Modern treaty law and practice

| by Dr. Ruwantissa Abeyratne

( March 15, 2012, Montreal, Sri Lanka Guardian) A treaty is 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 State has been defined in the Montevideo Convention of 1933 as having the following characteristics: a permanent population; a defined geographic territory; a government; and the legal capacity to enter into relations with other States. The above notwithstanding, a treaty can be concluded between a State and another subject of international law such as an international Organization. When a State places its signature on a treaty it merely means that the State has agreed to the text in the instrument. It comes into effect for that State when it is ratified by the State. At the time of ratification a State can record a reservation to a part of the treaty. These generic principles and those discussed below also apply to aeronautical treaties and agreements.
It must be noted that a State can sign a treaty in two ways. The first is called attestation by “simple signature” which corresponds to the above statement – that such a signature merely denotes that a State agrees with the text of an instrument and a simple signature is subject to ratification, acceptance or approval. However, if a State attaches to the instrument what is called a “definitive signature” it means that the State has agreed to be bound by the treaty. Therefore a definitive signature obviates the need for that State to later ratify the treaty, as it has the same force as ratification.
“Ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty The process of ratification usually goes through two phases. The first is the internal procedure where the State concerned has to attend to its constitutional provisions by sending the text of the instrument it has signed through its national legislature or parliament. Once parliament adopts the text as its internal law, the State then has to proceed with its international procedure of depositing its notice of ratification with the depository. In formal terminology this process is called the doctrine of incorporation where customary international law as incorporated in a treaty that has been signed by a State is recognized as the internal law of the land on the common law practice based on a presumption that the legislature does not intend to commit a breach of international law.
A treaty need not be signed. The consent of a State to be bound by a treaty is expressed by the signature of the representative of that State only in certain circumstances. The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: the instruments provide that their exchange shall have that effect; or it is otherwise established that those States were agreed that the exchange of instruments should have that effect. States may also contract with each other under their domestic laws.
A treaty enters into force when the number of ratifications as specified in that treaty is received by the depository. When a treaty enters into force it is in force for only those States who have consented to be bound by it which are called “Parties”. However, an expression by a State that it consents to be bound by a particular treaty does not mean that ipso facto that treaty enters into force for that State. Either, the treaty must already be in force at that time, or as already mentioned the number of ratifications must be deposited. The Vienna Convention (1969) is more specific when it says that a treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree . There are three ways in which a treaty may enter into force. They are: on a date specified in the treaty; on signature only, as agreed by the negotiating States; or on ratification by all or a specified number of States. A treaty may be considered to apply to a State provisionally when the treaty itself so provides; or the negotiating States have in some other manner so agreed. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State will be considered as terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.
Treaties, conventions, agreements, protocols, exchanges of notes and other synonyms all mean one and the same thing at international law – that they are international transactions of a legal character. Treaties are 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. Each treaty has four constituent elements: the capacity of the parties thereto to conclude agreement of the provisions of the treaty under international law; the intention of the parties to apply principles of international law when concluding agreement under a treaty; consensus ad idem or a meeting of the minds of the parties; and, the parties must have the intention to create legal obligations among themselves. These four elements form a composite regulatory process whereby a treaty becomes strong enough at international law to enable parties to settle their differences within the parameters of the treaty, make inroads into customary international law if necessary, and, transform an unorganized international community into one which may be organized under a uniform set of rules. Treaties are based on three fundamental principles of international law: good faith; consent; and fundamental international responsibility. Since international customary law does not prescribe any particular form for consensual agreements and requirements that would make them binding, the parties to a treaty could agree upon the form of treaty they intend entering into and make it binding among them accordingly. Legal bonds are established between nations because they wish to create them and a statement to this effect is reflected in the treaty itself. The main feature of a multilateral international agreement is that absolute rights that may have existed within States before the entry into force of such treaty would be transformed into relative rights in the course of a balancing process in which considerations of good faith and reasonableness play a prominent part. However, treaty provisions must be so written and construed as best to conform to accepted principles of international customary law.
Great reliance is placed on treaties as a source of international law. The international Court of Justice, whose function it is to adjudicate upon disputes of an international character between States, applies as a source of law, international conventions which establish rules that are expressly recognized by the States involved in a dispute The Court also has jurisdiction to interpret a treaty at the request of a State.
