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

81

President the authority to fill in the gaps with executive agreements, rather than additional treaties or protocols. And finally, Congressional executive agreements require majority approval by both the House and the Senate, either before or after the treaty is signed by the President.

Currently, international agreements are executed by executive agreement rather than treaties at a rate of 10:1. Despite the relative ease of executive agreements, the President still often chooses to pursue the formal treaty process over an executive agreement in order to gain Congressional support on matters that require the Congress to pass implementing legislation or appropriate funds, and those agreements that impose long term, complex legal obligations on the U.S.

Exercise 18. Answer and debate these questions.

1.How does the President of the Russian Federation ratify a treaty?

2.What procedure does a treaty undergo?

3.What norms does the Constitution of the Russian Federation provide?

Exercise 19. Study the instrument of ratification.

(name in full)

President of the United States of America

To all to whom these presents shall come, greeting:

Know Ye that, whereas there was signed at …….. on

…., 20_____ the Treaty (Convention) between the United States of America and …….

And whereas the original of the said Treaty (Convention) of …., 20_____ is word for word as follows:

(text)

And whereas the Senate of the United States of America by their resolution of …., 20___ two-thirds of the Senators present concurring therein, did advise and consent to the ratification of the said Treaty (Convention) of …., 20__;

82

Now therefore, be it known that I, (name in full), President of the United States of America, having seen and considered said Treaty (Convention) of …., 20_____do hereby, in pursuance of the aforesaid advice and consent of the Senate of the United States of America, ratify and confirm the said Treaty (Convention) of …., 20_____ and every article and clause thereof.

In testimony whereof I have hereunto set my hand and caused the Seal the United States of America to be affixed.

Done at the city of…… this…. day of….. in the year of our Lord Two thousand and… and of the Independence of the United States of America the Two hundred …th.

…………………………………………

President of the United States of America

………………………………………….

Acting Secretary of State

Exercise 20. Find in the text the English equivalents for these formal phrases used in official documents.

1. Приветствуем всех, кто будет читать этот документ; 2. Знайте же, что…; 3.Дословно следующий; 4. Да будет известно, что…; 5. В удостоверение и подтверждение выше изложенного /или: настоящим удостоверяю; 6. Во исполнение вышеуказанного; 7. Рассмотрев и приняв во внимание; 8. В подтверждении вышесказанного ставлю свою подпись и скрепляю печатью.

Exercise 21. Find out the meanings of “whereas",

"hereby", "therefore", "hereunto", "whereof» and

"thereof" as used in the text. Consult a dictionary.

Exercise 22. Translate these sentences.

1. And whereas the said Treaty has been duly ratified on the parts of all the High Contracting Parties and their several instruments of ratification have been deposited with the Government of the United States of America, the last on July 24, 1929.

83

2.In witness whereof the undersigned, being duly authorized for that purpose, have signed this Treaty.

3.I am hereby resigning as secretary, effective immediately.

4.In Witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight, and in the Third Year of the Independence.

5.Now, therefore, be it known that I, Andrew Johnson, President of the United States of America, have caused the said Treaty to be made public, to the end that the same and every clause and article thereof may be observed and fulfilled with good faith by the United States and the citizens thereof.

6.I think, therefore I am.

7.I hereby pledge my intent to do it in one month's time.

Exercise 23. Study these formal style words and translate them into Russian using the definitions below.

hereby by or through this; by this means;

hereof of this; from this; concerning this; hereto: to this matter;

hereafter after this; following this; from now on; in the future;

herein in or into this place; in this matter, writing; hereinafter below (in this document, speech, etc.);

hereinbefore in a preceding part (of this document, speech, etc.);

hereinto into this place; into this matter, condition;

hereupon after this; immediately following this; in consequence of this;

herewith along with this; by this method or means; hereat at this time; as a result of this.

84

Exercise 24. Translate into Russian.

1.Upon instructions from my Government, I have the honour to transmit herewith the Instrument of Ratification of the Government of the Republic of …. to the Treaty, done at…on…20_____.

2.There shall be established a Human Rights Committee (hereafter referred to in the present Covenant as the Committee).

3.The Committee shall consist of eighteen members and shall carry out the functions hereinafter provided.

4.When this convention shall have been duly ratified by the President of the United States, by and with the advice and consent of the Senate, on the one part, and on the other by his Majesty the Emperor of all the Russias, the ratifications shall be exchanged at Washington within three months from the date hereof or sooner if possible.

5.In addition to links listed hereinbefore you can always count on our database of last minute offers that is updated multiple times per day.

6.The General Assembly invites the State parties to take into account considerations annexed hereto.

7.Please find herewith a contract in duplicate for your next book which we have taken the liberty of forwarding to you.

Exercise 25. Draw up an instrument of ratification on behalf of the Government of Ukraine using the information below.

Council of Europe

Convention on Cybercrime

CETS No.: 185

Treaty open for signature by the member States and the non-member States which have participated in its elabora-

tion and for accession by other non-member States Place: Budapest

Date : 23/11/2001

Whereas the Convention ………….

And whereas the said Convention ………….

Now therefore, I (name and title of the Head of State) ….. In witness whereof I ………….

Exercise 26. Read this text.

Ending treaty obligations Withdrawal

Treaties are not necessarily permanently binding upon the signatory parties. As obligations in international law are traditionally viewed as arising only from the consent of states, many treaties allow a state to withdraw as long as it follows certain procedures of notification. Many treaties expressly forbid withdrawal. Other treaties are silent on the issue. Human rights treaties, for example, are generally interpreted to exclude the possibility of withdrawal, because of the importance and permanence of the obligations.

