SUMMARY LAW OF TREATIES

DEFINITION OF TREATY

ILC: any international agreement in written form, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (treaty, convention, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, modus vivendi or any other appellation), (p. 355) concluded between two or more States or other subjects of international law and governed by

international law.

The excerpt defines a treaty as any written international agreement between states or other international entities, regardless of its designation. It clarifies that the term 'other subjects' was intended to cover international organizations and entities like the Holy See, but the Vienna Convention on the Law of Treaties focuses primarily on agreements between states. The definition emphasizes the written form and the requirement that the treaty be governed by international law, excluding commercial agreements under national law. The distinction between a definitive legal commitment and lesser arrangements depends on content rather than the title.

FORM AND INTENTION

  • Negotiation and Form: Treaty negotiation and entry into force depend on parties' intent, with no strict form requirements. Various forms, including letters or conference minutes, may carry legal weight comparable to formally drafted treaties.

  • Formal Variation: Form is influenced by usage, varying based on whether agreements involve states, heads of states, governments, or specific ministers or departments. The Vienna Convention on the Law of Treaties (VCLT) applies to written agreements, but non-written agreements are not excluded.

  • Non-Binding Instruments: Parties often use non-binding instruments like memoranda of understanding (MOUs) to record mutual understandings without intending legal obligations. The instrument's name doesn't determine its legal status; the parties' intention, as expressed in the language used, is crucial.

FULL POWERS AND SIGNATURE

FUNCTION OF TREATIES

McNair identified diverse treaty functions, likening territorial pacts to conveyances and state bargains to contracts. Multilateral agreements, shaping rules or institutions, are deemed 'law-making.' McNair argued for general treaty effects, limiting preparatory work use, avoiding state recognition, and excluding the rebus sic stantibus doctrine. In contrast, the International Law Commission rejected broad treaty classifications, emphasizing unity. Distinctions between treaty-contract and treaty-law are diminishing, challenging the contrast between political bargains and legislative acts. Some Vienna Convention on the Law of Treaties rules may suit contractual agreements better than law-making ones, despite the ongoing evolution of perspectives.

Conclusion of Treaties

A. Form and Intention

  • There are no overriding requirements of form

  • Treaties brought into force depends Intention of the Parties

  • No li

B. Full powers and signature

  • Full powers: A document granting someone the authority to act on behalf of a country or organization in official matters.

  • Signature: A person's name or mark written by themselves, used to indicate approval, authorization, or endorsement.

C.PROVISIONAL application

Modern treaties, whether bilateral or multilateral, often undergo provisional application before formal enactment, allowing them to operate in urgency or uncertainty about ratification. Examples include arms control, status of forces, fisheries, and international organization charter amendments. The Vienna Convention on the Law of Treaties permits provisional application, outlined in Article 25, with effects contingent on parties' consent. Despite controversies, provisional application, seen as a genuine albeit precarious commitment, may have legal consequences, especially in contexts like investment treaty arbitration under agreements such as the Energy Charter Treaty. The International Law Commission is developing guidelines on provisional application.

D.RATIFICATION

Ratification involves two distinct procedural acts: the first, an internal act of approval (e.g. by the parliament, or in the UK the Crown); the second, the international procedure which brings a treaty into force by a formal exchange or deposit of instruments of ratification

E.ACCESSION, ACCEPTANCE, APPROVAL

  • Accession Definition: Accession is a formal acceptance of a treaty's provisions by a state that did not initially sign it, whether before or after the treaty enters into force.

  • Conditions and Procedure: The terms and process of accession depend on the treaty's provisions. In some cases, like conventions proposed for accession by member states, accession may be the sole method of becoming a party.

  • Terminology Variation: Recent practice employs terms like 'acceptance' and 'approval' for accession. However, treaty language may vary; for instance, 'subject to acceptance' is equivalent to 'subject to ratification.'

F. Entry into force, deposit, and registration

Entry into

RESERVATION

  1. Historical background

  2. Impermissable reservations

  3. ILC Guide

Observance, Application, and Interpretation of Treaties

  1. Pact sunt servanda

  2. Application of treaties