Difference between revisions of "Treaty" - New World Encyclopedia

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[[Image:Traktat brzeski 1918.jpg|thumb|right|300px|The first two pages of the [[Treaty of Brest-Litovsk]], in (left to right) [[German language|German]], [[Hungarian language|Hungarian]], [[Bulgarian language|Bulgarian]], [[Ottoman Turkish language|Ottoman Turkish]] and [[Russian language|Russian]]]]
 
[[Image:Traktat brzeski 1918.jpg|thumb|right|300px|The first two pages of the [[Treaty of Brest-Litovsk]], in (left to right) [[German language|German]], [[Hungarian language|Hungarian]], [[Bulgarian language|Bulgarian]], [[Ottoman Turkish language|Ottoman Turkish]] and [[Russian language|Russian]]]]
  
A '''Treaty''' is an agreement under [[international law]] that describes territorial or political agreements among [[state]]s and [[international organizations]]. Such [[contract]]s are based on parties assuming obligations, under which they can be held liable under international law. A [[multilateral treaty]] is often open to any state, while a [[bilateral treaty]] most often involves two states. A treaty takes effect (becomes self-executing) when a nation participates in the agreement. Treaties are signed by heads of state and [[organization]]s, or their designated [[representative]]s.
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A '''Treaty''' is an agreement under [[international law]] that describes territorial or political agreements among [[state]]s and [[international organization]]s. Such [[contract]]s are based on parties assuming obligations, under which they can be held liable under international law. Treaties may be [[multilateral treaty|multilateral]], involving many parties, or [[bilateral treaty|bilateral]], involving two parties which may be individuals or groups of states or organizations. Treaties are signed by heads of state and organizations, or their [[plenipotentiary|designated representative]]s with full authority.
  
According to the [[Vienna Convention on the Law of Treaties]], a treaty should be interpreted in good faith and to the full extent of its meaning. When all parties agree to a treaty's wording, then they recognize that the other side is a sovereign state and that the agreement is enforceable under international law. A [[protocol]] is an international agreement that supplements a previous treaty. Article 19 of the Vienna Convention describes legal requirements of treaties. Parties can object to treaties, or amend them if specific formal [[procedure]]s are followed. Human-rights treaties are hard to establish due to objections often raised by participants. The International Law Commission has monitored human-rights treaties since 1994.
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The [[Vienna Convention on the Law of Treaties]] is an agreement on the form, process, execution, amending, and ending treaty obligations. a treaty should be interpreted in good faith and to the full extent of its meaning. When all parties agree to a treaty's wording, then they recognize that the other side is a sovereign state and that the agreement is enforceable under international law. If a party has violated or breached its treaty obligations, the other parties may suspend or terminate the treaty. The [[United Nations Charter]] states that treaties must be registered with the [[UN]] before it can be enforced by its judiciary branch, the [[International Court of Justice]].  
  
According to Article 42 of the Vienna Convention, states can withdraw from treaties by application of the provisions of the treaty, the consent of the signers, or through the Convention itself. If a party has violated or breached its treaty obligations, the other parties may suspend or terminate the treaty. The [[United Nations Charter]] states that treaties must be registered with the [[UN]] before it can be enforced by is judiciary branch, the [[International Court of Justice]]. In most cases, treaties by Western nations were extremely disadvantageous to [[indigenous peoples]], while in some cases they were helpful in maintaining their [[autonomy]].
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Many treaties have been formulated at the conclusion of [[warfare]], in which case they involve concessions by the defeated party and a commitment to honor them. Such treaties have been essential historically, due to the numerous [[conflict]]s among [[tribe]]s and [[nation]]s. However, for treaties to be effective and lead to lasting harmonious relationships, the concerns of all parties must be well represented. Treaties can work well when they represent a [[norm]] that is highly valued by all of the signers. If a treaty clearly reflects diverse concerns, the states that become party to the agreement recognize the value of complying with its terms and thus maintaining a harmonious relationship with all the parties involved.
  
 
==Definition==
 
==Definition==
[[Image:Treaty of Paris 1783 - last page (hi-res).jpg|thumb|200 px|Last page of the Treaty of Paris (1783)]]
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[[Image:Treaty of Paris 1783 - last page (hi-res).jpg|thumb|200 px|Last page of the Treaty of Paris (1783).]]
A Treaty is a [[formal agreement]] under [[international law]] entered into by actors in international law, namely [[state]]s and [[international organization]]s. A Treaty may also be known as: (international) agreement, protocol, covenant, convention, exchange of letters, etc.  
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A Treaty is a [[formal agreement]] under [[international law]] entered into by actors in international law, namely [[state]]s and [[international organization]]s. It is normally negotiated between [[plenipotentiary|plenipotentiaries]] (persons who have "[[full powers]]" to represent their [[government]]). A treaty may also be known as: (international) agreement, protocol, covenant, convention, or exchange of letters. The key feature that defines a treaty is that it is binding on the signing parties.
  
Regardless of the terminology, all of these international agreements under international law are equally treaties and the rules are the same.  
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[[The Vienna Convention on the Law of Treaties]] defines a treaty as "an international agreement concluded between states in written form and governed by international law," as well as affirming that "every state possesses the capacity to conclude treaties."<ref name="untreaty-1"/>
  
Note that in United States constitutional law, the term 'treaty' has a special meaning which is more restricted than its meaning in international law. U.S. law distinguishes what it calls ''treaties'' from ''congressional-executive agreements'' and ''sole-executive agreements''.<ref>[http://www.au.af.mil/au/awc/awcgate/congress/treaties_senate_role.pdf ''Treaties and other International Agreements: the Role of the United States Senate''] A Study Prepared for the Committee on Foreign Relations United States Senate by the Congressional Research Service, Library of Congress, January 2001. Retrieved January 24, 2009.</ref> All three classes are considered treaties under international law; they are distinct only from the perspective of internal United States law. The distinctions are primarily concerning their method of ratification: by two-thirds of the Senate, by normal legislative process, or by the President alone, respectively. The Treaty Clause also has a somewhat different impact on domestic U.S. law, as compared to congressional-executive agreements and sole executive agreements.
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Note that in [[United States]] [[constitutional law]], the term "treaty" has a special meaning which is more restricted than its meaning in international law. U.S. law distinguishes what it calls "treaties" from "congressional-executive agreements" and "sole-executive agreements."<ref>Congressional Research Service, Library of Congress, [http://www.au.af.mil/au/awc/awcgate/congress/treaties_senate_role.pdf ''Treaties and other International Agreements: the Role of the United States Senate,''] Committee on Foreign Relations United States Senate. Retrieved February 5, 2009.</ref> The distinctions concern their method of ratification: By two-thirds of the Senate, by normal legislative process, or by the President alone, respectively. All three classes are considered treaties under international law; they are distinct only from the perspective of internal United States law.  
  
 
The fundamental [[purpose]] of a treaty is to establish mutually agreed upon [[norm]]s of behavior in such areas as [[peace]], [[alliance]], [[commerce]], or other relations between two or more states or international organizations. A treaty most often deals with the [[rights]] and duties of nations, but they may also grant certain rights to individuals.  
 
The fundamental [[purpose]] of a treaty is to establish mutually agreed upon [[norm]]s of behavior in such areas as [[peace]], [[alliance]], [[commerce]], or other relations between two or more states or international organizations. A treaty most often deals with the [[rights]] and duties of nations, but they may also grant certain rights to individuals.  
  
Treaties can be loosely compared to [[contract]]s: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under international law for that breach. The central principle of treaty law is expressed in the [[brocard|maxim]]  
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Treaties can be loosely compared to [[contract]]s: Both are means by which willing parties assume obligations among themselves, and a party that fails to live up to their obligations can be held liable under international law for that breach. The central principle of treaty law is expressed in the [[brocard|maxim]], ''[[pacta sunt servanda]]''—"pacts must be respected."
''[[pacta sunt servanda]]''—"pacts must be respected."
 
