Devyani Khobragade Case - Consular Immunity or Vulnerability?

Two acts which deserve to be condemned strongly occurred in the Indian deputy consul general Devyani Khobragade episode – firstly, prima facie, it appears that the officer violated the law of the receiving State, namely, the US and secondly, the public humiliation meted out to the official by the act of handcuffing by the law enforcement authorities. While indicting an Indian diplomat for breach of US laws may not adversely affect bilateral ties, the act of handcuffing a lady diplomat in public is likely to have repercussions. Now to the facts of the case and the legal analysis:

Devyani Khobragade, deputy consul general for political, economic, commercial and women’s affairs, Consulate General of India, New York, was arrested on the morning  of 13^th December 2013 for allegedly presenting fraudulent documents to the United States State Department in support of a visa application for an Indian national employed as a babysitter and housekeeper at Khobragade’s home in Manhattan.

The arrest of Ms Khobragade, 39, was announced by Preet Bharara, US attorney for the Southern District of New York.

According to the allegations in the criminal complaint unsealed in the Manhattan federal court, Khobragade prepared and electronically submitted an application for an A-3 visa through the website for the US department of state's consular electronic application center for an Indian national ("Witness-1"), who was to be the personal employee of Khobragade beginning in November 2012. The visa application stated that witness-1 was to be paid $4,500 per month in US dollars. Khobragade and witness-1 also signed an employment contract for witness-1 to bring to Witness-1's interview at the US embassy in India in connection with the visa application, which witness-1 did at Khobragade's direction. The first employment contract stated, among other things, that Khobragade would pay witness-1 the prevailing or minimum wage, whichever is greater, resulting in an hourly salary of $9.75.

The complaint said Khobragade knew that the first employment contract that she caused witness-1 to submit to the US state department in connection with witness-1's visa application contained materially false and fraudulent statements about, among other things, witness-1's hourly wage and hours worked. Prior to the signing of the first employment contract, Khobragade and witness-1 had allegedly agreed that she would pay Rs 30,000 per month, which at the time was equivalent to $573.07.

The complaint said at 40 hours per week, with approximately 4.3 weeks in a month, $573.07 equates to a rate of $3.31 per hour. However, Khobragade instructed witness-1 to say that she would be paid $9.75 per hour, and not to say anything about being paid 30,000 rupees per month. Khobragade also instructed witness-1 to say that witness-1 would work 40 hours per week, and that witness-1's duty hours would be 7am to 12.30pm, and 6.30pm to 8.30pm. She told witness-1 that the first employment contract was a formality to get the visa.

After the first employment contract was submitted to the United States department of state, Khobragade told witness-1, that witness-1 needed to sign another employment contract (second employment contract). Khobragade and witness-1 signed the second employment contract, which provided that witness-1's maximum salary per month including overtime allowance will not exceed 30,000 rupees per month. The second employment contract does not contain any provision about the normal number of working hours per week or month. The complaint said witness-1 worked for Khobragade as a household employee in from approximately November 2012 through approximately June 2013.

Khobragade, 39, was charged with one count of visa fraud and one count of making false statements, which carry maximum sentences of ten years and five years in prison, respectively. 

Prosecution sources said Khobragade was not arrested from her home or from her office, “but from somewhere else in Manhattan.” According to some sources, she was arrested while dropping her children to school.

Khobragade, who was produced on Thursday afternoon before US Magistrate Judge Debra Freeman, was released on $250,000 personal recognizance bond co-signed by three people, prosecution sources said.

Rediff.com quoting a highly placed prosecution source stated “She has to surrender all travel documents and no new applications and her travel is restricted to the US with notice to pre-trial before interstate travel.”

“She is also not allowed to sponsor any visas, or have any direct or indirect contact with Witness-1 (the domestic worker) or the worker’s immediate family. She can, however, continue to work in whatever position she is working -- with the restrictions.”

While Bharara's office portrayed the Indian diplomat as having fraudulently brought a domestic help from India by promising mandatory US wages ($ 9.75 per hour) and underpaying her ($ 3.11 per hour), Indian officials presented a totally different and more complicated picture of the case. They said the housekeeper, Sangeeta Richard, has been absconding since June this year, and ''in this context the Delhi high court had issued an-interim injunction in September to restrain Ms Richards from instituting any actions or proceedings against Dr Khobragade outside India on the terms or conditions of her employment.''

