Treaty - Oppenheim: According to Oppenheim, “treaties” are agreements of a contractual character between states or organizations of states, creating legal rights and duties or obligations between the parties.
Sehwarzanberger: Sehwarzanberger states that treaties are agreements between subjects of International Law creating a binding obligation in International Law.
Vienna Convention 1969: In is convention, treaty is defined as “an agreement concluded between states in writing form and governed by International Law.”
J. G. Starke: A treaty may be defined as an agreement whereby two or more states establish or seek to establish a relationship under International Law between themselves.
Types of treaties: Treaties may be divided in two groups, i.e., law making treaties and treaty contracts.
Treaties may be bilateral or multilateral and also may be law making treaties or treaty contracts. In nearly all cases, the object of a treaty is to impose binding obligations on the states that are parties to it.
Law making treaties - Brierly: Law making treaties are those which a large number of states have concluded for the purpose:
1. Either of declaring their understanding of what the law is on a particular subject, or
2. Of laying down a new general rule for future conduct, or
3. Of creating some international institutions.
Adopted by all or most of the great states: Generally to be “law making” a treaty should be adopted by all or most of the great states as then the rules approved by such states “have very great weight in practice even among states which have never expressly conducted to them.”
General norms for the future conduct: Treaties create “general norms” for the future conduct of the parties in terms of legal proposition.
Direct source of International Law: The provisions of a lawmaking treaty are directly a source of International Law. This is not so with the treaty contracts which simply purport to lay down special obligations between the parties only.
International Legislation: There is no legislative organ in the field of International Law comparable to legislature within the state, but the lawmaking treaties fulfil the gap quite sufficiently and are labeled as International Legislation.
Example of lawmaking treaties: The examples of lawmaking treaties are as follows:
1. Declaration of Paris 1856.
2. The Geneva Convention of 1864, 1906, 1929, & 1949.
3. The Suez Canal Convention 1888.
4. Hague Conventions of 1899 & 1907.
5. The Convention of the League of Nations 1919.
6. A great treaty for the renunciation of war and the charter of the United Nations 1945 are pure law making treaties.
Treaty contracts: Following are the characteristics of the treaty contracts:
Indirect source: In contrast to lawmaking treaties, treaty contracts are not directly a source of International Law. They may, however, as between the parties of signatories thereto, constitute particular law.
Lead to the formation of International Law: Such treaties lead also to the formation of International Law through the operation of the principles governing the development of customary rules.
A series or recurrence (reappearance, return) of treaty contracts: A series or a recurrence of treaties laying down similar rule may produce a principle of customary International Law to the same effect.
Generalized by subsequent acceptance or imitation: It may happen with a treaty originally concluded between a limited number of parties only that a rule in it be generalized by subsequent independent acceptance or imitation of other states.
Crystallized into law by independent process of development: A treaty may be of considerable evidence such as to the existence of a rule which has crystallized into law by an independent process of development.
Importance of treaties in International Law: The present day International Law cannot survive without lawmaking treaties. The reasons are as follows:
1. Industrial and economic changes: Modern industrial and economic changes have brought states into closer intercourse with each other which can be regularized only by treaties.
2. To meet the urgent demands: The lawmaking treaties are the only source by which International Law can meet the urgent demands of international society of states for the regularization of the common interests.
3. Effective regulation of international communication, trade, travel etc.: Treaties effectively regulate the international communications, trade, travel, and other important activities.
Summing up: It may be said that the treaties are the eminent source for regularizing the relations of modern interdependent states with each other and International Law cannot be completed without treaties.
Termination of treaties: Treaties may be terminated either by act of the parties or operation of law.
1. Termination of treaties by act of parties: Parties may terminate the treaties in the following way:
a) By mutual agreement: The parties to a treaty may terminate it by mutual agreement in the same way as they concluded it.
b) By denunciation (charge, blame): A party may terminate its treaty obligations by act of denunciation if this right was provided in the treaty or with the consent of other parties if it is not provided in the treaty.
2. Termination of treaties by operation of law: Sometimes operation of law terminates the treaty. Such situation may arise in the following cases:
a) Extinction of either party: Extinction of either party to a bilateral treaty may discharge the instrument. Thus treaty between USA and Tripoli ceased to exist when Italy annexed the latter in 1912.
b) Expiration of the specified period: A treaty specifically concluded for a fixed period of time, for example, five years, terminates on the expiration of that period.
c) Fulfillment of the object: In case of treaties imposing no continuing obligation, they cease to operate on the fulfillment of the object.
d) Non-performance of certain essential conditions: If a treaty is conditioned on the happening of a certain event or on performance of certain act, the treaty will be not operative until such happening or performance and if a such performance becomes impossible the treaty will become void.
e) Obligations incompatible with the charter of UN: Article 103 of the charter specifically provides that in the event of a conflict between the obligations of the members of the UN and their obligations under any other agreement, their obligations under the charter shall prevail.
f) Impossibility of performance: A treaty may terminate when the performance of obligations imposed by treaty becomes impossible.
g) Outbreak of war: Treaties may come to an end on the outbreak of war between the parties. The modern view, however, is that the outbreak of war does not necessarily bring a treaty to an end.
h) Number less than required for convention: If successive denunciation (charge, blame) of a treaty reduce the states parties to less than the number provided for by the convention, the treaty ceases to be in force.
i) Doctrine of rebus sic stantibus (major change in the state of fact): Treaties may be discharged as a result of the rebus sic stantibus doctrine. According to this doctrine a treaty may become null and void in case there is a fundamental change in the state of facts which existed at the time, when treaty was concluded.
j) Doctrine of jus cogen: According to this doctrine, a treaty may be declared void if it conflicts with peremptory (authoritative) norms of general International Law. Article 53 of the Vienna Convention on the Law of Treaties, 1969 lays down, that a treaty is void if, at the time of its conclusion, if conflicts with a peremptory norm of general International Law.