  
 
===The Vienna Convention===
 
===The Vienna Convention===
The Vienna Convention on the Law of Treaties (or VCLT) is a treaty concerning the [[customary international law]] on treaties between states. It was adopted on May 22, 1969<ref name="Law of treaties"> [http://untreaty.un.org/ilc/summaries/1_1.htm ''Law of treaties,''] (International Law Commission, June 2005). Retrieved January 24, 2009. </ref> and opened for signature on May 23, 1969. The Convention entered into force on January 27, 1980.<ref name="untreaty-1">[http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf Vienna Convention on the Law of Treaties 1969,] (United Nations, 2005), 1</ref> The VCLT had been ratified by 108 [[state]]s as of May 2007; those that had not ratified it may still recognize it as binding upon them in as much as it is a restatement of customary law.  
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The [[Vienna Convention on the Law of Treaties]] (VCLT) concerns the [[customary international law]] on treaties between states. It was adopted on May 22, 1969<ref name="Law of treaties">UN Treaty, [http://untreaty.un.org/ilc/summaries/1_1.htm ''Law of treaties.''] Retrieved February 5, 2009.</ref> and opened for signature on May 23, 1969. The Convention entered into force on January 27, 1980.<ref name="untreaty-1">UN Treaty, [http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf Vienna Convention on the Law of Treaties 1969,] United Nations, 2005. Retrieved February 5, 2009.</ref> The VCLT had been ratified by 108 [[state]]s as of May 2007; those that had not ratified it may still recognize it as binding upon them in as much as it is a restatement of customary law.  
  
 
[[Customary international law]] comprises those aspects of [[international law]] that derive from [[Custom (law)|custom]]. Coupled with general principles of law and treaties, custom is considered by the [[International Court of Justice]], [[jurist]]s, the [[United Nations]], and its member states to be among the primary sources of international law. For example, [[laws of war]] were long a matter of customary law before they were [[Codification|codified]] in the [[Hague Conventions (1899 and 1907)|Hague Conventions of 1899 and 1907]], [[Geneva Conventions]], and other treaties.  
 
[[Customary international law]] comprises those aspects of [[international law]] that derive from [[Custom (law)|custom]]. Coupled with general principles of law and treaties, custom is considered by the [[International Court of Justice]], [[jurist]]s, the [[United Nations]], and its member states to be among the primary sources of international law. For example, [[laws of war]] were long a matter of customary law before they were [[Codification|codified]] in the [[Hague Conventions (1899 and 1907)|Hague Conventions of 1899 and 1907]], [[Geneva Conventions]], and other treaties.  
  
 
The vast majority of the world's governments accept in principle the existence of customary international law, although there are many differing opinions as to what rules are contained in it.
 
The vast majority of the world's governments accept in principle the existence of customary international law, although there are many differing opinions as to what rules are contained in it.
Examples of items of customary international law are various [[International criminal law|international crimes]]; a state which carries out or permits [[slavery]], [[genocide]], [[War of aggression|war of aggression]], or [[Crime against humanity|crimes against humanity]] is always violating customary international law. Other examples include the principle of [[non-refoulement]], [[Immunity (legal)|immunity]] of visiting foreign [[Head of state|heads of state]], and the right to [[humanitarian intervention]].
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Examples of items of customary international law are various [[International criminal law|international crimes]]—a state which carries out or permits [[slavery]], [[genocide]], [[War of aggression|war of aggression]], or [[Crime against humanity|crimes against humanity]] is always violating customary international law. Other examples include the principle of [[non-refoulement]], [[Immunity (legal)|immunity]] of visiting foreign [[Head of state|heads of state]], and the right to [[humanitarian intervention]].
  
==Types of Treaties==
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==Types of treaties==
 
===Multilateral treaties===  
 
===Multilateral treaties===  
A [[multilateral treaty]] establishes rights and obligations between each party and every other party. Multilateral treaties are often, but not always, open to any state; others are regional.
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A [[multilateral treaty]] establishes rights and obligations between each party and every other party. Multilateral treaties are often, but not always, open to any state; some may be regional in scope. Multilateral treaties are generally subject to formal ratification by the governments of each state that is a signatory.
  
 
===Bilateral treaties===
 
===Bilateral treaties===
[[Bilateral treaties]] by contrast are negotiated between a limited number of states, most commonly only two, establishing legal rights and obligations between those two states only. It is possible however for a bilateral treaty to have more than two parties; consider for instance the bilateral treaties between [[Switzerland]] and the [[European Union]] (EU) following the Swiss rejection of the [[European Economic Area]] agreement. Each of these treaties has 17 parties. These however are still bilateral, not multilateral, treaties. The parties are divided into two groups, the Swiss ("on the one part") and the EU and its member states ("on the other part.") The treaty establishes rights and obligations between the Swiss and the EU and the member states severally; it does not establish any rights and obligations amongst the EU and its member states.
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[[Bilateral treaties]] by contrast are negotiated between two parties, most commonly individual states, establishing legal rights and obligations between those two parties only. It is possible however for a bilateral treaty to have more than two parties; consider for instance the bilateral treaties between [[Switzerland]] and the [[European Union]] (EU) following the Swiss rejection of the [[European Economic Area]] agreement. Each of these treaties has 17 parties. These however are still bilateral, not multilateral, treaties. The parties are divided into two groups, the Swiss ("on the one part") and the EU and its member states ("on the other part"). The treaty establishes rights and obligations between the Swiss and the EU and the member states severally; it does not establish any rights and obligations amongst the EU and its member states.
  
===Political treaties===
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===Content===
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As well as varying according to the number of parties involved, treaties also differ with regard to their content.
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;Political treaties
 
[[Political treaties]] deal with such issues as [[alliances]], [[war]], cessions of [[territory]], and rectification of boundaries.  
 
[[Political treaties]] deal with such issues as [[alliances]], [[war]], cessions of [[territory]], and rectification of boundaries.  
  
===Commercial treaties===
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;Commercial treaties
[[Commercial treaties]] may govern [[fisheries]], [[navigation]], [[tariffs]], and [[monetary exchange]].
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[[Commercial treaties]] may govern [[fishing]] rights, [[navigation]], [[tariff]]s, and [[monetary exchange]].
  
===Legal treaties===
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;Legal treaties
[[Legal treaties]] are concerned with the [[extradition]] of [[criminals]], [[patent]] and [[copyright]] protection, and so forth.
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[[Legal treaties]] are concerned with agreements regarding the [[extradition]] of [[criminal]]s, [[patent]] and [[copyright]] protection, and so forth.
  
===Human-rights treaties===
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;Human-rights treaties
[[Human-rights treaties]] are based on a system of laws, both domestic and international, designed to promote human rights. Treaties governed by such [[law]]s include international [[covenants]] on economic, social, and cultural rights.
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[[Human-rights treaties]] are based on a system of laws, both domestic and international, designed to promote the [[human rights]] of all individuals. Treaties governed by such [[law]]s include international [[covenant]]s on economic, social, and cultural rights.
  
 
==Execution and implementation==
 
==Execution and implementation==
Treaties may be seen as 'self-executing,' in that merely becoming a party puts the treaty and all of its obligations in action. Other treaties may be non-self-executing and require 'implementing legislation'—a change in the domestic law of a state party that will direct or enable it to fulfill treaty obligations. An example of a treaty requiring such legislation would be one mandating local prosecution by a party for particular crimes.
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Treaties may be seen as "self-executing," in that merely becoming a party puts the treaty and all of its obligations in action. Other treaties may be non-self-executing and require "implementing legislation"—a change in the domestic law of a state party that will direct or enable it to fulfill treaty obligations. An example of a treaty requiring such legislation would be one mandating local prosecution by a party for particular crimes. If a treaty requires implementing legislation, a state may be in default of its obligations by the failure of its legislature to pass the necessary domestic laws.
 
 
The division between the two is often not clear and is often politicized in disagreements within a government over a treaty, as a non-self-executing treaty cannot be acted upon without the proper change in domestic law. If a treaty requires implementing legislation, a state may be in default of its obligations by the failure of its legislature to pass the necessary domestic laws.
 
