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A treaty is a formal, legally binding written agreement between actors in
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
. It is usually made by and between sovereign states, but can include
international organizations An international organization or international organisation (see spelling differences), also known as an intergovernmental organization or an international institution, is a stable set of norms and rules meant to govern the behavior of states an ...
, individuals, business entities, and other legal persons. A treaty may also be known as an international agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. However, only documents that are legally binding on the parties are considered treaties under international law. Treaties vary on the basis of obligations (the extent to which states are bound to the rules), precision (the extent to which the rules are unambiguous), and delegation (the extent to which third parties have authority to interpret, apply and make rules). Treaties are among the earliest manifestations of international relations, with the first known example being a border agreement between the Sumerian city-states of Lagash and Umma around 3100 BC. International agreements were used in some form by most major civilizations, growing in both sophistication and number during the early modern era. The early 19th century saw developments in diplomacy, foreign policy, and international law reflected by the widespread use of treaties. The 1969
Vienna Convention on the Law of Treaties The Vienna Convention on the Law of Treaties (VCLT) is an international agreement regulating treaties between states. Known as the "treaty on treaties", it establishes comprehensive rules, procedures, and guidelines for how treaties are defined ...
codified these practices, setting forth guidelines and rules for creating, amending, interpreting, and terminating treaties and for resolving disputes and alleged breaches. Treaties are roughly analogous to contracts in that they establish the rights and binding obligations of the parties. They vary significantly in form, substance, and complexity and govern a wide variety of matters, such as security, trade, environment, and human rights. Treaties may be bilateral (between two countries) or multilateral (involving more than two countries). They may also be used to establish international institutions, such as the International Criminal Court and the
United Nations The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and security, develop friendly relations among nations, achieve international cooperation, and be a centre for harmonizi ...
, for which they often provide a governing framework. Treaties serve as primary sources of international law and have codified or established most international legal principles since the early 20th century. Notwithstanding the Law of Treaties and
customary international law Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its me ...
, treaties are not required to follow any standard form. Nevertheless, all valid treaties must comply with the legal principle of '' pacta sunt servanda'' (Latin: "agreements must be kept"), under which parties are committed to perform their duties and honor their agreements in good faith. A treaty may also be invalidated, and thus rendered unenforceable, if it violates a preemptory norm (''jus cogens''), such as permitting a war of aggression or crimes against humanity.


Modern usage and form

A treaty is an official, express written agreement that states use to legally bind themselves.Shaw, Malcolm. (2003). It is also the objective outcome of a ceremonial occasion that acknowledges the parties and their defined relationships. There is no prerequisite of academic accreditation or cross-professional contextual knowledge required to publish a treaty. However, since the late 19th century, most treaties have followed a fairly consistent format. A treaty typically begins with a preamble describing the "High Contracting Parties" and their shared objectives in executing the treaty, as well as summarizing any underlying events (such as the aftermath of a war in the case of a peace treaty). Modern preambles are sometimes structured as a single very long sentence formatted into multiple paragraphs for readability, in which each of the paragraphs begins with a gerund (desiring, recognizing, having, etc.). The High Contracting Parties—referred to as either the official title of the head of state (but not including the personal name), e.g. ''His Majesty The King of X'' or ''His Excellency The President of Y'', or alternatively in the form of "'' Government of Z''"—are enumerated, along with the full names and titles of their Plenipotentiary representatives; a boilerplate clause describes how each party's representatives have communicated (or exchanged) their "full powers" (i.e., the official documents appointing them to act on behalf of their respective high contracting party) and found them in good or proper form. However, under the
Vienna Convention on the Law of Treaties The Vienna Convention on the Law of Treaties (VCLT) is an international agreement regulating treaties between states. Known as the "treaty on treaties", it establishes comprehensive rules, procedures, and guidelines for how treaties are defined ...
if the representative is the head of state, head of government or minister of foreign affairs, no special document is needed, as holding such high office is sufficient. The end of the preamble and the start of the actual agreement is often signaled by the words "have agreed as follows". After the preamble comes numbered articles, which contain the substance of the parties' actual agreement. Each article heading usually encompasses a paragraph. A long treaty may further group articles under chapter headings. Modern treaties, regardless of subject matter, usually contain articles governing where the final authentic copies of the treaty will be deposited and how any subsequent disputes as to their interpretation will be peacefully resolved. The end of a treaty, the eschatocol (or closing protocol), is often signaled by language such as "in witness whereof" or "in faith whereof", followed by the words "DONE at", then the site(s) of the treaty's execution and the date(s) of its execution. The date is typically written in its most formal, non-numerical form; for example, the
Charter of the United Nations The Charter of the United Nations (UN) is the foundational treaty of the UN, an intergovernmental organization. It establishes the purposes, governing structure, and overall framework of the United Nations System, UN system, including its Organ ...
reads "DONE at the city of San Francisco the twenty-sixth day of June, one thousand nine hundred and forty-five". If applicable, a treaty will note that it is executed in multiple copies in different languages, with a stipulation that the versions in different languages are equally authentic. The signatures of the parties' representatives follow at the very end. When the text of a treaty is later reprinted, such as in a collection of treaties currently in effect, an editor will often append the dates on which the respective parties ratified the treaty and on which it came into effect for each party.


