The Problem of Statehood of Special Entities and their Capacity to Conclude Treaties under VCLT

Okay, first, why two titles? Why not just the second title? After all, it coveys the issue to be dealt in this piece in lesser words and first one sounds a lot heavy and boring, one could be easily repulsed. My justification for using the first title is that even though it sounds heavy, yet it brings out an important issue with regard to the sovereignty of Special Entities and connects this issue with their treaty-making capacity. On the other hand, the reason I used the second title is simple, it came to my mind, and I didn’t want to waste it. And then not being able to decide between the two titles, I posted both of them! After all it’s my blog and I have sovereignty over it. (Yes, I am having a hangover from previous blog, but to spare the readers, I won’t get into the theories of recognition to establish my sovereignty). Before starting, by Special Entities, I mean the entities which are not fully sovereign, usually lack sovereign government and/or independence from another state.

So, the issue to be dealt in this piece is, ‘do the Special Entities actually enter into ‘treaties’ as defined in Art. 2(1) (a) of Vienna Convention on Law of Treaties, 1969?’. This question arises as Art 2(1)(a) of the convention states that ‘treaty means an international agreement concluded between the states’ (emphasis added).

Since I still have not completed with my lesson on Statehood and Sovereignty, I am unable to bring out the nuances of statehood, then analyse statehood of Special Entities, and then connect it with their capacity to conclude treaties under VCLT. But I surely have completed my lesson on Capacity to Enter into Treaty. So as of now, I have reached following conclusions, which, if required will be amended and updated in my future blog. Here they are –

So, starting with the issue of statehood of Special Entities

Under International Law these non-State entities can acquire a distinct international status or role.Under International Law these non-State entities can acquire a distinct international status or role.

In order to understand the exact status of Special Entities, legal set up of each of such entities has to be examined separately. This is so because every Special Entity has a unique legal personality, which largely evolves through the administrative arrangements made between it and its parent State. Its power and capacity to conclude a treaty is also determined by these arrangements.

Therefore, it can be safely said that treaty making capacity of these non-sovereign, non-State entities totally depend on the exceptional arrangements made between them and their parent State, or other such arrangements made in a treaty itself.

Now coming to the Vienna Convention, I believe VCLT or its non-customary provisions should not be a roadblock to the ability of the Special Entities to enter into a treaty per se. The mandate of the convention that treaty being an international agreement to be concluded between states, cannot and is not taken as a litmus test to determine whether an international agreement concluded between non states will have any legal effects or not. I believe that in practice, it is the legal or other consequences entailing an agreement which are given more importance than the form it is in. This can also be used to explain the use of MOUs and other instruments to conclude legally binding agreements between State parties instead of a Treaty.

Finally…

As far as my understanding goes, the issue is inconsequential when it comes to practice. As a theory, as I said earlier, it can be discussed over and over. However, if any of the readers think otherwise, I would love to hear from him/her, and hope to have a very interesting discussion here.

For a more interesting and detailed analysis of the topic (yeah with few jokes here and there :P ), got to my blog