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    1969 vienna convention

    International trade has come to play a major role in most world economies. Whenever there is trade the need for laws to regulate the conduct of players becomes very evident. This much is true for transnational trade as it is for domestic trade. In the case of domestic trade such a need is easily satisfied by the applicable domestic law. Transnational trade is however governed by complex rules of international law. International law covers a wide array of subjects. International law can be found in treaties and even from customary sources. Treaty law is currently governed by The Vienna Convention on the Law of Treaties of 1969(VCT). This paper discusses the assertion that the Convention regulates the most important aspects of treaty law in transnational commercial law.

    International Law

                An understanding of treaty law in the area of international commerce can not be had without first grasping the wider concept of international law and where this law can be found. On its simplest definition, international law can be defined as the law that regulates the conduct of nations. The Statute of the International Court of Justice (ICJ Statute) provides the sources of international law at its article 38.The statute does not however talk of them as sources but it rather provides them as the laws that might be used by the ICJ to determine matters that come before it. The sources enunciated at Article 38(1) are: international conventions recognized by the contesting parties; international custom as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; and subject to Article 59, judicial decisions and teachings of the most highly qualified publicists.

    It is evident from the above list that the ICJ Statute does not in any way attempt to establish a hierarchy of sources. This is different from domestic law where there is a clear hierarchy of norms. For example, in countries that have a written constitution there normally exists a supremacy clause that outlines how a conflict of norms is to be resolved. In this regard it will be the case in most instances that provisions of the constitution will take precedence over those of statutes. Likewise, provisions of statutes are normally to take precedence over judge made law. Courts faced with a conflict of norms will therefore simply establish the standing of the norm in the already established hierarchy of norms. This level of simplicity is hardly the case in international law.

    Despite the above assertions there are scholars who have read the existence of a hierarchy of norms in the order of arrangement of the sources. Thus Conventions have been taken to be more authoritative than other sources and so on. This reading is supported by the fact that the drafters of the ICJ Statute might have intended to give some order into the enumerated sources under Article 38(Pauwelyn 2003, p.94). The significance of this approach would however depend mostly on where one stands and the particular rule of international law. Giving treaties preeminence over other sources will normally accord with the requirement of certainty that written sources may normally provide. This is however problematic as treaties are sometimes the codification of customary international law. Again customs may at times develop around treaties so as to render the treaty fundamentally different from what might have initially been agreed. The better approach therefore seems to be considering each case on its own merit. The first two sources in Article 38 of ICJ Statute deserve some further elaboration.

    International Conventions Recognised By the Contesting Parties

                As has been noted above, international conventions form part of international law. Pursuant to Article 2(1) of the VCT), a treaty is defined as any international agreement between sates in written form and governed by international law. The Articles disregards any particular designation that might be used to refer to a treaty. It follows from this that words like convention, declaration, treaty and so forth will suffice in reference to a treaty. The VCT does not specify what kind of treaties it is to regulate. In our case treaties dealing with transnational commercial law are not specifically singled out. A discussion of whether the VCT regulates the most important aspects of the international law of treaties in the area of transnational commercial law will therefore have to first place these treaties in the ambit of international law or public international law.

    International Custom as evidence of a general practice accepted as law

                Custom as a source of international law has to satisfy a number of complex criteria for it to qualify as law. Not all customary practices will therefore qualify as part of international law. Some rules have been developed to guide in the determination as to the legal nature of a custom. The two elements that must exist are state practice and opinio juris.State practice is normally used to denote  general and consistent practice of states.Opinio juris on the other hand simply mean that the state practice is informed by the belief that there is a legal obligation informing the practice (D’Amato, 1971, p.49).State practice would therefore be some general convergence in the practice of states that is capable of creating a norm or a standard of practice (Aust, 2000, p.10).The state practice envisaged here has been referred to as ‘widespread and uniform’(Brownlie,1998,p.6-9).Thus in the Fisheries Case(UK/Norway) which was concerned with some rule for the delimitation of the coast. Here the court, while accepting that the ten mile rule had been adopted, held that the rule had not become part of customary international law as it had not acquired a general acceptance among nations (Patel, 2002, p100). When talking about a general state practice it is implied that there should be some even distribution of states engaging in the said practice.

    International Law of Treaties

                International law of treaties has since been codified under the VCT which came into force in 1980.The convention embodies a number of principles that have long been held to be important in the area of international law of treaties. A reading of the VCT will normally end up with five principles. They are free consent, good faith, pacta sunt servanda, rebus sic stantibus and favor contractus.Free consent simply mean that states come only be governed by a particular treaty if they have consented to that effect. It follows from this rule that states parties to a treaty can not purport to create rights and obligations for third parties. This principle has sometimes been enunciated in the Latin maxim pacta tertiis nec nocent nec prosunt.This is codified in Article 34 of VCT.

