International Treaties

Introduction

Treaties are binding agreements between states that are governed by international law. They go by many different names - conventions, international agreements, pacts, general acts, charters, statutes, declarations, or covenants - but their purpose remains the same. Treaties serve a vital role in international relations by facilitating cooperation between states, establishing rules and norms, and codifying international law.

Some of the most well-known and impactful treaties include:

• The Charter of the United Nations - Established the UN and lays out its goals, functions, and operating principles. Signed in 1945 by 50 countries.
• The Geneva Conventions - A set of four treaties signed in 1949 that define international legal standards for humanitarian treatment during armed conflicts. Nearly every state has ratified them.
• The Vienna Convention on Diplomatic Relations - A 1961 treaty that governs diplomatic interactions between states. It specifies privileges and immunities for diplomats.

Treaties help bring order and stability to international relations. The agreements they contain carry the force of law for the states that ratify them. Treaties serve as the backbone of public international law.

Why Make Treaties?

States enter into treaties for several key reasons:

• To facilitate cooperation between states on issues of mutual interest or concern. Treaties provide a framework for states to coordinate policies, share resources, or jointly address problems that cross borders. Examples include trade agreements, environmental accords, and arms control treaties.
• To create international organizations and institutions. Major organizations like the United Nations, World Trade Organization, and NATO were established through multilateral treaties. Treaties provide the legal basis for international organizations to carry out their mandates.
• To secure collective goods at the global level. Treaties can help provide public goods that benefit all states, like rules for use of global commons, frameworks for global health initiatives, or multilateral nuclear arms reductions.
• To set standards for state conduct and relations. Treaties establish norms and rules binding on states parties across issues like human rights, laws of war, arms control, and diplomatic relations. This provides greater consistency and stability in international relations.

Treaties and Customary Law

There is no formal hierarchy between treaties and customary international law. However, in cases where the two conflict, the newer and more specific treaty rule will generally prevail.

Treaties can interact with customary law in a few ways. Treaties can codify existing customary practices into a written text. They can also provide incentives and momentum for new customary norms to develop. And existing customary law often forms the background assumptions and context for treaty negotiations and provisions.

Customary practices that states view as desirable to memorialize can be enshrined in treaty text. This gives the force of written law to the informal customary understandings. Treaties can also propel the evolution of new customary norms by getting states to agree to progressive rules. Even states not party to the treaty may eventually acquiesce to these standards in practice. And customary international law, representing the norms states have traditionally followed, shapes what treaty norms states will accept. Treaties that stray too far from accustomed practice may lack support. So custom provides the underlying foundation for most treaties.

Jus Cogens

Jus cogens refers to a norm of general international law that is accepted and recognized by the international community of states as a whole. These norms cannot be violated or departed from under any circumstances.

Some examples of jus cogens norms include:

• Prohibition on the use of force
• The law of genocide
• Principle of racial non-discrimination
• Crimes against humanity
• Rules prohibiting trade in slaves and human trafficking

Under the Vienna Convention on the Law of Treaties (VCLT), any treaty that violates a jus cogens norm is considered automatically null and void (VCLT Article 53). The rationale is that certain fundamental values and moral principles transcend regular treaty obligations. No derogation is permitted from jus cogens.

The Making of Treaties

The process of making a treaty generally involves several steps:

• Identification of Needs and Goals - The first step is for states to identify issues that require cooperation or regulation at the international level. States or international organizations will then identify goals and objectives for a potential treaty to address those needs.
• Negotiation - Once needs and goals are defined, states will come together for negotiations to determine the specific content and details of the proposed treaty. These negotiations can take place over months or even years. All interested states are typically invited to participate.
• Adoption - When negotiations conclude, there will be an adoption of the final text of the treaty. This indicates all negotiating states have agreed to the treaty’s contents. Adoption often occurs by consensus or a vote.
• Authentication of the Text - The adopted treaty text then needs to be authenticated, usually by having representatives of states sign the text. This indicates the text is accurate and official.
• Consent to be Bound - For a state to be bound by the treaty, it must provide affirmative consent through a defined process. This often involves signature followed by domestic ratification. States can also join later through accession.
• Entry into Force - Finally, once a sufficient number of states have consented to the treaty, it will enter into force at an agreed upon date. This could be after a set number of ratifications or accessions are received. At this point, the treaty becomes legally binding on those states.

Signature and Ratification

The signature of a treaty is an important milestone but does not always mean a state intends to become a party to the treaty. Signing the treaty indicates the state accepts the treaty content and undertakes to not undermine its objectives. However, signing does not create legal obligations under the treaty.

