'merger of wills of two or more international subjects for the purpose of regulating their interests by

international rules'.1

As indicated right before, the classical theory of international law thought that the 'treaty binds the
parties to them, that is the States that have agreed to be bound by their provisions'. This notion was
widely reflected in the "Certain German Interests in Polish Upper Silesia (Merits) case in 1926. As the
PCIJ put it, 'a treaty only creates law as between the States which are parties to it.2 Hence, for third
States treaties are something devoid of any legal consequence: they are a thing made by other (res
inter alios acta). To put it differently, treaties may neither impose obligations on, nor create legal
entitlements for, third States (pacta tertiis nec nocent nec prosunt)

Very imp. For Tomorrowland. : no violation of pace futura

I. Rules of Release: Article 60 of the Vienna Convention

This Part analyzes the "rules of release" described in Article 60 of the Vienna
Convention. These rules revolve around the concept of "material breach," which is
defined as "the violation of a provision essential to the accomplishment of the
object or purpose of the treaty."16(16Vienna Convention, supra note
15, at 346.) With respect to bilateral treaties, a material breach is both
necessary and sufficient to give the victim of that breach the option to release itself
from all of its obligations under the breached treaty.

a breach of international law by a State entails its international responsibility.

PCIJ applied the principle set out in article 1 in a number of cases. For example, in the Phosphates in
Morocco case, PCIJ affirmed that when a State commits an internationally wrongful act against
another State international responsibility is established “immediately as between the two States”.34
ICJ has applied the principle on several occasions, for example in the Corfu Channel case,35 in the
Military and Paramilitary Activities in and against Nicaragua case,36 and in the Gabˇcíkovo-
Nagymaros Project case.37 The Court also referred to the principle in its advisory opinions on
Reparation for Injuries, 38 and on the Interpretation of Peace Treaties (Second Phase), 39 in which it
stated that “refusal to fulfil a treaty obligation involves international responsibility”.40 Arbitral
tribunals have repeatedly affirmed the principle, for example in the Claims of Italian Nationals
Resident in Peru cases,41 in the Dickson Car Wheel Company case,42 in the International Fisheries
Company case,43 in the British Claims in the Spanish Zone of Morocco case44 and in the Armstrong
Cork Company case.45 In the “Rainbow Warrior” case,46 the arbitral tribunal stressed that “any
violation by a State of any obligation, of whatever origin, gives rise to State responsibility”.47

( citations: footnotes __|

1
Cassese, Antonio, 2001. International Law, Oxford University Press, Oxford. P. 126
2
. Judgment of May 1926, PCIJ, Series A, No. 7, at 29.
Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21; and ibid., Merits, Judgment No. 13, 1928,
P.C.I.J., Series A, No. 17, p. 29. 35 Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 4, at p. 23.
36 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, p. 14, at p. 142, para. 283, and p. 149, para. 292. 37
Gabˇcíkovo-Nagymaros Project (see footnote 27 above), at p. 38, para. 47. 38 Reparation for Injuries
Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 174, at p. 184.
39 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 221. 40 Ibid., p. 228. 41 Seven of these awards rendered in 1901
reiterated that “a universally recognized principle of international law states that the State is
responsible for the violations of the law of nations committed by its agents” (UNRIAA, vol. XV (Sales
No. 66.V.3), pp. 399 (Chiessa claim), 401 (Sessarego claim), 404 (Sanguinetti claim), 407 (Vercelli
claim), 408 (Queirolo claim), 409 (Roggero claim), and 411 (Miglia claim)

Increasingly it has been recognized that some wrongful acts engage the responsibility of the State
concerned towards several or many States or even towards the international community as a whole.
A significant step in this direction was taken by ICJ in the Barcelona Traction case when it noted that:
an essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis-à-vis another State in the field of
diplomatic protection. By their very nature the former are the concern of all States. In view of the
importance of the rights involved, all States can be held to have a legal interest in their protection;
they are obligations (erga omnes.)

All treaties must be registered with the United Nations Treaty Collection under
Article 102 of the United Nations Charter. Once registered, the UNTC will allocate a
registered number for the treaty. (For Example: United Nations Treaty Series UNTS
49006/49007[3] is the treaty that established Euclid IGO).

