5. treaties

definition: Treaties as an "agreement concluded between States in written form and governed by international law,

-   different names such as agreements, conventions, covenants, protocols, exchange of notes.

-    Treaties can be bilateral, multilateral,

-   Periphery: regional or global

-   History; the 1648 Peace Treaties of Westphalia established framework for modern treaties and recognized that right of sovereign to gevern free from outside interference. By 20th century, the matter of treaties expanded to include humanitarian law, criminal law, intellectual property, sale of goods, environment, outer space, etc. today, treaties become principal sources of law and can also include the creation of rights for individuals.

-   Under international law, a treaty needs to have the following features.

Firstly, it needs to be a binding instrument, meaning that legal rights and duties must be created among involved parties.

o       Secondly, the treaty must be concluded by states or international organizations with treaty-making power.

o       Thirdly, it has to be put under the governance of international law and finally the treaty must be in written form (UN Treaty Collection).

- nature of treaties: treaties may be

o       A self-executing treaty:contains a provision that says treaty will apply in parties’ municipal courts without having to adopt any domestic legislation.

o       Non-self-executing treaty: that has no such provision

à create & remain IR, protect rights for related parties

- Treaty-making process. According to article 6 of the Vienna Convention about Capacity of States to conclude treaties, it is stated that “Every State possesses capacity to conclude treaties”. It means that all sovereignty states have ability to make international treaties.  In general, there is a procedure of concluding treaties.

(1) Negotiation:

In solemn form of treaties, the diplomats of contracting States who are endowed with full powers will be in charge of taking negotiations. However, in most countries, the negotiators often belongs to executive branch, for example, Secretary of State or Foreign Minister will delegate to a group of government officials who are experts in negotiating treaties.  In this, to discuss and negotiate main issues. successful negotiation requires a certain degree of mutual goodwill, flexibility and sensitivity

(2)Adoption

Adoption can be understood as “the formal act signifying that the form and content of the treaty has been agreed upon”. It means that the negotiation results in consent of involved parties, disputes issues are solved and the final documents are adopted.

(3)Forms of conclusion

After adoption, there is a series of process to bring treaty into force. A state will be bound to a treaty only when it consents to be bound. To express their consent, a State can have many ways which are written in article 7-11 of the Vienna Convention, for example, through signature, exchange of instruments, acceptance, approval, ratification and “any other means if so agreed”

 (4 )Signature

The process of signing the treaties certificates that the negotiation is successful and the treaty is adopted by contracting parties. According to international law, the signature does not mean that a country is binding to the treaty, however, it also implies that a state signing the treaty has the obligation not to defeat the objective or purpose of that treaty.

(5) Ratification

Ratification is an act which a State indicates its agreement to be bound by the terms of a particular treaty. A state will ratify the treaty by signing it and fulfilling its national legislative requirements. A formal sealed letter referring to the state’s decision which is signed by the state’s authority will be deposited with United Nations Secretary-General in New York (unicef.org)

(6 )Reservation

Reservation is a step that a state can make during the process of signing, ratifying, accepting, approving a treaty. Under international law, reservations can be allowed if it is not contrary to the purpose of that treaty.

(7) Interpretation

The process of interpreting a treaty must be conducted in a good faith, therefore, the contracting parties can understand clearly and correctly the meaning of given terms in the treaty as well as the purpose and objectives of that treaty. This process is very important in avoiding the ambiguity in any treaty.

(8) Registration

In order to make the treaty come into force, it must be registered, which means that the treaty is deposited with authority, for example, with United Nations.

(9)Enter into force

The way that a treaty come into force will be stated in its documents, often in a specific time and following its ratifications by a certain number of parties. example of the Convention on the Rights of the Child which entered into force on 2 September 1990 with the 30th day following the deposit of the 20th State’s instrument of ratification or accession