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Treaty PDF
Treaty PDF
A-Introduction;
Treaties can be traced back as far as the early-recorded history of Mankind.
Evidence for their existence has been found throughout the history. Treaties have
been the major legal instruments for regulating relations between States. States
concluded treaties in every conceivable subject. Ten of thousand treaties have been
registered with the United Nations since 1946. Until 1980, treaties had been
governed by international customary law. In 1969, the Vienna Convention on the
Law of Treaties was signed, codifying and developing existing customary rules; it
came into force in 1980.
In the modern period International treaties have been the first and foremost source
of International law. – Oppenheim. Whenever, an International Court has to decide
an International dispute, its first endeavor is to find out whether there is an
International treaty on the point or not. International treaties occupy the same
significant position in the field of International law as the legislation occupies in
the municipal law.
Prior to 1969 the law of treaties consisted for the most part of customary rules of
The Vienna
International Law. Vienna Convention on the law of treaties concluded at Vienna Convention
on 23 May 1969. Entered into force on 27 January 1980. was not,
however,
Article 38(a) of ICJ Statute: intended as
In deciding disputes regarding international law. The countries shall prefer to international a complete
covenants..(treaties) code of
treaty law,
According to Oppenheim: and in the
International treaties are agreements of a contractual character between states or preamble it
organizations of states creating legal rights and duties. is in fact
affirmed
that rules
According to Schwarzea Berger: of
Treaties are agreements between subjects of IL creating binding obligation in IL. customary
IL will
According to Starke: continue to
In nearly all the cases the object of the treaty is to impose binding obligations on govern.
the states who
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are parties to it.
The Vienna Convention on the Law of Treaties of 1969 (VCLT) is the main
instrument that regulates treaties. It defines a treaty and relates to how treaties are
made, amended, interpreted, how they operate and are terminated.
The VCLT relates only to treaties concluded between States who are parties to the
VCLT, and for treaties that entered into force after the VCLT came into force.
VCLT applied to treaties between States. This does not mean that treaties cannot
be concluded between other subjects of international law. As the International Law
Commission pointed out in its commentaries, Articles 1, 2(a) and 3 is not “in
anyway intended to deny that other subjects of international law, such as
international organizations and insurgent communities, may conclude treaties.”
The present Convention applies to any treaty which is the constituent instrument of
an international organization and to any treaty adopted within an international
organization without prejudice to any relevant rules of the organization. The
Commentary to Article 4.
In 1971, it was declared by the United States Department of State that the Vienna Convention was
recognized as the authoritative guide to current treaty law and practice.
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The term ‘treaty’ may be regarded as nomen generalissimum.
1- States transact a vast amount of work by using the device of the treaty,
in circumstances which underline the paucity of international law procedures
when compared with the many ways in which a person within
a state’s internal order may set up binding rights and obligations. For
instance, wars will be terminated, disputes settled, territory acquired, special interests
determined, alliances established and international organizations created, all by means of treaties.
b) A treaty can be concluded between a state and another subject of International law
in an international organization. But an agreement between so called international
or multinational companies, or even between a state and such a company, is not a
treaty . e.g Anglo-Iranian Oil Company Case, 1952(United Kingdom vs Iran)
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ii- Inter-government Form; Treaties may be drafted as between states, or
governments, or heads of states, or governmental departments, whichever appears the
most expedient. The inter-government form is employed for technical or non-political
agreements.
v- Ratification;
Ratification is a very important step in the formation of a treaty. Ordinarily, unless
and until a treaty is ratified it does not bind the States concerned. By ratification the
State confirms or approves the signature made by their authorized representatives on
the treaty. The state parties become bound by the treaty after ratification.
3- Agreement;
4- Arrangement
5- Process-Verbal
6- Statute
7- Declaration
8- Modus vivendi
9- Exchange of Notes (or of Letters)
10- Final Act
11- General Act
D-Formation of Treaties
Following are steps towards formation of treaties;
i- Accrediting of persons on behalf of contracting parties;
The first step in the formation of treaty is the accrediting of
persons on behalf of the contracting parties. States authorize
some representatives to represent them for the negotiation,
adoption on and signature etc, of a treaty. Unless these
representatives are accredited of authorized, they cannot
participate in the Conference.
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the full powers of its representative or was expressed during
the negotiations.
iv- Ratification; The next stage is that the delegates who signed
the treaty or convention refer it back to their Governments
for approval, if such further act of confirmation be expressly
or impliedly necessary. In theory, ratification is the approval
by the head of State or the Government of the signature
appended to the treaty by the duly appointed
plenipotentiaries. Article 2 of Vienna Convention defines
Ratification as: the international act whereby a State
establishes on the International plane its consent to be bound
by a treaty.
According to Lord Stowell: ratification was regarded as so
necessary that without it a treaty should be deemed
ineffective.
According to Judge J.B Moore in the Mavrommatis
Palestine Concessions Case, the doctrine that treaties may be
regarded as operative before they have been ratified is
‘obsolete, and lingers only as an echo from the past.
vi- Entry into Forces; The entry into force of a treaty depends
upon its provisions, or upon what the contracting States have
otherwise agreed. (Vienna Convention, article 24)
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vii- Registration and Publication; The United Nations Charter
1945, provides by Article 102 that all treaties and
International agreements enter into by members of the
United Nations Organization, shall as soon as possible be
registered with the Secretariat of the Organization and be
published by it. No party to a treaty or agreement not
registered in this way may invoke that treaty or agreement
before any organ of the United Nation. This means that 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.
3- Material breach;
There are two approaches to be considered. First, if one state
violates an important provision in an agreement, it is not unnatural
for the other states concerned to regard that agreement as ended by
it. It is in effect a reprisal or countermeasure, a rather unsubtle but
effective means of ensuring the enforcement of a treaty. The fact
that an agreement may be terminated where it is breached by one
party may act as a discouragement to any party that might
contemplate a breach of one provision but would be unwilling to
forgo the benefits prescribed in others. On the other hand, to render
treaties revocable because one party has acted contrary to what
might very well be only a minor provision in the agreement taken
as a whole, would be to place the states participating in a treaty in
rather a vulnerable position. There is a need for flexibility as well
as certainty in such situations. Customary law supports the view
that something more than a mere breach itself of a term in an
agreement would be necessary to give the other party or parties the
right to abrogate that agreement.
Article 42 states that the validity and continuance in force of a treaty may only be
questioned on the basis of the provisions in the Vienna Convention. Article 44
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provides that a state may only withdraw from or suspend the operation of a treaty
in respect of the treaty as a whole and not particular parts of it, unless the treaty
otherwise stipulates or the parties otherwise agree.
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