  
 
===Interpretation===
 
===Interpretation===
The language of treaties, like that of any law or contract, must be interpreted when the wording does not seem clear or it is not immediately apparent how it should be applied in a perhaps unforeseen circumstance. Article 31 of the VCLT states that treaties are to be interpreted in good faith according to "the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose." <ref>[http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf Vienna Convention on the Law of Treaties 1969], United Nations, 2005, 12. Retrieved January 24, 2009.</ref>
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The language of treaties, like that of any law or contract, must be interpreted when it is not immediately apparent how it should be applied in a particular circumstance. Article 31 of the VCLT states that treaties are to be interpreted in good faith according to "the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose." <ref>United Naitons, [http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf Vienna Convention on the Law of Treaties 1969.] Retrieved February 5, 2009.</ref>
 
 
International legal experts also often invoke the 'principle of maximum effectiveness,' which interprets treaty language as having the fullest force and effect possible to establish obligations between the parties.
 
  
No one party to a treaty can impose its particular interpretation of the treaty upon the other parties. Consent may be implied, however, if the other parties fail to explicitly disavow that initially unilateral interpretation, particularly if that state has acted upon its view of the treaty without complaint. Consent by all parties to the treaty to a particular interpretation has the legal effect of adding an additional clause to the treaty—this is commonly called an 'authentic interpretation.'
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International legal experts also often invoke the "principle of maximum effectiveness," which interprets treaty language as having the fullest force and effect possible to establish obligations between the parties. Consent by all parties to the treaty to a particular interpretation has the legal effect of adding an additional clause to the treaty—this is commonly called an "authentic interpretation."
  
 
International tribunals and arbiters are often called upon to resolve substantial disputes over treaty interpretations. To establish the meaning in context, these judicial bodies may review the preparatory work from the negotiation and drafting of the treaty as well as the final, signed treaty itself.
 
International tribunals and arbiters are often called upon to resolve substantial disputes over treaty interpretations. To establish the meaning in context, these judicial bodies may review the preparatory work from the negotiation and drafting of the treaty as well as the final, signed treaty itself.
  
 
===Consequences of terminology===
 
===Consequences of terminology===
One significant part of treaty making is that signing a treaty implies recognition that the other side is a sovereign state and that the agreement being considered is enforceable under international law. Hence, nations can be very careful about terming an agreement to be a treaty. For example, within the United States agreements between states are [[interstate compact|compact]]s and agreements between states and the federal government or between agencies of the government are [[memoranda of understanding]].
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One significant part of treaty making is that signing a treaty implies recognition that the other party is a sovereign state and that the agreement being considered is enforceable under international law. Hence, nations are very careful about terming an agreement a treaty. For example, within the United States agreements between states are [[interstate compact|compact]]s and agreements between states and the federal government or between agencies of the government are [[memoranda of understanding]].  
 
 
Another situation can occur when one party wishes to create an obligation under international law, but the other party does not. This factor has been at work with respect to discussions between [[North Korea]] and the [[United States]] over security guarantees and [[nuclear proliferation]].
 
 
 
The terminology can also be confusing because a treaty may and usually is named something other than a treaty, such as a convention, protocol, or simply agreement. Conversely some legal documents such as the [[Treaty of Waitangi]] are internationally considered to be documents under domestic law.
 
  
 
===Protocols===
 
===Protocols===
In international law and international relations, a 'protocol' is generally a treaty or international agreement that supplements a previous treaty or international agreement. A protocol can amend the previous treaty, or add additional provisions. Parties to the earlier agreement are not required to adopt the protocol; sometimes this is made clearer by calling it an 'optional protocol,' especially where many parties to the first agreement do not support the protocol.
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A "protocol" is generally a treaty or international agreement that supplements a previous treaty or international agreement. A protocol can amend the previous treaty, or add additional provisions. Parties to the earlier agreement are not required to adopt the protocol.
  
Some examples: the [[United Nations Framework Convention on Climate Change]] (UNFCCC) established a framework for the development of binding greenhouse-gas-emission limits, while the [[Kyoto Protocol]] contained the specific provisions and regulations later agreed upon.
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For example, the [[United Nations Framework Convention on Climate Change]] (UNFCCC) established a framework for the development of binding greenhouse-gas-emission limits, while the [[Kyoto Protocol]] contained the specific provisions and regulations later agreed upon.
  
 
==Adding and amending treaty obligations==
 
==Adding and amending treaty obligations==
 
===Reservations===
 
===Reservations===
Reservations are essentially [[caveat]]s to a state's acceptance of a treaty. Reservations are a unilateral statement purporting to exclude or to modify the legal obligation and its effects on the reserving state.<ref>Vienna Convention on the Law of Treaties, Article 2 Sec. 1(d) [http://web.archive.org/web/20050208040137/http://www.un.org/law/ilc/texts/treatfra.htm Text of the Convention]</ref> These must be included at the time of signing or ratification—a party cannot add a reservation after it has already joined a treaty.
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Reservations are essentially [[caveat]]s to a state's acceptance of a treaty. They are unilateral statements purporting to exclude or to modify the legal obligation and its effects on the reserving state.<ref>United Nations, [http://web.archive.org/web/20050208040137/http://www.un.org/law/ilc/texts/treatfra.htm Vienna Convention on the Law of Treaties, Article 2 Sec. 1(d)]. Retrieved February 5, 2009.</ref> These must be included at the time of signing or ratification—a party cannot add a reservation after it has already joined a treaty.
  
Originally, international law was unaccepting of treaty reservations, rejecting them unless all parties to the treaty accepted the same reservations. However, in the interest of encouraging the largest number of states to join treaties, a more permissive rule regarding reservations has emerged. While some treaties still expressly forbid any reservations, they are now generally permitted to the extent that they are not inconsistent with the goals and purposes of the treaty.
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Originally, international law did not accept treaty reservations, rejecting them unless all parties to the treaty accepted the same reservations. However, in the interest of encouraging the largest number of states to join treaties, a more permissive rule regarding reservations emerged. While some treaties still expressly forbid any reservations, they are now generally permitted to the extent that they are not inconsistent with the goals and purposes of the treaty.  
 
 
When a state limits its treaty obligations through reservations, other states party to that treaty have the option to accept those reservations, object to them, or object and oppose them. If the state accepts them (or fails to act at all), both the reserving state and the accepting state are relieved of the reserved legal obligation as concerns their legal obligations to each other (accepting the reservation does not change the accepting state's legal obligations as concerns other parties to the treaty). If the state opposes, the parts of the treaty affected by the reservation drop out completely and no longer create any legal obligations on the reserving and accepting state, again only as concerns each other. Finally, if the state objects and opposes, there are no legal obligations under that treaty between those two state parties whatsoever. The objecting and opposing state essentially refuses to acknowledge the reserving state is a party to the treaty at all.<ref> Vienna Convention on the Law of Treaties, Article II, Reservations. there are many reservations all around the united states </ref>
 
 
 
In effect, a reservation allows the state to be a party to the treaty, while excluding the legal effect of that specific provision in the treaty to which it objects.
 
States can not take reservations after they have accepted the treaty; a reservation must be made at the time that the treaty affects the State. The Vienna Convention did not create the concept of reservations but codified existing [[Custom (law)|customary law]]. Thus even States that have not formally acceded to the Vienna Convention act as if they had. As reservations are defined under the Vienna Convention and [[interpretative declaration]]s are not, the two are sometimes difficult to discern from each other. Unlike a reservation, a declaration is not meant to affect the State's legal obligations but is attached to State's consent to a treaty to explain or interpret what the State deems unclear.
 
  
 
====Procedure====
 
====Procedure====
The Articles 19–22 of the Vienna Convention details the procedures relating to reservations. To see if a reservation is valid the legality of the reservation test applies as described in article 19 of the Vienna Convention. According to this article a state may not formulate a reservation if:
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Articles 19–22 of the Vienna Convention detail the procedures relating to reservations. Article 19 contains the requirements for a reservation to be legally valid: A state may not formulate a reservation if:
 
 
1: The reservation is prohibited by the treaty. <br/>
 
2: The treaty provides that only specified reservations, which do not include the reservation in question, may be made.
 
:This is often the case when during negotiations it becomes apparent that a certain provision in a treaty will not be agreed upon by all parties. Therefore, the possibility is given to parties not to agree with that provision but to agree with the treaty in general.
 
3: In cases not falling under (1) or (2), the reservation is incompatible with the object and purpose of the treaty.
 
