Treaties

What is a Treaty?
Treaties are the principal source of Public International Law.
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’ (Article 2(1)(a)).
A treaty is an agreement between sovereign States (countries) and in some cases international
organisations, which is binding at international law. An agreement between an Australian State
or Territory and a foreign Government will not, therefore, be a treaty. An agreement between
two or more States will not be a treaty unless those countries intend the document to be binding
at international law.
Treaties can be bilateral (between two States) or multilateral (between three or more
States). Treaties can also include the creation of rights for individuals.

Treaties are commonly called 'agreements', 'conventions', `protocols' or `covenants' , and less
commonly `exchanges of letters'. Frequently, `declarations' are adopted by the UN General
Assembly. Declarations are not treaties, as they are not intended to be binding, but they may
be part of a process that leads ultimately to the negotiation of a UN treaty. Declarations may
also be used to assist in the interpretation of treaties.

The law of treaties is governed primarily by the Vienna Convention on the Law of Treaties
which was brought to force on the 27th day of January, 1980. This document was legislated by
the International Law Commission of the UN for setting up guidelines on the manner of
operation of treaties. Majority of the member states of the United Nations have become a party
to this Convention.

Generally, unless a country ratifies a treaty or becomes a signatory, there is no legal obligation
of abiding by the treaty terms. This concept has been referred to by the Latin maxim, “pacta
sunt servanda” which states that every signatory is bound to follow the treaty obligations in
good faith. Pacta sunt servanda forms the basis of treaty law which is recognised under Article
26 of the Convention. The exception to this was laid down in the North Sea Continental Shelf
Cases where the ICJ held that certain treaties have a fundamentally norm-creating character.
This essentially means that treaties define such conduct, often pertaining to human rights,
which binds states internationally.

Clausula rebus sic stantibus is the legal doctrine allowing for a contract or a treaty to become
inapplicable because of a fundamental change of circumstances. In public international law the
doctrine essentially serves an "escape clause" to the general rule of pacta sunt
servanda (promises must be kept). Because the doctrine is a risk to the security of treaties, as
its scope is relatively unconfined, the conditions in which it may be invoked must be carefully
noted.
“Reservations” are the way in which a signatory may escape having to follow all the provisions
of the treaty and is a tactic used to become a party by agreeing to the basic principles of a treaty.
However, reservations can only be made in cases where such reservation is not contrary to the
object of the treaty.

Interpretation of a treaty should be bona fide and the object and purpose of the treaty needs to
be kept in mind while doing so. In case the text is vague, “travaux preparatories” and other
supplementary means of interpretation might be used. One such method of interpretation of a
treaty is adopting a broader-purpose approach. Contrastingly, a purpose-oriented approach is
adopted in cases where the treaty in question to be interpreted is the constitutional document
of an international organization.

Kinds of treaty

 Law Making treaties

The term “law-making” treaty seems to be confusing, as it raises the question- Can treaties
create law? This term actually refers to the content and the subject matter of a treaty, which
instead of being contractual shall be statutory. The emergence of a subsisting need of
international legal order sparked a newfound interest in this type of treaty. The need of bringing
rules which had statutory force was felt rather than the existing rules which governed voluntary
legal relations between states. In cases of law-making treaties, the obligations are independent;
they don’t require a subsequent fulfilment of rules by other parties to it. These obligations have
binding force and the parties to these treaties must follow it. Unlike contracts, treaties have the
power to make new international tribunals, international waterways, mandates, etc.

These are multilateral treaties which stand for a common cause. A commentary by Fitzmaurice
takes human rights treaties and maritime regimes as law-making treaties. In the case of a
multilateral treaty, this type of treaty can be broken down and thought of as a number of
bilateral treaties, each of which are independent of one another and have to follow the
obligations inherently. As for bilateral treaties, they can simply be viewed as dependent on
each other as existence. Here, each party does not join to provide another party something it
might require, but rather to stand for a mutual cause or support a rule binding on all.

 Contractual treaties

They are usually applicable to treaties having a small number of parties and are most commonly
seen in bilateral treaties. These are treaties where parties are mutually dependent on each other
for specific treatment to gain benefits, and have rights and obligations towards each other. In
reality, treaties need to take care of both the statutory as well as the contractual function. The
scope of treaties is mostly perceived in a contractual framework. Unlike law-making treaties,
which sets out rules for conduct, rights, and duties between parties which have to take effect
on the conclusion of the treaty, contractual treaties are usually limited to, say, exchange of
goods which one state might not possess and require, or conveyances. Here, one party agrees
to provide the other party something it needs for something else in return, thereby forming a
system like barter.