The US Government had subsequently been requested to locate Ms Richard and facilitate the service of an arrest warrant, issued by the Metropolitan Magistrate of the South District Court in New Delhi under Sections 387, 420 and 120B of the Indian Penal Code, they added.

This is not the first time Indian consular officials have been involved in controversies involving domestic help. Earlier, Dr. Neena Malhotra who worked as a consul at the consulate in New York -- was asked to pay almost $1.5 million to her former domestic worker Shanti Gurung. Domestic worker Santosh Bhardwaj, Indian Consul General Prabhu Dayal’s housekeeper, had filed a lawsuit alleging forced labour and psychological coercion.  However, this is the first time a diplomat has been arrested. Earlier in 2011 Krittika Biswas, the daughter of a consular officer was arrested in New York on charges of sending obscene emails to her school teacher. (http://kumar-theloneranger.blogspot.in/2011/06/krittika-biswas-case-scope-of.html)

This brings the focus back on the extent and scope of consular immunity.

Privileges and immunities available to consular officials are governed by the 1963 Vienna Convention on Consular Relations (VCCR). Consular immunity offers protection similar to diplomatic immunity, but the protection afforded is not as extensive, given the functional differences between consular and diplomatic officers.  For example, consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction (they may be tried for certain local crimes upon action by a local court) and are immune from local jurisdiction only in cases directly relating to consular functions.

The relevant provisions, namely, Articles 40 to 43 of the Vienna Convention deal with immunity of consular officers.

Article 40 – Protection of Consular Officers

The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent attack on their person, freedom or dignity.

Article 41 – Personal Inviolability of Consular Officers

Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

Article 42 – Notification of Arrest, Detention or Prosecution

In the event of arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.

Article 43 – Immunity from Jurisdiction

Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either:

Arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or

By a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

It is also necessary and relevant to refer to the booklet published by the United States Department of State Bureau of Diplomatic Security entitled “Diplomatic and Consular Immunity – Guidance for Law Enforcement and Judicial Authorities”. At page 3 of this publication under the heading “Legal and Practical Basis of Immunity” it is provided as under:

“It should be emphasized that even at its highest level, diplomatic immunity does not exempt diplomatic officers from the obligation of conforming with national and local laws and regulations. Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions. The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments. This is a crucial point for law enforcement officers to understand in their dealings with foreign diplomatic and consular personnel. While police officers are obliged, under international customary and treaty law, to recognize the immunity of the envoy, they must not ignore or condone the commission of crimes. As is explained in greater detail below, adherence to police procedures in such cases is often essential in order for the United States to formulate appropriate measures through diplomatic channels to deal with such offenders.”

The booklet under the sub-heading “US Department of State Policy” at page 14 states:

“It is the policy of the US. Department of State with respect to alleged criminal violations by persons with immunity from criminal jurisdiction to encourage law enforcement authorities to pursue investigations vigorously, to prepare cases carefully and completely, and to document properly each incident so that charges may be pursued as far as possible in the US. judicial system. The U.S. Department of State will, in all incidents involving persons with immunity from criminal jurisdiction, request a waiver of that immunity from the sending country if the prosecutor advises that but for such immunity he or she would prosecute or otherwise pursue the criminal charge. If the charge is a felony or any crime of violence, and the sending country does not waive immunity, the U.S. Department of State will require that person to depart the United States and not return unless he or she does so to submit to the jurisdiction of the court with subject matter jurisdiction over the offense. Upon departure, the Department will request that law enforcement issue a warrant for the person’s arrest so that the name will be entered in NCIC.” NCIC refers to National Crime Information Centre.

Article 41 of the Convention clear states that Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. The Convention does not define the expression “grave crime”. Thus it will have to be inferred that the seriousness of the crime depends on the host country’s interpretation of the expression and on the decision of the judicial authorities. So also it is the prerogative of the host country’s court to decide whether the consular officer accused of such grave crime needs to be detained or not. In this case, the US is seen to be well within its rights to initiate action against the consular officer.

