Introduction and Background
A
treaty may be defined as an agreement where by two or more states establish or
seek to establish a relationship between themselves governed by international
law. The two key words here are agreement and international law. Other actors
in the international system, besides states, may also enter into treaty
agreements. Treaty is the main instrument which the international community
possesses for the purpose of initiating a developing international
co-operation. A treaty may also be known as international agreement, protocol,
covenant, convention, exchange of letter, etc.
Treaties
can be compared to contract because both acts as means through which willing
parties enter into obligations among themselves and any parties that fails to live
up to its obligations as contained therein may be held liable under
international law. In domestic law, the private citizen has a large variety of
instruments from which to choose for executing some legal acts or for attesting
to a transaction. At the international level, the treaty is responsible for
almost every king of legal interaction between states and other non-state
actors.
The
central principle underlying the legality or sanctity of treaties is expressed
by the axiom “Pacta suit servada” meaning that pacts are “mutually binding
agreements” which must be respected” by the parties to it. The Vienna
convention on the law of treaties. The convention has been ratified by 110
countries as at 2009 though states that have not ratified it may still recognise
it as a biding force in as much as if is a restatement of customary law.
Parties to Treaties
Generally
only sovereign states/entities which fulfil the traditional requirements of
statehood as stipulated by international law are allowed to enter into treaties
with each other. However, developments in the modern era has made this
provision much more elastic, such that other participants and actors in the
international system are now recognised as having the requisite legal
personality to enter into legitimate agreement with one another. At present,
the following are recognised by international law as having the ability to
enter into treaties and covenants.
(a) independent
states
(b) International
organisational
(c) International
institutions
(d) Multinational
corporations
(e) Government
department/ agencies
Bilateral and muti lateral Treaties
A
bilateral treaty is a treaty between only two parties or states. Such treaty
establishes legal rights and obligations between those two parties/states only.
A bilateral treaty however may exist between more than two states. This may
happen when a number of states are
acting in concert, ie. Acting together as one single entity. A treaty between
the US and the EU, for instance, is a bilateral treaty because the EU here is
represented as a single political block and not a number of states. The parties
to such treaty we only two – the US on one hand and the EU and its member
states on the other. If there is a disagreement between the EU members, this is
resolved as an in house affair. In the open, the position on the EU countries
must remain the same.
A
multilateral treaty on the other hand has several parties responding to it or
agreeing to it. If establishes rights and obligations between each party and
every other participating member state. Multilateral treaties are often open to
states which may not have participated at the initial stage. Such new comers
are admitted if they accept the terms of the treaty and sign up accordingly.
Some multilateral treaties may however restrict admission to the original
signatories only. Most multilateral treaties are regional in nature through
others could be universal.
Forms of Concluding Treaties
1. Heads of state forum: In this instance,
the treaty is drafted as an agreement between the sovereigns or Heads of state
and government during top level summits. Here, the obligations are expressed to
bind them as high constricting parties” carrying the absolute authority of
their states. This form of concluding treaty is not frequently used, is
reserved for special cases of conventions and more solemn kinds of treaties.
2. Inter-governmental form: The treaty is
drafted as an agreement between two or more governments. The difference here is
that professionals or diplomats are involved in intense negotiations until the
details of the agreement are reached. The governments involved may give their
representatives and negotiators a free hand to make decisions or shifts ground
or may demand constant consultation with every aspect of the negotiations.
Democracies are more likely to allow their representatives a free rein than
authoritarian regimes.
3. Inter-state forum: Here, the treaty is drafted expressly of
impliedly as an agreement between more than two states. The process follows
virtually the same degree as described in no 20 above. A good example of
interstate treaty is the North Atlantic Treaty organisation signed on April 4th,
1949. the aim was to pull together the security resources of North America and
western Europe.
4. Ministerial Forum: A treaty may be negotiated and signed between
the ministers of the respective countries concerned. Generally, these might be
the foreign ministers of those countries acting with the authority and support
of their home governments. The summit of foreign ministers to take decisions on
issues of common interest has been generally accepted as a genuine process of international
in the modern era.
Processes of contracting Treaties
A treaty may be an interdepartmental agreement concluded
between representatives of particular government departments and agencies. Such
agreement are often for technical and non-political matters. And example is and
agreement between the representatives of respective customs administrations of
the countries concerned. The US drug enforcement Agency (USDEA) has a long
standing agreement with Nigeria’s Drug Law Enforcement agency.(NDLEA)
6.7 Interpretation of Treaties
6.8 Invalidation of Treaties
6.9 Termination of Treaties