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TREATIES NOTES: PUBLIC INTERNATIONAL LAW

The Basics:
 A contract between two or more states
 Considered as the richest sources of international law
 The rules for treaty-making are codified in the Vienna Convention on the Law
of Treaties (VCLT)
o Adopted by the United Nations on May 1969 and entered into force on
January 27, 1980
o Commonly referred to as a “treaty on treaties”
o Non-signatory states must also follow most of the provisions of VCLT
o Definition of treaty: 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; a mutually
binding contractual agreement between two or more States
o VLCT does not disregard oral treaties and their efficiency; although it is
clear that oral treaties are not within the scope of the Convention

 Component parts of a Treaty (according to VCLT):


o An international agreement;
o Concluded between States;
o In written form;
o Governed by international law;
o Embodied in a single instrument or in two or more related
instruments

Kinds of Treaties:
 Bipartite Treaty: when there are two signatories to the treaty
 Multipartite Treaty: when there are more than two signatories to the treaty
 Provisions of a treaty  usually for the mutual benefit of State signatories;
but there are also cases where it may be inimical to the interest of other
States signatories as “treaties” of surrender (ex.) the Treaty of Versailles)

Form of Treaties:
 General rule  treaties must be made in written form; setting objectives
and their reasons for being
 There are also cases where treaties take a different form  ex.) exchange of
letters made by parties (in the case of Quatar vs. Bahrain); exchange of
notes have binding force because international agreements can take a
number of forms and a diversity of names

An Agreement by Any Other Name:


 Convention
 Protocol
 Executive Agreements
 Exchange of Notes
 Concordat
 Pact

Convention:
 Generally accepted to mean a multipartite agreement signed by several party-
States concerning matters of common interest to all
 Ex.) United Nations Convention on the Law of the Sea (UNCLOS)

Protocol:
 An agreement between states, although less formal
 Although it being less formal does not invalidate it
 Usually deal with the implementation of treaties previously signed (ex.) First
Optional Protocol of the ICCPR); an amendment to the treaty
 Can also refer to agreements signed before the main treaty

Executive Agreements (Antonio Cassese):


 Normally negotiated by diplomats, senior civil servants, or government
experts
 Become legally binding as soon as either the negotiators themselves or the
Foreign Ministers of the contracting parties sign them
 Can take the form of exchanging of notes between the Foreign Minister of a
given State accredited to the former
 This no longer calls for the ratification by the Head of State and does not
involve the parliaments in their elaboration
 There is an advantage of bypassing legislatures  preserves the flexibility and
the latitude of power of the Executive
 Can only be treated as a treaty if the States signatories to the agreement
recognize it as a treaty

Exchange of Notes:
 Exchanging of agreements by representatives of two or more States
 Purpose  to do away with the formalities attendant to the signing of
treaties

Concordat:
 A treaty between the State and the Pope or his representative; the latter
signing for and in behalf of the Vatican or the Holy See
 Subject of Concordat  usually ecclesiastical

Pacts:
 Usually deal with defense matters
 Ex.) Warsaw Pact

Modus Vivendi:
 Informal agreement between States
 Outlining how the parties should behave while a formal treaty is being
negotiated or before it is signed
Declarations (Lassa francis Oppenheim):
 Title or body of stipulations in a treaty which the parties pledge to pursue
 A unilateral declaration which creates rights and duties for other States
 An action taken when states communicate with other States, or an explanation
and justification of a line of conduct pursued by them in the past or an
explanation of views and intentions concerning certain matters
 Usually non-binding between States; although the exception to the rule is the
UDHR

How Treaties are Forged:


 Genesis of a treaty  usually arises when there is a problem that arises
between States