The immunity from jurisdiction as stipulated under Article 43 is only in respect of acts performed in the exercise of consular functions. This immunity is not absolute as in the case of immunity available to diplomatic agents.

The booklet referred to above unequivocally states that the State Department, in cases where a diplomat who enjoys immunity and is accused of a crime, will seek waiver of that immunity from the sending country but for such immunity he or she would prosecute or otherwise pursue the criminal charge. If the charge is a felony or any crime of violence, and the sending country does not waive immunity, the U.S. Government will require that person to depart the United States and not return unless he or she does so to submit to the jurisdiction of the court with subject matter jurisdiction over the offense. It is pertinent to note that Article 45 of the Convention provides for waiver of privileges and immunities.

The US authorities, both judicial and law enforcement may well have been within their rights to indict the Indian officer. However, humiliating the lady official in public by handcuffing her is in breach of the same Vienna Convention. Sub-para 3 of Article 41 states that if criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay. The concerned authorities in New York probably did not deem it fit to follow all the relevant provisions of the Convention in letter and spirit while making the arrest thereby giving rise to a diplomatic spat between the two countries.

While India is within its rights to lodge a protest with the US the manner in which this incident has been handled, it must be reminded that it is in the process of prosecuting two Italian Marines on the charges of allegedly shooting and killing Indian fishermen outside India’s territorial waters in an Indian court and that India too will now be expected to follow the rules of International Law as applicable to that case.

An International Legal Perspective of the British Embassy Attack in Tehran

Iran has done it again. On 28^th November 2011, Iranian protestors stormed the British Embassy compound and a diplomatic residence, tearing down the British flag, breaking windows, vandalizing walls and  holding six embassy staffers “hostage” for a short time. The protest which appeared to have the full support of the Iranian government was in response to Britain’s harsh new sanctions against Iran for its ongoing nuclear weapons’ programme. The incident brought back memories of the diplomatic crisis between Iran and the US when 52 American Embassy personnel were held hostage for 444 days from 4^th November 1979 to 20^th January 1981 after a group of Islamist students and militants took over the US Embassy in Tehran in support of the Iranian Revolution.

The attack on Tuesday began when about 50 protesters invaded the offices in the vast walled compound housing the British Embassy and its manicured grounds, situated in a busy neighborhood in the heart of Tehran. Outside the gates, thousands of student protesters chanted religious slogans and demanded the expulsion of the British ambassador. In the meantime, 200 to 300 others broke into a British diplomatic residence a few miles north of the embassy, called Qolhak Garden. The facility also houses a school. 

Television images showed protesters, some armed with gasoline bombs, rampaging through offices strewn with papers, and at least one vehicle was shown burning inside the compound. There was ample evidence of the state’s complicity in the attack: police was shown as silent spectators in television footage, and in any case the security forces have maintained strict control over all large protests in Iran ever since the disputed presidential election of 2009. Further evidence of Tehran’s complicity in the attack is apparent from the fact that the embassy attack came a day after Iran’s Parliament approved a measure to expel the British ambassador and downgrade diplomatic relations between the two countries, in retaliation for Britain’s new economic sanctions.

Iran’s semi-official Fars news agency reported that police officers freed six British staff members who had been surrounded by the Qolhak Garden protesters and that 12 of those protesters were later arrested.

The Iranian authorities have organized similar political demonstrations against foreign embassies in the past, intervening only after the protest was well under way and the message was clear.

This attack very clearly proves that Iran has scant regard for the provisions of international law and particularly the provisions of Vienna Convention on Diplomatic Relations, 1961.

Article 22 (1) of the Vienna Convention stipulates that the premises of the mission are inviolable and the agents of the receiving State may not enter them, except with the consent of the head of the mission.

 

Article 22 (2) of the 1961 Convention enjoins on the receiving State (the host country) take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

So also Article 30 provides that the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

Article 29 lays down that the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

All the three provisions referred to above were infringed with impunity in the incident in Tehran.

Iran, by permitting this attack, is also guilty of violation of the provisions of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973

A diplomat is an internationally protected person within the meaning of the above-mentioned Convention and at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household.

