Public International Law Content
Meaning, Types and Importance of International Treaties
Treaty is :
• The principal source of international rights and obligation.
• Regulates practically every aspect of State behavior (peace and war).
• Source of International law as a whole.
• Sect 2(a) of Nepal Treaty Act, 1990 defines Treaty as: an agreement concluded in writing between two or more states, or between any state and any IO and this term also includes any document of this nature, irrespective of how it is designated.
What is the treaty ?
• Source of International law
• ICJ Statute – Art 38(1).
• The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: – a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states
Types of Treaty
• Principal Forms
– Head of states form
– Inter-governmental form
– Inter-state form
– Inter-Ministerial form
– Inter-departmental form
– Between actual political heads (maybe between rebel group or heads of group which is not recognized as state)
Treaties – By Name “Starke”
• Convention • Protocol • Agreement • Arrangement • Proces-Verbal • Statute • Covenant • Declaration • Modus vivendi • Exchange of notes • Final Act • General Act
Treaties – Name “Starke”
• Convention – Proper formal instrument of multilateral character – Instruments adopted by organs of international institutions (ILO, ICAO, UN)
• Protocol – Less formal than convention – Not in the form of the head of state – Subsidiary to convention – Sometimes as the supplementary provision (interpretation) – Ratification of convention does not ipso facto lead to ratification of the protocol – Ancillary to convention – but of an independent character.
• Agreement – Less formal than treaty or convention – Generally not in head of the state form – Agreement of more limited scope / less parties – Agreement of technical or administrative character – May not be SUBJECT to RATIFICATION
• Arrangement – Provisional or temporary transaction agreement
• Proces-Verbal – Summary of proceedings and conclusions of a diplomatic conference – Used to record an exchange or deposit of ratifications, minor administrative character agreement, minor alteration to convention – NOT SUBJECT TO RATIFICATION
• Statute – Collection of constituent rules relating to functioning of international institution (ICJ) – May be an accessory instrument to convention setting out certain regulation to be applied • Statute on Freedom of Transit annexed to Conv. On Freedom of Transit, 1921
– First used as synonym of ‘treaty’ in Covenant of League of Nations, 1919
– Now designated as engagements of fundamental importance of UN instruments.
– Joint declaration converts the documentation into the binding treaty arrangement
– Sometimes unilateral declaration also binds (Nuclear Weapon Test Case, France v. Aus) – May or may not be subject to ratification.
• Modus vivendi
– An instrument recording an international agreement of temporary or provisional nature intended to be replaced by an arrangement of permanent and detailed character.
• Final Act
– Records the winding up of the proceedings of the conference (Final Act on Vienna Conference on VCLT)
• General Act
– Really a treaty but may be formal/informal
– Title was used by League of Nations in case of General Act for the Pacific Settlement of International dispute, 1928.
• Modern treaty law
– from the Congress of Vienna in 1815
– where there appeared for the first time “the idea that a treaty which is binding upon different States by the same terms constitutes a single legal instrument”
• Start of a multilateral treaty – 1864
• Rise of an international organization, their charter and role
• League of Nations
• Treaties now an essential and omnipresent instrument in international relations
• particular importance in different specific fields (Trade-WTO, Sea – UNCLOS, etc)
• Principle method for creating binding rules of international law • Derive legitimacy from express consent of states
• Progress development of international law
• Constitution of International Organization
• Settlement of dispute
• International personality