Bilateral and multilateral treaties

Bilateral treaties Bilateral may refer to any concept including two sides, in particular: *Bilateria, bilateral animals *Bilateralism, the political and cultural relations between two states *Bilateral, occurring on both sides of an organism ( Anatomical terms of l ...
are concluded between two states or entities.Nicolson, Harold. (1934). ''Diplomacy,'' p. 135. It is possible for a bilateral treaty to have more than two parties; for example, each of the bilateral treaties between Switzerland and the European Union (EU) has seventeen parties: The parties are divided into two groups, the Swiss ("on the one part") and the EU and its member states ("on the other part"). The treaty establishes rights and obligations between the Swiss and the EU and the member states severally—it does not establish any rights and obligations amongst the EU and its member states. A multilateral treaty is concluded among several countries, establishing rights and obligations between each party and every other party. Multilateral treaties may be regional or may involve states across the world. Treaties of "mutual guarantee" are international compacts, e.g., the
Treaty of Locarno The Locarno Treaties were seven agreements negotiated at Locarno, Switzerland, during 5 to 16 October 1925 and formally signed in London on 1 December, in which the First World War Western European Allied powers and the new states of Central ...
which guarantees each signatory against attack from another.


Role of the United Nations

The United Nations has extensive power to convene states to enact large-scale multilateral treaties and has experience doing so. Also, under the United Nations Charter, which is itself a treaty, treaties must be registered with the UN to be invoked before it, or enforced in its judiciary organ, the International Court of Justice. This was done to prevent the practice of
secret treaties A secret treaty is a treaty (international agreement) in which the contracting state parties have agreed to conceal the treaty's existence or substance from other states and the public.Helmut Tichy and Philip Bittner, "Article 80" in Olivier D� ...
, which proliferated in the 19th and 20th centuries and often precipitated or exacerbated conflict. Article 103 of the Charter also states that its members' obligations under the Charter outweigh any competing obligations under other treaties. After their adoption, treaties, as well as their amendments, must follow the official legal procedures of the United Nations, as applied by the Office of Legal Affairs, including signature,
ratification Ratification is a principal's approval of an act of its agent that lacked the authority to bind the principal legally. Ratification defines the international act in which a state indicates its consent to be bound to a treaty if the parties inten ...
and entry into force. In function and effectiveness, the UN has been compared to the United States federal government under the
Articles of Confederation The Articles of Confederation and Perpetual Union was an agreement among the 13 Colonies of the United States of America that served as its first frame of government. It was approved after much debate (between July 1776 and November 1777) by ...
.


Adding and amending treaty obligations


Reservations

Reservations are essentially caveats to a state's acceptance of a treaty. Reservations are unilateral statements 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, i.e., "a party cannot add a reservation after it has already joined a treaty". Article 19 of the Vienna Convention on the law of Treaties in 1969. Originally, international law was unaccepting of treaty reservations, rejecting them unless all parties to the treaty accepted the same reservations. However, in the interest of encouraging the largest number of states to join treaties, a more permissive rule regarding reservations has emerged. While some treaties still expressly forbid any reservations, they are now generally permitted to the extent that they are not inconsistent with the goals and purposes of the treaty. 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. If the state accepts them (or fails to act at all), both the reserving state and the accepting state are relieved of the reserved legal obligation as concerns their legal obligations to each other (accepting the reservation does not change the accepting state's legal obligations as concerns other parties to the treaty). If the state opposes, the parts of the treaty affected by the reservation drop out completely and no longer create any legal obligations on the reserving and accepting state, again only as concerns each other. Finally, if the state objects and opposes, there are no legal obligations under that treaty between those two state parties whatsoever. The objecting and opposing state essentially refuses to acknowledge the reserving state is a party to the treaty at all.