The 1973 Convention vide Article 2 provides

1. The intentional commission of:

(a) A murder, kidnapping or other attack upon the person or liberty of an internationally protected person;

b) A violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected person likely to endanger his person or liberty;

(c) A threat to commit any such attack;

(d) An attempt to commit any such attack; and

(e) An act constituting participation as an accomplice in any such attack shall be made by each State Party a crime under its internal law.

2. Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature.

3. Paragraphs 1 and 2 of this article in no way derogate from the obligations of States Parties under international law to take all appropriate measures to prevent other attacks on the person, freedom or dignity of an internationally protected person.

Iran needs to be reminded that apart from the provisions of Vienna Convention, in Islamic tradition too, a messenger should not be harmed, even if coming from an arch-enemy and bearing a highly provocative or offensive message. A hadith attributes this sunnah to the time when Musaylimah sent to the Prophet Muhammad messengers who proclaimed Musaylimah be a Prophet of Allah and the co-equal of Muhammad himself.

Iran has in the past been indicted and held guilty by the International Court of Justice in the case involving seizure of the US Embassy and its personnel in 1979. In the case concerning United States Diplomatic and Consular Staff in Tehran decided on 24^th May 1980 by the International Court of Justice, the Court, inter alia, held that the Islamic Republic of Iran, had violated in several respects, obligations owed by it to the United States of America under international conventions in force between the two countries, as well as under long-established rules of general international law. The Court also held that Iran was under an obligation to make reparation to the Government of the United States of America for the injury caused by the events of 4^th November 1979 and what followed from these events.

Given Iran’s past record, it is indeed far-fetched to expect Iran to abide by the rules of international law. In such circumstances, international community must take cognizance of the inherently delinquent behaviour and adopt “strong measures” to deter and prevent Iran from violating the law of nations in general as well as international treaty obligations.

INS Airavat Incident – A Legal Analysis

The INS Airavat, a Shardul-class amphibious warfare ship belonging to the Indian Navy paid a friendly visit to Vietnam between July 19 and July 28, 2011. On July 22, INS Airavat sailed from Nha Trang port in south central Vietnam towards Haiphong, where it was to make a friendly visit. About 45 nautical miles off the Vietnamese coast on the South China Sea, the Airavat was "buzzed" on an open radio channel. (Nha Trang was a key U. S. military base during the Vietnam War, and is an important military port).

The caller identified himself as belonging to the Chinese navy and after asking the Indian ship to identify itself, warned, "You are entering Chinese waters. Move out of here". However, officers on the ship confirmed that no Chinese ship or vessel was seen on the horizon or picked up on the radar. The INS Airavat did not respond to the message or identify itself as demanded and continued on its way. This incident did not get much media attention considering the fact that Indian authorities decided not to make an issue out of it. However, the fact remains that China in conformity with its aggressive behaviour has been trying to act contrary to the tenets of the recognized principles of international law. This insignificant incident brings back memories of the incident involving the USNS Impeccable in March 2009 when the US ship was shadowed and harassed by Chinese ships while operating 75 miles south of Hainan Island. (http://kumar-theloneranger.blogspot.com/2009/03/impeccable-incident-legal-perspective.html)

Basis of China’s action

The underlying basis of China’s action in July 2011 which has not received much attention in the context of the present incident is the fact that China claims much or all of the South China Sea as its territorial waters. It is relevant to note that South China Sea is replete with disputes. The South China Sea contains several islands, atolls, shoals, reefs and sandbars, many of which are naturally under water at high tide, and some of which are permanently submerged. Given below are the rival claims of the countries of the region in respect of the various islands in the South China Sea:

• The Spratly Islands, disputed between the People's Republic of China, the Republic of China, and Vietnam, with Malaysia, Brunei, and the Philippines claiming part of the archipelago
• The Paracel Islands, disputed between the People's Republic of China, the Republic of China, and Vietnam
• The Pratas Islands, disputed between the People's Republic of China and the Republic of China
• The Macclesfield Bank, disputed between the People's Republic of China, the Philippines, and the Republic of China
• The Scarborough Shoal, disputed between the People's Republic of China, the Philippines, and the Republic of China

There is a huge amount at stake. Besides fisheries, the sea, particularly around the Spratlys, is believed to be enormously rich in hydrocarbons. The sea is also a vital shipping route, accounting for a big chunk of world trade.

