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Public International Law I

Case Study

Submitted to

Barrister Arooj Bukhari

Submitted by

MUHAMMAD UMAR 01-177182-027

PARSA KHAN 01-177182-046

SHAKEEL AHMED 01-177182-047

MUDASIR KHAN 01-177181-021

MOHAMMAD SAIFULLAH 01-177182-020

TABLE OF CONTENTS
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1 FACTS:....................................................................................................................................3

2 ISSUES OF THE CASE:.........................................................................................................3

3 CONCLUSIVE OPINION:......................................................................................................3

3.1 RELEVANT PROVISIONS OF VCLT IN SUPPORT OF STATE U............................3

4 ARGUMENTS:........................................................................................................................4

4.1 Article 7: FULL POWERS:..............................................................................................4

4.1.1 GENERAL PRACTICE:...........................................................................................4

4.2 States are to be bound by treaties:.....................................................................................5

4.3 Article 27: INTERNATIONAL LAW AND OBSERVANCE OF TREATIES:.............5

4.4 ARTICLE 18 OF VIENNA CONVENTION LAW OF TREATIES:..............................6

5 PACTA SUNT SERVENDA:..................................................................................................6

5.1 GENERAL PRINCIPLE OF LAW:.................................................................................6

5.2 ARTICLE 26 OF THE VIENNA CONVENTION:.........................................................7

5.2.1 Scope of Pacta Sunt Servanda:..................................................................................7

5.2.2 Exercising Pacta Sunt Servanda:...............................................................................7

6 ARTICLE 65: PROCEDURE TO BE FOLLOWED WITH RESPECT TO INVALIDITY,

TERMINATION, WITHDRAWAL FROM OR SUSPENSION OF THE OPERATION OF A
TREATY:........................................................................................................................................7

7 CONCLUSION:.......................................................................................................................8

8 REFERENCES:........................................................................................................................8

1 FACTS:
The Austrian Ambassador B to State U signed a cultural agreement with State U according to
which the signatories are obliged to lend cultural items to each other free of charge. Ambassador
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B did not consult the Austrian Foreign Ministry prior to signing because this was not the first
agreement of this nature he had concluded with State U. Later, the government of U requested
the loan of a famous Durer sketch from the Albertina Museum free of charge. The Austrian
government rejected the request; it asserted that Austria was not bound by the cultural agreement
because Ambassador B was not authorised to enter into the agreement either by the Austrian
constitution or by international law. Austria argued that State U, therefore, could not require
fulfilment of the agreement. State U countered by pointing to the principle of pacta sunt
servanda.

2 ISSUES OF THE CASE:

Can an Ambassador Sign a treaty on behalf of his state?

Is State Austria bound by agreement signed by Austrian ambassador?

Is State U’s legal opinion correct?

3 CONCLUSIVE OPINION:
As both countries rectified Vienna convention law of treaties, the parties must have to perform
the treaties in a good faith so here in this proposal state of U is performing the the part of treaty
in a good faith but state of Austria do not ready to perform in a good faith. State of U has a good
prima facie case and following are the arguments in favour of state of U.

3.1 RELEVANT PROVISIONS OF VCLT IN SUPPORT OF STATE U.

 Article 7
 Article 12
 Article 26
 Article 27
 Article 18
 Article 65
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4 ARGUMENTS:

4.1 Article 7: FULL POWERS:

Article 7 of Vienna Convention on the law of treaties 1969 lays down that who has the full
power to sign the treaty. According to Article 7(1) A person is considered as representing a State
for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing
the consent of the State to be bound by a treaty if

 He produce appropriate full power or appears from the practice of the States concerned or
from other circumstances that their intention was to consider that person as representing
the State for such purposes and to dispense with full powers.
 According to Article 7(2) of Vienna Convention on the law of treaties 1969 which says
that by virtue of their functions and without having to produce full powers, the following
are considered as representing their State.
 Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose
of performing all acts relating to the conclusion of a treaty;
 Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the
accrediting State and the State to which they are accredited.

So form above article we can consider that the Ambassador of Austria has the full power to
singed the treaty and the argument of State Austria that Ambassador B was not authorized to
enter into the agreement is invalid as according to international law he was fully authorized to
enter into agreement as mentioned in Article 7(2) (a) Vienna Convention on the law of treaties
1969.

4.1.1 GENERAL PRACTICE:

The agreement can be signed by the person who has full to signed it the full power shall indicate
precisely the name and position of the person designated as well as the full title of the treaty to
be signed. Full powers must be signed by the Head of State, Head of Government or Minister for
Foreign Affairs. Sometimes the permanent representative of the state has general full powers
which allow him to sign agreement.
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From the above case the ambassador was the permanent representative of the state and there was
also a precedent that he had signed many likewise agreement with state U and his own state did
not object his previous agreements which show he had the full power to signed any agreement or
treaty.

4.2 States are to be bound by treaties:

 According to Article 12 of the Vienna Convention on the law of treaties 1969. State
Austria is bound by agreement signed by Austrian ambassador as he was representing the
State Austria.
 Article 12 of the Vienna Convention on the law of treaties 1969 lays down that the
consent of a state to be bound by a treaty is expressed by the signature of its
representative.

