The Problem of Statehood of Special Non-State Entities and their Capacity to Conclude Treaties under VCLT
Okay, first, why two titles? Why not just the first title? After all, it coveys the issue to be dealt in this piece in lesser words and second one sounds a lot heavy and boring, one could be easily repulsed. My justification for using the second 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 first 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). Thus, if closely analysed, this question is made up of two other following questions. First, what is the status of Special Entities as to statehood? Second, though it is a clear fact that Special Entities are given powers (even if limited) to enter into treaties by their parent State, and it’s the parent State which bears the responsibility of fulfilling the treaty obligations. But the question arises here is that ‘are such entities considered to be a ‘state’ at the time of making and binding themselves in an international legal obligation, in consonance with Art. 1 and Art. 2(1) (a) of the Convention?
The above questions propagate more questions. Does a Special Entity assume a cloak of statehood when entering into a Treaty? Or does a parent State hand over the baton of Statehood to these Special Entities for the purpose of treaty making? Does Vienna Convention allow and is flexible to the extent of accommodating the ‘treaties’ of Special Entities? Or does VCLT require the assumption or handing over of the baton of statehood to such entities?
Now honestly, all these complications are result of my over chaotic mind. Because as I read more and analysed them over and over, I found that these issues do not invite this amount of complexity at least in practice. But yeah, like any other academic discussion they can be stretched over time and space. 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, one stupid common sense thing – Special Entities are not States, that’s why they are called Special Entities. But it is important to know that Special Entities are neither a constituency of a State nor are they terra-nullius. They are the non-State entites, which International Law accepts and permits their existence. Of course it has to! One will think that a legal principle cannot ignore a fact but has to evolve according to a given fact. But here it will be interesting to know that when in early 20the century when States, solely and exclusively, were said to be the subjects of International Law, many such Special Entities were functioning at international level. And now, when the international legal theory are open to these ‘not-full- sovereign’ entities, such entities have enormously reduced. 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. Also, the power and capacity to conclude a treaty vary according to the subject of the treaty. For example, if a Special Entity is not authorised by the parent State to enter into a treaty related to defence or foreign affairs, then any agreement made on the subject by the entity will be invalid for the lack of capacity. Also, some multilateral treaties allow these non-State entities to become a party or give them an observer status. In such cases, the question of sovereignty and non sovereignty is not required.
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. As far as my reading in this topic and my understanding goes, in the cases of Special Entities, the requirement that a treaty has to be concluded between the States only, is limited in its scope by two factors. First, the definition given in art 2(1)(a) is qualified by the fact that ‘it is for the scope of the present convention’. Second, a treaty does not cease to be a treaty just because it is not between ‘Sovereign States’. In cases, such as the one we are dealing now, to my understanding, this requirement becomes a mere technicality as the legal consequence desired from a treaty still follow. A state which draws an international legal agreement with a Special Entity cannot brush its obligations away by taking the excuse that a Special Entity is not a state. That would be stupid, impractical and ‘faaltu ki hawabaazi’. Because when states so painstakingly enter into an agreement, more often than not, they have more interest in performing it rather than finding excuses for non performance.
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. And for those who are cursing me for making a molehill, I just have three things to say. First, writing this piece helped me to sharpen my analytical skills, and I suppose that it helped you to look from other angles as well. Second, its not necessary that every hypothesis is proved. Unproved hypothesis are often stepping stones of any research. Third, please don’t stop reading my blog!! :P