Law of Treaties | Public International Law - CLAT PG PDF Download

Introduction

• States rely heavily on treaties to conduct a wide range of activities, such as ending wars, resolving disputes, and establishing alliances.
• Treaties serve as the primary means of formalizing agreements between countries, whether in simple bilateral arrangements or complex multilateral discussions.
• The concept of a treaty is central to the development of international law.

• The core principle of treaty law is that treaties are binding on the parties involved and must be carried out in good faith, known as pacta sunt servanda, which is a fundamental tenet of international law.
• The term 'treaty' is commonly used, but other terms like protocol, act, charter, and covenant can also refer to similar agreements.
• There are no strict formal requirements for the existence of a treaty in international law, but the parties must intend to create legal obligations through their agreement.

The making of treaties

• Treaties can be made in various ways, with no specific form or procedure required. The method of formulation and signing depends on the agreement of the states involved.
• Treaties may be drafted between states, governments, heads of state, or governmental departments, depending on what is most practical.
• The power to make treaties varies by country; for example, in the UK, it is the Crown's prerogative, while in the US, it involves the President and the Senate.
• International law allows states to make agreements, but representatives must prove their authority to do so through 'full powers' documents. Certain officials, like heads of state and foreign ministers, do not need to present these documents.

Consent

• After a treaty is drafted and agreed upon, several steps are necessary before it becomes legally binding.
• The text of the agreement must be adopted, typically by a vote of two-thirds of the states present at an international conference.
• States may express their consent to the treaty by signature under certain conditions, as outlined in article 12.
• Consent by ratification is a common method, but consent by signature is also significant for practical reasons.

Consent by exchange of instruments

• States can express their consent to be bound by a treaty through the exchange of instruments when the instruments specify that their exchange has that effect or when it is established that the states agreed to this.

Consent by ratification

• Ratification by a state's competent authorities is a well-established practice meant to ensure that the representative did not exceed their powers in making the agreement. While originally a function of the sovereign, ratification is now subject to constitutional control.

Consent by accession

• Accession is the usual method by which a state becomes a party to a treaty it did not sign, either because signature was limited to certain states or because the deadline for signature had passed.
• Article 15 allows for consent by accession if the treaty provides for it or if the negotiating states agree that accession is possible for the state in question.
• Important multilateral treaties often specify that certain states or entities may join the treaty at a later date after the initial signing period.

Reservations to treaties

Stages of formation of treaties

• There is no specific form for the conclusion of treaties. An oral agreement between the representatives of the States charged with the task of conducting negotiations and empowered to bind their respective countries is sufficient to have a binding effect if it is the intention of the representative to conclude a legally binding transaction.
• The enormous importance of the issue involved in such agreements however necessities the compliance of formal requirements and reducing the agreements into a document.
• Various Stages of formation of the treaties:
• Accrediting of Representatives: Each of the State Conducting negotiation appoints a representative or plenipotentiary for this purpose. He is provided with an instrument given by the Minister for Foreign Affairs showing his authority to conduct such negotiations, which is known as the full power.
• Negotiation It is a bilateral process, sometimes multilateral. There are proposals as to negotiation. In our commercial transaction, there is a bargain there are proposals and counter proposals. Ultimately leading towards the concluded Contract. In respect of two or more States, so as to have the discussion with Pleni Potentials. These negotiations are depended upon the terms of credentials and powers of the representatives. In practices, before signing the text after negotiation the delegates obtain fresh instruction to sign the treaties with or without Reservation. If the proposal is accepted, then it is said to be a draft treaty. In draft treaties, the Conclusion of discussions is put together in the precise statement and reduced into writing the commonly agreed terms in various proposals. It is a premature stage of the final draft.
• 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.
• Ratification 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. States may be bound by the treaties only when they have given their consent. There are number of ways in which a State may express its consent to a treaty. It may be given either by signature, exchange of instruments, ratification or accession. When there are no full powers, conferred on the representatives when the parties are representatives in absence of Pleni Potentials then such treaties are negotiated by the representatives by their signature subject to ratification. When they have limited power then treaty can be reserved for ratification by the state Pleni Potentials. It is the basic term stipulated in the credentials itself. Thus, ratification is a sort of confirmation by Pleni Potentials or Head of the states. The Head of State may ratify the Treaty contract made by their representative on their behalf. Pleni Potentials may ratify the treaty contract, but generally, ratification is the rule and refusal is an exception. Ratification of a Treaty may withhold on the following grounds i) If the representative or plenipotentiary has exceeded his powers; i) If any deceit as to matters of fact has been practiced upon him ii) If the performance of treaty obligations becomes impossible iv) If there has not been consensus ad idem (meeting of mind) e.g. there has not been agreed as to the same thing.
• Accession and Adhesion A third state can become a party to an already existing treaty, by means of accession. Accession and Adhesion is a consequential part of the treaty. Accession is a process when a non-party state joins the already concluded treaties. They are not the original members of such treaty. Adhesion is a process when a non-party State accepts the terms and conditions of the already concluded treaty.
• Entry into force: There can be a specific provision in a treaty as to the effective date or date of application of the treaty. It can be by signing process or by ratification. If the treaties are signed by the Plenipotentiary then it will come into force. Multilateral treaties come into operation on the deposit of a prescribed member of ratifications and accessions.
• Registration and Publication: After the treaty has been so ratified, it has to be registered at the headquarters of the international organization. According to Article 18 of the Covenant of the League, every treaty or international engagement should be registered with the Secretariat of the League and published by it as soon as possible. No such treaty or international engagement was binding on any state until it was so registered. This means that in case of any dispute, the treaty could not be relied upon if it was not registered. To the same effect are the provisions in the United Nations Charter. Article 102 of the Charter reads: Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph I of this Article may invoke that treaty or agreement before any organ of the United Nations.
• Incorporation of treaty into State Law: The final stage of the treaty is actual incorporation in the multiple law of the Contracting State where such incorporation is necessary in order to assume a binding character.

Conclusion

A treaty is an agreement or contract entered between two or more States whereby they undertake to carry out obligations imposed on each of them. there are eight Stages in the formation of treaties.