Treaties

Treaties, conventions, protocols, covenants, ‘acts’ all denote a merger of the wills of two or more international subjects for the purpose of regulating their interests by international rules.

A major feature of treaties is that they only bind the parties to them that is the States that have agreed to be bound by their provisions.

Treaties may neither impose, obligations on nor create legal entitlements.

That means that only after entering with the contracting parties into a tacit (or in the case of obligations) written agreement designed to extend the rights or obligations of the treaty, may a third State derive a legal entitlement or an obligation from the treaty.

All States can now participate in treaties without being hampered by the fact that a few contracting parties can exercise a 'right of veto.

Making of treaties

States enjoy full freedom as regards the modalities and form of agreement, for there are no rules prescribing any definite procedure or formality. However, over the years two main classes of (bilateral and multilateral) treaties have evolved in State practice. The first are treaties concluded 'in a solemn form'.

Once a written text is agreed upon and adopted, it is signed (or initialled and subsequently signed) by the diplomats and then submitted to the respective national authorities for ratification.

Second, there are treaties concluded 'in simplified form' (also called 'executive agreements').

These are normally negotiated by diplomats, senior civil servants, or government experts, and become legally binding as soon as either the negotiators themselves or the Foreign Ministers of the contracting parties sign them. Sometimes they take the form of an exchange of notes between the Foreign Minister of a given State and the ambassador of another State accredited to the former. This class of agreement does not call for ratification by the Head of State, and consequently does not involve parliaments in their elaboration.

Generally speaking, it is however for States to decide how to bring into being legally binding undertakings. It all depends on their will.

Reservations

Traditionally, when a State participating in the negotiations for a multilateral treaty found that some of its clauses were too onerous but nonetheless wished to enter into the treaty, it made reservations, that is, unilateral statements intended to either (a) exclude the application of one or more provisions, or (b) place a certain interpretation on them. However, reservations (attached to the signature or to ratification of the treaty) had to be accepted by all other contracting parties for the reserving State to become bound by the treaty. The principle of unanimity favoured the 'integrity of treaties'. However, in practice it gave a sort of right of veto to all other parties. (The situation is, however, different for bilateral treaties; 'reservations' to such a treaty in fact amount to a proposal for a new text and consequently they may only produce legal effects if accepted, by the other party.) The reservation must be regarded as null and void, at least in those parts that prove to be incompatible with the object and purpose of the treaty. If there is conflict between the two requirements (the international community's need for contracting parties to remain bound as far as possible by international standards) on human rights, and the intent of one of these parties to eschew the legal impact of such a standard), the former must prevail.

Grounds of invalidity

There were no rules placing restrictions on the freedom of States as to the object of treaties. States were therefore allowed to regulate their own interests as they thought best, and even to agree on offences or attacks on other States or on the partition of their territory. The only grounds of invalidity were minor ones: (i) using force or intimidation against the State official making the treaty; (ii) inducing the other party through misrepresentation to enter into an agreement (for example, the conclusion of a boundary treaty based on a map fraudulently altered by one of the parties); (iii) the insertion of errors as to facts (for example, an incorrect map, in the case of a boundary treaty). In addition, (a) all of these grounds of invalidity were on the same legal footing: they could all make a treaty voidable if the party against which the grounds of invalidity had been invoked was willing to consider the treaty null and void, or a dispute resolution mechanism made it possible for the parties to reach agreement; (b) only the party to a treaty allegedly damaged by the treaty's invalidity was legally entitled to claim that the treaty was not valid; the other parties (in the case of a multilateral treaty) had no say in the matter.

Under the Vienna Convention a major cause of injustice in the making of treaties - coercion exercised by a powerful State against another State - has been regarded as making the treaty null and void. Article 52 of the Convention covers coercion by the threat or use of military force contrary to the UN Charter, while a Declaration adopted by the Vienna Diplomatic Conference calls upon States to refrain from economic and political coercion as well.

What is very novel, and marks a momentous advance in the field of the law of treaties, is the distinction drawn in the Convention between 'absolute and 'relative' grounds of invalidity. The former (coercion against a State representative; coercion against the State as a whole; incompatibility with jus cogens; on this notion implies that: (1) any State party to the treaty (that is, not merely the State which has suffered from possible coercion or which might be prejudiced by actions contrary to a peremptory rule) can invoke the invalidity of the treaty; (2) a treaty cannot be divided into valid and invalid clauses, but stands or falls as a whole (Article 44.5); and (3) possible acquiescence does not render the treaty valid (Article 45). If one of these grounds is established, the treaty is null and void ex tunc that is since the moment it was concluded.

In contrast, grounds of relative invalidity are: error, fraud, corruption, manifest violation of internal law or of the restrictions of the powers of the State representative who has concluded the treaty. These grounds may only be invoked by the State that has been victim of error, fraud, corruption or whose representative has acted in manifest breach of internal law or of the restrictions on his powers.