Unit 5- International treaty

Question 1

Definition of treaty

Answer 1

“Treaty” means 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.

• Legal Framework : Vienna convention on the law of treaties on 23 may 1969

Question 2

Characteristics of a treaty:

Answer 2

1. Must be a written agreement
2. Designation of the instruments
3. Concluded between subjects of international law
4. Governed/regulate by international law
5. International treaties produce legal effects.

Question 3

1.Must be a written agreement

Answer 3

1) Only subjects with legal personality can execute international treaties.
- all state subjects have the capacity to conclude treaties.
- states within a federated union do not have the capacity to engage in international treaties, unless their constitution allows them
- examples: Germany and Canada
- exception: Switzerland.

2) Consensus must be explicitly written by the subjects involved.
- exception: verbal agreements recognized by international institutions can also have legal effects in practice.
- example: verbal agreement regarding the negotiation of access to the Pacific Ocean between Chile and Bolivia.

3) two or more subjects involved
4) pacta sunt servanda “agreements must be kept”

Question 4

2. Designation of the instruments

Answer 4

• Different names have given to the treaties : pact, covenant, convention, protocol, minute, memorandum
• Depend by the nature of the parties, the material and formal instrument, manifestation of consent.
• The instruments of the international treaty can be : The expression of wills, in writing, is formalized by : Unique instrument.

Question 5

3.Concluded between subjects of international law

Answer 5

• subjects with legal personality have treaty-making power
• To conclude an international treaty between states, states and international organizations with another international organization
• Every state has the capacity to conclude treaties.

Question 6

4.Governed/regulate by international law

Answer 6

• Willingness of the parties to subject these agreements to the international legal order, regulated only by the international law.
• Agreements concluded between states and foreign companies are not international treaties, but contracts. Companies are not subjects of international law, and its agreements are not included, nor are they governed by international law, but by internal law.

Question 7

5. International treaties produce legal effects.

Answer 7

• Having legal effects between parties is a fundamental element for the existence of an international treaty
• Produces rights and obligations only for the subject parties to the international treaty.
• Agreements that do not produce legal effects are called non-normative agreements or political agreements. Are not international treaties, because they do not constitute international obligations, that compliance can not be demanded, neither constitutes internationally wrongful acts nor gives rise to international responsibility.

Question 8

Representation of the state in the treaty-making process

Answer 8

States I.O., are legal persons, have international personality in international relations, act through organs embodied by individuals who represent them.

Question 9

How can the individual represent the state in international relations, in the treaty-making process?

Answer 9

• Express accreditation or representation : full powers
• Implicit accreditation or representation

Question 10

Treaty making process:

Answer 10

1. Adopting the text of the treaty
2. Negotiation of treaties
3. Authentication of treaties

Question 11

Adopting the text of the treaty:

Answer 11

• The Adoptation of the text of a treaty takes place by the consent of all the states participating in its drawing.
• The adaptation 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.

Question 12

Negotiation of Treaties:

Answer 12

The Vienna Convention does not establish protocol for treaty negotiations as this process is related directly to states and their involvement in the drafting of treaties.

Types of negotiations:
- bilateral: private negotiations between embassies, diplomatic channels or missions between two states.
- multilateral: public negotiations that take place in international conferences

Question 13

Authentication of treaties:

Answer 13

No modifications to the content of the treaty can be made during the authentication process, only errors and grammatical mistakes.

According to article 10 of the Vienna Convention, once a treaty is authenticized it is established as definitive by the states involved.

Treaties are authenticized in the respective languages.
- bilateral and multilateral: languages between parties involved.
- UN: 6 languages (arabic, chinese, english, french, russian and spanish)
- EU: 24 official languages of the organization

States must sign the treaties or organize a final act that incorporates the text

Question 14

Manifestation of consent:

Answer 14

“ 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 if so agreed. “

Simple forms or solemn forms.

