International Treaties and International Treaties and DiplomacyDiplomacy

•Observations and Definitions•The Structure of Treaties•Formalities•Modalities•Invalidation and Termination of Treaties

International Treaties◦Instruments of Diplomacy◦Result of negotiations

Location, time, agenda and rules of procedure

Non-controversial and Controversial◦Non-controversial: extradition treaty

A draft submitted to one side

◦Controversial The area of overlapping interests is in demand After developing an atmosphere of understanding

and trust, the exchange is facilitated

Difficulties in making negotiations• Changing drafts of the controversial

provisions• Multilateral treaty: consider every vote• Comments by the media• Pressure from public opinion

How do we know if a treaty is binding How do we know if a treaty is binding or not?or not?

• When it has undergone the process of ratification

• Expression of intentions or recommendations: it does not qualify as a treaty

Who can conclude Who can conclude treaties?treaties?

Subjects of International Law:Between statesBetween IGOsBetween states and IGOs

International Treaties are also International Treaties are also called:called:

ConventionsAgreementsProtocolsFinal actsGeneral actsStatutesExchange of notesdeclarations

Convention on the Law of Treaties Convention on the Law of Treaties 19691969

Treaties are to be “in written form”

Memorandum of Understanding Memorandum of Understanding (MoU)(MoU)

Can be either a treaty or non-binding statement depending on the will of the parties

Examples:◦United States and Germany◦Norway and Tanzania

Treaties should be keptTreaties should be keptArticle 26 of the Convention of

1986◦“that every treaty is binding upon the

parties and must be performed in good faith”

Pacta sunt servanda◦An expression signifying that the

agreement and stipulations of the parties to a contract must be observed

The Ratification of a The Ratification of a TreatyTreaty• Through domestic procedure• Differs in a Parliamentary system and

Presidential system• Parliamentary – government is in command in

of a majority of seats• Presidential – the president’s party does not

necessarily enjoy a majority in the legislative

Non-ratification can happen◦United States regarding the Kyoto

Protocol of 1997

The Structure of TreatiesThe Structure of TreatiesTreaty starts with preamble- e.g US-India: wish to cooperate more effectively in the

suppression of crime and conclude a new treaty that substitutes an old American-British one of 1931 that was so far applied.

Sometimes, (particularly in multilateral treaties) definitions follow

- e.g Article 1 of CDR: contains definitions of expressions like “head of mission”, or “diplomatic agent”.

Then follows substantive part of treaty- e.g Article 2 of US-India treaty: defines extraditable

offense as one that is punishable under the law in both countries by an imprisonment of more than a year.

- e.g Article 3 of US-India treaty: stipulates that extradition shall not be refused on the ground that the person sought is a national of the requested state.

- Treaty excepts offenses under certain circumstances from extradition, such as political and military offenses, cases of prior prosecution and offenses that are punishable by death under the laws in the requesting state

- e.g Article 4, Para 2: certain terrorist crimes are not considered to be political offenses.

- e.g Article 9: all requests for extradition must be submitted through diplomatic channel.

- e.g Article 17: Principle of speciality

• Final clauses of a treaty deal with formal aspects- e.g Article 23: stipulates that treaty is subject to

ratification- e.g Article 24: each party can terminate the treaty

any time with a notice period of 6months- Date and signature close the treaty- US-India: Last sentence states that it is done in

English and in Hindi language and that both texts are equally authentic

- US-India: Exchange of letters under same date and signed by same officials supplemented the treaty.

• If ratification of a treaty is not envisaged, entry into force has to be fixed otherwise.

FormalitiesFormalitiesTreaty making happens in stagesA representative needs full powers in order to

negotiate and sign treaties.Some officials are ex officio authorized

- e.g heads of state or government, ministers of foreign affairs, heads of diplomatic missions, etc

When agreement about the text of a treaty is reached, the treaty is adopted.

Adoption is followed by authentication of the text.Typically, treaty is signed.Treaty can also be authenticated by a signature ad

referendum or initialling.

International treaties became typically effective on ratification- Exchange means that representatives of both states hand to each other the instruments signed by chief executives.

- e.g Article 23, para 2 of US-India: entered into force upon exchange of the instruments of ratification. From that moment on, the treaty became binding after international law.

• Multilateral treaties allow accession or adherence by states that originally did not sign the treaty.-e.g Article 16, para 2 of Convention on prohibition of use, stockpiling, production, and transfer of Anti-personnel Mines

•International treaties are to be made public- Pres. Wilson: “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in public view.”

-Found its way into Covenant of League of Nations then onto Charter of UN.

-Article 102: makes registration with UN secretariat of every international treaty compulsory.

- If a treaty is not registered with secretariat because of its confidential character, it remains valid. It can, however, not be invoked before any organ of UN.

ModalitiesModalitiesReservations in Bilateral TreatiesReservations in Multilateral Treaties

◦Unacceptable Reservations (CLT Art. 19)◦First Alternative: Consent of all parties to

the treaty is needed (CLT Art. 20 para. 2)◦Second Alternative: Consent of all parties

to the treaty is not needed (CLT Art. 20, para. 4)

Reservations in Human Rights Treaties

Rules Governing Non-Required Acceptances of State Reservations (CLT Art. 20, para. 4):◦ Immediate Effect◦ Inclusion to the Treaty◦ Non-Preclusion to the Entry of Force

Legal Effects of Reservations:◦ Application of Reservations◦ Objection to the Reservation vs. Entry to

Force◦ Automatic Acceptance of Reservations

Compromise of Reservations◦Broad-based Participation of Treaties◦Integrity of the Text and Purpose

Reservations VS. Understandings

Invalidity and Termination of Invalidity and Termination of TreatiesTreatiesValidity rests on Trust (CLT Art.

42)Sources of Invalidity:

◦Error, Fraud, or Corruption of a representative

◦Coercion (except for Peace Treaties) Kellog-Briand Pact in 1928 Charter of the UN Art. 2, para. 4 CLT Art. 52

Termination of Treaties:◦clausula rebus sic stantibus (CLT Art.

62) Circumstances are required to the

obligation of the treaty Changes created radical effects on the

obligation of treaties