4.3 Article 27: INTERNATIONAL LAW AND OBSERVANCE OF TREATIES:

 According to Article 27 of the Vienna Convention, one can not use the defence that their
domestic laws prevent them to act out a treaty which they consented to, but in certain
cases where the treaty violates a ‘fundamental internal law’ of the country who has
consented, then the treaty will be deemed invalid. (Section 46 of the Vienna Convention).
In the case of ‘treatment of Polish Nationals and Other Persons of Polish Origins and
Speech’, it was held that one cannot expect a consenting country to violate their own
constitution in order to abide by rules of a treaty.
 Thus, if the treaty does not violate a fundamental law, the countries must abide by the
rules of the treaty even if they are non-enforceable by their municipal laws. In some
cases, the countries are required to incorporate laws from the treaty in their own
municipal laws. The ‘Convention on the Settlement of Investment Disputes Between
States and Nationals of Other States’ provides that countries shall be required to take
legislative steps in order to ensure that the guidelines of the treaty are followed.

4.4 ARTICLE 18 OF VIENNA CONVENTION LAW OF TREATIES:

Article 18 of the Vienna Convention provides that States must refrain from acts that would
defeat the purpose of the treaty. This duty becomes enforceable only when the country has
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signed or exchanged instruments which constitute ratification of the treaty. This duty applies
even if the entry of the treaty becomes enforceable later on. The words ‘defeat the object and
purpose of the treaty’ were inserted and replaced by the words ‘tending to frustrate the object of
a proposed treat’ as such words seemed vague.

5 PACTA SUNT SERVENDA:

5.1 GENERAL PRINCIPLE OF LAW:
The law embodies an important principle in the General Principles of Law. The General
Principles of Law are sources of international law. The principles of Pacta Sunt Servanda are
also embodied in the Permanent Court of Justice and The International Court of Justice. With
regards to the UN, it is believed that all member nations are ‘civilized’ and are expected to
follow the principles of Pacta Sunt Servanda when dealing with obligations, agreement and
promises. This is keeping in mind that the parties involved in these treaties and international
agreements have given their consent, as international law is a consent-based system.

The Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the United Nations (1970)

 It states that every UN state in good faith must follow the following obligations:
 Obligations under the UN Charter,
 General recognized principles and laws under international law,
 Obligations under valid treaties.

It also states that even under conflicts between these two states, the obligations under the charter
must prevail. Even in the process of exercising their own sovereign rights, the countries must
keep in mind their obligations to the treaties as well.

It must be noted that ‘obligations’ does not mean only duty. Here obligation means the states
must perform their duties and also keep in mind their rights. These rights should also be
expressed in good faith.
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5.2 ARTICLE 26 OF THE VIENNA CONVENTION:

It is under this very heading that the principle of ‘Pacta Sunt Servanda’ is established. This
article is under Part III, section 1 of the Vienna conventions which lays out all the principles the
party must observe when entering a treaty.

The Article states “Every treaty in force is binding upon the parties to it and must be performed
by them in good faith.” There is also a prerequisite to this where the states must have given their
consent to enter such a treaty. Such a law was adopted in the convention to find a space for
interstate relations where obligations are respected and carried out in good faith. The principles
of good faith and free consent of this principle is largely seen in other aspects of international
law.

5.2.1 Scope of Pacta Sunt Servanda:

According to Article 18 of the VCLT, states are asked to refrain from doing any acts which
would hamper the outcome of the treaty. This is under the prerequisites that it has signed the
treaty that has been subsequently ratified. This is until it has made its intentions clear that it does
not want to be a party to the treaty. This is also subject to the fact that its entry into the treaty has
not been unduly delayed. Under this principle, certain laws are also declared to be recognised
and are thus valid. It ratifies the principle of ‘lex specialis’ and ascertains that laws must be
obeyed.

5.2.2 Exercising Pacta Sunt Servanda:

Judge Lauterpacht in the case of Norwegian loans case in 1957 observed that “Unquestionably,
the obligation to act in accordance with good faith being a general principle of law” is also a part
of international law.

6 ARTICLE 65: PROCEDURE TO BE FOLLOWED WITH RESPECT TO

INVALIDITY, TERMINATION, WITHDRAWAL FROM OR
SUSPENSION OF THE OPERATION OF A TREATY:
As per Article 65, if any party wants to invalidity, terminate, withdrawal from or suspension of
the operation of a treaty must notify the other party to the treaty, if objection has been raised by
any other party, the parties shall seek a solution through the means indicated in Article 33 of the
Charter of the United Nations.
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In this case, state Austria do not notify the state U regarding the termination of the treaty hence
State Austria is bound to comply with the treaty.

7 CONCLUSION:
In a nutshell, State U's opinion is correct because the agreement signed the Austrian Ambassador
is valid and upto the mark as he has full power under Article 7 of VCLT to sign a treaty. State
Austria's opinion is invalid because Ambassador was authorized person as it is obvious from the
facts given above as well as following the general practice because ambassador was the
permanent representative of the state and there was also a precedent that he had signed many
likewise agreement with state U and his own state did not object his previous agreements which
show he had the full power to signed any agreement or treaty.

8 REFERENCES:
Lukashuk, I. I. “The Principle Pacta Sunt Servanda and the Nature of Obligation under
International Law.” The American Journal of International Law, vol. 83, no. 3, 1989, pp. 513–
518.