: Point 3 is called the compatibility test and is difficult to determine. It is not always clear what the object and purpose of the treaty is. Especially when treaties are long and complex.
 
 
 
A reservation must be put into writing and then sent to the either the depository of the treaty, in the case of a multilateral treaty, or directly to the other States party to the treaty
 
 
 
A State may withdraw a reservation at any time. This requires written submission to the other signatory States.
 
 
 
=====Objections=====
 
When states make an objection to a reservation stating that it failed the legality test, there are three possible results, according to legal commentators:
 
 
 
# The state which made the reservation is not bound by the treaty anymore. In other words, the state is no longer a party to this treaty.
 
# The state which made the reservation is bound by the treaty including the parts on which it made the reservation.
 
# The state which made the reservation is bound by the treaty, but not by the part on which it made the reservation.
 
 
 
There are many opponents to the second option who argue that this goes against the principle of state consent. States can only be bound by provisions they have consented to. Since they have made a reservation to a certain provision, they can not be bound by it.
 
 
 
=====The International Law Commission=====
 
Because of a high number of reservations against human-rights treaties, the [[International Law Commission]] (ILC) has, since 1994, included the topic in its work program. Originally the topic was named as "the law and practice relating to reservations to treaties," but this was later changed into "reservations to treaties.")  For this topic a special Rapporteur, Mr. Alain Pellet, was appointed.<ref> Official Records of the General Assembly, Forty-ninth Session, Supplement No. 10 (A/49/10), para. 382.</ref> As of 2006, the handling of this topic is still a work in progress.
 
 
 
The ILC was asked to check if the [[Vienna Convention on the Law of Treaties]], would have to be changed with reservations against human rights treaties. In the 1997 report <ref> The report of the international law commission on the work of the 49th session, May 12 to July 18, 1997, UN GAOR, 52nd session, pp 75-79 U.N. Doc. A/52/10 (1997)
 
</ref> the ILC rejected this idea. According to the ILC, the reasons why there were problems with reservations against human rights were the same reasons why there were problems with reservations against other treaties. Therefore, the ILC decided that no special regime for human-rights treaties would be required.
 
 
 
When a monitoring body is established by a human-rights treaty, it only is allowed to comment on, or make recommendations about, reservations. The ILC did not agree with General Comment no.24 of the Human Rights Committee. The fact that the monitoring body can comment upon the admissibility of reservations has no effect on the principle of state consent. The Human Rights Committee stated that they themselves can decide what the consequence will be of an inadmissible reservation. The ILC states that only the reserving state can decide what action it will follow. The state can decide to withdraw or change its reservation or decide not to become a party to the treaty in question.
 
  
Further, the ILC stated that a guide to practice should be made consisting of guidelines to clarify certain problems in the VCLT concerning reservations. States welcomed this suggestion, although it must be added this guide to practice will have no binding legal force.
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#The reservation is prohibited by the treaty.
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#The treaty provides that only specified reservations, which do not include the reservation in question, may be made. This is often the case when during negotiations it becomes apparent that a certain provision in a treaty will not be agreed upon by all parties. Therefore, the possibility is given to parties not to agree with that provision but to agree with the treaty in general.
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#In cases not falling under (1) or (2), the reservation is incompatible with the object and purpose of the treaty. This is known as the "compatibility test."
  
 
===Amendments===
 
===Amendments===
There are three ways an existing treaty can be amended. First, formal amendment requires States parties to the treaty to go through the ratification process all over again. The re-negotiation of treaty provisions can be long and protracted, and often some parties to the original treaty will not become parties to the amended treaty. When determining the legal obligations of states, one party to the original treaty and one a party to the amended treaty, the states will only be bound by the terms they both agreed upon. Treaties can also be amended informally by the treaty executive council when the changes are only procedural, technical, or administrative (not principled changes). Finally, a change in customary international law (state behavior) can also amend a treaty, where state behavior evinces a new interpretation of the legal obligations under the treaty. Minor corrections to a treaty may be adopted by a [[procès-verbal]]; but a procès-verbal is generally reserved for changes to rectify obvious errors in the text adopted, i.e. where the text adopted does not correctly reflect the intention of the parties adopting it.
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There are three ways an existing treaty can be amended. First, formal amendment requires states party to the treaty to go through the ratification process all over again. The re-negotiation of treaty provisions can be long and protracted, and some parties to the original treaty may not become parties to the amended treaty. Treaties can also be amended informally by the treaty executive council when the changes are only procedural, technical, or administrative (not principled changes). Finally, a change in customary international law (state behavior) can also amend a treaty, where state behavior evinces a new interpretation of the legal obligations under the treaty. Minor corrections to a treaty may be adopted by a [[procès-verbal]]; but a procès-verbal is generally reserved for changes to rectify obvious errors in the text adopted, such that it does not correctly reflect the intention of the parties adopting it.
  
 
==Ending treaty obligations==
 
==Ending treaty obligations==
 
===Denunciation===
 
===Denunciation===
"Denunciation" refers to the announcement of a treaty's termination. Some treaties contain a termination clause that specifies that the treaty will terminate if a certain number of nations denounce the treaty. For instance, the [[Single Convention on Narcotic Drugs]]' Article 41 specifies that the treaty will terminate if, as a result of denunciations, the number of Parties falls below 40 <ref>http://www.incb.org/e/conv/1961/articles_II.htm#41</ref>.
+
"Denunciation" refers to the announcement of a treaty's termination. Some treaties contain a termination clause that specifies that the treaty will terminate if a certain number of nations denounce the treaty. For instance, the [[Single Convention on Narcotic Drugs]]' Article 41 specifies that the treaty will terminate if, as a result of denunciations, the number of Parties falls below 40.<ref>INCB, [http://www.incb.org/pdf/e/conv/convention_1961_en.pdf Single Convention on Narcotic Drugs, 1961] (United Nations, 1972). Retrieved February 5, 2009.</ref>
  
 
====Treaties without termination clauses====
 
====Treaties without termination clauses====
Article 42 of The [[Vienna Convention on the Law of Treaties]] states that "termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention."<ref>[http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf Vienna Convention on the Law of Treaties], 1. Retrieved January 24, 2009.</ref> Article 56 states that if a treaty does not provide for denunciation, withdrawal, or termination, it is not subject to denunciation or withdrawal unless:
+
Article 42 of The [[Vienna Convention on the Law of Treaties]] states that "termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention."<ref>United Nations, [http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf Vienna Convention on the Law of Treaties.] Retrieved February 5, 2009.</ref> Article 56 states that if a treaty does not provide for denunciation, withdrawal, or termination, it is not subject to denunciation or withdrawal unless:
*it is established that the parties intended to admit the possibility of denunciation or withdrawal; or
+
*It is established that the parties intended to admit the possibility of denunciation or withdrawal
*a right of denunciation or withdrawal may be implied by the nature of the treaty.
+
*A right of denunciation or withdrawal may be implied by the nature of the treaty
 
Any withdrawal under Article 56 requires 12 months' notice.
 
Any withdrawal under Article 56 requires 12 months' notice.
 
The Vienna Convention does not apply to all nations; the [[United States]], for instance, is not a Party <ref>[http://www.asil.org/insights/2005/03/insights050309a.html ASIL Insights: President Bush's Determination Regarding Mexican Nationals and Consular Convention Rights<!-- Bot generated title —>]</ref>. This makes it unclear exactly how much notice the U.S. must give when withdrawing from treaties lacking a termination clause. For example, on March 7, 2005, the U.S. announced that it was withdrawing from the Consular Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes, a treaty that lacks a termination clause.
 
  
 
===Withdrawal===
 
===Withdrawal===
 
Treaties are not necessarily permanently binding upon the signatory parties. As obligations in international law are traditionally viewed as arising only from the consent of states, many treaties expressly allow a state to withdraw as long as it follows certain procedures of notification. Many treaties expressly forbid withdrawal. Other treaties are silent on the issue, and so if a state attempts withdrawal through its own unilateral denunciation of the treaty, a determination must be made regarding whether permitting withdrawal is contrary to the original intent of the parties or to the nature of the treaty. Human-rights treaties, for example, are generally interpreted to exclude the possibility of withdrawal, because of the importance and permanence of the obligations.
 