If a state party's withdrawal is successful, its obligations under that treaty are considered terminated, and withdrawal by one party from a bilateral treaty of course terminates the treaty. When a state withdraws from a multilateral treaty, that treaty will still otherwise remain in force between the other parties to the treaty.

Suspension and termination

If a party has materially violated or breached its treaty obligations, the other parties may invoke this breach as grounds for temporarily suspending their obligations to that party under the treaty. A material breach may also be invoked as grounds for permanently terminating the treaty itself.

86

A treaty breach does not automatically suspend or terminate treaty relations, however. The issue must be presented to an international tribunal or arbiter (usually specified in the treaty itself) to legally establish that a sufficiently serious breach has in fact occurred. Otherwise, a party that prematurely and perhaps wrongfully suspends or terminates its own obligations due to an alleged breach itself runs the risk of being held liable for breach.

Treaties sometimes include provisions for selftermination, meaning that the treaty is automatically terminated if certain defined conditions are met. Some treaties are intended by the parties to be only temporarily binding and are set to expire on a given date.

Invalid treaties

There are several reasons an otherwise valid and agreed upon treaty may be rejected as a binding international agreement, most of which involve errors at the formation of the treaty.

A party's consent to a treaty is invalid if it had been given by an agent or body without power to do so under that state's domestic law.

Consent is also invalid if it is given by a representative who ignored restrictions he is subject to by his sovereign during the negotiations, if the other parties to the treaty were notified of those restrictions prior to his signing.

Misunderstanding, fraud, corruption, coercion

Articles 46-53 of the Vienna Convention set out the only ways that treaties can be invalidated – considered unenforceable and void under international law. A treaty will be invalidated due to either the circumstances by which a state party joined the treaty, or due to the content of the treaty itself. Invalidation is separate from withdrawal, suspension, or termination (addressed above), which all involve an alteration in the consent of the parties of a previously valid treaty rather than the invalidation of that consent in the first place.

87

A state's consent may be invalidated if there was an erroneous understanding of a fact or situation at the time of conclusion, which formed the "essential basis" of the state's consent.

Consent will also be invalidated if it was induced by the fraudulent conduct of another party, or by the direct or indirect "corruption" of its representative by another party to the treaty. Coercion of either a representative, or the state itself through the threat or use of force, if used to obtain the consent of that state to a treaty, will invalidate that consent.

Peremptory norms

A treaty is null and void if it is in violation of a peremptory norm (jus cogens). These are limited to such universally accepted prohibitions as those against genocide, slavery, torture, and piracy, meaning that no state can legally assume an obligation to commit or permit such acts.

Exercise 27. Suggest the Russian equivalents.

To be binding upon the signatory parties, arising only from the consent of states, procedures of notification, to terminate a treaty, to remain in force, to invoke this breach as grounds for, an alleged breach, provisions for self-termination, prematurely and perhaps wrongfully, valid/ invalid, unenforceable and void, erroneous understanding, to induce consent, null and void.

Exercise 28. Match these terms with their definitions.

1. withdrawal a) dishonest or wicked behaviour in return for money or personal gain

2. suspension b)deceitful or dishonest way of acting

3. termination c) insisting on immediate obedience or attention

4. invalidation d) to take or to move sth back

5. coercion e) the action of preventing sth from being in effect for a time, to stop sth temporarily

Exercise 29. Study these word combinations with the verb “to render” and make up sentences of your own.

Exercise 30. Translate these sentences.

1.The Pledge of Allegiance to the United States flag is an oath of loyalty to the country. It is recited at many public events. People in uniform should remain silent, face the flag, and render the military salute.

2.Herein we render homage to a genius who brought human fantasies to outer space reality.

3.But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.

4.The President may wish to terminate a treaty in order to reflect the fact that the treaty has become obsolete, to sanction a treaty partner for violations, to protect the United States from commitments that would threaten its...

5.Contemporary legal doctrine denies that war has extinctive effect on multilateral treaties, unless there has been a radical change in the circumstances rendering the treaty obsolete.

89

Exercise 31. Answer these questions.

1.Are treaties permanently binding upon the signatory parties?

2.How are obligations in international law viewed traditionally?

3.What kinds of treaties are generally interpreted to exclude the possibility of withdrawal?

4.What happens in case of withdrawal by one party from a bilateral treaty?

5.Is the treaty terminated when a state withdraws from a multi-lateral treaty?

6.What are the grounds for permanently terminating the treaty?

7.Does a treaty breach automatically suspend or terminate treaty relations?

8.Do treaties include provisions for self-termination?

9.When will a treaty be invalidated?

10.What is a peremptory norm?

Exercise 32. Study this chart.

Exercise 33. Translate into English.

1. The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any

90

way impair the duty of any State to fulfill any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.

2.Subject to the provisions of the instruments relating to the meetings specified hereunder the Director-General shall take all necessary steps for the application of the present Regulations. 3.2. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal.

3.If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him.

4.Each Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this Section are subject to conditions and safeguards provided for under its domestic law.

5.Except as otherwise specifically provided in articles in this chapter, mutual assistance shall be subject to the conditions provided for by the law of the requested Party or by applicable mutual assistance treaties.

Exercise 34. Read and comment on this information.

The United States is a signatory to nine multilateral treaties that it has either blatantly violated or gradually subverted. The Bush Administration rejected a number of those treaties, and in doing so placed global security in jeopardy as other nations feel entitled to do the same. The rejected treaties include: The Comprehensive Test Ban Treaty, the Treaty Banning Antipersonnel Mines, the Rome Statute of the International Criminal Court, a protocol to create a compliance regime for the Biological Weapons Convention, the Kyoto Protocol on global warming, and the Anti-Ballistic Missile Treaty. The U.S. is also