Гольцева О.Ю. Международное право в официальных документах. Под ред. И.А. Горшеневой

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PART II. INTERNATIONAL OFFICIAL DOCUMENTS

LESSON 5

TREATIES AND CONVENTIONS Starting up

Read the definitions of “treaty” below. Which definition do you consider to be more appropriate? Why?

a)A treaty is an agreement in written form between na- tion-states (or international agencies, such as the United Nations, that have been given treaty-making capacity by the states that created them) that is intended to establish a relationship governed by International Law.

b)A treaty is a compact made between two or more independent nations with a view to the public welfare treaties are for perpetuity, or for a considerable time. Those matters which are accomplished by a single act, and are at once perfected in their execution, are called agreements, conventions and pacts.

Exercise 1. Read the text.

Treaties and Conventions

A Treaty is an agreement under international law entered into by actors in international law, namely states and international organizations. Treaties can be compared to contracts: both are means of willing parties assuming obligations among themselves, and a party that fails to live up to their obligations can be held liable under international law for that breach. The central principle of treaty law is expressed in the maxim pacta sunt servanda –"pacts must be respected".

In international law and diplomatic practice the term "treaty" is used in two senses. In a generic sense, it refers to all agreements between states which are of a binding

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character, and in a restricted sense it refers to a title given to instruments containing such international agreements.

Instruments setting out agreements between states bear different titles, such as Treaty, Agreement, Convention, Protocol, Act, Declaration, Statute, Regulations, Provisions, Pact, Covenant, Compromise, Accord, Arrangements, Modus Vivendi, Exchange of Notes and Concordat. It is, however, not obligatory to give a title to an international agreement, as agreements can be concluded even by exchange of letters or notes. In diplomatic literature, the terms "treaty", "convention", and "protocol" are all applied more or less indiscriminately to international agreements. International law prescribes neither the form nor the procedure for making of international engagements, and consequently their form depends upon the will and convenience of the parties.

The binding nature of treaty obligations is the oldest and doubtless the most fundamental rule of international law. Of all international engagements which are intended to have an obligatory character the most important are "treaties", the term being derived from the French trailer, which means "to negotiate".

The next type of international engagement is the "convention", derived from the Latin word conventio meaning "agreement". This term is frequently, though not necessarily, employed in connection with agreements to which a large number of countries are parties, and especially to agreements of the law-making type.

A multilateral treaty has several differences establishing rights and obligations between each party and every other party. Multilateral treaties are often, but not always, open to any state; others are regional. Bilateral treaties by contrast are negotiated between a limited number of states, most commonly only two, establishing legal rights and obligations between those two states only.

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Exercise 2. Cover the text above and fill in the appropriate prepositions.

1.A Treaty is an agreement ___ international law entered ___ actors ___ international law.

2.A party that fails ___ live up ___ their obligations can be held liable ___ international law ___ that breach.

3.___ a generic sense, the term "treaty" refers ___ all agreements ___ states which are ___ a binding character.

4.It is not obligatory to give a title ___ an international agreement, as agreements can be concluded even ___ exchange ___ letters or notes.

5.International engagements and their form depends

___ the will and convenience ___ the parties.

6.The term "convention" is frequently employed ___

connection ___ agreements ___ which a large number ___

countries are parties.

7.Multilateral treaties are often open ___ any state; bilateral treaties ___ contrast are negotiated ___ a limited number ___ states.

Exercise 3. Suggest the Russian equivalents.

TREATY

a multilateral treaty, a unilateral treaty, a collective treaty, a commercial treaty, a demarcation treaty, an (in)equitable treaty, a binding treaty, a trade treaty, a treaty of cession, a non-proliferation treaty, a treaty of mutual security, a treaty of neutrality, breach of the treaty, the coming of a treaty into force, a boundary treaty, peace treaty, a treaty of commerce and navigation, denunciation of a treaty, a treaty of unlimited duration, a treaty of alliance, a basic treaty, a non-aggression treaty, a treaty of friendship, cooperation and mutual assistance, the substantive articles of a treaty, Strategic Offensive Arms Limitation treaty, prolongation of a treaty renunciation of a treaty.

