Treaty Making in IL

Treaty making in IL
Generally, the law of treaties covers a number of important areas including

definition of treaties, treaty making process or conclusion of treaties, reservations,
registration and publication, application and interpretation, treaties and third
states, invalidity of treaties, and termination of treaties.
Definition of treaties – As already alluded to, a treaty is a formally concluded and

ratified agreement between states. The term treaty is used generically to refer to
instruments binding at international law and concluded between international
entities. These are mainly states and international organizations. The 1969 VCLT
defines a treaty as “ an international agreement concluded between states in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation. In essence, a treaty must be a binding instrument which means that
the contracting parties intended to create legal rights and duties, it’s concluded
by states or international organizations with treaty making power, it’s governed
by international law and it should be in writing. The definition essentially outlines
at least five elements:
1. An international agreement concluded between states

2. It is in written form
3. It is governed by international law
4. It may be embodied in a single instrument or two or more related
instruments
5. It may be designated in any form, that is, it may be referred to as a
convention or charter, protocol, memorandum, exchange of notes,
declaration, covenant, agreement, pact or any other.
While the name given to a treaty may indicate its significance, it does not affect
its legal character whatsoever.
Types of treaties
1. Bilateral treaties – these are concluded between states or entities with
treaty making power. This implies that a bilateral treaty governs
relationships between states or two organizations
2. Multilateral treaties – concluded among several countries. Such a treaty
establishes rights and obligations between each party and every other
party to the treaty. Each of the parties owes the same obligations to all the
other parties, except to the extent that they have stated their reservations.
Examples may include the UN Convention on the law of the Sea, the
Convention on the law of Biodiversity, the International Covenant on Civil
and political rights, the Montreal Protocol on the Ozone Layer, etc.
3. Universal Treaties – These are concluded among almost all countries, and
examples include the UN Charter, or the Convention on International
Trade, in endangered species of Fauna and Flora.
Relevance of treaties in International law and international relations

In the modern international law, the significance of international treaty to create
international rules is highly elevated. It was often said that international law,
failed to have desired effect for its absence of enforcement mechanism.
International treaties have provided the mechanism for establishing international
institutions through which international instruments are created to enforce
international law. The Rome statute, the statute of the ICJ, and similar documents
of several temporary or transitional tribunals, have provided international law
with firmly grounded institutions and mechanisms to enforce its rules. While
treaties create obligations for the parties, the moral perspective they generate for
the community of states is tremendous. In effect, the enforcement of treaties is
thus backed by the legal as well as moral sanctions. It is also important to note
that treaties affect the policies of the signatory states both internally and
externally.
Concluding a treaty
The process of concluding a treaty may vary depending on the subject matter
and the number of parties involved. As a general principle, every state possesses
capacity to conclude treaties. In the process of concluding international treaties,
states act through their representatives. Such representatives, have to produce
evidence of “full powers” to represent the state. Full powers means a document
emanating from a competent authority of the state, designating a person or
persons to represent the state for negotiating, adopting, or authenticating the
text of a treaty or expressing the consent of the state to be bound by a treaty, or
for accomplishing any other act with respect to a treaty. According to Art. 7 VCLT,
heads of state, Heads of Government, and Ministers for foreign affairs by virtue of
their functions, can perform all acts relating to the conclusion of a treaty without
having to produce ‘full powers’. Generally, the process of conclusion of treaties
consists of several stages, including:
a. negotiations
b. Adoption of the text of a treaty
c. Authentication of the text of a treaty
d. Expressing consent to be bound by the treaty
According to the VCLT, consent of a state to be bound by a treaty may be
expressed by:
a. Signature (Art 12 VCLT)
b. Exchange of instruments constituting a treaty (Art.13 VCLT)
c. Ratification, acceptance or approval (Art.14 VCLT)
d. Accession (Art.15 VCLT)
The final stage of the process of conclusion of a treaty is “entry into force”.
Treaties enter into force in such a manner and upon such dates as is provided by
the treaty itself or as agreed by the parties. For example, the 1969 VCLT entered
into force on the 30th day following the submission of the 35th instrument of
ratification. Likewise, the 1982 UN Convention on the law of the Sea entered into
force, 12 months after the date of deposit of the 60 th instrument of ratification or
accession.

Treaty Making in IL

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Treaty making in IL

Generally, the law of treaties covers a number of important areas including

Definition of treaties – As already alluded to, a treaty is a formally concluded and

1. An international agreement concluded between states

Relevance of treaties in International law and international relations

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