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:
(international) agreement,
protocol,
covenant,
convention,
exchange of letters,
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
maximpacta sunt servanda—"pacts must be
respected".
The
Vienna
Convention on the Law of Treaties has codified the customary
international law on treaties, entering into force in 1980. States
that have not ratified it yet may still recognize it as binding in
as much as it is a restatement of customary law.
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. However, there
are situations that legality may interfere with the treaty, causing
unreasonable arrests. (IBIOP-AC)
Adding and amending treaty obligations
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. 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.
Amendments
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,
since a non-self-executing treaty cannot be acted on 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
- See also: Denunciation
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 invalidated—considered unenforceable and void under
international law. A treaty will be invalidated due to either the
circumstances by which a state party joined the treaty, or due to
the content of the treaty itself. Invalidation is separate from
withdrawal, suspension, or termination (addressed above), which all
involve an alteration in the consent of the parties of a previously
valid treaty rather than the invalidation of that consent in the
first place.
A state's consent may be invalidated if there was an erroneous
understanding of a fact or situation at the time of conclusion,
which formed the "essential basis" of the state's consent. Consent
will not be invalidated if the misunderstanding was due to the
state's own conduct, or if the truth should have been
evident.
Consent will also be invalidated if it was induced by the
fraudulent conduct of another party, or by the direct or indirect
"corruption" of its representative by another party to the treaty.
Coercion of either a representative, or the state itself through
the threat or use of force, if used to obtain the consent of that
state to a treaty, will invalidate that consent.
Peremptory norms
A treaty is null and void if it is in violation of a
peremptory norm. These norms, unlike other
principles of customary law, are recognized as permitting no
violations and so cannot be altered through treaty obligations.
These are limited to such universally accepted prohibitions as
those against genocide, slavery, torture, and piracy, meaning that
no state can legally assume an obligation to commit or permit such
acts.
Role of the United Nations
The
United Nations Charter states
that treaties must be registered with the UN to
be invoked before it or enforced in its judiciary organ, the
International
Court of Justice
. This was done to prevent the proliferation
of
secret treaties that occurred in
the 19th and 20th century. The Charter also states that its
members' obligations under it outweigh any competing obligations
under other treaties.
After their adoption, treaties as well as their amendments have to
follow the official legal procedures of the United Nations, as
applied by the
Office of Legal
Affairs, including
signature,
ratification and
entry into force.
In function and effectiveness, the UN has been compared to the
pre-Constitutional United States Federal government by some, giving
a comparison between modern treaty law and the historical
Articles of Confederation.
Relation between national law and treaties by country
Brazilian law
Article 84
of the Brazilian federal
constitution of 1988 sets out, in its clause VIII, that the
president is the only one
capable of signing international treaties; its internal
implementation, however, demands the approval of the Congress
(Chamber
of Deputies, together with the Senate), according to Article 49, paragraph
I of the constitution.
United States law
In the United States, the term "treaty" has a different, more
restricted legal sense than exists in international law. U.S. law
distinguishes what it calls treaties from treaty executive
agreements, congressional-executive agreements, and sole executive
agreements. All four classes are equally treaties under
international law; they are distinct only from the perspective of
internal American law. The distinctions are primarily concerning
their method of ratification. Whereas treaties require advice and
consent by two-thirds of the Senate, sole executive agreements may
be executed by the President acting alone. Some treaties grant the
President the authority to fill in the gaps with executive
agreements, rather than additional treaties or protocols. And
finally, congressional-executive agreements require majority
approval by both the House and the Senate, either before or after
the treaty is signed by the President.
Currently, international agreements are executed by executive
agreement rather than treaties at a rate of 10:1. Despite the
relative ease of executive agreements, the President still often
chooses to pursue the formal treaty process over an executive
agreement in order to gain congressional support on matters that
require the Congress to pass implementing legislation or
appropriate funds, and those agreements that impose long-term,
complex legal obligations on the U.S.
Treaties and indigenous peoples
Treaties formed an important part of
European
colonization and, in many parts of the
world, Europeans attempted to legitimize their sovereignty by
signing treaties with
indigenous
peoples. In most cases these treaties were in extremely
disadvantageous terms to the native people, who often did not
appreciate the implications of what they were signing.
In some
rare cases, such as with Ethiopia
and Qing Dynasty
China
, the local
governments were able to use the treaties to at least mitigate the
impact of European colonization. This involved learning the
intricacies of European diplomatic customs and then using the
treaties to prevent a power from overstepping their agreement or by
playing different powers against each other.
In other
cases, such as New
Zealand
and Canada
, treaties
allowed native peoples to maintain a minimum amount of
autonomy. In the case of indigenous
Australians, unlike with the
Māori of New Zealand, no treaty was ever entered
into with the indigenous peoples entitling the Europeans to land
ownership, under the doctrine of
terra
nullius (later overturned by
Mabo v Queensland,
establishing the concept of
native
title well after colonization was already a
fait
accompli). Such treaties between colonizers and indigenous
peoples are an important part of political discourse in the late
20th and early 21st century, the treaties being discussed have
international standing as has been stated in a treaty study by the
UN.
United States
Prior to 1871 the government of the United States regularly entered
into treaties with
Native Americans of the
United States but the Indian Appropriations Act of March 3,
1871 (ch. 120, 16 Stat. 566) had a rider ( ) attached that
effectively ended the President’s treaty making by providing that
no Indian nation or tribe shall be acknowledged as an independent
nation, tribe, or power with whom the United States may contract by
treaty. The federal government continued to provide similar
contractual relations with the Indian tribes after 1871 by
agreements, statutes, and executive orders.
See also
Notes
- Vienna Convention on the Law of Treaties, Article 2 Sec. 1(d)
Text of the Convention
- Vienna Convention on the Law of Treaties, Article II,
Reservations.
- Page 12 of the introduction to Forest Service National
Resource Guide to American Indian and Alaska Native Relations
Author: Joe Mitchell, Publish date: 12/5/97 US
Forest Service - Caring for the land and serving people.
External links
Wikis
Quiz
Map
Misc
Search