Amendments

There are three ways an existing treaty can be amended. First, a formal amendment requires State parties to the treaty to go through the ratification process all over again. The re- negotiation of treaty provisions can be long and protracted, and often some parties to the original treaty will not become parties to the amended treaty. When determining the legal obligations of states, one party to the original treaty and one party to the amended treaty, the states will only be bound by the terms they both agreed upon. Treaties can also be amended informally by the treaty executive council when the changes are only procedural, technical change in customary international law can also amend a treaty, where state behavior evinces a new interpretation of the legal obligations under 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.


Protocols

In international law and international relations, a protocol is generally a treaty or international agreement that supplements a previous treaty or international agreement. A protocol can amend the previous treaty or add additional provisions. Parties to the earlier agreement are not required to adopt the protocol, and this is sometimes made explicit, especially where many parties to the first agreement do not support the protocol. A notable example is the United Nations Framework Convention on Climate Change (UNFCCC), which established a general framework for the development of binding
greenhouse gas emission Greenhouse gas emissions from human activities strengthen the greenhouse effect, contributing to climate change. Most is carbon dioxide from burning fossil fuels: coal, oil, and natural gas. The largest emitters include coal in China and larg ...
limits, followed by the
Kyoto Protocol The Kyoto Protocol was an international treaty which extended the 1992 United Nations Framework Convention on Climate Change (UNFCCC) that commits state parties to reduce greenhouse gas emissions, based on the scientific consensus that (part ...
contained the specific provisions and regulations later agreed upon.


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, since a non-self-executing treaty cannot be acted on without the proper change in domestic law. If a treaty requires implementing legislation, a state may be in default of its obligations by the failure of its legislature to pass the necessary domestic laws.


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 may be implied, however, if the other parties fail to explicitly disavow that initially unilateral interpretation, particularly if that state has acted upon its view of the treaty without complaint. Consent by all parties to the treaty to a particular interpretation has the legal effect of adding another 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.


Consequences of terminology

One significant part of treaty-making is that signing a treaty implies a 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. The definition of the English word "treaty" varies depending on the legal and political context; in some jurisdictions, such as the United States, a treaty is specifically an international agreement that has been ratified, and thus made binding, per the procedures established under domestic law.


Enforcement

While the Vienna Convention provides a general dispute resolution mechanism, many treaties specify a process outside the convention for arbitrating disputes and alleged breaches. This may by a specially convened panel, by reference to an existing court or panel established for the purpose such as the International Court of Justice, the
European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Uni ...
or processes such as the
Dispute Settlement Understanding Dispute settlement or dispute settlement system (DSS) is regarded by the World Trade Organization (WTO) as the central pillar of the multilateral trading system, and as the organization's "unique contribution to the stability of the global economy". ...
of the World Trade Organization. Depending on the treaty, such a process may result in financial penalties or other enforcement action.


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 expressly allow a state to withdraw as long as it follows certain procedures of notification. For example, the Single Convention on Narcotic Drugs provides that the treaty will terminate if, as a result of denunciations, the number of parties falls below 40. Many treaties expressly forbid withdrawal. Article 56 of the
Vienna Convention on the Law of Treaties The Vienna Convention on the Law of Treaties (VCLT) is an international agreement regulating treaties between states. Known as the "treaty on treaties", it establishes comprehensive rules, procedures, and guidelines for how treaties are defined ...
provides that where a treaty is silent over whether or not it can be denounced there is a rebuttable presumption that it cannot be unilaterally denounced unless: * it can be shown that the parties intended to admit the possibility, or * a right of withdrawal can be inferred from the terms of the treaty. The possibility of withdrawal depends on the terms of the treaty and its ''travaux preparatory. ''It has, for example, been held that it is not possible to withdraw from the International Covenant on Civil and Political Rights. When North Korea declared its intention to do this the Secretary-General of the United Nations, acting as registrar, said that original signatories of the ICCPR had not overlooked the possibility of explicitly providing for withdrawal, but rather had deliberately intended not to provide for it. Consequently, withdrawal was not possible. In practice, because of sovereignty, any state can purport to withdraw from any treaty at any time and cease to abide by its terms. The question of whether this is lawful can be regarded as the success or failure to anticipate community acquiescence or enforcement, that is, how other states will react; for instance, another state might impose sanctions or go to war over a treaty violation. 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 terminates the treaty. When a state withdraws from a multilateral treaty, that treaty will still otherwise remain in force among the other parties, unless it otherwise should or could be interpreted as agreed upon between the remaining states 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. A treaty breach does not automatically suspend or terminate treaty relations, however. It depends on how the other parties regard the breach and how they resolve to respond to it. Sometimes treaties will provide for the seriousness of a breach to be determined by a tribunal or other independent arbiter. An advantage of such an arbiter is that it prevents a party from prematurely and perhaps wrongfully suspending or terminating its own obligations due to another's an alleged material breach. Treaties sometimes include provisions for self-termination, 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. Other treaties may self-terminate if the treaty is meant to exist only under certain conditions.
Laurence R. Helfer Laurence R. Helfer (born 1965) is an American lawyer. Helfer graduated from Yale University before pursuing legal studies at the New York University School of Law. He also completed a master's in public administration from Princeton University. He ...
, Terminating Treaties, in ''The Oxford Guide to Treaties'' 634–649 (Duncan Hollis ed., Oxford University Press, 2012)
A party may claim that a treaty should be terminated, even absent an express provision, if there has been a fundamental change in circumstances. Such a change is sufficient if unforeseen, if it undermined the "essential basis" of consent by a party if it radically transforms the extent of obligations between the parties, and if the obligations are still to be performed. A party cannot base this claim on change brought about by its own breach of the treaty. This claim also cannot be used to invalidate treaties that established or redrew political boundaries.


