BY M D . Z U B A I R K A S E M K H A N .

THE NUTS AND BOLTS OF TREATIES.

Outlines…

Understanding Treaties;Urgency/Importance of Treaties;

Different Forms of Treaties; Terminology of Different Forms of

Treaties;Practice as to Conclusion and Entry Into

Force of Treaties.

Understanding Treaties

In general, ‘Convention’ or ‘Treaty’ denotes, a contract between two or more independent authorities, relating to or determining the rights and duties of subjects or citizens of the respective States in one another’s possessions. In other words, it is a merger of wills of two or more international subjects for the purpose of regulating their interests by international rules.

According to Schwarzenberger: “A treaty may be defined as a consensual engagement which, subjects of international law have undertaken towards one another, with the intent to create legal obligations under international law”.

As defined by Oppenheim: International treaties are agreements, of a contractual character, between states, or organizations of states, creating legal rights and obligations between the parties.

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According to Article 2 (1)(a) of The Vienna Convention on the Law of Treaty 1969, defines ‘Treaty' as:

…“treaty” means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or two or more related instruments and whatever its particular designation…

The definition in the Vienna Convention is expressed to be for the purposes of the Convention and is limited to treaties between States. The following is an examination of the elements of the definition of treaty under Vienna convention as supplemented by customary International law.

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International Agreement Concluded Between States

According to Article: 6 of the Vienna Convention-

“…Every State possesses capacity to conclude treaties…”

This provision provides that, states may make treaties, as reflects in customary international law. Capacity to make treaties is, in fact, valuable evidence of statehood, and thus any Public International Organizations or Individuals are not recognized as having the capacity to make treaties are parties.

In the Anglo-Iranian Oil Company Case, 1952 ICJ Rep. 93, the ICJ held that- a contract between Iran and the Anglo-Iranian Oil Company was not a treaty. It is nothing more than a concessionary contract between a government and a foreign company.”

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In Written Form

Article: 3 further states that- “…The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form,…”

Therefore, The Vienna Convention does not apply to oral agreements, although such agreements are valid under customary international law.

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Governed By International Law

• There may be agreements between states (e.g. agreements for the acquisition of premises for a diplomatic mission or for some purely commercial transaction).

• They are regulated by the local law of one of the parties or by conflict of laws principles.

The notion of an “international agreement” for the purposes of the law of treaties is confined to one the whole formation and execution of which is governed by international law.

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Intention To Create Legal Obligations

This element of “intention to create legal obligations under international law” can be found in the traditional definitions of ‘treaty’ by eminent writers, but it is not expressly mentioned in the definition of ‘treaty’ by the Vienna Convention.

However, from practical point of view, the decisive factor is whether the instrument is intended to create international legal rights and obligations between the parties.

In fact, in the case of Aegean Sea Continental Shelf Case, it is held that, The element of ‘intention’ is included in the phrase ‘governed by international law’

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Embodied in a Single Instrument or two or more Related Instruments

It is indubitable that, the classic form for a treaty is a single instrument.

However, in modern practice, treaties are made in less formal ways, such as “exchanges of notes” or ‘exchange of letters”.

An exchange of notes usually consists of an initial note (by one State) and a reply note (by the other State). In other words it consists of two related instruments.

The above phrase clearly acknowledges the validity of the increasing use of such exchanges of notes and letters in modern treaty practice.

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Particular Designation

‘Treaty’ is the generic term to embrace all types of binding international agreements. In practice, a number of terms are used to indicate an international agreement.

The law of treaties cover both formal agreements (treaties, convention, protocols, charter, covenant, pact, act, statute) and informal agreements (agreed minutes, exchange of notes or letters, memorandum of understanding).

In Bangladesh vs Myanmar, the International Tribunal on Law of the Sea (ITLOS) discussed whether the “agreed minutes” of 1974 was a legally binding agreement within the meaning of Article 15 of UNCLOS and determined that it was not a legally binding agreement.

Urgency/Importance of Treaties

The importance of treaties is enormous. Some of these can be stated as follows:

The treaty is the most important source of international law.All kinds of inter-State transactions are conducted through treaties.Various international organizations are established by means of treaties. Disputes between States are brought before International courts by

means of treaties.In fact, bilateral or multilateral treaties could be a good way of resolving

international disparities or disagreements between two or more states.Therefore, the special importance of treaties in international law does

not need emphasis.

Different Forms of Treaties

The principal forms in which treaties are concluded are as follows:

Heads of States Form: the characteristics are-drafted as agreement between Sovereign or head of the State;obligation expressed them as “High Contracting Parties”;not frequently used in present time; reserved for special cases of conventionsSalient Cases: Philippson vs. Imperial Airways Ltd. [1939] AC 332.Example: Consular Conventions.

Inter-Governmental Form: the characteristics are- drafted as agreement between governemnts; no substantial difference from the heads of states form; employed generally for technical or non-political agreements;

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Inter-State Form: the characteristics are- drafted expressly or impliedly as an agreement between states; signatories are then referred to as “the parties”; example: The North Atlantic Security Treaty of 1949.

