International Treaties and Diplomacy

Observations

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

International Treaties
Instruments of Diplomacy Result of negotiations
Location, time, agenda and rules of procedure

Non-controversial and Controversial

Non-controversial: extradition treaty
A draft submitted to one side

Controversial
The area of overlapping interests is in demand After developing an atmosphere of understanding and trust, the exchange is facilitated

Difficulties in making negotiations

Changing drafts of the controversial provisions Multilateral treaty: consider every vote Comments by the media Pressure from public opinion

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

When it has undergone the process of ratification Expression of intentions or recommendations: it does not qualify as a treaty

Who can conclude treaties?

Subjects of International Law: Between states Between IGOs Between states and IGOs

International Treaties are also called:

Conventions Agreements Protocols Final acts General acts Statutes Exchange of notes declarations

Convention on the Law of Treaties 1969

Treaties are to be in written form

Memorandum of Understanding (MoU)

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

United States and Germany Norway and Tanzania

Treaties should be kept

Article 26 of the Convention of 1986

that every treaty is binding upon the parties and must be performed in good faith

Pacta sunt servanda

An expression signifying that the agreement and stipulations of the parties to a contract must be observed

The Ratification of a Treaty

Through domestic procedure Differs in a Parliamentary system and Presidential system

Parliamentary government is in command in of a majority of seats Presidential the presidents party does not necessarily enjoy a majority in the legislative

Non-ratification can happen

United States regarding the Kyoto Protocol of 1997

The Structure of Treaties

Treaty starts with preamble

e.g US-India: wish to cooperate more effectively in the suppression of crime and conclude a new treaty that substitutes an old American-British one of 1931 that was so far applied.

Sometimes, (particularly in multilateral treaties) definitions follow

like head of mission, or diplomatic agent.

- e.g Article 1 of CDR: contains definitions of expressions

Then follows substantive part of treaty

e.g Article 2 of US-India treaty: defines extraditable offense as one that is punishable under the law in both countries by an imprisonment of more than a year. e.g Article 3 of US-India treaty: stipulates that extradition shall not be refused on the ground that the person sought is a national of the requested state.

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

- e.g Article 4, Para 2: certain terrorist crimes are not considered to be political offenses.
- e.g Article 9: all requests for extradition must be submitted through diplomatic channel. - e.g Article 17: Principle of speciality

 Final clauses of a treaty deal with formal aspects - e.g Article 23: stipulates that treaty is subject to ratification - e.g Article 24: each party can terminate the treaty any time with a notice period of 6months - Date and signature close the treaty - US-India: Last sentence states that it is done in English and in Hindi language and that both texts are equally authentic

- US-India: Exchange of letters under same date and signed by same officials supplemented the treaty. If ratification of a treaty is not envisaged, entry into force has to be fixed otherwise.

Formalities

Treaty making happens in stages A representative needs full powers in order to negotiate and sign treaties. Some officials are ex officio authorized - e.g heads of state or government, ministers of foreign affairs, heads of diplomatic missions, etc When agreement about the text of a treaty is reached, the treaty is adopted. Adoption is followed by authentication of the text. Typically, treaty is signed. Treaty can also be authenticated by a signature ad referendum or initialling.

International treaties became typically effective on ratification - Exchange means that representatives of both states hand to each other the instruments signed by chief executives.
- e.g Article 23, para 2 of US-India: entered into force upon exchange of the instruments of ratification. From that moment on, the treaty became binding after international law.

 Multilateral treaties allow accession or adherence by states that originally did not sign the treaty. -e.g Article 16, para 2 of Convention on prohibition of use, stockpiling, production, and transfer of Antipersonnel Mines
International treaties are to be made public - Pres. Wilson: open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in public view.

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

-Article 102: makes registration with UN secretariat of every international treaty compulsory. - If a treaty is not registered with secretariat because of its confidential character, it remains valid. It can, however, not be invoked before any organ of UN.

Modalities
Reservations in Bilateral Treaties Reservations in Multilateral Treaties

Unacceptable Reservations (CLT Art. 19) First Alternative: Consent of all parties to the treaty is needed (CLT Art. 20 para. 2) Second Alternative: Consent of all parties to the treaty is not needed (CLT Art. 20, para. 4)

Reservations in Human Rights Treaties

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

Legal Effects of Reservations:

Application of Reservations Objection to the Reservation vs. Entry to Force Automatic Acceptance of Reservations

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

Reservations VS. Understandings

Invalidity and Termination of Treaties

Validity rests on Trust (CLT Art. 42) Sources of Invalidity:

Error, Fraud, or Corruption of a representative Coercion (except for Peace Treaties)

Kellog-Briand Pact in 1928 Charter of the UN Art. 2, para. 4 CLT Art. 52

Termination of Treaties:
clausula rebus sic stantibus (CLT Art. 62)
Circumstances are required to the obligation of the treaty Changes created radical effects on the obligation of treaties