Ratification of a treaty: It is an act of adopting an international treaty by the parties thereto. In other words, “ratification” implies the confirmation of the treaty entered into by the representatives of the different states.
According to J. G. Starke: 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 plenipotentiary.
Form of ratification: As regards the form of ratification, there is no express rule, it may be made express or implied.
Rational grounds for ratification: The practice of ratification rests on the following rational grounds:
a) Opportunity of re-examining: States are entitled to have an opportunity of re-examining and reviewing instruments signed by their delegates before undertaking the obligations specified therein.
b) Sovereignty: By reason of its sovereignty, a state is entitled to withdraw from participation in any treaty if it desires.
c) Approval of parliament: The time between the signature and actual ratification affords an opportunity to obtain the approval of parliament.
d) Consult pubic opinion: It also gives the government an opportunity to consult public opinion.
According to Brierly: There is neither legal bar nor even by its own plenipotentiary. It can only be said that refusal is a serious step which ought not to be taken lightly.
Conclusion of treaties: There is no specific form for the conclusion of treaties. An oral agreement between representatives of the state charged with the task of conducting negotiations and empowered to bind their respective countries is sufficient to have binding effect if it is the intention of the representative to conclude a legally binding transaction.
The enormous importance of the issues involved in such agreements however necessitates the compliance of formal requirements and reducing the agreements into a document. The various steps towards the conclusion of a treaty are:
1. Accrediting (charge, assign) of representatives: Once a state has decided to commence negotiations with another state or other states for a particular treaty, the first step in the appointing representatives of a state is provided with a very formal instrument given either by the Head of State or by the Minister for Foreign Affairs. It shows his authority to conduct such negotiations, which is known as the Full Power.
2. Negotiation: The plenipotentiaries exchange their full powers or a copy thereof before entering upon their task. They then proceed with negotiation. In the case of a bilateral treaties negotiations are conducted through pour-parlers but they take the shape of a diplomatic conference when a multilateral treaty is to be adopted or concluded.
3. Signature: When the final draft of a treaty is drawn up, the instrument is ready for signature. The signature is affixed at a formal closing session. A treaty generally comes into force on signature by plenipotentiaries of the contracting states unless the states desire to subject it to ratification. Treaties and conventions are generally always sealed.
4. 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 implied is necessary.
5. Accession and adhesions: A third state can become a party to an already existing treaty by means of accession. This may be brought about by formal entrance of the third state with the consent of the original contracting parties. Adhesion denotes the entrance of a third State into an existing treaty with regard to certain stipulations or certain principles only embodied in the treaty.
6. Entry into force: The treaty, unless where ratification is necessary, comes into force on the date of signature. In case of ratification the treaty comes into force after the exchange or deposit of ratification by the state signatories. Multilateral treaties come into operation on the deposit of a prescribed number of ratification and accessions.
7. Registration and publication: Article 102 of the UN Charter provides that treaties and international agreements entered 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.
8. Incorporation in Municipal Law: The final stage of the treaty making process is the actual incorporation, where necessary of the treaty provisions in the municipal law of the state parties.
Rules for interpretation of treaties: Numerous rules, canons, and principles have been laid down by international tribunals and by writers to be used as tools in the interpretation of treaties.
J. G. Starke prescribe the following as a summary of the more general rules:
1. Grammatical interpretation: Words and phrases are in the first instance to be construed according to their plain and natural meaning. However if the grammatical interpretation would result in an absurdity, or in marked inconsistency with other portions of the treaty, it should not be adopted.
2. Intention of the parties: It is legitimate to consider what was the “purpose” or “plan” of the parties in negotiating the treaty. What must be ascertained is the ostensible intention of the parties, as disclosed in the Four Corners of the actual text.
3. Object and context of treaty: If particular words and phrases in a treaty are doubtful, their construction should be governed by the general object of the treaty and by the context.
4. Reasonableness and consistency: Treaties should be given an interpretation in which the reasonable meaning of words and phrases is preferred, and in which a consistent meaning is given to different portion of the instrument. In accordance with the principle of consistency, treaties should be interpreted in the light of existing International Law.
5. The principle of effectiveness: This principle requires that the treaty should be given an interpretation which “on the whole” will render the treaty “most effective and useful”, in other words enabling the provisions of the treaty to work and to have their appropriate effects.
6. Recourse (support) to extrinsic (foreign, external) material: Normally, the interpreting tribunal is limited to the context of the treaty. However, the following may be resorted to, provided that clear words are not thereby contradicted:
a) Past history, and historical usage, relevant to the treaty.
b) Preparation work, i.e., preliminary drafts, records, etc.
c) Interpretative protocols, resolution, and committee reports, setting out agreed interpretations.
d) Subsequent conduct of the state parties, as evidencing the intention of the parties and their conception of the treaty.
e) Reservations.
f) Notes.
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