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 express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the rules are the same.[1]
Treaties can be loosely compared to contracts: 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.
A treaty is an official, express written agreement that states use to legally bind themselves.[2] A treaty is that official document which expresses that agreement in words; and it is also the objective outcome of a ceremonial occasion which acknowledges the parties and their defined relationships.
Bilateral treaties are concluded between two states[3] or entities. 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 seventeen 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.[citation needed]
A multilateral treaty is concluded among several countries.[3] The agreement establishes rights and obligations between each party and every other party. Multilateral treaties are often regional.[citation needed] Treaties of "mutual guarantee" are international compacts, e.g., the Treaty of Locarno which guarantees each signatory against attack from another.[3]
Reservations are essentially caveats to a state's acceptance of a treaty. Reservations are unilateral statements purporting to exclude or to modify the legal obligation and its effects on the reserving state.[4] 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.
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.[5]
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 change in customary international law 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.
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.
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.
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.
The division between the two is often not clear and is often politicized in disagreements within a government over a treaty, since a non-self-executing treaty cannot be acted on 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.
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. The Vienna Convention 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.” 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'.
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.
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 compacts 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.
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.[citation needed]
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.[citation needed]
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.[citation needed]
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.[citation needed]
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.[citation needed]
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.[citation needed]
There are several reasons an otherwise valid and agreed upon treaty may be rejected as a binding international agreement, most of which involve problems created at the formation of the treaty.[citation needed] For example, the serial Japan-Korea treaties of 1905 1907 and 1910 were protested;[6] and they were confirmed as "already null and void" in the 1965 Treaty on Basic Relations between Japan and the Republic of Korea.[7]
[edit] 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.[citation needed]
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.[citation needed]
According to the preamble in The Law of treaties, treaties are a source of international law. If an act or lack thereof is condemned under international law, the act will not assume international legality even if approved by internal law.[8] This means that in case of a conflict with domestic law, international law will always prevail.[9]
Articles 46–53 of the Vienna Convention on the Law of Treaties 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 (addressed above), 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, will invalidate that consent.
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.[citation needed]
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 19th and 20th century. Section 103 of 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.
In function and effectiveness, the UN has been compared to the pre-Constitutional United States Federal government by some[citation needed], giving a comparison between modern treaty law and the historical Articles of Confederation.
The Brazilian federal constitution states that the power to enter into treaties is vested in the president and that such treaties must be approved by Congress (articles 84, clause VIII, and 49, clause I). In practice, this has been interpreted as meaning that the executive branch is free to negotiate and sign a treaty, but its ratification by the president is contingent upon the prior approval of Congress. Additionally, the Federal Supreme Court has ruled that, following ratification and entry into force, a treaty must be incorporated into domestic law by means of a presidential decree published in the federal register in order to be valid in Brazil and applicable by the Brazilian authorities.
The Federal Supreme Court has established that treaties are subject to constitutional review and enjoy the same hierarchical position as ordinary legislation (leis ordinárias, or "ordinary laws", in Portuguese). A more recent ruling by the Supreme Court in 2008 has altered that scheme somewhat, by stating that treaties containing human rights provisions enjoy a status above that of ordinary legislation, though they remain beneath the constitution itself. Additionally, as per the 45th amendment to the constitution, human rights treaties which are approved by Congress by means of a special procedure enjoy the same hierarchical position as a constitutional amendment. The hierarchical position of treaties in relation to domestic legislation is of relevance to the discussion on whether (and how) the latter can abrogate the former and vice versa.
The Brazilian federal constitution does not have a supremacy clause with the same effects as the one on the U.S. constitution, a fact that is of interest to the discussion on the relation between treaties and state legislation.
In the United States, the term "treaty" has a different, more restricted legal sense than exists in international law. U.S. law distinguishes what it calls treaties from executive agreements, congressional-executive agreements, and sole executive agreements. All four classes are equally treaties under international law; they are distinct only from the perspective of internal American law. The distinctions are primarily concerning their method of approval. Whereas treaties require advice and consent by two-thirds of the Senate, sole executive agreements may be executed by the President acting alone. Some treaties grant the President the authority to fill in the gaps with executive agreements, rather than additional treaties or protocols. And finally, congressional-executive agreements require majority approval by both the House and the Senate, either before or after the treaty is signed by the President.
Currently, international agreements are executed by executive agreement rather than treaties at a rate of 10:1. Despite the relative ease of executive agreements, the President still often chooses to pursue the formal treaty process over an executive agreement in order to gain congressional support on matters that require the Congress to pass implementing legislation or appropriate funds, and those agreements that impose long-term, complex legal obligations on the U.S.
See the article on the Bricker Amendment for history of the relationship between treaty powers and Constitutional provisions.
Treaties formed an important part of European colonization and, in many parts of the world, Europeans attempted to legitimize their sovereignty by signing treaties with indigenous peoples. 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.
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, under the doctrine of terra nullius (later overturned by Mabo v Queensland, establishing the concept of native title well after colonization was already a fait accompli). Such treaties between colonizers and indigenous peoples are an important part of political discourse in the late 20th and early 21st century, the treaties being discussed have international standing as has been stated in a treaty study by the UN.
Prior to 1871 the government of the United States regularly entered into treaties with Native Americans of the United States but the Indian Appropriations Act of March 3, 1871 (ch. 120, 16 Stat. 566) had a rider (25 U.S.C. § 71) attached that effectively ended the President’s treaty making by providing that no Indian nation or tribe shall be acknowledged as an independent nation, tribe, or power with whom the United States may contract by treaty. The federal government continued to provide similar contractual relations with the Indian tribes after 1871 by agreements, statutes, and executive orders.[10]
- ^ In United States constitutional law, the term "treaty" has a special meaning which is more restricted than its meaning in international law; see below.
- ^ Shaw, Malcolm. (2003). International Law, pp. 88–92. at Google Books
- ^ a b c Nicolson, Harold. (1936). Diplomacy, p. 135.
- ^ Vienna Convention on the Law of Treaties, Article 2 Sec. 1(d) Text of the Convention
- ^ Vienna Convention on the Law of Treaties, Article II, Reservations.
- ^ Korean Mission to the Conference on the Limitation of Armament, Washington, D.C., 1921–1922. (1922). Korea's Appeal to the Conference on Limitation of Armament, pp. 1–44.
- ^ "Treaty on Basic Relations between Japan and the Republic of Korea"; excerpt, "It is confirmed that all treaties or agreements concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void."
- ^ Article 3, Draft Articles on Responsibility of States for Internationally Wrongful Acts Adopted by ILC 53 session 2001.
- ^ Article 27, Vienna Convention on the Law of treaties, Vienna 23 May 1969 jfr. P 2, World T.R. 2007, 6(1), 45–87
- ^ Page 12 of the introduction to Forest Service National Resource Guide to American Indian and Alaska Native Relations Author: Joe Mitchell, Publish date: 12/5/97 US Forest Service – Caring for the land and serving people.
- Korean Mission to the Conference on the Limitation of Armament, Washington, D.C., 1921–1922. (1922). Korea's Appeal to the Conference on Limitation of Armament. Washington: U.S. Government Printing Office. OCLC 12923609
- Nicolson, Harold. (1936). Diplomacy, 1st ed. Oxford: Oxford University Press. OCLC 502863836
- Shaw, Malcolm Nathan. (1977). International Law, 1st ed. Sevenoaks, Kent: Hodder and Stoughton. OCLC 637940121