In response to rival territorial claims of the various countries above mentioned, China tabled its own map, with nine-dotted lines outlining its claim. Joined up, the dotted lines give China not just two island chains, but almost the whole sea. There seems to be no basis for this in UNCLOS. But China points to history. It says the map has been in use since the Republic of China published it in 1946, and, until quite recently, nobody raised objection. According to Robert Beckman, director of the Centre for International Law at the National University of Singapore, “The dotted-line map was first produced by the Chinese government in 1947 and has nine dashes drawn in a u-shape around the islands in the South China Sea. Although China has used this map on several occasions, it has never clarified its position on exactly what it is claiming inside the dotted-line. This has led some to conclude that China is claiming all the waters within the dotted-line as its territorial waters or historic waters. Such a position would be contrary to UNCLOS.

While much attention has been given to the dotted-line map attached to China’s Note Verbale, it should be remembered that the Note does not assert sovereignty over the waters in the dotted-line except for the waters “adjacent” to the islands which arguably only refers to a 12 nm territorial sea. The Note contains no language suggesting that China claims that all the waters inside the dotted-line are its territorial waters or historic waters, or that it has any historic rights in the waters inside the dotted-line. This suggests that China’s claim is only to the islands inside the dotted-line, and to the maritime zones that can be generated from such islands, a position consistent with UNCLOS.”  

                                          Maritime claims in South China Sea (Ref: Wikipedia)

The Law

It is necessary here to refer to some of the relevant provisions of the Law of the Sea Convention 1982 –

Article 89 Invalidity of claims of sovereignty over the high seas

No State may validly purport to subject any part of the high seas to its sovereignty.

Article 87 Freedom of the high seas

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:

(a) freedom of navigation;

(b) freedom of overflight;

(c) freedom to lay submarine cables and pipelines, subject to Part VI;

(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;

(e) freedom of fishing, subject to the conditions laid down in section 2;

(f) freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.

  

Article 95 Immunity of warships on the high seas

Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.

For the purposes of this Convention, Article 29 defines "warship" to mean a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.

A warship enjoys sovereign immunity from the interference of authorities of states other than its own flag state. A warship cannot be required to consent to an on board search or inspection, nor may it be required to fly the flag of the host nation. (Arts. 32, 58(2), 95, 236).

A reference may also be made to the relevant provisions of the Convention on the High Seas 1958 –

Article 1 – The term “high seas” means all parts of the sea that are not included in the territorial sea or in the internal waters of a State.

Article 2 – The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States:

(1) Freedom of navigation;

(2) Freedom of fishing;

(3) Freedom to lay submarine cables and pipelines;

(4) Freedom to fly over the high seas.

These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.

The provisions of the this article seem to have been derived from Dutch jurist Hugo Grotius’ famous treatise Mare Liberum (The Free Sea or the Freedom of the Sea) Grotius had argued that the sea was free to all, and that nobody had the right to deny others access to it. Grotius formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade. The argument was directed towards the Portuguese Mare clausum policy (meaning closed sea) and their claim of monopoly on the East Indian Trade. The “freedom of the seas” has thus legal as well as political connotations, and it has been one of the cornerstones of maritime law.

 Article 8

1. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.

2. For the purposes of these articles, the term “warship” means a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline.

Article 95 of the 1982 Convention and Article 8 of the 1958 Convention expressly provides for complete immunity to warships from jurisdiction of any State except the flag State.

Assuming for the sake of argument, the Indian ship entered Chinese territorial waters, the international maritime law provides that ships are entitled to right of innocent passage through the territorial sea of the coastal state. Hence, PLA-N personnel questioning the right of the Indian ship to be in the South China Sea and asking it to leave the area is contrary to international law.

Conclusion

China is a known bully and in the recent past it has been coercing foreign vessels in the South China Sea. The harassment of INS Airavat was one of various such incidents. China needs to understand that international waters and waterways are terra nullius and not capable of appropriation. International community and the littoral states of the Asia-Pacific region must co-operate in order to counter aggressive Chinese behaviour.