Types of treaty

 Bilateral treaties

Treaties involving two entities are bilateral treaties. It is not necessary that the treaty can only
have 2 parties; there may be more than two parties, however, there should be only two states
involved. For example, the bilateral treaties between Switzerland and the European Union(EU)
have 17 parties, which are divided into two parts, the Swiss and the EU and its member states.
It is important to note that by virtue of this treaty, obligations, and rights arise between the two
entities to it, i.e. the EU and the Swiss. This treaty does not give rise to obligations between the
EU and its member states.

 Multilateral treaties

Treaties between three countries or more are multilateral treaties. They might be international
or domestic. They give rise to rights and obligations among all the parties, i.e. each signatory
has obligations towards all the other signatories.

Treaties with a higher number of participating states gain more international significance since
it reflects the importance of the treaty. However, there have been many crucial bilateral treaties
too, such as those emerging from Strategic Arms Limitation Talks. All treaties have different
purposes. Some set up international organizations through the UN Charter of 1945, whereas
others deal with issues such as visa regulations.

Formation of a treaty

There is no concrete way of creating a treaty. It may be presented in different forms such as a
contract or an exchange of notes, as seen in the Rush-Bagot Agreement between Great Britain
and the U.S. for mutual disarmament on the Great Lakes. Most treaties, however, follow a
similar structure. Every treaty begins by introducing its preamble, which states the object of
the treaties and the parties to it. It is then followed by what the parties agreed upon. A statement
of the period may or may not follow; it depends on the time period for which the treaty shall
exist. Next up, reservations and then ratification clauses follow. Then, it ends with the
signatures of the parties involved along with the date and venue of ratification.

Additional articles may be further attached along with the declaration that they are equal in
value as to other clauses. Going by the Law of Treaty, the following steps form the essentials
of formation of a treaty-
  Adoption of the text

Consent of all parties to a treaty is essential for adopting a text. If the treaty is being adopted at
an international conference, a two-thirds majority shall be required for the adoption of text
unless agreed upon otherwise.

 Authentication of the text

As per the procedure mentioned in the text, a treaty shall be established to be authentic. On the
failure of such procedure, signatures or initials of representatives of the participating states may
be sufficient to deem the text to be definitive.

 Expression of consent

This may be by way of signatures, ratification, acceptance, approval or accession or by

exchanging instruments required for the treaty.

 Consent by signature

Provided that the treaty explicitly states that signature by the representative of a state shall be
sufficient to be declared as a party, or the negotiating states have mutually consented to
signature be sufficient, the representative’s signature expresses a state’s full intention to enter
into a treaty.

 Consent by exchange of instruments required by the treaty

If the states agree that exchange shall be equivalent to the expression of the consent to enter
into the treaty, then so shall be the case.

 Consent by ratification, acceptance or approval

If the negotiating states are of the opinion that ratification shall be equivalent to expressing
consent, or the treaty provides for ratification, then it shall be an acceptable way of obtaining
consent to the treaty. Similarly, the same condition applies to consent expressed by approval
or acceptance.

 Consent expressed by accession

Consent to the treaty shall be obtained If the treaty provides for it or the negotiating states agree
upon accession.

 Formulation of reservations

A state may while concluding the treaty expresses its reservations unless it’s prohibited by the
treaty, or if permitted shall violate with the object and intent of the treaty.
Termination of treaty

Termination by means of Withdrawal

International law is based on the foundation of consent of the parties. It is in respect of this that
treaties have provisions for withdrawal. If the number of signatories falls below the prescribed
number due to withdrawal, a treaty stands terminated. Article 56 deals with withdrawal of
treaties which do not have termination or withdrawal clause. However, certain treaties do not
allow for withdrawal owing to their nature. It is for this reason that North Korea was denied
withdrawal from the International Covenant on Civil and Political Rights.

Suspension and Termination

1. Implied by the conclusion of a later treaty-

If a new treaty has been drafted dealing with the same subject matter as a previous one, then
upon the conclusion and ratification of the new treaty, the old one is deemed to be suspended.

 As a consequence of its breach-

Usually among bilateral treaties, if one party commits a breach of the provisions then the entire
treaty can be terminated or suspended at the discretion of the other parties.

 Impossibility of performance-
When the carrying out of the provisions becomes impossible for any reason, then the treaty can
be terminated. If the impossibility if for a specific duration of time, then the treaty may be
suspended for that time period.