Treaties are not necessarily permanently binding upon the signatory parties. As obligations in international law are traditionally viewed as arising only from the consent of states, many treaties expressly allow a state to withdraw as long as it follows certain procedures of notification. Many treaties expressly forbid withdrawal. Other treaties are silent on the issue, and so if a state attempts withdrawal through its own unilateral denunciation of the treaty, a determination must be made regarding whether permitting withdrawal is contrary to the original intent of the parties or to the nature of the treaty. Human-rights treaties, for example, are generally interpreted to exclude the possibility of withdrawal, because of the importance and permanence of the obligations.
 
 
If a state party's withdrawal is successful, its obligations under that treaty are considered terminated, and withdrawal by one party from a bilateral treaty of course terminates the treaty. When a state withdraws from a multi-lateral treaty, that treaty will still otherwise remain in force between the other parties, unless, of course, otherwise should or could be interpreted as agreed upon between the remaining states parties to the treaty.
 
  
 
===Suspension and termination===
 
===Suspension and termination===
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===''Ultra vires'' treaties===
 
===''Ultra vires'' treaties===
A party's consent to a treaty is invalid if it had been given by an agent or body without power to do so under that state's domestic law. States are reluctant to inquire into the internal affairs and processes of other states, and so a “manifest” violation is required such that it would be “objectively evident to any State dealing with the matter." A strong presumption exists internationally that a head of state has acted within his proper authority. It seems that no treaty has ever actually been invalidated on this provision.
+
A party's consent to a treaty is invalid if it had been given by an agent or body without power to do so under that state's domestic law. States are reluctant to inquire into the internal affairs and processes of other states, and so a “manifest” violation is required such that it would be “objectively evident to any State dealing with the matter." A strong presumption exists internationally that a head of state has acted within his proper authority.  
 
 
Consent is also invalid if it is given by a representative who ignored restrictions he is subject to by his sovereign during the negotiations, if the other parties to the treaty were notified of those restrictions prior to his signing.
 
 
 
===Non-Compliance to the Municipal Law===
 
Treaties can be a violation of domestic law.
 
  
 
===Misunderstanding, fraud, corruption, coercion===
 
===Misunderstanding, fraud, corruption, coercion===
Articles 46-53 of the Vienna Convention set out the only ways that treaties can be invalidated—considered unenforceable and void under international law. A treaty will be invalidated due to either the circumstances by which a state party joined the treaty, or due to the content of the treaty itself. Invalidation is separate from withdrawal, suspension, or termination, which all involve an alteration in the consent of the parties of a previously valid treaty rather than the invalidation of that consent in the first place.
+
Articles 46-53 of the Vienna Convention set out the ways that treaties can be invalidated—considered unenforceable and void under international law. A treaty will be invalidated due to either the circumstances by which a state party joined the treaty, or due to the content of the treaty itself. Invalidation is separate from withdrawal, suspension, or termination, which all involve an alteration in the consent of the parties of a previously valid treaty rather than the invalidation of that consent in the first place.
  
 
A state's consent may be invalidated if there was an erroneous understanding of a fact or situation at the time of conclusion, which formed the "essential basis" of the state's consent. Consent will not be invalidated if the misunderstanding was due to the state's own conduct, or if the truth should have been evident.
 
A state's consent may be invalidated if there was an erroneous understanding of a fact or situation at the time of conclusion, which formed the "essential basis" of the state's consent. Consent will not be invalidated if the misunderstanding was due to the state's own conduct, or if the truth should have been evident.
  
Consent will also be invalidated if it was induced by the fraudulent conduct of another party, or by the direct or indirect "corruption" of its representative by another party to the treaty. Coercion of either a representative, or the state itself through the threat or use of force, if used to obtain the consent of that state to a treaty, will invalidate that consent.
+
Consent will also be invalidated if it was induced by the fraudulent conduct of another party, or by the direct or indirect "corruption" of its representative by another party to the treaty. Coercion of either a representative, or the state itself through the threat or use of force, if used to obtain the consent of that state to a treaty, invalidates that consent.
  
 
===Peremptory norms===
 
===Peremptory norms===
Line 173: Line 127:
 
The [[United Nations Charter]] states that treaties must be registered with the [[UN]] to be invoked before it or enforced in its judiciary organ, the [[International Court of Justice]]. This was done to prevent the proliferation of [[secret treaty|secret treaties]] that occurred in the nineteenth and twentieth century. The Charter also states that its members' obligations under it outweigh any competing obligations under other treaties.
 
The [[United Nations Charter]] states that treaties must be registered with the [[UN]] to be invoked before it or enforced in its judiciary organ, the [[International Court of Justice]]. This was done to prevent the proliferation of [[secret treaty|secret treaties]] that occurred in the nineteenth and twentieth century. The Charter also states that its members' obligations under it outweigh any competing obligations under other treaties.
  
After their adoption, treaties as well as their amendments have to follow the official legal procedures of the United Nations, as applied by the [[United Nations Office of Legal Affairs|Office of Legal Affairs]], including [[signature]], [[ratification]] and [[entry into force]].
+
After their adoption, treaties as well as their amendments have to follow the official legal procedures of the United Nations, as applied by the [[United Nations Office of Legal Affairs|Office of Legal Affairs]], including [[signature]], [[ratification]], and [[entry into force]].
 
 
In function and effectiveness, the UN has been compared to the pre-Constitutional United States Federal government by some, giving a comparison between modern treaty law and the historical [[Articles of Confederation]].
 
 
 
 
 
  
 
==Treaty strengths and weaknesses==
 
==Treaty strengths and weaknesses==
Treaties can work since they represent a norm that is highly valued by all of the signers. If the treaty is well made to reflect diverse concerns, the [[states]] that become party to the agreement are satisfied with the terms and see no reason to defect. Treaties can be successful when their [[goal]]s are simply and clearly expressed, and are measurable. States may remain confident in the agreement when there is a sound verification [[system]] in place, thus assuring that compliance will not threaten the tenets of the [[compact]].  
+
Treaties can work when they represent a [[norm]] that is highly valued by all of the signers. If the treaty is well made to reflect diverse concerns, the states that become party to the agreement are satisfied with the terms and see no reason to defect. Treaties can be successful when their goals are simply and clearly expressed, and are measurable. States may remain confident in the agreement when there is a sound verification system in place, thus assuring that compliance will not threaten the tenets of the [[compact]].  
 
 
Treaties may not work for several [[reason]]s. Firstly, many states join treaties not to help make a better [[world]] or to help resolve an international [[problem]], but only to join the treaty-signing event at the [[UN]] in order be seen as a multilateral player. Secondly, others are attracted to treaties for side benefits that are unrelated to core [[goal]]s of the agreement, such as the supposed [[inalienable right]] of the party. Thirdly, some states are pressured by allies to join treaties, even though they are not that interested. Fourthly, treaties may fail if they poorly made, giving signers opportunities to avoid compliance; if there is inherent vagueness and unfairness in the agreement; or if there is a lack of proper verification provisions. Fifthly, treaties may fail because the [[bureaucracies]] intended to oversee them loose sight of their responsibility. A sixth reason for treaty failure is the absence of sound compliance [[mechanism]]s meant to deal with such problems when detected, thus robbing the treaty of its intended powers and causing [[confusion]] among the parties. Noncompliance problems with treaties can sometimes be solved through improved implementation of existing [[instrument]]s, including amending or adding to existing treaties, or supplementing the agreement with non-treaty mechanisms acceptable to all parties.
 
 
 
 
 
  
===Treaties and indigenous peoples===
+
Treaties may not work for several reasons. States join treaties not to help make a better world or to help resolve an international problem, but only to join the treaty-signing event at the [[UN]] in order be seen as a multilateral player. Others are attracted to treaties for side benefits that are unrelated to core goals of the agreement, such as the supposed [[inalienable right]] of the party. Alternatively, states may be pressured by allies to join treaties, even though they are not that interested. Treaties may also fail if they are poorly made, giving signers opportunities to avoid compliance; if there is inherent vagueness and unfairness in the agreement; or if there is a lack of proper verification provisions. Treaties may fail because the [[bureaucracy|bureaucracies]] intended to oversee them lose sight of their responsibility. Treaty failure may occur when there is an absence of sound compliance [[mechanism]]s, thus robbing the treaty of its intended powers and causing [[confusion]] among the parties. Noncompliance problems with treaties can sometimes be solved through improved implementation of existing [[instrument]]s, including amending or adding to existing treaties, or supplementing the agreement with non-treaty mechanisms acceptable to all parties.
Treaties formed an important part of [[Europe]]an [[colonization]] and, in many parts of the world, Europeans attempted to legitimize their sovereignty by signing treaties with [[indigenous people]]s. In most cases, these treaties were in extremely disadvantageous terms to the native people, who often did not appreciate the implications of what they were signing.
 