Steps in the Formation of Treaties

[Note: This article is primarily meant for students of International Law studying the subject at the graduate or post-graduate level]

Introductory Note

According to Martin Dixon and Robert McCorquodale , treaties are evidence of the express consent of states to regulate their interests according to international law. It is important to remember that treaties are the most important source of international law and are increasingly used to codify and develop international law. Since international legal relationship between States and international organizations came to be increasingly governed by written agreements, a need was felt for developing a set of general rules to govern the obligations of the parties to treaties. In 1966, the International law Commission adopted its final report on the law of treaties and in a Conference attended by representatives of more than 100 states, held in Vienna, Austria in two sessions, in 1968 and 1969, the Vienna Convention on the Law of Treaties came to be adopted. The Convention entered into force on January 27, 1980. Another Convention was held in 1986 at Vienna on the Law of Treaties between States and International Organizations or between International Organizations. The 1969 Convention deals with the formation of treaties, entry into force, reservations, and procedure relating to invalidity, termination, withdrawal, and suspension of operation of treaties as well as their interpretation.

Definition and Meaning of the term ‘Treaty’

(1) Oppenheim : International treaties are agreements, of a contractual character, between States, or organizations of States, creating legal rights and obligations between the parties.

(2) McNair : The term treaty means a written agreement by which two or more states or international organizations create or intend to create a relation between themselves operating within the sphere of international law.

Article 2(1)(a) of the Vienna Convention on the Law of Treaties, 1969 defines the term treaty: Treaty means an international agreement concluded between States in a 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.

The term ‘treaty’ is used in a generic sense rather than a reference to a particular form of international agreement. The term treaty covers convention, agreement, arrangement, protocol, exchange of notes, exchange of letters, etc. International law makes no distinction between agreements referred to as treaties and other types of agreements. The name or designation given to an agreement is in itself unimportant and of no legal consequence.

There is no formal requirement in international law for a treaty to come into existence Treaties usually are in written form and the Vienna Convention on the Law of Treaties applies only to those treaties which are in written form. However, it cannot be categorically stated that oral agreements have no legal validity.

Unilateral statements-whether binding: A question that has not infrequently arisen is whether the unilateral statements or pronouncements of a State create any legally binding international obligations. The Legal Status of Eastern Greenland is a case in point. In 1919, the Danish government through its representative in Norway informed the Norwegian government that they would not raise any objection to Norway’s claim over Spitzbergen at the Paris Peace Conference if Norway refrained from challenging Danish claims of sovereignty over all Greenland. M. Ihlen, the Norwegian foreign minister, informed his Danish counterpart that Norway would not create any difficulties in respect of the Danish claim of sovereignty over Eastern Greenland. When the matter came up before the PCIJ, Denmark argued that Norway by the “Ihlen Declaration” had recognized Danish sovereignty over Eastern Greenland. The Court denied that the “Ihlen Declaration” constituted recognition of Danish sovereignty. However, it held that Norway had incurred a legally binding obligation to refrain from contesting Danish sovereignty over Eastern Greenland. The Court did not characterize the “Ihlen Declaration” as an oral agreement, nor did not delineate the circumstances, if any, when a unilateral statement could be binding. The Court in this case appeared to regard the Norwegian statement as being given in return for a Danish commitment not to oppose a Norwegian claim to Spitzbergen.

The agreement entered into between the parties must be governed by international law. Agreements which are subject to some national system of law will not constitute treaties. Where the parties do not possess international legal personality, the agreements entered into by and between such parties will not be governed by international law.

Formation of treaties

No specific form or procedure has been prescribed in international law for the conclusion of a treaty. The parties negotiating a treaty are free to agree upon a language or languages in which the treaty is to be expressed. Though a precise procedure or standard does not exist, following steps are generally adopted in concluding a treaty.

