What is a Treaty under the International Law?

In this article, concept of a treaty under the international law has been explained by written by Naina solanki student of Prestige institute of management and research.

Introduction

Treaties are those written agreements which create a relationship between the contracting parties under International law. The parties to a treaty can be two or more states or international organisation. From the above definition; it can be seen that-

1. The treaty need not be always in writing but oral agreements are not precise; therefore written agreements are more preferable while forming a treaty.
2. The status of the relationship can be legal or moral or political depending on the object of the treaty.

A treaty simply means a relationship between the contracting parties, it can be termed as an agreement, protocol, accord, contract etc.

Treaties are the binding force behind the international law. They are in existence long before the modern international law came into being.

Convention on Law of Treaties

To codify the laws on treaty there is a convention namely Vienna convention. The International Law Commission in 1949 selected this convention; and its work was completed by 1966. In 1968 the United Nations Conference considered the draft articles and finally at a conference in MAY 23, 1969; the law of treaties was adopted as Vienna convention.

The Convention comprises of a Preamble, eight parts with 85 articles. As of now there are 116 state parties to the convention.

The law of the treaty applies to states which are parties to the convention. This means Vienna convention does not apply to other states or organisations which are not a party to Vienna convention.

Kinds of Treaty

A treaty can be classified on the basis of number of parties engaged in agreement and on the basis of its nature.

Bilateral Treaty- This treaty is more like a contract between two parties. Which means in such treaty only two entities are involved, it is more like a contractual relationship between two parties or states.

Example- Panchsheel pact.

Pluri lateral Treaty- in this type of treaty, the treaty is open for a restricted number of parties or states. Minimum number of parties should be more than two.

Example- OPEC (Organisation for petroleum exporting countries), NAFTA (North America free trade agreement), ASEAN (Association of south eastern Asian nations)

Multilateral Treaty- A treaty which is open for participation without any restriction. Multilateral treaty covers majority of the states and they generally create norm in international law. They are mainly human rights centric and deals with moral issues.

Example- Paris agreement.

Law creating Treaty- Statutory treaty, some of the multilateral treaty which has created peremptory norm in international law and changed the local laws on a large level are said to be law making treaty.

Contractual Treaty- the agreement between two states is generally contractual.

Formation of treaty

The international Law does not provide for a concrete or rigid procedure for formation and conclusion of a treaty. The parties concluding a treaty are free to choose their own procedure and language. Although, generalised process is followed while concluding treaties under Vienna convention.

A treaty is formed by following process-

1. Appointment of person by contracting parties
2. Negotiation
3. Adoption of text
4. Consent
5. Entry into force
6. Registration and Publication

• Firstly, the person who will conclude the treaty are accredited as the representatives by the contracting states. They can be either head of state or a minister or secretary or other authority.
•  After the duly representatives are appointed they negotiate the terms of the agreement.
•  Once agreed by both or all parties the text of the treaty is adopted.
• Consent on the agreement can be given by various forms as- by signature, by exchange of instrument, by ratification etc.
•  According to provisions of the treaty it comes into force on decided date.
• And it has to be registered and published at the secretariat of the United Nations for legally binding agreement to conclude.

Application of Treaty

Treaties provide stability in the international dynamics. A closed world without treaties forms no relations between its countries. A treaty creates relation among nations whether legal, political, social or economic. Without a formal agreement the rights and obligation on parties will be of no importance.

Treaties play a major role in maintaining the equilibrium of the states and appropriate relationship among all.

General principles

Formation of treaty and concluding is not complete if some of the basic principles are not followed in the process. There are certain principles which are essential in part of a treaty and if any treaty becomes violate of such principles it is tend to be void. Following are some of this principles-

1. Free consent
2. Reservation
3. Jus Cogens
4. Part Performance
5. Rebus Sic Stantibus
6. Pacta sunt servanda
7. Pacta tertis nec nocent nec prosunt

• To make a treaty legally binding and valid consent between the states should be mutual and wilful.
• Reservation of a treaty means accepting a part of treaty. Reserved part of a treaty can be either accepted by one or more parties conditioned to no objection has been raised by other parties.
• Jus cogens means that the principles which forms the norms of the international law cannot be set aside. If a treaty violates such principles it is against jus cogens and the treaty becomes invalid.
• If one or more party to a treaty breaches part of a treaty then in international law it may or may not terminate whole of treaty.
• A fundamental change of circumstances may end a treaty – Rebus sic stantibus
• A treaty with free consent and good faith is deemed to be valid. Pacta sunt servanda
• The binding power of a treaty is only for its consenting parties. This means that rights and obligations arising out a treaty is limited to the contracting parties. Although there are some exceptions when rights and obligations may be provided to third states.

Invalidity and Termination

This is provided under articles 65 to 68 of the Vienna convention. According to article 65 if a party wants to terminate a treaty it has to notify through a written instrument  which need to be signed by proper authority. And if another party wants to object the time limitation is of 3months.

Invalidity

In contract law, a contract becomes void in several circumstances. Similarly, Vienna convention, has given some grounds by which a treaty can become invalid under article 46-53. This grounds are as follows-

1. Ultra Vires treaties
2. Error
3. Fraud
4. Corruption
5. Coercion of states and representatives
6. Jus cogens

Ultra Vires treaties :

Article 46 of the Vienna Convention states that a state if wants to invalidate a treaty only on the ground that it violates it internal law then it cannot be invoked unless an exceptional situation arise.

Over international and internal law, international law prevails.

Error :

A treaty may become invalid if there is an error in the treaty in accordance with Article 48 of the Vienna Convention. If an error is factual or if it was the basis for the party to be bound to the treaty and now it didn’t exist, then the treaty might become invalid. But if the error could have been avoidable, then it does not invalidates a treaty. Also, an error relating to the wording of the text of a treaty does not affect its validity.

Fraud :

Article 49 of the Vienna Convention says that if a State has been persuaded to conclude a treaty by fraud committed by another party, the treaty becomes invalid.

Corruption of the Representative :

Article 50 of the Vienna Convention states that a treaty becomes invalid if the consent of the State has been obtained through the corruption of its representative directly or indirectly by another party. It does not include small favours to the representative.

Coercion of a Representative and States :

If the representative of a State has been forced to give assent through threats, then by Article 51 of the Vienna Convention, the treaty will become invalid. By Article 52 of the same, a treaty will become invalid, if its conclusions have been acquired by threats or use of force. This rule infers that economic and political coercion will not abolish a treaty.

Jus cogens:

A treaty is voidable if it violates or conflicts with the norms or principles forming international laws at the core.

Termination

Termination categorically means end of a treaty and nothing else. In a bilateral treaty, the treaty completely ends whereas in multilateral treaty it ends for one party. Ending of a treaty is termination according to Vienna convention.

Article 3 of Part V of the Vienna convention provides us with conditions for termination of treaty, treaty can be terminated by consent, By Denunciation, by concluding another treaty, by breach, Impossibility of performance, According to provisions of treaty, by emergence of Jus cogens and by fundamental change of circumstances.

Conclusion

Treaties are the wheels of the International law which keeps it running. Without treaties there would be no formal relationship between states. A treaty provides legally binding agreement between parties which ties them into a relationship. To govern the relationships this treaties play an essential role. Peace treaty, political treaty, moral agreement, Technological agreement, exchange of professionals, weapons, vaccines etc. are possible due to this arrangement of treaty formation and conclusion.

The Vienna convention govern the treaties and the treaties govern the relationship between the parties.

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