  
In some rare cases, such as with [[Ethiopia]] and [[Qing Dynasty]] [[China]], the local governments were able to use the treaties to at least mitigate the impact of European colonization. This involved learning the intricacies of European diplomatic customs and then using the treaties to prevent a power from overstepping their agreement or by playing different powers against each other.
+
==Notable treaties==
 
 
In other cases, such as [[New Zealand]] and [[Canada]], treaties allowed native peoples to maintain a minimum amount of autonomy. In the case of [[indigenous Australians]], unlike with the [[Māori]] of New Zealand, no treaty was ever entered into with the indigenous peoples entitling the Europeans to land ownership. Such treaties between colonizers and indigenous peoples are an important part of political discourse in the later twentieth and early twenty-first century, the treaties being discussed have international standing as has been stated in a treaty study by the UN.
 
 
 
==Notable Treaties==
 
 
[[Image:Signing of Treaty of Ghent (1812).jpg|thumb|250px|Signing of the Treaty of Ghent, December 24, 1814.]]
 
[[Image:Signing of Treaty of Ghent (1812).jpg|thumb|250px|Signing of the Treaty of Ghent, December 24, 1814.]]
 
*[[Peace of Augsburg]] (1555) between [[Charles V, Holy Roman Emperor]], and the forces of the [[Schmalkaldic League]].
 
*[[Peace of Augsburg]] (1555) between [[Charles V, Holy Roman Emperor]], and the forces of the [[Schmalkaldic League]].
Line 213: Line 154:
  
 
==References==
 
==References==
*Aust, Anthony. ''Modern Treaty Law and Practice''. Cambridge, UK: Cambridge University Press, 2000. ISBN 978-0521591539
+
*Aust, Anthony. ''Modern Treaty Law and Practice''. Cambridge, UK: Cambridge University Press, 2000. ISBN 978-0521591539.
*Brennan, Sean. ''Treaty''. Annandale, NSW: Federation Press, 2005. ISBN 978-1862875593  
+
*Brennan, Sean. ''Treaty''. Annandale, NSW: Federation Press, 2005. ISBN 978-1862875593.
*Gardiner, Richard K. ''Treaty Interpretation''. New York, NY: Oxford University Press, 2008. ISBN 978-0199277919   
+
*Gardiner, Richard K. ''Treaty Interpretation''. New York, NY: Oxford University Press, 2008. ISBN 978-0199277919.  
*Goodman, R. Human Rights Treaties, Invalid Reservations and State Consent, ''The American Journal of International Law'' 96(3) (July 2002): 531-560
+
*Goodman, R. Human Rights Treaties, Invalid Reservations and State Consent. ''The American Journal of International Law'' 96 (3) (July 2002): 531-560.
*Klabbers, J. Accepting the Unacceptable? A New Nordic Approach to Reservations to Multiltereral Treaties, ''66 Nordic Journal of International Law 2000'' 66: 179-193.
+
*Klabbers, J. Accepting the Unacceptable? A New Nordic Approach to Reservations to Multiltereral Treaties. ''66 Nordic Journal of International Law 2000'' 66 (2000): 179-193.
*Korkella, Konstantin. New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights, ''European Journal of International Law'' 13(2) (2002): 437-477.
+
*Korkella, Konstantin. New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights. ''European Journal of International Law'' 13(2): 437-477.
*MacMillan, Margaret. ''Paris 1919: Six Months that Changed the World''. New York, NY: Random House, 2002. ISBN 978-0375508264
+
*MacMillan, Margaret. ''Paris 1919: Six Months that Changed the World''. New York, NY: Random House, 2002. ISBN 978-0375508264.
  
 
==External links==
 
==External links==
* [http://treaties.un.org/Pages/Overview.aspx?path=overview/definition/page1_en.xml UN Treaty Reference Guide]
+
All links retrieved February 5, 2009.
* [http://treaties.un.org United Nations Treaty Section]
+
*[http://www.asil.org/ American Society of International Law]
* [http://www.un.org/cyberschoolbus/treaties/index.asp UN Cyberschoolbus - UN Core Treaties]
+
*[http://ec.europa.eu/world/agreements European Union Treaties Office]
 
*[http://lawweb.colorado.edu/eesi/ ISEA]—''Database of International Energy Treaties''
 
*[http://lawweb.colorado.edu/eesi/ ISEA]—''Database of International Energy Treaties''
*[http://www.asil.org/resource/treaty1.htm American Society of International Law - Resource Guide on Treaties]
+
*[http://conventions.coe.int/Treaty/EN/v3MenuDecl.asp Reservations and Declarations made] to the [[Council of Europe]]. Includes text of reservations.
 +
*[http://www.state.gov/www/global/legal_affairs/tifindex.html Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force as of January 1, 2000]
 +
*[http://www.un.org/cyberschoolbus/treaties/index.asp UN Cyberschoolbus - UN Core Treaties]
 +
*[http://treaties.un.org United Nations Treaty Section]
 +
*[http://treaties.un.org/Pages/Overview.aspx?path=overview/definition/page1_en.xml UN Treaty Reference Guide]
 
*[http://www.state.gov/s/l/treaty US State Department - Treaty Affairs]
 
*[http://www.state.gov/s/l/treaty US State Department - Treaty Affairs]
*[http://ec.europa.eu/world/agreements European Union Treaties Office]
 
* [http://www.state.gov/www/global/legal_affairs/tifindex.html Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force as of January 1, 2000], [[United States Department of State]] - Office of the Legal Adviser (Treaty Affairs), states when reservations were made but does not provide the text of those reservations
 
* [http://conventions.coe.int/Treaty/EN/v3MenuDecl.asp Reservations and Declarations made] to the [[Council of Europe]], includes text of reservations
 
* [http://www1.umn.edu/humanrts/iachr/b_11_4b.htm The Effect of Reservations on the Entry Into Force of the American Convention on Human Rights (Arts. 74 and 75)], Advisory Opinion OC-2/82, September 24, 1982, Inter-Am. Ct. H.R. (Ser. A) No. 2 (1982), hosted by umn.edu
 
  
  
 
{{Credits|Treaty|257926673|Reservation_(law)|160608181|Denunciation|240075042|}}
 
{{Credits|Treaty|257926673|Reservation_(law)|160608181|Denunciation|240075042|}}

Revision as of 22:49, 5 February 2009


The first two pages of the Treaty of Brest-Litovsk, in (left to right) German, Hungarian, Bulgarian, Ottoman Turkish and Russian

A Treaty is an agreement under international law that describes territorial or political agreements among states and international organizations. Such contracts are based on parties assuming obligations, under which they can be held liable under international law. Treaties may be multilateral, involving many parties, or bilateral, involving two parties which may be individuals or groups of states or organizations. Treaties are signed by heads of state and organizations, or their designated representatives with full authority.

The Vienna Convention on the Law of Treaties is an agreement on the form, process, execution, amending, and ending treaty obligations. a treaty should be interpreted in good faith and to the full extent of its meaning. When all parties agree to a treaty's wording, then they recognize that the other side is a sovereign state and that the agreement is enforceable under international law. If a party has violated or breached its treaty obligations, the other parties may suspend or terminate the treaty. The United Nations Charter states that treaties must be registered with the UN before it can be enforced by its judiciary branch, the International Court of Justice.

