Treaty and related terms of International Law
Table of Contents
The Vienna Convention on the Law of Treaties defines a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”
A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the rules are the same.
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.
A Convention is an international agreement between countries. These are usually developed by the United Nations or other international organizations. Governments that ratify Conventions are obliged to incorporate them into their own laws and to make sure that these laws are applied and respected.
A covenant is a type of contract in which the covenantor makes a promise to a covenantee to do (affirmative covenant) or not do some action (negative covenant). In real property law, the term real covenants are used for conditions tied to the use of land.
A charter is the grant of authority or rights, stating that the granter formally recognises the prerogative ( an exclusive right given from a government or state ) of the recipient to exercise the rights specified. It is implicit that the granter retains superiority, and that the recipient admits a limited (or inferior) status within the relationship, and it is in that sense that charters were historically granted, and that sense is retained in modern usage of the term.
There are two meanings of the word protocol. In the legal sense, it is defined as an international agreement that supplements or amends a treaty. In the diplomatic sense, the term refers to the set of rules, procedures, conventions and ceremonies that relate to relations between states.
Sometimes states make “declarations” as to their understanding of some matter or as to the interpretation of a particular provision. Unlike reservations, declarations merely clarify the state’s position and do not purport to exclude or modify the legal effect of a treaty. Usually, declarations are made at the time of the deposit of the corresponding instrument or at the time of signature.
The term “declaration” is used for various international instruments. However, declarations are not always legally binding. The term 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 1992 Rio Declaration. Declarations can however also be treaties in the generic sense intended to be binding at international law. It is therefore necessary to establish in each individual case whether the parties intended to create binding obligations. Ascertaining the intention of the parties can often be a difficult task. Some instruments entitled “declarations” were not originally intended to have binding force, but their provisions may have reflected customary international law or may have gained binding character as customary law at a later stage. Such was the case with the 1948 Universal Declaration of Human Rights. Declarations that are intended to have binding effects could be classified as follows:
- A declaration can 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.
- A series of unilateral declarations can constitute binding agreements. A typical example are declarations under the Optional Clause of the Statute of the International Court of Justice that create legal bonds between the declarants, although not directly addressed to each other. Another example is the unilateral Declaration on the Suez Canal and the arrangements for its operation issued by Egypt in 1957 which was considered to be an engagement of an international character.
In International Treaty ( convention .. etc) a signature can have two separate meaning if that signatory state is monist country that treaty will be immediately binding on the country but if that is dulist country they need further approval of their legislative (Know More)
Where the signature is subject to ratification, acceptance or approval, the signature does not establish the consent to be bound. However, it is a means of authentication and expresses the willingness of the signatory state to continue the treaty-making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty.
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. The institution of ratification grants states the necessary time-frame to seek the required approval for the treaty on the domestic level and to enact the necessary legislation to give domestic effect to that treaty.
Signature ad Referendum
A representative may sign a treaty “ad referendum”, i.e., under the condition that the signature is confirmed by his state. In this case, the signature becomes definitive once it is confirmed by the responsible organ.
A reservation is a declaration made by a state by which it purports to exclude or alter the legal effect of certain provisions of the treaty in their application to that state. A reservation enables a state to accept a multilateral treaty as a whole by giving it the possibility not to apply certain provisions with which it does not want to comply. Reservations can be made when the treaty is signed, ratified, accepted, approved or acceded to. Reservations must not be incompatible with the object and the purpose of the treaty. Furthermore, a treaty might prohibit reservations or only allow for certain reservations to be made.
[Arts.2 (1) (d) and 19-23, Vienna Convention of the Law of Treaties 1969]
“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. 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 before their entry into force. The conditions under which accession may occur and the procedure involved depend on the provisions of the treaty. A treaty might provide for the accession of all other states or for a limited and defined number of states. In the absence of such a provision, accession can only occur where the negotiating states were agreed or subsequently agree on it in the case of the state in question.
Enter into force
A treaty does not enter into force when it is adopted.
Typically, the provisions of the treaty determine the date on which the treaty enters into force, often at a specified time following its ratification or accession by a fixed number of States.
For example, the Convention on the Rights of the Child entered into force on 2 September 1990—the 30th day following the deposit of the 20th State’s instrument of ratification or accession. A treaty enters into force only for those states which gave the required consent.
Do you know there is a convention on the Law of Treaties ? yes, is callend Vienna Convention on the Law of Treaties . Concluded at Vienna on 23 May 1969 .
You can find more details there.