Analysing Public international law and Treaties
A treaty can be defined as a form of binding agreement, league or contract between subjects, nations or states under the international law (Lauterpacht & Greenwood 2008). Treaties are own by other names such as international agreements, covenants, protocols or even exchange of letters/notes. The different names given to the treaties do not mean that they are in any way different. Treaties are similar to contract in that the parties who sign up for either of the two are willing to share some form of requirements between them. In the two cases failure to meet the agreed upon obligations can lead to legal prosecution due to a breach. The main principle that governs the existence of a treaty is the maxim pacta sunt servanda that demands respect to all the pacts agreed upon in the treaty and be performed in good faith (United Nations 2007). This is documented in article 26 of the 1969 Vienna convection.
The Vienna convection on the law governing treaties of 1969 is the most superior treaty that presents the international law that should govern treaties. This convention formed the guidelines upon which subsequent treaties should be adopted, interpreted and nullified. The information contained in the convention can be said to be a collection of all the already existing and binding regular laws that govern treaties. According to Lauterpacht & Greenwood (2004) the other additional feature of this convention from the existing international law is that it filled the gaps and provided explanations to the terms which were already in use in the international law governing treaties. This enables the Vienna convection to be even able to bind non parties in a treaty. The Vienna convection of the law on treaties exists in the categories of the law of treaties between international organizations, between states or even the law of treaties between states and international organizations. The above named treaties have already been ratified by most states all over the world.
For the 1969 Vienna convection on law of treaties to apply to a particular treaty there are a number of criteria which the treaty should meet. The Vienna convection on law of treaties is applicable to the multilateral treaty on extradition made between the four states. The Vienna convection is supposed to provide the overall guidelines to the treaty agreed upon between the four states. The treaty established the rights and obligations that each of the states was supposed to uphold between itself and every other state in the treaty. The extradition treaty consented by states A, B, C and D is bound to observe the regulations stipulated by the 1969 Vienna convection on laws governing treaties. This Vienna convection lies truly at the heart of the international law as regarding regulation of treaties between states (Sinclair 2005).
According to the international law a reservation is a limitation put across by a state in its acceptance of a treaty with other states. According to the 1969 Vienna convection on law of treaties the word “reservation" can be taken to mean a unilateral statement made by a state in whatever way during the signing, ratification, acceptance, or the accession to a given treaty between the different states. The reservation should be aimed at declaring a states interest in trying to amend the legal effect of specific provisions of the treaty as they apply to that particular state. “reservation" is also defined by the Harvard Research in international law as a formal declaration in which a state carrying out the signing, ratification or accession to a treaty makes clear its specific condition regarding the willingness of the party to be part to the treaty if certain terms which will limit the effectiveness of the treaty may come into application in the relations between that state and other states which decide to be part of the treaty.
In this case state B made a reservation to the extradition treaty consented between itself and the other three states A, C, D to the effect that providing that extradition does not have to be granted by state B if the death penalty may be imposed on the suspect or if the suspect might not be given a fair trail in arrival, or will be subject to cruel, inhumane or degrading treatment if extradited. This was made during the ratification stage of the treaty. Although the 1969 Vienna convection on law of treaties does not create the concept of reservations, it came about in the process of codifying the usual laws governing treaties. Articles 19 to 23 of the Vienna convection give the details as regarding the formulation of reservations by parties taking part in a treaty.
Under article 19 of the Vienna convection of 1969 state B has the right to formulate a reservation during the ratification stage of the treaty since it is not in anyway prohibited by the treaty. The acceptance of the reservation by other contracting states is not necessary in the cases where the treaty does not demand so (Villiger 2007). This according to section 20 of the convention.
Relations between state B and A
State A did not give nay objections to the reservation put forwards by state Bon the extradition treaty. This means that the state did agree to the specific condition that it could not extradite persons from state B if a death penalty may be imposed on the suspect or if the suspect might not be given a fair trail in arrival in state A, or will be subject to cruel, inhumane or degrading treatment if extradited. Even though state B puts a limit on the enjoyment of the right of the other states under the treaty and also limits their ability to perform their obligations in terms extradition, state A still remains quiet on the issue. Owing to the fact that state A did not raise any obligation for the stipulated period of 12 months after notification or consent, whichever is later means that state A supports the enforcement of the reservation. With reference to article 20(a) this means that state B is a party to treaty in relation to state A on the provisions of the reservation to the treaty. State A can not be allowed to extradite persons from state B if the persons will receive death penalties, inhumane treatment on the hands of the authority on state A.
Relations between state B and C
State C did not agree with the reservation proposed by State B during the ratification of the treaty. It objected to this reservation 3 months after its notification, claiming that it is incompatible with the object and purpose of the 1994 treaty. It went on ahead to oppose the entry into force of the treaty between itself and State B unless the reservation is withdrawn. The reservations brought about by state B on the treaty can be effectively argued to be incompatible with the original objectives and purpose of the 1994 extradition treaty. The questionable circumstances which state B will employ in determining whether a person extradited from its borders will fact the correct treatment and judgment in the other three states puts the entire logic of the treaty in tatters. This definately makes it difficult for the other states to participate in the activities of the treaty.