Many treaties have been formulated at the conclusion of warfare, in which case they involve concessions by the defeated party and a commitment to honor them. Such treaties have been essential historically, due to the numerous conflicts among tribes and nations. However, for treaties to be effective and lead to lasting harmonious relationships, the concerns of all parties must be well represented. Treaties can work well when they represent a norm that is highly valued by all of the signers. If a treaty clearly reflects diverse concerns, the states that become party to the agreement recognize the value of complying with its terms and thus maintaining a harmonious relationship with all the parties involved.

Definition

File:Treaty of Paris 1783 - last page (hi-res).jpg
Last page of the Treaty of Paris (1783).

A Treaty is a formal agreement under international law entered into by actors in international law, namely states and international organizations. It is normally negotiated between plenipotentiaries (persons who have "full powers" to represent their government). A treaty may also be known as: (international) agreement, protocol, covenant, convention, or exchange of letters. The key feature that defines a treaty is that it is binding on the signing parties.

The Vienna Convention on the Law of Treaties defines a treaty as "an international agreement concluded between states in written form and governed by international law," as well as affirming that "every state possesses the capacity to conclude treaties."[1]

Note that in United States constitutional law, the term "treaty" has a special meaning which is more restricted than its meaning in international law. U.S. law distinguishes what it calls "treaties" from "congressional-executive agreements" and "sole-executive agreements."[2] The distinctions concern their method of ratification: By two-thirds of the Senate, by normal legislative process, or by the President alone, respectively. All three classes are considered treaties under international law; they are distinct only from the perspective of internal United States law.

The fundamental purpose of a treaty is to establish mutually agreed upon norms of behavior in such areas as peace, alliance, commerce, or other relations between two or more states or international organizations. A treaty most often deals with the rights and duties of nations, but they may also grant certain rights to individuals.

Treaties can be loosely compared to contracts: Both are means by which willing parties assume obligations among themselves, and a party that fails to live up to their obligations can be held liable under international law for that breach. The central principle of treaty law is expressed in the maxim, pacta sunt servanda—"pacts must be respected."

The Vienna Convention

The Vienna Convention on the Law of Treaties (VCLT) concerns the customary international law on treaties between states. It was adopted on May 22, 1969[3] and opened for signature on May 23, 1969. The Convention entered into force on January 27, 1980.[1] The VCLT had been ratified by 108 states as of May 2007; those that had not ratified it may still recognize it as binding upon them in as much as it is a restatement of customary law.

Customary international law comprises those aspects of international law that derive from custom. Coupled with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law. For example, laws of war were long a matter of customary law before they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties.

The vast majority of the world's governments accept in principle the existence of customary international law, although there are many differing opinions as to what rules are contained in it. Examples of items of customary international law are various international crimes—a state which carries out or permits slavery, genocide, war of aggression, or crimes against humanity is always violating customary international law. Other examples include the principle of non-refoulement, immunity of visiting foreign heads of state, and the right to humanitarian intervention.

Types of treaties

Multilateral treaties

A multilateral treaty establishes rights and obligations between each party and every other party. Multilateral treaties are often, but not always, open to any state; some may be regional in scope. Multilateral treaties are generally subject to formal ratification by the governments of each state that is a signatory.

Bilateral treaties

Bilateral treaties by contrast are negotiated between two parties, most commonly individual states, establishing legal rights and obligations between those two parties only. It is possible however for a bilateral treaty to have more than two parties; consider for instance the bilateral treaties between Switzerland and the European Union (EU) following the Swiss rejection of the European Economic Area agreement. Each of these treaties has 17 parties. These however are still bilateral, not multilateral, treaties. The parties are divided into two groups, the Swiss ("on the one part") and the EU and its member states ("on the other part"). The treaty establishes rights and obligations between the Swiss and the EU and the member states severally; it does not establish any rights and obligations amongst the EU and its member states.

Content

As well as varying according to the number of parties involved, treaties also differ with regard to their content.

Political treaties

Political treaties deal with such issues as alliances, war, cessions of territory, and rectification of boundaries.

Commercial treaties

Commercial treaties may govern fishing rights, navigation, tariffs, and monetary exchange.

Legal treaties

Legal treaties are concerned with agreements regarding the extradition of criminals, patent and copyright protection, and so forth.

Human-rights treaties

Human-rights treaties are based on a system of laws, both domestic and international, designed to promote the human rights of all individuals. Treaties governed by such laws include international covenants on economic, social, and cultural rights.

Execution and implementation

Treaties may be seen as "self-executing," in that merely becoming a party puts the treaty and all of its obligations in action. Other treaties may be non-self-executing and require "implementing legislation"—a change in the domestic law of a state party that will direct or enable it to fulfill treaty obligations. An example of a treaty requiring such legislation would be one mandating local prosecution by a party for particular crimes. If a treaty requires implementing legislation, a state may be in default of its obligations by the failure of its legislature to pass the necessary domestic laws.

Interpretation

The language of treaties, like that of any law or contract, must be interpreted when it is not immediately apparent how it should be applied in a particular circumstance. Article 31 of the VCLT states that treaties are to be interpreted in good faith according to "the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose." [4]

International legal experts also often invoke the "principle of maximum effectiveness," which interprets treaty language as having the fullest force and effect possible to establish obligations between the parties. Consent by all parties to the treaty to a particular interpretation has the legal effect of adding an additional clause to the treaty—this is commonly called an "authentic interpretation."

International tribunals and arbiters are often called upon to resolve substantial disputes over treaty interpretations. To establish the meaning in context, these judicial bodies may review the preparatory work from the negotiation and drafting of the treaty as well as the final, signed treaty itself.

Consequences of terminology

One significant part of treaty making is that signing a treaty implies recognition that the other party is a sovereign state and that the agreement being considered is enforceable under international law. Hence, nations are very careful about terming an agreement a treaty. For example, within the United States agreements between states are compacts and agreements between states and the federal government or between agencies of the government are memoranda of understanding.

Protocols

A "protocol" is generally a treaty or international agreement that supplements a previous treaty or international agreement. A protocol can amend the previous treaty, or add additional provisions. Parties to the earlier agreement are not required to adopt the protocol.

For example, the United Nations Framework Convention on Climate Change (UNFCCC) established a framework for the development of binding greenhouse-gas-emission limits, while the Kyoto Protocol contained the specific provisions and regulations later agreed upon.

Adding and amending treaty obligations

Reservations

Reservations are essentially caveats to a state's acceptance of a treaty. They are unilateral statements purporting to exclude or to modify the legal obligation and its effects on the reserving state.[5] These must be included at the time of signing or ratification—a party cannot add a reservation after it has already joined a treaty.

Originally, international law did not accept treaty reservations, rejecting them unless all parties to the treaty accepted the same reservations. However, in the interest of encouraging the largest number of states to join treaties, a more permissive rule regarding reservations emerged. While some treaties still expressly forbid any reservations, they are now generally permitted to the extent that they are not inconsistent with the goals and purposes of the treaty.

Procedure

Articles 19–22 of the Vienna Convention detail the procedures relating to reservations. Article 19 contains the requirements for a reservation to be legally valid: A state may not formulate a reservation if:

  1. The reservation is prohibited by the treaty.
  2. The treaty provides that only specified reservations, which do not include the reservation in question, may be made. This is often the case when during negotiations it becomes apparent that a certain provision in a treaty will not be agreed upon by all parties. Therefore, the possibility is given to parties not to agree with that provision but to agree with the treaty in general.
  3. In cases not falling under (1) or (2), the reservation is incompatible with the object and purpose of the treaty. This is known as the "compatibility test."

Amendments

There are three ways an existing treaty can be amended. First, formal amendment requires states party to the treaty to go through the ratification process all over again. The re-negotiation of treaty provisions can be long and protracted, and some parties to the original treaty may not become parties to the amended treaty. Treaties can also be amended informally by the treaty executive council when the changes are only procedural, technical, or administrative (not principled changes). Finally, a change in customary international law (state behavior) can also amend a treaty, where state behavior evinces a new interpretation of the legal obligations under the treaty. Minor corrections to a treaty may be adopted by a procès-verbal; but a procès-verbal is generally reserved for changes to rectify obvious errors in the text adopted, such that it does not correctly reflect the intention of the parties adopting it.