 Fundamental change of circumstances

This is akin to force majeure clauses, where due to unforeseen, uncontrolled events, the
provisions of the treaty can only be carried out with great impediment.

 Changes in diplomatic or consular relations

Hostile elations and change in diplomatic relations by themselves cannot lead to suspension or
termination unless the treaty specifically provides for such a clause.

 New jus cogens

Jus cogens are internationally recognized principles. If there exists new jus cogens, then the
treaties which are in violation of such a new jus cogen may be terminated.

Conclusion

The Vienna Convention on the Law of Treaties is the principal piece of international document
which provides the basics of all other treaties. Pacta sunt servanda is the principal maxim which
governs it and enforces obligations on signatories of all treaties. This Convention which
provides basis of formation, ratification, amendment, and termination of treaties is of primary
importance as treaties form the most fundamental source of international law.
 Intervention

In international law, the concept of “intervention” is tied to the notion “interference” and is
when a State intervenes in the internal affairs of another State, in violation of the latter’s
sovereignty.
Such intervention is prohibited by the United Nations Charter (Art. 2.7), under the principle of
non-intervention, or non-interference, which posits that States should not “intervene in matters
to preserve the independence of weaker states against the interventions and pressures of more
powerful ones.” This concept is presented as the basis for international relations and therefore
applies to interstate relations, not to relief activities carried out by impartial humanitarian
organizations.
In the past, States have used humanitarian arguments to justify direct and armed
interventions that violated other States’ sovereignty. The International Court of Justice (ICJ)
clarified in 1986 (Nicaragua v. United States of America) the circumstances in which
humanitarian aid can constitute an interference and as such an unlawful intervention into the
internal affairs of a State.
Today, the UN Security Council holds the monopoly on the use of armed force in the
international arena.
International law recognizes only one “right of intervention” into a State’s internal affairs; it is
set forth and limited in Chapter VII of the UN Charter. This right is thus entrusted to the UN
Security Council when a state’s behaviour can be construed as a threat to international
peace and security. In such a case, the Council can undertake a series of measures, including
diplomatic or economic sanctions. The Council is also authorized to use force and may decide
that an international armed intervention is necessary to make the State in question stop its
activities.
Several times, the Council has invoked humanitarian considerations when undertaking
military or peacekeeping operations, yet peacekeeping operations obey broad imperatives
linked to maintaining or reestablishing international peace and security, according to which
humanitarian considerations remain secondary.
Thus, it is important not to confuse “humanitarian intervention” defended by States or the UN
with humanitarian actions undertaken by impartial humanitarian organizations in situations of
conflict.

Right of Humanitarian Intervention

The “right of humanitarian intervention”—or the “right to intervene for humanitarian

purposes”—is a notion that achieved widespread popularity thanks to its ambiguity. This
concept was used to try to encourage and justify the use of force foreseen in the UN framework
in order to protect populations threatened within their own country. This opened the way to
armed operations within the framework of the UN, or with its authorization; however, it did
not clarify the role that humanitarian considerations play in decisions to use force, nor did it
succeed in clarifying UN soldiers’ responsibility in terms of protecting populations in danger.

International law, as codified by the UN Charter, gives priority to the notion of State
sovereignty and all but forbids one State from intervening inside the borders of another without
the latter’s consent. However, certain exceptions do exist, tied mainly to the concept of
collective security.

The notion that non-international conflicts and particularly massive violations of humanitarian
law may threaten international peace and security is a recent justification to place armed
intervention in a UN framework. However, the UN was unable to give the intervention forces
the legal mandate or the material means necessary to protect civilians from massacres such as
those that took place in Srebrenica in the former Yugoslavia in 1995 or against extermination
or genocide such as that which occurred in Rwanda in 1994. A report on UN peacekeeping
operations released in August 2000 (by a panel chaired by Lakhdar Brahimi) is unlikely to
change this. While insisting that the Security Council ensure that peacekeeping operations be
given the resources necessary to carry out their mandate and arguing that ambiguous mandates
can have disastrous consequences, it establishes quite clearly that “use of force only in self-
defence should remain the bedrock principles of peacekeeping” (para. 48 of the report) and
affirms that it is impossible for UN peacekeepers to protect the civilians in all the areas where
they are deployed.