It is this second argument regarding the invalidity of the Agreement that is the subject of scrutiny
here. The legal effect of non-registration of a treaty has not been the subject of significant discussion
amongst States, within the UN or even within academic circles. The pertinent legal provision is
Article 102 of the Charter of the UN, which, in paragraph (1) mandates registration of all treaties, and
in paragraph (2) imposes an additional sanction to incentivise registration – that of being unable to
invoke an unregistered treaty before any UN organ. To this extent, this is a remarkable article – most
of the Charter’s articles impose obligations upon Member States, but very few of them back this with
a specific sanction, in addition to the general breach of international law that violating the Charter
would entail [See Hans Kelsen, The Law of the United Nations, Chapter 18 – Sanctions (7th edn.,
2008)]. The reason for such additional punitive force can be traced to its drafting at the UN
Conference on International Organizations at San Francisco in 1945, where it was observed that “the
basic purpose of the obligation was to prevent secret treaties” [UNCIO Documents, vol. 87, p. 26 cited
in Brandon, 29 Brit.Y.B.Int’l L. 186, 196 (1952)]. In fact, the equivalent Article 18 of the Covenant of
the League of Nations had gone further, stating that “[n]o such Treaty or International Engagement
shall be binding until so registered”. This was watered down when the Charter was being drafted, not
least because it led to ambiguity as to how such a treaty, otherwise valid, was to be interpreted outside
of the League system – was a non-League body, such as, for instance, the Permanent Court of
Arbitration (“PCA”) also not to apply such a treaty? The UN system sought to avert such confusion
by providing instead for “relative, not an absolute invalidation” of unregistered treaties [Kelsen,
p.722]. Article 102 was worded in such a way as to render the handicap operative only before UN
organs. This, it was thought, would create a self-contained system – an offence within the UN,
penalised within the UN alone.
However, this raised its own set of doubts and ambiguities – would the same treaty now be valid and
operative before the PCA, but not before the ICJ? When challenged simultaneously in different
courts, could the treaty’s validity, much like Schrodinger’s cat, exist and not exist at the same time?
The simple answer to this question is yes. This is exactly what “relative invalidity” envisages. A more
nuanced answer would be that the question is not one of validity as much as operability. Even within
the UN system, the validity and binding nature of the treaty is not denied – the Court has stated as
much on several occasions (in Qatar v. Bahrain, ¶29, for instance); it is merely
its enforceability before that forum that is affected. This handicap is considered necessary to
incentivise registration while not resulting in a complete denial of rights since other (non-UN) fora
remain available. In any event, there is nothing to bar the party from now registering the treaty and
then invoking it before a UN organ [there is difference of juristic opinion on whether this can be done
while an organ is seised of the matter or if fresh proceedings must be instituted. Compare Brandon,
200 with Robert Kolb, The International Court of Justice, 543 (2013)]. In other words, Article 102(2)
is a procedural hurdle (as opposed to a bar).
A last important feature of Article 102(2) is that it only bars the parties to the unregistered treaty
themselves from invoking it; neither third parties nor, importantly, the Court itself is barred from
relying on an unregistered agreement. In fact, most authors concur that the UN organs themselves are
not obliged to enquire into registration. They may, on their own initiative, and they must, if raised as
an objection, disallow parties from invoking unregistered treaties; however, nothing bars them from
taking cognizance of such treaties irrespective of parties’ invocation. After all, Article 102(2) was
meant as a sanction upon parties concluding “secret treaties”, not as a restriction on the organs of the
UN in carrying out their functions [Martens, Ch.XVI Miscellaneous Provisions, Article 102, ¶45, 51
in The Charter of the United Nations: A Commentary, Vol. II (Simma et al. eds., 3rd edn., 2012)].
Thus, given how this provision is only a procedural hurdle and how it exists only to reinforce the
substantive law laid down in Article 102(1), it is unsurprising that the organs of the UN have
overwhelmingly chosen to disregard the unregistered status of treaties, presumably considering the
substantive issues at stake to be more important than reinforcing the importance of registration. The
ICJ in Qatar v. Bahrain, allowed invocation of the unregistered 1987 double Exchange of Letters,
which was agreed between the parties to be a treaty. In Corfu Channel, the ICJ accepted
jurisdiction under an unregistered Special Agreement and even permitted the United Kingdom to cite,
in its defence, an unregistered agreement dated 22 November 1945 [Martens, ¶56; Brandon, 199]. In
the Aegean Sea Continental Shelf case, the effect of Article 102 upon the unregistered accord
verbal of 31 May 1975 was questioned but it was nevertheless considered and rejected on merits.
Even the Permanent Court, bound by the more onerous Article 18 of the Covenant, in Eastern
Greenland, found the unregistered Ihlen Declaration of 22 July 1919 to be “binding” despite the
express wording of Article 18. Even before the General Assembly, unregistered treaties have been
invoked without objection –the USSR relied on an unregistered 1950 treaty with China before the
First Committee [GAOR (VI), 1st Committee, 502nd mtg. 26 January 1952 cited in Martens, ¶53]. It is
evident that the unregistered nature of treaties often passes unnoticed. In fact, there is no recorded
instance of a UN organ disallowing invocation of a treaty solely on account of non-registration.
Authors