the Secretary-General of the United Nations to conform his practice to the opinion of the Court in respect of the Genocide Convention; and, in respect of future conventions concluded under the auspices of the United Nations of which he was depositary, to act as depositary without passing upon (发表意见) the legal effect of documents containing

    reservations and leaving it to each state to draw legal consequences when reservations were communicated to them. In its practice the Secretariat adopted the 'flexible' system for future conventions, and in 1959 the General Assembly reaffirmed its previous directive and extended it to cover all conventions concluded under the auspices of the United Nations, unless they contain contrary provisions. In 1962 the International Law Commission decided in favour of the 'compatibility' doctrine. The Commission pointed out that the increase in the number of potential participants in multilateral treaties made the unanimity principle less practicable.

    The Final Draft of the Commission was followed in most respects by the Vienna Convention. Article 19 of the Convention indicates the general liberty to formulate a reservation when signing, ratifying, accepting, approving or acceding to a treaty and then states three exceptions. The first two exceptions are reservations expressly prohibited and reservations not falling within provisions

    in a treaty permitting specified reservations and no others. The third class of impermissible

    reservations is cases falling outside the first mentioned classes in which the reservation is

    'incompatible with the object and purpose of the treaty'.

    Article 20 provides as follows for acceptance of and objection to reservations other than those expressly authorized by a treaty:

    2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

    3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.

    4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:

     (a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States;

     (b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State;

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     (c) an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation. 5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

    The 'compatibility' test is the least objectionable solution but is by no means an ideal regime, and many problems remain. The application of the criterion of compatibility with object and purpose is a matter of appreciation (正确评价), but this is left to individual states. How is the test to apply to provisions for dispute settlement, or to specific issues in the Territorial Sea Convention of 1958, such as the right of innocent passage (无害通过)? In practical terms the 'compatibility' test

    approximates to the Latin-American system and thus may not sufficiently maintain the balance

    between the integrity and the effectiveness of multilateral conventions in terms of a firm level of

    obligation.

    The reason for the approximation to the Latin-American system is that each state decides for itself whether reservations are incompatible and some states might adopt a liberal policy of accepting far-reaching reservations. The particular difficulty which international tribunals face in practice is the determination of the precise legal consequences of a decision that a particular reservation is

    4546incompatible. In the Belilos and Loizidou cases the European Court of Human Rights treated

    the objectionable reservation as severable (可分开的). The issue of severability in relation to

    human rights treaties is the subject of controversy.

    In respect of the International Covenant on Civil and Political Rights, 1966, the United Nations Human Rights Committee (人权事务委员会) has addressed the issue of reservations in this

    47way:

6. The absence of a prohibition on reservations does not mean that any reservation is permitted.

    The matter of reservations under the Covenant and the First Optional Protocol (第一任择议定书)

    is governed by international law. Article 19(3) of the Vienna Convention on the Law of Treaties provides relevant guidance. It stipulates that where a reservation is not prohibited by the treaty or falls within the specified permitted categories, a State may make a reservation provided it is not incompatible with the object and purpose of the treaty. Even though, unlike some other human rights treaties, the Covenant does not incorporate a specific reference to the object and purpose test, that test governs the matter of interpretation and acceptability of reservations.

    7. In an instrument which articulates very many civil and political rights, each of the many articles, and indeed their interplay, secures the objectives of the Covenant. The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those

     45 European Court of Human Rights, Series A, No. 132. See further *** Chinkin and Others, Human Rights as General Norms and a State's Right to Opt Out (1997). 46 Ibid., Series A, No. 310 (Loizidou v. Turkey (Preliminary Objections) ). 47 General Comment No. 24, 11 Nov. 1994; * * *

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States which ratify; and to provide an efficacious (有效的) supervisory machinery for the

    obligations undertaken.

