Invalidity and Termination of Treaties and Rules of Procedure

As a rule, treaties do not come to an end automatically but entitle the injured state or all states parties to the treaty (as the case may be) to plead on the basis thereof the invalidity or termination of a treaty. In principle, therefore, it is up to the discretion of the party(ies) concerned to make the relevant choices. In this respect, no general role of the judiciary can be grounded in specific national provisions, application by analogy of the rules on the treaty-making power, or the courts’ power to interpret the applicable law. A customary rule, however, has emerged on the basis of which courts of the parties concerned are under an obligation to impeach the validity, or terminate the operation, of treaties concluded under the threat of use of force or conflicting with jus cogens. It is also reasonable to conceive a rule of customary law allowing any third party to invoke invalidity or termination in accordance with Article 52, 53, or 64 (or the corresponding customary rules).