Question 15

Manifistation of consent: Simple forms:

Answer 15

• signature
• signature ad referendum: signature pending confirmation
• exchange of notes between diplomatic missions
• common practice for bilateral treaties

Question 16

Manifistation of consent: Solemn forms:

Answer 16

Ad hoc document aside from the treaty
- Ratification: signed by the head of state
- Acceptance: by the head of government or ministry of foreign affairs
- Approval: by the head of government or ministry of foreign affairs.

Question 17

Reservation of treaties:

Answer 17

A reservation occurs when a state signs an international treaty but reserves the right to not apply certain provisions.

• Reservations are done after the authentication process, within a one year period, and must be written down in a formal act.
  –> Modifications to reservations can be done at any time.
  -It is a unilateral act as it does not need approval from other states involved.

Question 18

Treaties entry into force:

Answer 18

International treaties contain an entry into force clause that establishes the specific criteria needed based on the type of treaty, parties involved and time limits.

= Take full legal effect, become binding on the state parties, must be performed in good faith.

Question 19

Article 24 VC. Entry Into force.

Answer 19

1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating states may agree.
2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states.
3. When the consent of a state to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that state on that date, unless the treaty otherwise provides.
4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of states to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arise necessarily before the entry into force of the treaty apply from the time of the adaptation of its text.

Question 20

Deposit of Treaties

Answer 20

The definitive consent to be bound by a treaty is recorded at the international level. The instruments are in the custody of a depositary.

Depositary may be a state/s or an international organization.

The functions of the depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their performance. In particular, the fact that a treaty has not entered into force between certain of the parties or that a difference has appeared between a state and a depositary with regard to the performance of the latter’s functions shall not affect that obligation.

Depositary states start the correction of errors committed in the authentication process. Communicate a copy to the states.

Question 21

Functions of the deposit:

Answer 21

1) Keep custody of the original text of the treaty

2) Preparing certified copies of the original text

3) Receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it

4) Examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form

5) Informing the parties and states entitled to become parties to the treaty of acts, communications and notifications related to the treaty.

6) Informing states entitles to become parties to the treaty when the number of signatures required for the entry into force of the treaty has been received or deposited

7) Registering the treaty with the secretariat of the united Nations

8) Performing the functions specified in other provisions of the present convention.

Question 22

Registration of Treaties

Answer 22

Treaties must be registered to the UN Secretariat, in accordance with Article 80 of the Vienna Convention that prohibits secret diplomacy.

• the registration phase occurs after entering into force.
• treaties must also be registered at a domestic level.

Question 23

Amendment and modifications of treaties:

Answer 23

With the authentication, the text of the treaty can not be modified.
Only can be modified after the treaty has entered into force.

Amendment - refers to a change in relations to all the states parties

Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting states, each one of which shall have the right to take part in :

a) The decision as to the action to be taken in regard to such proposal;
b) The negotiation and conclusion of any agreement for the amendment of the treaty

Modification → refers to an agreement concluded only between some of the parties (multilateral), decide to modify the treaty concluding another treaty that will regulate their mutual relations.

Will only modify the relations between the states parties to the modified treaty. What the states parties decided to change only is going to affect their relations, but is not going to affect the relations with the other states parties that did not decide about that change.

Question 24

Invalidity of Treaties

Answer 24

1) Provisions of internal law regarding competence to conclude treaties

2) Specific restrictions on authority to express the consent of a state.

3) Error

4) Fraud

5) Corruption of the representative of the state

6) Coercion of a representative of a state

7) Coercion of a state by the threat or use of force.

8) Treaties conflicting with a peremptory norm of general international law (jus cogen the principles which form the norms of international law that cannot be set aside)

Question 25

Termination of Treaties: Characteristics

Answer 25

1) Will of parties involved
- Example: termination of the Treaty about the European Coal and Steel Community (1951-2001).

2) Implied by the conclusion of a later treaty

3) A breach of the treaty’s provisions

4) Termination of diplomatic relations

5) Emergence of new international norms (jus cogens) that conflict with the treaty.1)