8. Reservations that offend peremptory norms (强制性规范) would not be compatible with the

    object and purpose of the Covenant. Although treaties that are mere exchanges of obligations

    between States allow them to reserve inter se (相互间) application of rules of general international

    law, it is otherwise (不一样的) in human rights treaties, which are for the benefit of persons

    within their jurisdiction. Accordingly, provisions in the Covenant that represent customary international law (and a fortiori [更不用说] when they have the character of peremptory norms)

    may not be the subject of reservations. Accordingly, a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language. And while reservations to particular clauses of Article 14 may be acceptable, a general reservation to the right to a fair trial would not be.

    4. ENTRY INTO FORCE, DEPOSIT, AND REGISTRATION

    The provisions of the treaty determine the manner in which and the date on which the treaty enters force. Where the treaty does not specify a date, there is a presumption that the treaty is intended to

    49come into force as soon as all the negotiating states have consented to be bound by the treaty.

    After a treaty is concluded, the written instruments, which provide formal evidence of consent to be bound by ratification, accession, and so on, and also reservations and other declarations, are placed in the custody of a depositary, who may be one or more states, or an international

    organization. The depositary has functions of considerable importance relating to matters of form,

    50including provision of information as to the time at which the treaty enters into force. The

    United Nations Secretariat plays a significant role as depositary of multilateral treaties.

Article 102 of the Charter of the United Nations provides as follows:

    1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the

    Secretariat (联合国秘书处) and published by it.

    2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement

    before any organ of the United Nations.

    This provision is intended to discourage secret diplomacy and to promote the availability of texts of agreements. The United Nations Treaty Series (联合国条约集) includes agreements by

     49 Vienna Conv., Art. 24(2). 50 Vienna Conv., Arts. 76, 77 ***.

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    non-members which are 'filed and recorded' with the Secretariat as well as those 'registered' by members. The Secretariat accepts agreements for registration without conferring any status on them, or the parties thereto, which they would not have otherwise. *** It is not yet clear in every respect how wide the phrase 'every international engagement' is, but it seems to have a very wide scope. Technical intergovernmental agreements, declarations accepting the optional clause in the Statute of the International Court, agreements between organizations and states, agreements between organizations, and unilateral engagements of an international character are included.

    Paragraph 2 is a sanction for the obligation in paragraph 1, and registration is not a condition precedent for the validity of instruments to which the article applies, although these may not be relied upon in proceedings before United Nations organs. In relation to the similar provision in the Covenant of the League the view has been expressed that an agreement may be invoked, though

    not registered, if other appropriate means of publicity have been employed.

    5. INVALIDITY OF TREATIES

(a) Provisions of internal law

    The extent to which constitutional limitations on the treaty-making power can be invoked on the international plane is a matter of controversy, and no single view can claim to be definitive. Three main views have received support from writers. According to the first, constitutional limitations determine validity on the international plane. Criticism of this view emphasizes the insecurity in treaty-making that it would entail. The second view varies from the first in that only 'notorious' (众所周知的) constitutional limitations are effective on the international plane. The third view is that a state is bound irrespective of internal limitations by consent given by an agent properly authorized according to international law. Some advocates of this view qualify the rule in cases

    where the other state is aware of the failure to comply with internal law or where the irregularity is manifest. This position *** was approved by the International Law Commission, in its draft Article 43, in 1966. The Commission stated that 'the decisions of international tribunals and State practice, if they are not conclusive, appear to support this type of solution.

    At the Vienna Conference the draft provision was strengthened and the result appears in the Convention, Article 46:

    1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

    2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

(b) Representative's lack of authority [Article 47]

    The Vienna Convention provides that if the authority of a representative to express the consent of his state to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe the restriction may not be invoked as a ground of invalidity unless the restriction was previously notified to the other negotiating states.

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(c) Corruption of a state representative

    The International Law Commission decided that corruption of representatives was not adequately dealt with as a case of fraud and an appropriate provision appears in the Vienna Convention, Article 50.

(d) Error

    The Vienna Convention, Article 48, contains two principal provisions which probably reproduce

    the existing law and are as follows:

    1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. 2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error.

(e) Fraud (诈欺) [Article 49]

    There are few helpful precedents on the effect of fraud. The Vienna Convention provides that a state which has been induced to enter into a treaty by the fraud of another negotiating state may invoke the fraud as invalidating its consent to be bound by the treaty. Fraudulent misrepresentation of a material fact inducing an essential error is dealt with by the provision relating to error.