Monroe Doctrine, (December 2, 1823), cornerstone of U.S. foreign policy enunciated by Pres.
James Monroe in his annual message to Congress. Declaring that the Old World and New
World had different systems and must remain distinct spheres, Monroe made four basic points:

(1) the United States would not interfere in the internal affairs of or the wars between European
powers;

(2) the United States recognized and would not interfere with existing colonies and
dependencies in the Western Hemisphere;

(3) the Western Hemisphere was closed to future colonization; and

(4) any attempt by a European power to oppress or control any nation in the Western
Hemisphere would be viewed as a hostile act against the United States.

Grounds for Intervention:

1) Self-Preservation -

The Supreme interest of the State overrides the law. The right of self-
preservation is more sacred than the duty of respecting the independence of other State. A
state has right to interfere in the affairs of another State where the security and immediate
interests of the former are compromised. Interventions, therefore, in order to ward off
imminent danger to the intervening State are justified by the force of Circumstances. The
danger must be direct and immediate, not contingent, and remote.

2) Enforcement of Treaty Rights -

A State is justified in interfering in the affairs of another State if the provisions

of any treaty oblige the former to preserve the independence or neutrality of the latter. Such
intervention does not violate any right of independence because the State that suffers has
conceded such liberty of interference by treaty.

3) Grounds of Humanity -

Another justification is based on the ground of humanity. In the opinion of

many writers such interventions are legal, but they cannot be brought within the ordinary
rules of International Law, which does not impose on States the obligation of preventing
barbarity on the part of their neighbours.

4) Balance of Power -

The Doctrine of the necessity of a balance of power, observes Fenwick, between

the leading States as the basis of mutual self-protection, dominated the international relations
of the nineteenth century. Most of the interventions in the Balkan Peninsula should be
regarded as interventions in consonance with the policy of balance of power. Intervention on
the ground of prevention of the balance of prevention has been condemned by jurists of all
ages.

5) Protection of Persons and Property -

Protection of the persons, Property and interest of its nationals may provide
justification for intervention. The necessity for protection may arise due to gross injustice or
due to injury caused by unfair discrimination.

6) Intervention in Civil Wars -

With the establishment of the United Nations, there is no justification for

intervention by the Individual States in the civil wars of other states. The Charter of United
Nations imposes an obligation upon States to refrain in the international relations from the
threat or use of force against the territorial integrity or political independence of any
State.

7) Collective Intervention -

Collective intervention at the present time is in pursuance of the provisions

of the Charter of the United Nations, viz the enforcement action under the authority of the
United Nations Security Council in accordance with Chapter VII of the Charter.

8) Other Grounds -

a) If the State subject of the intervention has been guilty of a gross breach of
International Law in regard to the intervening State, for example -If it has itself unlawfully
intervened.

b) Self Defence, if intervention is necessary to meet a danger of an actual armed

attack.

c) In the affairs of a protectorate under its dominion;

d) To protect the rights and interests and the personal safety of its citizens abroad;

Non-interventionism
Non-intervention is a political philosophy or national foreign policy doctrine that opposes
interference in the domestic politics and affairs of other countries but, in contrast
to isolationism, is not necessarily opposed to international commitments in general. A 1915
definition is that non-interventionism is a policy characterized by the absence of "interference
by a state or states in the external affairs of another state without its consent, or in its internal
affairs with or without its consent".
This is based on the grounds that a state should not interfere in the internal politics of another
state as well as the principles of state sovereignty and self-determination. A similar phrase is
"strategic independence"

State Sovereignty

Under current international law, sovereignty is defined as- “Sovereignty in the sense of
contemporary public international law denotes the basic international legal status of a state that
is not subject, within its territorial jurisdiction, to the governmental, executive, legislative, or
judicial jurisdiction of a foreign state or to foreign law other than public international law. It is
also defined as the ‘ultimate authority, held by a person or institution, against which there is
no appeal’.

In other words, Sovereignty is the ultimate power, authority and/or jurisdiction over a people
and a territory. No other person, group, tribe or state can tell a sovereign entity what to do with
its land and/or people. A sovereign entity can decide and administer its own laws, can
determine the use of its land and can do pretty much as it pleases, free of external influence
(within the limitations of international law).
Self Determination

Self-determination denotes the legal right of people to decide their own destiny in the
international order. Self-determination is a core principle of international law, arising
from customary international law, but also recognized as a general principle of law, and
enshrined in a number of international treaties.

The right of peoples to self-determination is their right to freely determine their political status
and freely pursue their economic, social, and cultural development. It has a central position in
international law as a primary principle in the creation and destruction of states. It features in
Article 1 of the UN Charter (1945) as one of the purposes of the organization.