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Exercise 4. Study these word combinations and make up sentences of your own.

to accede to/ to sign/ to conclude/ to enter into to initial/ to ratify/ to adhere to/ to observe

to denounce/ to renounce/ to violate/ TREATY to terminate/ to withdraw from

to prolong/ to extend the validity of to render … invalid

Exercise 5. Match these terms with their definitions.

Exercise 6. Answer these questions.

1.What is a Treaty?

2.What does the term "treaty" imply in a generic and a restricted sense?

3.What are the titles given to international agreements?

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4.What is the oldest and the most fundamental rule of international law?

5.Do you know the origin of the terms "treaty" and "convention"?

6.Is there any difference in use of the terms "treaty" and "convention"?

7.Are there any differences between multilateral and bilateral treaties?

Exercise 7. Read this text and answer these questions.

1.What is the way for adding a treaty?

2.How are existing treaties amended?

Adding and amending treaty obligations

Reservations are essentially caveats to a state's acceptance of a treaty. Reservations are a unilateral statement purporting to exclude or to modify the legal obligation and its effects on the reserving state. These must be included at the time of signing or ratification – a party cannot add a reservation after it has already joined a treaty.

Originally, international treaty reservations were unacceptable. However, in the interest of encouraging the largest number of states to join treaties, a more permissive rule regarding reservations has emerged. When a state limits its treaty obligations through reservations, other states party to that treaty have the option to accept those reservations, object to them, or object and oppose them.

There are three ways an existing treaty can be amended. First, formal amendment requires States parties to the treaty to go through the ratification process all over again.

Treaties can also be amended informally by the treaty executive council when the changes are only procedural, technical, or administrative (not principled changes).

Finally, a change in customary international law (state behavior) can also amend a treaty, where state behavior evinces a new interpretation of the legal obligations under

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the treaty. Minor corrections to a treaty may be adopted by a procès-verbal; but a procès-verbal is generally reserved for changes to rectify obvious errors in the text adopted, i.e. where the text adopted does not correctly reflect the intention of the parties adopting it.

Execution and implementation

Treaties may be seen as 'self-executing', in that merely becoming a party puts the treaty and all of its obligations in action. Other treaties may be non-self-executing and require 'implementing legislation' – a change in the domestic law of a state party that will direct or enable it to fulfill treaty obligations. An example of a treaty requiring such legislation would be one mandating local prosecution by a party for particular crimes.

The division between the two is often not clear and is often politicized in disagreements within a government over a treaty, as a non-self-executing treaty cannot be acted upon without the proper change in domestic law.

Exercise 8. Find in the text above the English equivalents for these word combinations.

Предупреждение о необходимости рассмотрения вопроса до заключения соглашения, оговорка, одностороннее заявление, иметь целью исключить, во время ратификации договора, неприемлемый, более терпимое правило, иметь выбор, внести поправки (не)официально, высказывать, новое толкование, мелкие исправления договора, исправлять очевидные ошибки, должным образом отражать намерения сторон, реализация договора, политизировать.

Exercise 9. Translate these word combinations using the appropriate forms of the word in bold type.

amendment – редакционная поправка, проект поправки, внести поправку, принять поправку, одобрить поправку, утвердить поправку, ратифицировать поправку, отклонить поправку, внести поправки в договор.

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reservation – сохранить за собой право, сделать оговорку, неприемлемые оговорки, страны, оставляющие за собой право, добавить оговорку, резервировать для внесения изменений.

Exercise 10. Match these words with their synonyms.

Exercise 11. Complete these sentences.

1.Reservations are ___________________________.

2.Reservations must be included ________________.

3.When a state limits its treaty obligations through reservations, other states party to that treaty have the option _______________________________________.

4.Formal amendment requires States parties to the treaty ________________________________________.

5.Treaties can be amended informally by the treaty executive council when __________________________.

6.A change in customary international law can _____.

7.A procès-verbal is __________________________.

8.Treaties may be seen as ________ and _________.

Exercise 12. Read this text and answer these questions.

1.Why does the language of the treaties must be interpreted?

2.What is called an 'authentic interpretation'?