Cartels

Cartels (“Cartells”, “Cartelle” or “Kartell-Konventionen” in other languages) were a special kind of treaty within the
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
of the 17th to 19th centuries. Their purpose was to regulate specific activities of common interest among contracting states that otherwise remained rivals in other areas. They were typically implemented on an administrative level. Similar to the ‘’cartels’’ for
duels A duel is an arranged engagement in combat between two people, with matched weapons, in accordance with agreed-upon rules. During the 17th and 18th centuries (and earlier), duels were mostly single combats fought with swords (the rapier and lat ...
and
tournaments A tournament is a competition involving at least three competitors, all participating in a sport or game. More specifically, the term may be used in either of two overlapping senses: # One or more competitions held at a single venue and concentr ...
, these intergovernmental accords represented fairness agreements or
gentlemen’s agreement A gentlemen's agreement, or gentleman's agreement, is an informal and legally non-binding agreement between two or more parties. It is typically oral, but it may be written or simply understood as part of an unspoken agreement by convention or th ...
s between states. In the United States, cartels governed humanitarian actions typically carried out by cartel ships were dispatched for missions, such as to carry communications or prisoners between
belligerent A belligerent is an individual, group, country, or other entity that acts in a hostile manner, such as engaging in combat. The term comes from the Latin ''bellum gerere'' ("to wage war"). Unlike the use of ''belligerent'' as an adjective meaning ...
s. From the European history, a broader range of purposes is known. These ‘cartels’ often reflected the cohesion of authoritarian ruling classes against their own unruly citizens. Generally, the European governments concluded - while curbing their mutual rivalries partially - cooperation agreements, which should apply generally or only in case of war: * Deserters, escaped serfs and
criminal In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...
s were to be mutually extradited. * Prisoners of war should be handed out according to rank in different exchange ratios. *The maintenance of
post Post or POST commonly refers to: *Mail, the postal system, especially in Commonwealth of Nations countries **An Post, the Irish national postal service **Canada Post, Canadian postal service **Deutsche Post, German postal service ** Iraqi Post, Ir ...
al and
commercial Commercial may refer to: * a dose of advertising conveyed through media (such as - for example - radio or television) ** Radio advertisement ** Television advertisement * (adjective for:) commerce, a system of voluntary exchange of products and s ...
traffic including the entry and exit of
courier A courier is a person or organisation that delivers a message, package or letter from one place or person to another place or person. Typically, a courier provides their courier service on a commercial contract basis; however, some couriers are ...
s should be guaranteed in the fields of communication and
transport Transport (in British English), or transportation (in American English), is the intentional movement of humans, animals, and goods from one location to another. Modes of transport include air, land ( rail and road), water, cable, pipelin ...
. * ‘
Customs Customs is an authority or agency in a country responsible for collecting tariffs and for controlling the flow of goods, including animals, transports, personal effects, and hazardous items, into and out of a country. Traditionally, customs ...
cartels' (“Zollkartelle”) and '
coin A coin is a small, flat (usually depending on the country or value), round piece of metal or plastic used primarily as a medium of exchange or legal tender. They are standardized in weight, and produced in large quantities at a mint in order to ...
cartels' (“Münzkartelle”) were 'regulatory' agreements between Continental-European states in the 19th century. * Against
smuggler Smuggling is the illegal transportation of objects, substances, information or people, such as out of a house or buildings, into a prison, or across an international border, in violation of applicable laws or other regulations. There are various ...
s and
counterfeiter To counterfeit means to imitate something authentic, with the intent to steal, destroy, or replace the original, for use in illegal transactions, or otherwise to deceive individuals into believing that the fake is of equal or greater value tha ...
s, a joint action approach was adopted by the governments contracting on international trade treaties. The latter often contained the relevant ‘cartel’ regulations in their annexes. The measures against criminals and unruly citizens were to be conducted regardless of the nationality and origin of the relevant persons. If necessary, national
border Borders are usually defined as geographical boundaries, imposed either by features such as oceans and terrain, or by political entities such as governments, sovereign states, federated states, and other subnational entities. Political borders ca ...
s could be crossed by police forces of the respective neighboring country for capture and
arrest An arrest is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be quest ...
. In the course of the 19th century, the term ‘cartel’ (or 'Cartell') gradually disappeared for intergovernmental agreements under international law. Instead, the term "convention" was used.


