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 Treaty is the Heart of International Law: Law and Practice

 

Course title: Public International Law

 

INDEX

·        Introduction:

·        Definition of treaty:

·        Law making treaty:

·        Treaty contract:

·        Bilateral and multilateral treaties:

·        Amendments of Treaty:

·        Protocols:

·        Execution and implementation:

·        Interpretation:

·        Ending treaty obligations

·        Treaties without termination clauses

·        Ultra vires treaties

·        Suspension and termination

·        Invalid treaties

·        Non-Compliance to the Municipal Law

·        Misunderstanding, fraud, corruption, coercion

·        Relation between national law and treaties by country

·        Treaties and indigenous peoples

·        Sources of international law

·        Treaties as law

·        International Convention:

·        Definition Public International Law:

·        Treaty is the heat of international law in practice:

·        Lost Mandates Compulsory Dispute Settlement

·        Conclusion:

Introduction:

In modern time treaty is the heart of international law. It is the first and foremost source of international law. If there is no treaty, there will happen great lacking in international law. International law gets the fulfillment by treaty. Legislation is playing vital role in domestic law. In some way, treaty plays an important role in international law.

Definition of treaty:

A Treaty is an agreement under international law entered into by actors in international law, namely states and international organizations. A Treaty may also be known as: (international) agreement, protocol, covenant, convention, exchange of letters, exchange of notes, accord, memorandum of understanding, etc. Regardless of the terminology, all of these international agreements under international law are equally treaties and the rules are the same. (Note that in ?United States constitutional law, the term "treaty" has a special meaning which is more restricted than its meaning in international law; see below.)

Treaties can be loosely compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under international law for that breach. The central principle of treaty law is expressed in the maxim pacta sunt servanda—"pacts must be respected".

Classification of treaty:

There are two types of treaty. These are:

2.      Law making treaty.

3.      Treaty contract.

·        Law making treaty:

Law making treaty is one which makes international law directly. It is the main source of international law.

Law making treaty is of two types:

2.       Treaties enunciating the rules of international law .Ensamples: UNO, UDHR, WHO etc.

3.       Treaties enunciating general principle of international law. Example: the Geneva Convention, 1961, Vienna convention on the law of treaties, 1969, the UN convention on the law of sea, 1982.

 

·        Treaty contract:

Treaty contract are those which stipulates agreements between two or more states on matter of common interest. Examples: NATO, CTBT, ASEAN, SAARC etc.

 

In other sense treaty are of two types: these are:

Bilateral and multilateral treaties:

A multilateral treaty has several differences, and establishes rights and obligations between each party and every other party. Multilateral treaties are often, but not always, open to any state; others are regional.

Bilateral treaties by contrast are negotiated between a limited number of states, most commonly only two, establishing legal rights and obligations between those two states only. It is possible however for a bilateral treaty to have more than two parties; consider for instance the bilateral treaties between Switzerland and the European Union (EU) following the Swiss rejection of the European Economic Area agreement. Each of these treaties has seventeen parties. These however are still bilateral, not multilateral, treaties. The parties are divided into two groups, the Swiss ("on the one part") and the EU and its member states ("on the other part"). The treaty establishes rights and obligations between the Swiss and the EU and the member states severally; it does not establish any rights and obligations amongst the EU and its member states.

Reservations

 

Reservations are essentially caveats to a state's acceptance of a treaty. Reservations are a unilateral statement purporting to exclude or to modify the legal obligation and its effects on the reserving state.^[1] These must be included at the time of signing or ratification—a party cannot add a reservation after it has already joined a treaty.

Originally, international law was unaccepting of treaty reservations, rejecting them unless all parties to the treaty accepted the same reservations. However, in the interest of encouraging the largest number of states to join treaties, a more permissive rule regarding reservations has emerged. While some treaties still expressly forbid any reservations, they are now generally permitted to the extent that they are not inconsistent with the goals and purposes of the treaty.