State C raised its objections within the stipulated time frame. State C has gone ahead and opposed entering into the treaty with state B unless the reservation is withdrawn. This means according to article 21(3) of the Vienna convention that the provisions of the reservations cannot apply to state C.
Relations between state B and D
The relationship between states B and D is much more complicated than any other relation between other states in the treaty. Due to the decision by State B not to withdraw its reservation and its further rejection top grant a request of extradition from State D claiming that the military junta in power in state D would not allow a fair trail and that the suspect would probably be submitted to torture. State D accuses State B of a material breach of the 1994 extradition treaty and decides to terminate its provision on withdrawal. In addition to the above mentioned situation state D also claims that the conclusion of the 1994 treaty was coerced by the threat of the economic and military sanctions by the United Nations Security Council, therefore its consent to be bound by the treaty is invalid.
According to the articles in the Vienna convention the criticism by state D on the reservations brought forward by state B cannot have any impact on the reservations. It is stated that the other consenting parties in the treaty need to raise their objections in a duration of less than 12 months after it was notified or after it consented to be bound by the treaty, whichever is later (United Nations 2007). Thus the actions of state D can be legally interpreted as those that accept the treaty and accept to oblige to it.
Relations between state C and D
The relations between states C and D is defined by the objection by state C to the reservations put forwards by state B and the fact that state D did not object to the reservations on the 1994 extradition treaty by state B. State D puts more pressure on the sustainability of the 1994 treaty after announcing its willingness to withdraw and terminate its obligations in the treaty citing coercion during its consent to the treaty. State D is bound by the reservation and cannot extradite persons from state B during the times of its political crisis. State D can extradite persons from state C since their relationships are not bound by the reservations put forwards by state B.
Ending the treaty obligations for state D
A state can end its obligations to a treaty through its withdrawal or the termination or suspension of the party (Shaw 2005). Treaties may not be after all permanently binding upon the parties that consented to them. Many treaties between states allow for withdrawal of one of the parties as long as it follows certain laid down procedures of notifying the other states before executing their plans, this can be referred to the fact that the international law is obliged to give priority what the states consent top. The 1994 extradition treaty agreed upon by the four states does not indicate to have in any way forbid withdrawal of any state. The treaty is silent on the issue but this can in no way grant state D the permission to withdraw on its own unilateral denunciation of the treaty but rather the other states in the treaty should determine as to whether granting state D permission to withdraw will go against the original intent of the treaty or the nature of the agreed upon treaty. According to the Vienna convection the successful withdrawal of a state goes along with the termination of the obligations that were held by the state. In the multilateral scene the withdrawal of state D means that the 1994 treaty will still hold between the other three sates.
Suspension or termination of the treaty with a consenting state can take place when there is a material violation or breach of the treaty obligations for that particular state (Villiger 2005). This can lead to the remaining states in the treaty using the breach as a ground for temporarily suspending their association to meeting the demands of the specific treaty. On the same grounds these other parties can use the material breach of the member party as basis for permanent termination to the states obligations to the treaty. In most cases a breach to the laid down regulations of a treaty does not in any way guarantee automatic suspension or termination of a state’s treaty relations. There is the involvement of arbitrators or international arbitrators who seek to seek to confirm that there was infact big enough breach has taken place.
One of the ways in which state D could legally end the 1994 treaty obligations could be through the use of any self-termination clauses present in the treaty. If the extradition treaty between the four states contained any clause that would allow for self-termination then may be the circumstances given by state D could amount to the required conditions for self termination. This is a probable situation if the treaty was temporary binding and may be set to expire on a given date. Another reason that can lead to self termination is the occurrence of an event defined in the initial treaty as one which would lead to self termination if they occur.
State D can push for the termination of its obligations in the treaty citing the unforeseen events caused by the reservation tabled by state B. state D can make a successful claim using this as the basis of the argument since it was another party State B that brought about the changes by breaching the contract. With reference to Shaw (2005, p.34) this can take place even in the absence of a provision in the original treaty allowing for termination of the treaty obligations of a state. The reservation by state B in our case brought some fundamental changes in the original 1994 extradition treaty. It attempted to provide checks on extradition from its territories based on the views of the other state as reflected by state B. this was unforeseen and posed lots of challenges in executing the initial treaty and even at some time pushed for the termination of the treaty by state C.
Article 54 of the 1969 Vienna Convention on the Law of Treaties that define the conditions of withdrawal of a state from a treaty. Vierdag (2004, p. 780) states that according to this article the withdrawal of one party from a treaty may only take place while conforming to the defined provisions in the treaty or in the case where there is consent from all the other parties participating in the treaty, this can be arrived at after the other contracting states A, B, C agree on letting state D withdraw form the 1994 extradition treaty. When the above is not possible other options need to be looked into as means of providing escape routes for state D.
A treaty may be declared invalid and thus allow state D the ability to withdraw from the treaty as defined by articles 46 to 53. State D made allegations to the effect that it was coerced by the United Nations Security Council to consent to the extradition treaty. With reference to article the state can invalidate its consent to the treaty by proving the use of threats of economic and military sanctions that had no legal backing by the economic and military sanctions by the United Nations Security Council. This can act as a ground to push for the invalidation of the treaty that state D consented to. The allegations put forward by state C regarding its unwillingness to agree to the reservations of state B can provide another leeway for the withdrawal of the stated D.