Ministerial Form: the characteristics are- negotiated and signed between ministers of the representatives

countries; deals more often than not, bilateral treaties; representatives of the foreign affairs.

Inter-departmental Form: the characteristics are- Conducted between representatives of particular government departments; Example: between representatives of the respective Customs

Administrations of the countries concerned.

Terminology of Different Forms of Treaties

Over the past centuries, state practice has developed a variety of terms to refer to international instruments by which states establish rights and obligations among themselves. In spite of this diversity of terminology, no precise nomenclature exists. In fact, the meaning of the terms used is variable, changing from State to State, from region to region and instrument to instrument. Some of the terms are as follows-

Treaty : the characteristics are- no consistent rules when state practice employs the terms "treaty"

as a title for an international instrument; usually reserved for matters of some gravity that require more

solemn agreements; signatures are usually sealed and they normally require ratification;

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Examples: International Instruments designated as "treaties" are Peace Treaties (Treaty of Paris (1815)), Border Treaties (United Kingdom–United States Maritime Delimitation Treaties, 1993), Delimitation Treaties, Extradition Treaties and Treaties of Friendship, Commerce and Cooperation.

Agreement : the characteristics are- usually less formal and deal with a narrower range of subject-

matter than "treaties“; general tendency to apply the term "agreement" to bilateral or

restricted multilateral treaties; employed especially for instruments of a technical or

administrative character, which are signed by the representatives of government departments, but are not subject to ratification;

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typical agreements deal with matters of economic, cultural, scientific and technical cooperation;

Nowadays by far the majority of international instruments are designated as agreements.

Charters : the characteristics are- “Charter" is used for particularly formal and solemn instruments; constituent treaty of an international organization; the term itself has an ‘emotive’ content that goes back to the

Magna Carta of 1215; Example: well-known recent examples are the Charter of the

United Nations of 1945 and the Charter of the Organization of American States of 1952.

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Conventions : the characteristics are- The generic term “Convention“ is synonymous with the generic

term “Treaty”; was regularly employed for formal bilateral or multilateral treaties

with a broad number of parties; normally open for participation by the international community as

a whole, or by a large number of states; the instruments negotiated under the auspices of an international

organization are entitled conventions (e.g. Convention on Biological Diversity of 1992, United Nations Convention on the Law of the Sea of 1982, Vienna Convention on the Law of Treaties of 1969.

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Declarations : the characteristics are- the term “Declaration” is often deliberately chosen to indicate that

the parties do not intend to create binding obligations but merely want to declare certain aspirations. an example is the Rio Declaration 1992 and the Universal Declaration Of Human Rights, 1948;

a declaration can however, be a treaty in the proper sense. a significant example is the Joint Declaration Between The United Kingdom And China On The Question Of Hong Kong of 1984;

An interpretative declaration is an instrument that is annexed to a treaty with the goal of interpreting or explaining the provisions of the latter;

A declaration can also be an informal agreement with respect to a matter of minor importance.

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Protocols : the characteristics are- the term "Protocol" is used for agreements less formal than those

entitled "treaty" or "convention”; generally never in the heads of State form; Protocol of Signature is an instrument subsidiary to a treaty, and

drawn up by the same parties. Such a Protocol deals with ancillary/auxiliary matters such as the interpretation of particular clauses of the treaty, those formal clauses not inserted in the treaty, or the regulation of technical matters;

Optional Protocol to a Treaty is an instrument that establishes additional rights and obligations to a treaty. The Optional Protocol to the International Covenant on Civil and Political Rights of 1966 is a well-known example.

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Procès-Verbal : the characteristics are- denoted originally the summary of the proceedings and

conclusion of a diplomatic conference; also mean the record of the terms of some agreement reached

between the parties; Example: the Procès-Verbal signed at Zurich in 1892 by the

representatives of Italy and Switzerland to record their understanding of the provisions of the Treaties of Commerce between them.

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Exchange of Notes : the characteristics are- an "Exchange Of Notes" is a record of a routine agreement, that

has many similarities with the private law contract; signatories of the letters may be government Ministers, diplomats

or departmental heads; the agreement consists of the exchange of two documents, each

of the parties being in the possession of the one signed by the representative of the other;

under the usual procedure, the accepting State repeats the text of the offering State to record its assent;

ratification is not usually required.

Practice as to Conclusion and Entry Into Force of Treaties

The various steps in the creation of obligations by treaty are-

1. Accrediting of Negotiators with full powers & credentials;

2. Negotiation & Adoption;

3. Authentication, Signature & Exchange of Instruments ;

4. Ratification;

5. Accessions & Adhesions;

6. Entry into force;

7. Registration & Publication;

8. Application & Enforcement.

A brief explanation of these are as follows-

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Accrediting Of Negotiators With Full Powers & Credentials

Having prior decision to commence negotiations with another State or States, the first step begins with the appointment of representation to conduct negotiation, along with necessary authorities and full powers conferred.

