What is treaty
1. Introduction:
International treaties are the first and foremost source of international law. A treaty is an agreement between two or more states whereby they undertake to carry out obligations imposed on each of them. international treaties occupy the same significant position in international law as legislation occupies in municipal law. Whenever deciding on an international dispute its first endeavor is to find out whether there is an international treaty on the point or not.
2. Meaning of treaties:
The term treaty means a written agreement by which two or more states intend to create a relation between themselves operating within the sphere of international law.
3. Definition:
Oppenheim:
International treaties are agreements of contractual character between states or organizations of states creating legal rights and duties.
Scharzen Berger:
"Treaties are agreements between subjects of international law creating a binding obligation in international law."
Vienna convention article-2, 1969:
"A treaty is an agreement concluded between states in written form and governed by international law.
4. Object of treaties:
The main object of treaties is to impose binding obligations on the states who are parties to them.
5. Functions of treaties in international law:
The functions of treaties in international law are as under:
- (a) A source of law.
- (b) A source of international constitutional law.
- (c) An instrument for imposing binding obligation.
6. Basis of the binding force of treaties:
There is great controversy amongst the jurists in this regard with the binding force of international law.
7. Parties competent to make treaty:
Starks views:
According to Stark, only sovereign states are competent to make treaties.
8. Parts of treaties:
There is no fixed arrangement of the parts of treaties under international law however the following order is observed:
- (a) After the title of the treaty its preamble is given which also consists of the name of the parties and the purpose for concluding the treaty.
- (b) Secondary contains the principal provision in numbered articles which are known as substantive clauses.
- (c) The third part is called the final clause. it deals with the miscellaneous provisions concerning the duration of treaty ratification accession or adhesion by third states and the like.
- (d) The last part contains signatures of the repetitive.
9. Different names of treaties:
Following are some alternative names used for the term treaty.
- (i) Protocol
- (ii) Pact
- (iii) Agreement
- (iv) Memoire
- (v) code
- (vi) Contract
- (vii) Additional articles
- (viii) Charter
- (ix) Convention
- (x) Compact
- (xi) Exchange of notes
- (xii) Process verbal
- (xiii) Statue
- (xiv) Declaration
- (xv) General act
10. Principle of treaties:
Treaties are based upon the following principle laid down in Article 26 of the Vienna Convention pacta sunt servanda: which means treaties are binding upon the parties to them and must be performed in good faith.
11. Formation of treaties:
Following are steps toward the formation of treaties.
- (i) Accrediting of persons on behalf of contracting parties.
- (ii) Negotiation
- (iii) Signatures
- (iv) Ratification
- (v) Accession of adhesion
- (vi) Entry into force
- (vii) Registration
- (viii) Publication
- (ix) Application and enforcement
- (x) Reservation
12. Classification of treaties:
According to Oppenhein
- (a) Law-making treaties.
- (b) Treaties for their purposes.
According to nair and Vattel:
- (a) Treaties having the charter of conveyances.
- (b) Treaty contracts.
(c) Law making treaties.
Some other types:
- (a) Treaties between heads of the states.
- (b) Treaties between the governments.
- (c) Treaties between the states.
- (d) Treaties between ministers.
- (e) Treaties between particular government departments.
13. Kinds of treaties:
Following are kinds of treaties.
I. Bilateral treaties:
These are such treaties in which participation and rights and obligations arising from the treaty are limited only to two parties.
II. Pluriteral treaties:
In such treaties, participation is open to a restricted number of states. the minimum number should be three.
III. Multilateral treaties:
Multilateral treaties are those treaties where participation is open to all the states.
14. Distinction between bilateral and multilateral treaties:
I. As to a number of parties:
In bilateral treaties, there are two parties.
In multilateral there is no limit to number of parties.
II. As to nature:
Bilateral treaties are referred to as treaty contracts.
Multilateral treaties are called law-making treaties.
III. As to scope:
Bilateral treaties have less scope.
Multilateral treaties have a wider scope.
15. Termination of treaties:
Following are the modes of termination of international treaties.
- (i) Operation of law.
- (ii) Expiration of fixed term of treaty.
- (iii) Material of fixed term of treaty.
- (iii) Material breach of one party.
- (iv) Successive denunciation.
- (v) Impossibility of performance.
- (vi) Rebus sic stantibus.
- (vii) Just cogens or emergence of the preemptory norm of international law.
Amendment and modification of treaties:
General rule is contained in Article 9 of the Vienna Convention on the Law of Treaties, which provides that a treaty may be amended by the agreement between the parties.
16. Interpretation treaties:
Following are general rules of interpretation of treaties.
- (a) Objective or grammatical interpretations.
- (b) Subjective interpretation.
- (c) Teleological interpretation.
- (d) Context of the treaty.
- (e) Reasonableness and consistency.
- (f) Effectiveness.
- (g) Intention of parties of treaties.
17. Conclusion:
To conclude it can be said that treaties are agreements between subjects of international law creating a binding obligation in international law. the states are bound to fulfill in good faith. a treaty performs three main functions in international law. treaties may be interpreted in different ways.