When a state limits its treaty obligations through reservations, other states party to that treaty have the option to accept those reservations, object to them, or object and oppose them. If the state accepts them (or fails to act at all), both the reserving state and the accepting state are relieved of the reserved legal obligation as concerns their legal obligations to each other (accepting the reservation does not change the accepting state's legal obligations as concerns other parties to the treaty). If the state opposes, the parts of the treaty affected by the reservation drop out completely and no longer create any legal obligations on the reserving and accepting state, again only as concerns each other. Finally, if the state objects and opposes, there are no legal obligations under that treaty between those two state parties whatsoever. The objecting and opposing state essentially refuses to acknowledge the reserving state is a party to the treaty at all.^[2]jhjgfhkghrtoitrsyfjgfgkflh

Amendments of Treaty:

There are three ways an existing treaty can be amended. First, formal amendment requires States parties to the treaty to go through the ratification process all over again. The re-negotiation of treaty provisions can be long and protracted, and often some parties to the original treaty will not become parties to the amended treaty. When determining the legal obligations of states, one party to the original treaty and one a party to the amended treaty, the states will only be bound by the terms they both agreed upon. Treaties can also be amended informally by the treaty executive council when the changes are only procedural, technical, or administrative (not principled changes). Finally, a change in customary international law (state behavior) can also amend a treaty, where state behavior evinces a new interpretation of the legal obligations under the treaty. Minor corrections to a treaty may be adopted by a procès-verbal; but a procès-verbal is generally reserved for changes to rectify obvious errors in the text adopted, i.e. where the text adopted does not correctly reflect the intention of the parties adopting it.

Protocols:

In international law and international relations, a protocol is generally a treaty or international agreement that supplements a previous treaty or international agreement. A protocol can amend the previous treaty, or add additional provisions. Parties to the earlier agreement are not required to adopt the protocol; sometimes this is made clearer by calling it an "optional protocol", especially where many parties to the first agreement do not support the protocol.

Some examples: the United Nations Framework Convention on Climate Change (UNFCCC) established a framework for the development of binding greenhouse gas emission limits, while the Kyoto Protocol contained the specific provisions and regulations later agreed upon.

Execution and implementation:

Treaties may be seen as 'self-executing', in that merely becoming a party puts the treaty and all of its obligations in action. Other treaties may be non-self-executing and require 'implementing legislation'—a change in the domestic law of a state party that will direct or enable it to fulfill treaty obligations. An example of a treaty requiring such legislation would be one mandating local prosecution by a party for particular crimes.

The division between the two is often not clear and is often politicized in disagreements within a government over a treaty, as a non-self-executing treaty cannot be acted upon without the proper change in domestic law. If a treaty requires implementing legislation, a state may be in default of its obligations by the failure of its legislature to pass the necessary domestic laws.

Interpretation:

The language of treaties, like that of any law or contract, must be interpreted when the wording does not seem clear or it is not immediately apparent how it should be applied in a perhaps unforeseen circumstance. The Vienna Convention states that treaties are to be interpreted “in good faith” according to the “ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose.” International legal experts also often invoke the 'principle of maximum effectiveness,' which interprets treaty language as having the fullest force and effect possible to establish obligations between the parties.

No one party to a treaty can impose its particular interpretation of the treaty upon the other parties. Consent may be implied, however, if the other parties fail to explicitly disavow that initially unilateral interpretation, particularly if that state has acted upon its view of the treaty without complaint. Consent by all parties to the treaty to a particular interpretation has the legal effect of adding an additional clause to the treaty - this is commonly called an 'authentic interpretation'.

International tribunals and arbiters are often called upon to resolve substantial disputes over treaty interpretations. To establish the meaning in context, these judicial bodies may review the preparatory work from the negotiation and drafting of the treaty as well as the final, signed treaty itself.

Consequences of terminology:

One significant part of treaty making is that signing a treaty implies recognition that the other side is a sovereign state and that the agreement being considered is enforceable under international law. Hence, nations can be very careful about terming an agreement to be a treaty. For example, within the United States agreements between states are compacts and agreements between states and the federal government or between agencies of the government are memoranda of understanding.

Another situation can occur when one party wishes to create an obligation under international law, but the other party does not. This factor has been at work with respect to discussions between North Korea and the United States over security guarantees and nuclear proliferation.

The terminology can also be confusing because a treaty may and usually is named something other than a treaty, such as a convention, protocol, or simply agreement. Conversely some legal documents such as the Treaty of Waitangi are internationally considered to be documents under domestic law.