For a state to become bound by a treaty, it must express its consent to be bound. The common methods for expressing consent are through ratification, acceptance, approval or accession.

Ratification involves the state signing the treaty first and then ratifying it, expressing consent to be bound. Many constitutions require the treaty to be ratified by the legislature before the executive can ratify it internationally. This provides democratic legitimacy to the treaty ratification process.

Acceptance or approval is used when required constitutionally instead of ratification. It has the same legal effect as ratification.

Accession occurs when a state consents to be bound without first signing the treaty. It has the same legal effect as ratification. Accession is used when a state did not participate in original treaty negotiations but wants to become a party later.

When ratifying, acceding or accepting a treaty, states can make reservations to exclude or modify certain provisions with respect to their application to that state. Reservations cannot be incompatible with the object and purpose of the treaty. Other states parties can object to the reservations.

Entry into Force

Treaties generally enter into force once a specified number of states have completed the ratification process. The treaty itself will specify the number of ratifications needed for it to become binding. This threshold is set to ensure that there is a sufficient number of state parties invested in the treaty before it takes legal effect.

Once the required number of states have deposited their instruments of ratification with the designated depositary, the treaty will enter into force on the date dictated by the agreement. For example, the UN Charter entered into force on October 24, 1945 once a majority of the signatories ratified it. The date of entry is usually tied to a period after ratification or a specific calendar date.

Treaties are not retroactive and their provisions do not apply before the date of entry into force. This provides states with fair warning to adjust their behavior and laws before becoming legally bound. Some treaties may include retroactive components if specifically agreed to by the state parties. But in general, treaties cannot impose legal obligations retroactively without a state’s consent. The non-retroactivity principle is an important aspect of pacta sunt servanda and protects state sovereignty.

Application

Treaties are binding only on states that have agreed to them through signature and ratification. They do not impose legal obligations on states that have not consented to be bound by the treaty.

Treaties are binding on the entire territory of the states parties. The commitments apply regardless of how the state is organized internally into constituent units or federal divisions.

Treaties must be interpreted “in good faith” in accordance with the ordinary meaning given to their terms in context and in light of their object and purpose. The interpretation should be based on the text of the treaty itself. Supplementary means like preparatory works can also be consulted to confirm the meaning of the text or resolve ambiguities.

Interpretation

The interpretation of treaties is guided by article 31 of the Vienna Convention on the Law of Treaties (VCLT). This establishes several principles for treaty interpretation:

• Text: The ordinary meaning of the terms of the treaty are to be given priority in interpretation. The actual text is considered the authentic expression of the parties’ intent.

• Context: The context of the treaty text is important for interpretation. This includes the treaty’s preamble and annexes as well as related agreements made by all parties.

• Intent: The intent of the parties when concluding the treaty is relevant. This may be discerned from the text itself or supplementary means like preparatory work.

• Subsequent Practice: The subsequent practice of parties in implementing the treaty may provide evidence of their understanding of the meaning. This includes official statements and policies.

These principles allow interpreters to analyze the treaty holistically when questions of meaning arise. The text is primary, but context, intent and subsequent actions provide supplementary means of interpreting treaties faithfully to the parties’ purposes.

Pacta Sunt Servanda

Treaties that states voluntarily consent to are considered binding on those states under international law. The principle that agreements, once made, must be obeyed is known as Pacta Sunt Servanda and is codified in Article 26 of the Vienna Convention on the Law of Treaties.

However, there are some limitations to this principle:

• Treaties are only binding on states that have signed and ratified them. They do not create obligations for third-party states who were not involved in the treaty-making process.
• Treaties are not retroactively binding. Their provisions apply from the time a state ratifies the treaty onwards.
• Reservations made by states upon signature or ratification can limit or modify their obligations under a treaty. Other states must accept any reservations for them to be valid.
• Treaties that conflict with a peremptory norm of international law (jus cogens) are considered void. For example, no treaty can permit acts like genocide, slavery, or crimes against humanity which violate universal human rights.
• Treaties may lapse or terminate if their provisions are not upheld or conditions fundamentally change. Withdrawal or material breach can end a state’s obligations under a treaty.

So while Pacta Sunt Servanda upholds the sanctity of treaties, states still have ways to limit, change or end treaty commitments under specific circumstances allowed by international law. The principles of good faith and pacta sunt servanda work together to promote a rules-based international order.