3.Who resolves disputes over treaty interpretations?

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Interpretation

The language of treaties, like that of any law or contract, must be interpreted when the wording does not seem clear or it is not immediately apparent how it should be applied in a perhaps unforeseen circumstance. The Vienna Convention states that treaties are to be interpreted

“in good faith” according to the “ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose.” International legal experts also often invoke the 'principle of maximum effectiveness,' which interprets treaty language as having the fullest force and effect possible to establish obligations between the parties.

No one party to a treaty can impose its particular interpretation of the treaty upon the other parties. Consent by all parties to the treaty to a particular interpretation has the legal effect of adding an additional clause to the treaty – this is commonly called an 'authentic interpretation'.

International tribunals and arbiters are often called upon to resolve substantial disputes over treaty interpretations. To establish the meaning in context, these judicial bodies may review the preparatory work from the negotiation and drafting of the treaty as well as the final, signed treaty itself.

One significant part of treaty making is that signing a treaty implies recognition that the other side is a sovereign state and that the agreement being considered is enforceable under international law. Hence, nations can be very careful about terming an agreement to be a treaty. For example, within the United States agreements between states are compacts and agreements between states and the federal government or between agencies of the government are memoranda of understanding.

Another situation can occur when one party wishes to create an obligation under international law, but the other party does not. This factor has been at work with respect to discussions between North Korea and the United States over security guarantees and nuclear proliferation.

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Exercise 13. Say whether these statements are true or false. Correct the wrong ones.

1.The language of treaties must never be interpreted.

2.The 'principle of maximum effectiveness' interprets treaty language as having the fullest force and effect possible to establish obligations between the parties.

3.Each party to a treaty can impose its particular interpretation of the treaty upon the other parties.

4.An 'authentic interpretation' is the consent by all parties to the treaty to a particular interpretation.

5.The UN experts are often called upon to resolve substantial disputes over treaty interpretations.

6.To establish the meaning in context, international tribunals and arbiters review the preparatory work from the negotiation and drafting of the treaty as well as the signed treaty itself.

7.Signing a treaty implies recognition that the other side is a sovereign state and that the agreement being considered is enforceable under international law.

8.Nations are not very careful about terming an agreement to be a treaty.

Exercise 14. Translate into English.

1. договор о дружбе и взаимопомощи; 2. бессрочный договор; 3. договор о взаимной безопасности; 4. договор об ограниченнии стратегических наступательных вооружений; 5. договор о нераспространении ядерного оружия; 6. договор об установлении границ; 7. договор о ненападении; 8. вступление договора в силу; 9. неравноправный договор; 10. нарушить договор; 11. придерживаться договора; 12. парафировать договор; 13. выйти из договора; 14. продлить действие договора.

Exercise 15. Complete this text with words from the box in appropriate form.

to follow to outweigh to be registered with applied to prevent

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Role of the United Nations

The United Nations Charter states that treaties must

________ the UN to be invoked before it or enforced in its judiciary organ, the International Court of Justice. This was done ________ the proliferation of secret treaties that occurred in the 19th and 20th century. The Charter also states that its members' obligations under it _________

any competing obligations under other treaties.

After their adoption, treaties as well as their amendments have _________ the official legal procedures of the United Nations, as __________ by the Office of Legal Affairs, including signature, ratification and entry into force.

Exercise 16. Answer these questions.

1.Why must treaties be registered with the UN?

2.Do obligations under the UN Charter outweigh any obligations under other treaties?

3.What legal procedures applied by the Office of Legal Affairs do treaties follow?

Exercise 17. Read this text and answer these questions.

1.What is the legal sense of the term "treaty" in the US?

2.How can the President of the United States validly ratify a treaty?

In the United States, the term "treaty" has a different, more restricted legal sense than exists in international law. U.S. law distinguishes what it calls treaties from treaty executive agreements, congressional executive agreements, and sole executive agreements. All four classes are equally treaties under international law; they are distinct only from the perspective of internal American law. The distinctions are primarily concerning their method of ratification. Whereas treaties require advice and consent by two thirds of the Senate, sole executive agreements may be executed by the President acting alone. Some treaties grant the