Ending treaty obligations

Denunciation refers to the announcement of a treaty's termination. Some treaties contain a termination clause that specifies that the treaty will terminate if a certain number of nations denounce the treaty. For instance, the Single Convention on Narcotic Drugs' Article 41 specifies that the treaty will terminate if, as a result of denunciations, the number of Parties falls below 40 ^[1].

Treaties without termination clauses

Article 42 of The Vienna Convention on the Law of Treaties states that "termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention"[1]. Article 56 states that if a treaty does not provide for denunciation, withdrawal, or termination, it is not subject to denunciation or withdrawal unless:

• it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

• a right of denunciation or withdrawal may be implied by the nature of the treaty.

Any withdrawal under Article 56 requires 12 months' notice.

The Vienna Convention does not apply to all nations; the United States, for instance, is not a Party ^[2]. This makes it unclear exactly how much notice the U.S. must give when withdrawing from treaties lacking a termination clause. For example, on March 7, 2005, the U.S. announced that it was withdrawing from the Consular Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes, a treaty that lacks a termination clause.

 

Withdrawal

Treaties are not necessarily permanently binding upon the signatory parties. As obligations in international law are traditionally viewed as arising only from the consent of states, many treaties expressly allow a state to withdraw as long as it follows certain procedures of notification. Many treaties expressly forbid withdrawal. Other treaties are silent on the issue, and so if a state attempts withdrawal through its own unilateral denunciation of the treaty, a determination must be made regarding whether permitting withdrawal is contrary to the original intent of the parties or to the nature of the treaty. Human rights treaties, for example, are generally interpreted to exclude the possibility of withdrawal, because of the importance and permanence of the obligations.

If a state party's withdrawal is successful, its obligations under that treaty are considered terminated, and withdrawal by one party from a bilateral treaty of course terminates the treaty. When a state withdraws from a multi-lateral treaty, that treaty will still otherwise remain in force between the other parties, unless, of course, otherwise should or could be interpreted as agreed upon between the remaining states parties to the treaty.

Suspension and termination

If a party has materially violated or breached its treaty obligations, the other parties may invoke this breach as grounds for temporarily suspending their obligations to that party under the treaty. A material breach may also be invoked as grounds for permanently terminating the treaty itself.

A treaty breach does not automatically suspend or terminate treaty relations, however. The issue must be presented to an international tribunal or arbiter (usually specified in the treaty itself) to legally establish that a sufficiently serious breach has in fact occurred. Otherwise, a party that prematurely and perhaps wrongfully suspends or terminates its own obligations due to an alleged breach itself runs the risk of being held liable for breach. Additionally, parties may choose to overlook treaty breaches while still maintaining their own obligations towards the party in breach.

Treaties sometimes include provisions for self-termination, meaning that the treaty is automatically terminated if certain defined conditions are met. Some treaties are intended by the parties to be only temporarily binding and are set to expire on a given date. Other treaties may self-terminate if the treaty is meant to exist only under certain conditions.

A party may claim that a treaty should be terminated, even absent an express provision, if there has been a fundamental change in circumstances. Such a change is sufficient if unforeseen, if it undermined the “essential basis” of consent by a party, if it radically transforms the extent of obligations between the parties, and if the obligations are still to be performed. A party cannot base this claim on change brought about by its own breach of the treaty. This claim also cannot be used to invalidate treaties that established or redrew political boundaries.

Invalid treaties

There are several reasons an otherwise valid and agreed upon treaty may be rejected as a binding international agreement, most of which involve errors at the formation of the treaty.

Ultra vires treaties

A party's consent to a treaty is invalid if it had been given by an agent or body without power to do so under that state's domestic law. States are reluctant to inquire into the internal affairs and processes of other states, and so a “manifest” violation is required such that it would be “objectively evident to any State dealing with the matter". A strong presumption exists internationally that a head of state has acted within his proper authority. It seems that no treaty has ever actually been invalidated on this provision.

Consent is also invalid if it is given by a representative who ignored restrictions he is subject to by his sovereign during the negotiations, if the other parties to the treaty were notified of those restrictions prior to his signing.

Non-Compliance to the Municipal Law

Treaties can be a violation of domestic law.

Misunderstanding, fraud, corruption, coercion

Articles 46-53 of the Vienna Convention set out the only ways that treaties can be invalidat