    Pacta sunt servanda on the other hand is a principle that simply implies that a treaty should be binding on the parties to it. The convention however provides an explicit exception to this general rule in its Article 22(1) which basically relates to the withdrawal of reservations. Without further elaboration of some of these concepts it should be noted that the fact that the VCT codifies them partly answers our discussion question in the affirmative. It does so by the recognition of the very fact that most aspects of international law of treaties are codified in it. So the extent that those codifications regulates the law of treaties then to that extent an affirmative answer to the discussion topic can be found.

    Transnational Commercial Treaties as Part of Public International Law

                Another way to render the discussion would be to ask the question as to whether Transnational Commercial Treaties (TCT) are part of the wider concept of public international law. An affirmative answer would confirm the discussion topic as posted while a negative answer will do the contrary. Due to the scope of this paper, a narrow scope of these treaties will be picked for examination. Scholars interested in this topic have normally approached the question by asking whether TCTs are binding. By this it is assumed that a lack of binding force will normally deny them a classification as treaties in the sense that the term is normally used under public international law. Good examples of treaties that have come to be analysed in this way are those falling under The World Trade Organization (WTO) Arrangement. There are those who have argued that WTO treaties do not qualify as treaties under Public International law rules as they lack a binding nature.

    There have been insinuations in the scholarly world to the effect that TCTs may as well only qualify to be a branch of the wider corpus of Public International Law and thereby not being regulated by the law of treaties (Pauwelyn, 2000, p.336).This belief that WTO rules or rather TCTs are not binding like other rules of international law might have been formed from the way in which most TCTs are normally negotiated. Unlike most other treaties Transnational Commercial Treaties are not normally negotiated by the foreign affairs departments of states. This may well explain the view that perhaps these treaties are not binding as other treaties normally would .With specific reference to WTO agreements, there has been the argument that they are not governed by the law of treaties since an adverse decision against a member by the WTO Dispute Settlement Understanding (DSU) do not follow with any sanctions (Bello, 1996, p.416).This kind of analysis however fails in a number of important respects. For one, fails to distinguish breach of the law and the existence of the law. It should be noted that critics of international law had long based their criticisms on the fact that international law was normally being abused by ‘bigger’ states. This however should not be used to discredit the existence of the law.An analogy can be drawn from municipal law where the rate of crime does not in any way indicate that there is no law against crime.

    The correct approach would therefore be that TCT treaties are indeed part of Public International Law. This approach is even rooted in international law itself. For one, the fact that these rules derive from treaties is a clear testimony that they form part of the corpus of international law. Article 26 of VCT explicitly provides that every treaty is binding on the parties to it and that they should perform it in good faith. This therefore renders this question in the affirmative. It follows from this that it is true that the VCT indeed regulates important aspects of treaties in Transnational Commercial Law.

    The Vienna Convention and the rule against retroactive application

                The other way in which the discussion question can be rendered is to look at the provisions of the VCT relating to the application of treaties. In that way one gets to know whether a majority of treaties on transnational commercial law are covered by the provisions of the VCT.The starting point in this regard would be Article 4 of VCT which provides that the rules under the convention will only be applicable to treaties concluded by states after it came into force. By dint of this, one might as well argue that there are some aspects of treaty in the area of transnational commercial law that are not regulated by this convention. These would mostly include those treaties that were concluded way before 1980 as this is when the convention came into force. For example, some of the treaties regulating transnational trade that came into force before 1980 include the General Agreement on Trade and Tariff (GATT) which came into force in 1948.GATT was however replaced by the WTO in 1995 which has come to be the main body concerned with the regulation of international trade law.

    While Article 4 mainly talks about the application of the convention itself, there are other provisions that specifically deal with the rule against retroactive application of treaties generally. Thus Article 28 prohibits retroactive application of any treaty unless a different intention can be established from the text of a treaty. This rule was earlier on expounded in the Ambatielos case where the contention of Greece that it was entitled to bring a claim under a 1926 treaty were rejected on the ground that the acts complained of were done earlier on in 1923.It is clear that the drafters of the 1969 VCT were very clear on what they wanted the text of Article 28 to look like. This can be discerned from the opening phrase of the article which goes, ‘unless a different intention appears from the treaty or is otherwise established’. This opening phrase is different from what most treaty provisions normally provide (Sinclair, 1973, p.85).There have been arguments however that the Convention under Article 18 provides for a situation where the rule in Articles 4 and 28 can be disregarded. Article 18 requires state parties to a treaty to refrain from acts that derogate from the provisions of a treaty even before it has come into force.

    The point of departure at the beginning of the discussion was that the Vienna Convention on the Law of Treaties regulates the most important aspects of treaties in transnational commercial law. The discussion has tried to provide a balanced case by looking at Public International law in general and how sources of law can be determined. In this process, it has been found that treaty law forms just part of the law that regulates the international law on treaties. This is more so in the area of treaties in transnational commercial law. Even though treaty laws that are governed by the VCT do exist in transnational commercial law, it is also a fact that some treaties in this area do not fall under the purview of the convention. One can therefore conclude that our statement of departure is only partially true.

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