The form and content of treaties

Treaties can normally be divided into three parts:

1. The preamble, somewhat formal in style, setting out the names of the parties to the agreement, the names of the plenipotentiaries and the object of the agreement, e.g.

The Republic of X and the Kingdom of Y

Desiring to facilitate............................................................................

Having in mind …………

Having resolved to conclude a Treaty of............................................

and have appointed as their Plenipotentiaries for this purpose:

The Republic of X: The Hon. A.B.C.

The Kingdom of Y: His Excellency D.E.F.

Who, having communicated their respective full powers, found in good and due form, have agreed as follows .….

2. The terms or substance of the agreement, known as the substantive clauses.

3. The administrative clauses or final clauses (sometimes known as the clauses protocolaires) which include provision for some or all of the following:

The date or method of entry into force of the treaty

The duration and method of termination of the treaty

Definition of terms

The method of settlement of any dispute

Reservations

Accession to the treaty by other states

Amendment or review

The languages of the treaty which are to be authoritative

Ratification, and deposit of instruments of ratification

Registration with the United Nations

and invariably:

Date and place of signature

Signature (and sometimes seal) of plenipotentiaries.

The validity of treaties

A treaty is essentially a contract between states, and its validity may theoretically be challenged by one or more of the parties concerned on various grounds, which are specified in Articles 48-53 of the Vienna Convention on the Law of Treaties. These are:

Error relating to a fact or situation which was assumed by the state concerned to exist at thetime when the treaty was concluded and which formed an essential basis of its consent to be bound by the treaty (except if that state contributed by its own conduct to the error or if the circumstances were such as to put the state on notice of a possible error).

Fraud, i.e. when a state has been induced to conclude a treaty by the fraudulent conduct of another negotiating state.

Corruption of a representative of a state.

Coercion of a representative of a state.

Coercion of a state by the threat or use of force.

Jus cogens: i.e. treaties conflicting with a peremptory norm of general international law. A 'peremptory norm' in this context is one accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

No general rule can be given to cover the case where a treaty which is signed in good faith proves to be incompatible with the terms of an earlier treaty - a situation capable of arising as between a bilateral agreement and a multilateral agreement possibly through the oversight of an archivist. So far as the provisions of the United Nations Charter are concerned, article 103 stipulates that obligations under the Charter shall have precedence over all others in the event of conflict.