(f) Coercion of state representatives

    The Vienna Convention, Article 51, provides that 'the expression of a State's consent to be bound

    by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without legal effect'. The concept of coercion extends to blackmailing (敲诈) threats and threats against the representative's family.

(g) Coercion of a state

    The International Law Commission in its draft of 1963 considered that Article 2, paragraph 4, of the Charter of the United Nations, together with other developments, justified the conclusion that a treaty procured by the threat or use of force in violation of the Charter of the United Nations shall be void. Article 52 of the Vienna Convention so provides. An amendment with the object of

    defining force to include any 'economic or political pressure' was withdrawn. A Declaration condemning such pressure appears in the Final Act of the Conference.

(h) Conflict with a peremptory norm of general international law (jus cogens) [Article 53]

    * * *

    (i) Unequal treaties (不平等条约)

    The doctrine of international law in Communist states, invoked by their representatives in organs of the United Nations, held that treaties not concluded on the basis of the sovereign equality of the parties to be invalid. An example of such a treaty is an arrangement between a powerful state and a state still virtually under its protectorate, whereby the latter grants extensive economic privileges and/or military facilities. The general view is that the principle does not form a part of positive law

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but it is attractive to some jurists of the „Third World‟. Apart from the presence or absence of

    general agreement on the content of the principle, a proportion of its dominion may be exercised through the rules concerning capacity of parties, duress (胁迫) (supra), fundamental change of

    circumstances (情势变迁) ***, and the effect of peremptory norms of general international law, including the principle of self-determination ***.

6. WITHDRAWAL, TERMINATION (终止) AND SUSPENSION (停止施行) OF TREATIES

(a) Pacta sunt servanda (条约必须遵守)

    The Vienna Convention prescribes a certain presumption as to the validity and continuance in force of a treaty, and such a presumption may be based upon pacta sunt servanda as a general

    principle of international law: a treaty in force is binding upon the parties and must be performed

    76by them in good faith.

    * * *

    (c) War and armed conflict

    Hostile relations do not automatically terminate treaties between the parties to a conflict. Many treaties, including the Charter of the United Nations, are intended to be no less binding in case of war, and multipartite (多边) law-making agreements such as the Geneva Conventions of 1949

    (1949年日内瓦四公约) survive war or armed conflict. However, in state practice many types of treaty are regarded as at least suspended in time of war, and war conditions may lead to termination of treaties on grounds of impossibility or fundamental change of circumstances. In many respects the law on the subject is uncertain. Thus, it is not yet clear to what extent the

    illegality of the use or threat of force has had effects on the right (where it may be said to exist) to regard a treaty as suspended or terminated.

(d) Operation of the provisions of a treaty [Article 57]

    A treaty may of course specify the conditions of its termination, and a bilateral treaty may provide for denunciation (废止) by the parties. Where a treaty contains no provisions regarding its

    termination the existence of a right of denunciation depends on the intention of the parties, which can be inferred from the terms of the treaty and its subject-matter, but, according to the Vienna

    82Convention, the presumption is that the treaty is not subject to denunciation or withdrawal. At

    least in certain circumstances denunciation is conditional upon a reasonable period of notice.

    Some important law-making treaties, including the Conventions on the Law of the Sea of 1958 (1958年海洋法公约), contain no denunciation clause. Treaties of peace are presumably not open

    to unilateral denunciation.

(e) Termination by agreement [Article 58]

    Termination or withdrawal may take place by consent of all the parties. Such consent may be implied. In particular, a treaty may be considered as terminated if all the parties conclude a later treaty which is intended to supplant the earlier treaty or if the later treaty is incompatible with its

    84provisions. The topic of 'desuetude' (废弃), which is probably not a term of art (专业术语), is

    essentially concerned with discontinuance of use of a treaty and its implied termination by consent.

     76 See the Vienna Conv., Art. 26; *** 82 Vienna Conv., Art. 56; *** 84 Vienna Conv., Art. 59; ***

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