1) Accrediting of Persons by the Contracting States

2) Negotiation

3) Adoption of the text

4) Consent of the States

5) Entry into force

Accrediting of Persons by Contracting States

Normally, the treaty-making capacity of States is exercised by Heads of State or by their governments. However, today, this treaty-making power is rarely exercised by them in person, and is done through representatives. If they appoint a representative for the purpose of negotiating, adopting or authenticating the text of a treaty, or for expressing the consent of a State to be bound by a treaty, he is provided with a formal instrument called Full Powers. Art. 2(1)(c) of the Vienna Convention defines Full Powers: ‘full powers’ means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of a State to be bound by a treaty, or for accomplishing any other act with respect to a treaty.

Full Powers is not necessary if the treaty is concluded by the Heads of States or Governments, Minister of Foreign Affairs and heads of diplomatic mission.

Negotiation

The stage of negotiation is the most crucial stage in the formation of a treaty where the participating States put forth proposals for discussions. After detailed deliberations, the proposals are harmonized and the parties arrive at a tentative agreement.

Adoption of the Text

After negotiations, the form and content is settled by drawing up a text setting out its provisions. The normal rule is that consent of all the participating states is required for adopting the text of the treaty. The principle of unanimity in preparing the text of the treaty in the case of international conferences is unrealistic and is not normally the rule. Article 9 (2) of the Vienna Convention provides that adoption of the text of a treaty at an international conference takes place by two-thirds of the states present and voting, unless by the same majority they decide to apply a different rule.

Consent of the States

The treaties may bind states only when they have given their consent. Some of the ways in which a State may express its consent to be bound by a treaty are by means of signature, exchange of instruments, ratification or accession.

Authentication

In many cases authentication is not seen as a distinct step as the act of signature serves as authenticating and an expression of willingness to be bound by the treaty. However, in cases where the unsigned text of a treaty is incorporated in the final act of a conference, or where the treaty adopted in an international organization is authenticated by the president of the organization, authentication may be a separate step.

Signature

The act of affixing the signature by a State’s representative may express the consent of the State to be bound by the treaty. This can happen only where the negotiating or participating States have agreed that signature should have that effect, by providing in the treaty itself or where it appears from the full powers that a State had intended to give that effect to the signature of its representative or it was so expressed during negotiations. Sometimes, a representative’s signature may be qualified, that is to say it may be affixed ad referendum, i.e. subject to the State’s confirmation. In such a case, the State’s subsequent confirmation constitutes signature of the treaty. In certain cases, where the signature may be subject to ratification, a State will not be bound by the treaty till ratification is complete.

Exchange of Instruments

Article 13 of the Vienna Convention provides the consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:

(a) the instruments provide that their exchange shall have that effect; or
(b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect.

Ratification

Article 2(1) (b) of the Vienna Convention on the Law of Treaties 1969 defines ratification as ‘the international act so named whereby a States establishes on the international plane its consent to be bound by a treaty’.

Ratification is mainly required for the States to re-examine the over-all effect of the treaties on their national interests. The other reason for having the step of ratification is to give the States sufficient time to enact legislation to give effect to the obligations which they would assume under the treaty.

Article 14 of the Vienna Convention provides that the consent of a State to be bound by a treaty is expressed by ratification when:

(a) the treaty provides for such consent to be expressed by means of ratification;

(b) it is otherwise established that the negotiating States were required that ratification should be required;

(c) the State’s representative has signed the treaty subject to ratification; or

(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

Form and Mode of Ratification

International law does not prescribe any form of ratification. According to Oppenheim, ratification normally takes the form of a document signed by the Heads of the States or their foreign ministers. It is usual to draft as many documents as there as parties to the treaty, and to exchange these copies between the parties.

Entry into Force

A treaty enters into force in accordance with its provisions. Article 24 of the Vienna Convention provides that a treaty enters into force in such manner and upon such date as it may provide or as the states negotiating the treaty may agree. If the treaty is silent, it enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states. Bilateral treaty enters into force when States exchange documents of ratification. Where ratification is not required, the treaty comes into force after signature and exchange or deposit of signed copies. Multilateral treaties enter into force from date when prescribed number of ratifications or accessions has been made.

References:
1. Martin Dixon and Robert McCorquodale, Cases and Materials on International Law (1995) p 48
2. Oppenheim, International Law Vol. 1 (8th Edition) p 877
3. McNair, Law of Treaties p 4