The expression treaty is used as a generic term to cover a multitude of international agreements and contractual engagements between states

Are called by various names They may be quasi-legislative or purely contractual They may lay down rules binding upon states concerning new areas of international law, or they may codify, clarify and supplement they already existing customary international law on a particular matter THE FORMALITIES OF A TREATDefinition of a treaty Article 2(1)(a) of the Convention To qualify as a treaty, an agreement must satisfy the following criteria: It should be a written instrument Between two or more parties Those parties must be endowed with international personality It must be governed by international law It should be intended to create legal obligations

2. A treaty must be between parties endowed with international personalityThe Vienna Convention 1969 applies only to international agreements concluded between states. But the legal effect of other international law concluded by other subject of international law is not affected by the Convention (Art. 3) Other subject of international law may have treaty-making powers based on international customary law (Art. 3)

Federal states? State members of a federal union may posses a a capacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits there laid down

Colonial and other non-self-governing territories? Some have been recognized, ex. Canada, Australia, New Zealand, South Africa in the 1919 Paris Peace Conference and became parties to the Treaty of Versailles VCVState members of a federal union may posses a a capacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits there laid down

Colonial and other non-self-governing territories?

Some have been recognized, ex. Canada, Australia, New Zealand, South Africa in the 1919 Paris Peace Conference and became parties to the Treaty of Versailles

The law of treaties was codified in the Vienna Convention 1969 Came into force on 27 January 1980 Non retroactive principle applied Although the Convention only applies to treaties made after its entry into force, it is nevertheless important in that most of its provisions attempt to codify the customary law International organization? The power to enter into a treaty can arise in two ways: By express grant contained in the constitution of the organization. Examples: Arts. 57 and 63 of the UN Charter give the UN power to enter into relationship agreements with the various specialized agencies Art. 43 of the Charter empowers the UN to enter into agreements with Member states on the provision of military contingents

By implication, in order to carry out the duty imposed by the constitution upon the organization. Example: Reparations for Injuries Suffered in the Service of the UN case (1949) ICJ Rep 174

Limitations on the implied powers The existence of such power doesnt mean that an organization can conclude any sort of agreement. Its treaty-making capacity must be compatible with the letter and spirit of its constitution. As Hackworth J stated in Reparation for Injuries Suffered in the Service of the UN Case (1949) ICJ Rep 174 at 178: Powers not expressed cant freely be implied. Implied powers flows from a grant of express powers, and are limited to those that are necessary to the exercise of powers expressly granted

If the organization did exceed its implied powers the act would be ineffective and the treaty void.

1. NegotiationThis is carried out by the accredited representatives of the state in question. Capacity and authority to negotiate treaties? Is a matter for the internal constitutional foundation of each individual state

At international level, a plenipotentiary is either expressly or impliedly granted full powers from the appropriate national authorities to enter into binding obligations

Art. 7(1) of the Convention An individual is deemed to posses authority to represent a state if: Appropriate full powers are produced; or It appears from practice of the states concerned or from other circumstances that such a person is intended to represent a state for this purpose

Art. 7(2) of the Convention Some individuals are presumed to have authority without producing full powers. They are: Heads of State, Heads of Government and Ministers for Foreign Affairs (for performing all acts relating to the conclusion of a treaty) Heads of diplomatic missions (for adopting the text of treaty) Representatives accredited by states to an international conference or to an international organization or one of its organs (for adopting)

2. Adoption Is the first stage of the conclusion of a treaty Art. 9 of the Convention 1. The adoption of the text of a treaty takes place by the consent of all states participating in its drawing up 2. The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the states present and voting, unless by the same majority they shall decide to apply a different rule

The adoption itself does not create any obligations . Authenticatio nMay be done in a number of ways The method of authentication to be adopted is a matter for the parties themselves to agree Two usual method are: signing and initialing It, however, may be authenticated in other ways, e.g.. by incorporating the text in the final act of the conference

4. Consent to be BoundArt. 11 The consent of a state to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession; or by any other means if so agreed

The traditional methods: signature, ratification and accession a. Signature The legal effects of signature? May represent simply an authentication of its text Where a treaty is subject to ratification, acceptance or approval, signature does not establish consent to be bound Such a treaty, unless declaratory of customary law, will not be enforceable against a party until the step of ratification, acceptance or approval is taken The North Sea Continental Shelf Cases However, under Art. 18, signature creates an obligation of good faith to . . . . Where a treaty is not subject to ratification, acceptance or approval, signature will signify consent to be bound vb. Ratification Meaning of ratification Is the formal act whereby a state declares its acceptance of the terms of the treaty and undertakes to observe them Is used to describe 2 distinct procedural acts: Ratification in municipal law Ratification in international law In the international law sense, ratification is the procedure which brings a treaty into force. It is not concerned with the question as to whether a state has complied with the requirements of its constitutional law Reasons why ratification may be required Historically the subsequent ratification by the sovereign prevented diplomats from exceeding their instructions and confirmed the power of the representative to negotiate the treaty The delay between signature and ratification allows the sovereign time to reconsider the matter and allows time for expression of public opinion on the matter

Consent of the legislature may be required for ratification in accordance with the state municipal law c. Accession (adherence or adhesion) Occurs when a state which did not sign a treaty formally accepts its provisions May occur before or after the treaty has entered into force It is only possible if it is provided for in the treaty, or if all the parties to the treaty agree that the acceding state should be allowed to accede Accession, therefore, has the same effect as signature and ratification combined Reservation Definition Art. 2(1)(d) of the Convention: Unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state Under traditional view: A state could not make a reservation to a treaty unless it was accepted by all the parties signing the agreement The absence of unanimous consent to the reservation, it would be null and void, and the state would fail to become a party to the treaty It was a policy of the League of Nations when acting as depository for the registration of treaties Impractical as state participation increases in the processes of multilateral treaty 5. Entry into Force Where the treaty does not specify a date, there is a presumption that the treaty is intended to enter into force as soon as all the negotiating states have expressed their consent to be bound by it. For a treaty in which subject to ratification, the treaty usually provides that it shall enter into force when it has been ratified by a specified number of states. When the minimum number of ratifications is reached the treaty enters into force between those states which have ratified it. 6. Registration Art.102 of the Charter of the UN provides as follow:

Every treaty and every international agreement entered into by any Member of the UN after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it No party to any such treaty or international agreement which has not been registered in accordance with the provision above may invoke that treaty or engagement before any organ of the UN Art.102 was intended to prevent states from entering into secret agreements without the knowledge of their nationals, and without the knowledge of other states, whose interests might be affected by such agreements.