Article : 7 of the Vienna Convention states that-

“…In virtue of their functions and without having to produce full powers, the following are considered as representing their State:

(a) Heads of State, Heads of Government and Ministers for Foreign Affairs,

(b) heads of diplomatic missions,

(c) representatives accredited by States to an international conference or to an international organization or one of its organ…”

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Negotiation & Adoption

The appointed delegates are required to negotiate in treaty-making process, however, they remain in touch with their governments. Furthermore, they have confidential preliminary instructions and at any stage, they may consult with their governments owing to fresh instructions.

According to Article : 9 (2) of the Vienna Convention-

“…The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule….”

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Authentication, Signature & Exchange of Instruments

According to Article : 10 of the Vienna Convention that, the text may be authenticated by such procedure as is laid down in the treaty itself, or as is agreed to by the negotiating states, or in the absence of such agreed procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text.

As per enumeration in Article : 11 of the Vienna Convention, a State can express its consent by way of signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other agreed means.

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Under Article : 12 of the Vienna Convention, the effect of signature of a treaty depends on whether or not the treaty is subject to ratification, acceptance or approval.

If the treaty is subject to ratification, acceptance or approval, signature means no more than an authentication of its text (i.e., the delegates have agreed upon a text and are willing to accept it and refer it to their governments for such action as those governments may choose to take in regard to the acceptance or rejection of the treaty).

But If the treaty is not subject to ratification, acceptance or approval, or is silent on this point, the better opinion is that, in the absence of contrary provision, the instrument is binding on signature.

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Ratification

According to Article : 2 (1)(b) of the Vienna Convention, Ratification defines the international act whereby a state indicates its consent to be bound to a treaty if the parties intended to show their consent by such an act. In the case of bilateral treaties, ratification is usually accomplished by exchanging the requisite instruments, while in the case of multilateral treaties the usual procedure is for the depositary to collect the ratifications of all states, keeping all parties informed of the situation.

Correspondingly, under Article : 14 (1) of the Vienna Convention, consent of a State to be bound by a treaty is expressed by ratification if:

a) the treaty so expressly provides;

b) the negotiating states otherwise agree that ratification is necessary;

c) the treaty has been signed subject to ratification; and

d) the intention of the state to sign subject to ratification appears from the full powers or was expressed during the negotiation.

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The practice of ratification rests on the following rational grounds:

A state requires an opportunity of re-examining the whole effect of the treaty upon their interests;

May need to prepare public opinion (or some times even Referendum) for the obligation the state is about to undertake;

According to the constitutional law of many states, treaties are not valid without some kind of consent on the part of Parliaments. (E.g.: the US Constitution);

Often a treaty calls for amendments or adjustments in the Municipal Law.

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Accessions & Adhesions

"Accession" is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states.

In other words, Accession is a traditional method whereby a state which has not signed a treaty subsequently becomes a party to it.

Actually, Treaties frequently provide that, they shall be open for signature for a certain period, and that after the expiry of that period they shall become open for accession. In fact, it has the same legal effect as ratification.

Accession usually occurs after the treaty has entered into force. The Secretary-General of the United Nations, in his function as depositary, has also accepted accessions to some conventions even before their entry into force.

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Entry Into Force

Typically, the provisions of the treaty determine the date on which the treaty enters into force. Where the treaty does not specify a date, there is a presumption that the treaty is intended to come into force as soon as all the negotiating states have consented to be bound by the treaty.

Bilateral Treaties may provide for their entry into force on a particular date, upon the day of their last signature, upon exchange of the instruments of ratification or upon the exchange of notifications. In cases where Multilateral Treaties are involved, it is common to provide for a fixed number of states to express their consent for entry into force.

For example: The Vienna Convention on the Law of Treaties, 1969, provides for its entry into force “on the 30th day following the date of the deposit of the 35th instrument of ratification or accession’.

The United Nations Convention on the Law of the Sea, 1982, entered into force one year after the 60th ratification, namely on November 16, 1994.

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Registration & Publication

Article 102 of the Charter of the United Nations provides that "every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it".

Treaties or agreements that are not registered, cannot be invoked before any organ of the United Nations. In other words, a state party to such an unregistered treaty or agreement cannot rely upon it in proceedings before the International Court of Justice or in meetings of the General Assembly or Security Council.

Registration promotes transparency and the availability of texts of treaties to the public.

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The duty of Publication by the Secretariat is performed by publishing the instruments concerned in the United Nations Treaty Series, together with lists from time to time of ratifications, acceptances etc.

A failure to publish, however, does not render the instrument unenforceable.

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Application & Enforcement

The final stage of the treaty-making process is the actual incorporation, where necessary, of the treaty provisions in the Municipal Law of the State parties and the application by such States of these provisions, and also any required administration and supervision by International Organs.

In practice, vigilant “follow-up” work is needed to ensure that State parties do actually apply instruments which is binding to them.