Treaty Procedures & Legal Theories in International Law

Procedure for Treaty Termination, Suspension, and Annulment

The Vienna Convention on the Law of Treaties establishes a procedure for the invalidity, termination, and suspension of treaties, regulated by Articles 65 and 66. This procedure is as follows:

• The party claiming suspension, termination, or invalidity must notify the other parties, stating their claim regarding the treaty and the reasons for it.
• If no party raises objections within three months, the notifying party may adopt the proposed measure.
• However, if any other party objects within this three-month period, the parties must seek a peaceful solution.
• If a peaceful solution cannot be found within 12 months of the objection, the dispute will be subject to a conciliation procedure, as regulated in an annex to the Vienna Convention on the Law of Treaties.
• Exceptionally, if the dispute concerns provisions relating to jus cogens, either party may submit the case to the International Court of Justice.

Dualism in International Law

This theory posits that international law and domestic law are two distinct and separate legal orders.

• Public international law originates from agreements between states. As we've seen when studying the general principles of law, it is a source of public international law, exemplified by the principle of pacta sunt servanda.
• Conversely, domestic law arises from the will of a state, emphasizing the legal separation between international public law and internal law within the dualistic framework.

The dualistic view holds that rules from each system are valid only within their own sphere, and no rule from one system can be considered valid within the other. (Note: This strict separation has been significantly altered by constitutional amendments since the 1980s.)

The Monistic View of Law

Hans Kelsen is the most famous proponent of monism. According to this positivist theory, all law constitutes a single legal unit or system, where rules are hierarchically subordinate to each other.

Within this hierarchy, domestic law is subordinate to international law, which is seen as the supreme legal order, with domestic law being merely an emanation or referral from it.