Ending treaty obligations

Denunciation

"Denunciation" refers to the announcement of a treaty's termination. Some treaties contain a termination clause that specifies that the treaty will terminate if a certain number of nations denounce the treaty. For instance, the Single Convention on Narcotic Drugs' Article 41 specifies that the treaty will terminate if, as a result of denunciations, the number of Parties falls below 40.[6]

Treaties without termination clauses

Article 42 of The Vienna Convention on the Law of Treaties states that "termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention."[7] Article 56 states that if a treaty does not provide for denunciation, withdrawal, or termination, it is not subject to denunciation or withdrawal unless:

  • It is established that the parties intended to admit the possibility of denunciation or withdrawal
  • A right of denunciation or withdrawal may be implied by the nature of the treaty

Any withdrawal under Article 56 requires 12 months' notice.

Withdrawal

Treaties are not necessarily permanently binding upon the signatory parties. As obligations in international law are traditionally viewed as arising only from the consent of states, many treaties expressly allow a state to withdraw as long as it follows certain procedures of notification. Many treaties expressly forbid withdrawal. Other treaties are silent on the issue, and so if a state attempts withdrawal through its own unilateral denunciation of the treaty, a determination must be made regarding whether permitting withdrawal is contrary to the original intent of the parties or to the nature of the treaty. Human-rights treaties, for example, are generally interpreted to exclude the possibility of withdrawal, because of the importance and permanence of the obligations.

Suspension and termination

If a party has materially violated or breached its treaty obligations, the other parties may invoke this breach as grounds for temporarily suspending their obligations to that party under the treaty. A material breach may also be invoked as grounds for permanently terminating the treaty itself.

A treaty breach does not automatically suspend or terminate treaty relations, however. The issue must be presented to an international tribunal or arbiter (usually specified in the treaty itself) to legally establish that a sufficiently serious breach has in fact occurred. Otherwise, a party that prematurely and perhaps wrongfully suspends or terminates its own obligations due to an alleged breach itself runs the risk of being held liable for breach. Additionally, parties may choose to overlook treaty breaches while still maintaining their own obligations towards the party in breach.

Treaties sometimes include provisions for self-termination, meaning that the treaty is automatically terminated if certain defined conditions are met. Some treaties are intended by the parties to be only temporarily binding and are set to expire on a given date. Other treaties may self-terminate if the treaty is meant to exist only under certain conditions.

A party may claim that a treaty should be terminated, even absent an express provision, if there has been a fundamental change in circumstances. Such a change is sufficient if unforeseen, if it undermined the “essential basis” of consent by a party, if it radically transforms the extent of obligations between the parties, and if the obligations are still to be performed. A party cannot base this claim on change brought about by its own breach of the treaty. This claim also cannot be used to invalidate treaties that established or redrew political boundaries.

Invalid treaties

There are several reasons an otherwise valid and agreed upon treaty may be rejected as a binding international agreement, most of which involve errors at the formation of the treaty.

Ultra vires treaties

A party's consent to a treaty is invalid if it had been given by an agent or body without power to do so under that state's domestic law. States are reluctant to inquire into the internal affairs and processes of other states, and so a “manifest” violation is required such that it would be “objectively evident to any State dealing with the matter." A strong presumption exists internationally that a head of state has acted within his proper authority.

Misunderstanding, fraud, corruption, coercion

Articles 46-53 of the Vienna Convention set out the ways that treaties can be invalidated—considered unenforceable and void under international law. A treaty will be invalidated due to either the circumstances by which a state party joined the treaty, or due to the content of the treaty itself. Invalidation is separate from withdrawal, suspension, or termination, which all involve an alteration in the consent of the parties of a previously valid treaty rather than the invalidation of that consent in the first place.

A state's consent may be invalidated if there was an erroneous understanding of a fact or situation at the time of conclusion, which formed the "essential basis" of the state's consent. Consent will not be invalidated if the misunderstanding was due to the state's own conduct, or if the truth should have been evident.

Consent will also be invalidated if it was induced by the fraudulent conduct of another party, or by the direct or indirect "corruption" of its representative by another party to the treaty. Coercion of either a representative, or the state itself through the threat or use of force, if used to obtain the consent of that state to a treaty, invalidates that consent.

Peremptory norms

A treaty is null and void if it is in violation of a peremptory norm. These norms, unlike other principles of customary law, are recognized as permitting no violations and so cannot be altered through treaty obligations. These are limited to such universally accepted prohibitions as those against genocide, slavery, torture, and piracy, meaning that no state can legally assume an obligation to commit or permit such acts.

Role of the United Nations

The United Nations Charter states that treaties must be registered with the UN to be invoked before it or enforced in its judiciary organ, the International Court of Justice. This was done to prevent the proliferation of secret treaties that occurred in the nineteenth and twentieth century. The Charter also states that its members' obligations under it outweigh any competing obligations under other treaties.

After their adoption, treaties as well as their amendments have to follow the official legal procedures of the United Nations, as applied by the Office of Legal Affairs, including signature, ratification, and entry into force.

Treaty strengths and weaknesses

Treaties can work when they represent a norm that is highly valued by all of the signers. If the treaty is well made to reflect diverse concerns, the states that become party to the agreement are satisfied with the terms and see no reason to defect. Treaties can be successful when their goals are simply and clearly expressed, and are measurable. States may remain confident in the agreement when there is a sound verification system in place, thus assuring that compliance will not threaten the tenets of the compact.

Treaties may not work for several reasons. States join treaties not to help make a better world or to help resolve an international problem, but only to join the treaty-signing event at the UN in order be seen as a multilateral player. Others are attracted to treaties for side benefits that are unrelated to core goals of the agreement, such as the supposed inalienable right of the party. Alternatively, states may be pressured by allies to join treaties, even though they are not that interested. Treaties may also fail if they are poorly made, giving signers opportunities to avoid compliance; if there is inherent vagueness and unfairness in the agreement; or if there is a lack of proper verification provisions. Treaties may fail because the bureaucracies intended to oversee them lose sight of their responsibility. Treaty failure may occur when there is an absence of sound compliance mechanisms, thus robbing the treaty of its intended powers and causing confusion among the parties. Noncompliance problems with treaties can sometimes be solved through improved implementation of existing instruments, including amending or adding to existing treaties, or supplementing the agreement with non-treaty mechanisms acceptable to all parties.

Notable treaties

Signing of the Treaty of Ghent, December 24, 1814.

Notes

  1. 1.0 1.1 UN Treaty, Vienna Convention on the Law of Treaties 1969, United Nations, 2005. Retrieved February 5, 2009.
  2. Congressional Research Service, Library of Congress, Treaties and other International Agreements: the Role of the United States Senate, Committee on Foreign Relations United States Senate. Retrieved February 5, 2009.
  3. UN Treaty, Law of treaties. Retrieved February 5, 2009.
  4. United Naitons, Vienna Convention on the Law of Treaties 1969. Retrieved February 5, 2009.
  5. United Nations, Vienna Convention on the Law of Treaties, Article 2 Sec. 1(d). Retrieved February 5, 2009.
  6. INCB, Single Convention on Narcotic Drugs, 1961 (United Nations, 1972). Retrieved February 5, 2009.
  7. United Nations, Vienna Convention on the Law of Treaties. Retrieved February 5, 2009.

References
ISBN links support NWE through referral fees

  • Aust, Anthony. Modern Treaty Law and Practice. Cambridge, UK: Cambridge University Press, 2000. ISBN 978-0521591539.
  • Brennan, Sean. Treaty. Annandale, NSW: Federation Press, 2005. ISBN 978-1862875593.
  • Gardiner, Richard K. Treaty Interpretation. New York, NY: Oxford University Press, 2008. ISBN 978-0199277919.
  • Goodman, R. Human Rights Treaties, Invalid Reservations and State Consent. The American Journal of International Law 96 (3) (July 2002): 531-560.
  • Klabbers, J. Accepting the Unacceptable? A New Nordic Approach to Reservations to Multiltereral Treaties. 66 Nordic Journal of International Law 2000 66 (2000): 179-193.
  • Korkella, Konstantin. New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights. European Journal of International Law 13(2): 437-477.
  • MacMillan, Margaret. Paris 1919: Six Months that Changed the World. New York, NY: Random House, 2002. ISBN 978-0375508264.

External links

All links retrieved February 5, 2009.


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