The Vienna Convention on the Law of Treaties (1969) while recognizing treaties as a source of law, accepts free consent, good faith and the pacta sunt servanda as universally recognized elements of a treaty. Article 11 of the Convention provides that the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means agreed upon. “Ratification”, “acceptance”, “approval”, and “accession” generally mean the same thing, i.e. that in each case the international act so named indicates that the State performing such act is establishing on the international plane its consent to be bound by a treaty. A State demonstrates its adherence to a treaty by means of the pacta sunt servanda, whereby Article 26 of the Vienna Convention reflects the fact that every treaty in force is binding upon the parties and must be performed by them in good faith. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the Vienna Convention which generally requires that a treaty could be derogated upon only in circumstances the treaty in question so specifies; a later treaty abrogates the treaty in question; there is a breach of the treaty; a novus actus interveniens or supervening act which makes the performance of the treaty impossible; and the invocation by a State of the Clausula Rebus Sic Stantibus wherein a fundamental change of circumstances (when such circumstances constituted an essential basis of the consent of the parties to be bound by the treaty) which has occurred with regard to those existing at the time of the conclusion of the treaty, and which was not foreseen by the parties, radically changes or transforms the extent of obligations of a State. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties and seek to invalidate its consent unless such violation was manifest and concerned a rule of its internal law of fundamental importance.
States or international organizations which are parties to such treaties have to apply the treaties they have signed and therefore have to interpret them. Although the conclusion of a treaty is generally governed by international customary law to accord with accepted rules and practices of national constitutional law of the signatory States, the application of treaties is governed by principles of international law. If however, the application or performance of a requirement in an international treaty poses problems to a State, the constitutional law of that State would be applied by courts of that State to settle the problem. Although Article 27 of the Vienna Convention requires States not to invoke provisions of their internal laws as justification for failure to comply with the provisions of a treaty, States are free to choose the means of implementation they see fit according to their traditions and political organization. The overriding rule is that treaties are juristic acts and have to be performed.
Every international treaty is affected by the fundamental dichotomy where on the one hand, the question arises whether provisions of a treaty are enforceable at law, and on the other, whether the principles of State sovereignty, which is jus cogens or mandatory law, would pre-emt the provisions of a treaty from being considered by States as enforceable. Article 53 of the Vienna Convention addresses this question and provides that where treaties, which at the time of their conclusion conflict with a peremptory norm of general international law or jus cogens are void. A peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The use of the words “as a whole” Article 53 effectively precludes individual States from considering on a subjective basis, particular norms as acceptable to the international community. According to this provision therefore, a treaty such as the Chicago Convention could not have derogated from principles of accepted international legal norms when it was being concluded. The Vienna Convention has, by this provision, implicitly ensured the legal legitimacy of international treaties, and established the principle that treaties are in fact jus cogens and therefore are instruments containing provisions, the compliance with which is mandatory.
Once a State ratifies a treaty it has to deposit instruments of ratification with the United Nations or with the specialized agency of the United Nations as prescribed in the treaty concerned. Such Instruments must emanate from and be signed by the Head of State, Head of Government or Minister for Foreign Affairs or a person exercising, ad interim, the powers of one of the above authorities; clearly identify the treaty concerned and the type of action consistent with the provisions of the treaty, i.e., ratification, acceptance, approval, accession, consent to be bound, etc.; contain an unambiguous expression of the will of the Government, acting on behalf of the State, to recognize itself as being bound by the treaty concerned and to undertake faithfully to observe and implement its provisions (a simple reference to a domestic statutory provision will be inadequate); indicate the title of the signatory. In the case of a person exercising, ad interim, the powers of the Head of State, Head of Government or Minister for Foreign Affairs, the title must indicate that the person is exercising such powers ad interim. In this respect, the depositary accepts the following formulations: Acting Head of State, Acting Head of Government, Acting Minister for Foreign Affairs, Head of State ad interim, Head of Government ad interim and Minister for Foreign Affairs ad interim; indicate the date and place where the instrument was issued;
If required, the instrument of deposit must specify the scope of its application in accordance with the provisions of the relevant treaty; and contain all mandatory declarations and notifications in accordance with the provisions of the relevant treaty. Where reservations are intended, such reservations since reservations must be signed by the Head of State, Head of Government or Minister for Foreign Affairs or a person exercising, ad interim, the powers of one of the above authorities.
Other Agreements
A significant aspect of treaty law is the difference between a treaty and a memorandum of understanding (MOU). The fundamental difference between the two instruments lies in the terminology, and the fact that a treaty establishes legally binding obligations whereas an MOU or any other agreement such as a memorandum of cooperation (MOC), arrangement or exchange of letters does not create such obligations stricto sensu. A treaty would contain such language as “shall”, “undertake”, and “rights”, whereas an MOC or other agreement would use the word “will” and avoid “shall” and “undertake”. Treaties enter into force (usually when the required number of ratifications is received) whereas instruments such as MOUs and MOCs become applicable. However, a delicate nuance in the practice of treaty law is that merely because a particular instrument contains typical words used in a treaty, it may not necessarily be a treaty. Conversely, the use of the word “will” may not always mean that the Parties to a treaty did not intend to create a legally binding obligation.
The distinction between instruments that are conventionally recognized as treaties in accordance with the criteria discussed above, and other documents, has been blurred in practice. In the 1994 case of Qatar v. Bahrain the International Court of Justice went on to identify as a treaty a double exchange of letters i.e. between Bahrain and Saudi Arabia on the one hand and between Qatar and Saudi Arabia on the other, together with minutes of a meeting (held in 1990) between representatives of the three States and signed by the foreign Ministers of each State.
Registration with the United Nations (whether it be with the UN in New York or with a specialized agency) raises the presumption that the instrument so registered is a treaty, although aeronautical agreements concluded between States that are not treaties in the strict sense are also registered at ICAO. MOUs are not registered in the United Nations (nor at ICAO), thus raising the presumption that they are not treaties.

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Author: Sri Lanka Guardian

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