Invalid treaties

An otherwise valid and agreed upon treaty may be rejected as a binding international agreement on several grounds. For example, the serial Japan–Korea treaties of 1905, 1907 and 1910 were protested; and they were confirmed as "already
null and void In law, void means of no legal effect. An action, document, or transaction which is void is of no legal effect whatsoever: an absolute nullity—the law treats it as if it had never existed or happened. The term void ''ab initio'', which means ...
" in the 1965 Treaty on Basic Relations between Japan and the Republic of Korea.


''Ultra vires'' treaties

According to the preamble in The Law of Treaties, treaties are a source of international law. If an act or lack thereof is condemned under international law, the act will not assume international legality even if approved by internal law. This means that in case of a conflict with domestic law, international law will always prevail. 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 laws Municipal law is the national, domestic, or internal law of a sovereign state and is defined in opposition to international law. Municipal law includes many levels of law: not only national law but also state, provincial, territorial, regional, ...
. States are reluctant to inquire into the internal affairs and processes of other states, and so a "manifest violation" is required such that it would be "objectively evident to any State dealing with the matter". A strong presumption exists internationally that a head of state has acted within his proper authority. It seems that no treaty has ever actually been invalidated on this provision. Consent is also invalid if it was given by a representative acting outside their restricted powers during the negotiations, if the other parties to the treaty were notified of those restrictions prior to his or her signing.


Misunderstanding, fraud, corruption, coercion

Articles 46–53 of the
Vienna Convention on the Law of Treaties The Vienna Convention on the Law of Treaties (VCLT) is an international agreement regulating treaties between states. Known as the "treaty on treaties", it establishes comprehensive rules, procedures, and guidelines for how treaties are defined ...
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. A governmental leader'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 not be invalidated if the misunderstanding was due to the state's own conduct, or if the truth should have been evident. 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.


Contrary to peremptory norms

A treaty is null and void if it is in violation of a
peremptory norm A peremptory norm (also called or ' ; Latin for "compelling law") is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted. There is no universal ...
. These norms, unlike other principles of customary law, are recognized as permitting no violations and so cannot be altered through treaty obligations. These are limited to such universally accepted prohibitions as those against the aggressive use of force, genocide and other crimes against humanity, piracy, hostilities directed at civilian population, racial discrimination and
apartheid Apartheid (, especially South African English: , ; , "aparthood") was a system of institutionalised racial segregation that existed in South Africa and South West Africa (now Namibia) from 1948 to the early 1990s. Apartheid wa ...
, slavery and torture, meaning that no state can legally assume an obligation to commit or permit such acts.


Treaties under domestic national law


Australia

The
constitution of Australia The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the Au ...
allows the
executive government The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems ba ...
to enter into treaties, but the practice is for treaties to be tabled in both houses of parliament at least 15 days before signing. Treaties are considered a source of
Australian law The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are subs ...
but sometimes require an act of parliament to be passed depending on their nature. Treaties are administered and maintained by the Department of Foreign Affairs and Trade, which advised that the "general position under Australian law is that treaties which Australia has joined, apart from those terminating a state of war, are not directly and automatically incorporated into Australian law. Signature and ratification do not, of themselves, make treaties operate domestically. In the absence of legislation, treaties cannot impose obligations on individuals nor create rights in domestic law. Nevertheless, international law, including treaty law, is a legitimate and important influence on the development of the common law and may be used in the interpretation of statutes." Treaties can be implemented by executive action, and often, existing laws are sufficient to ensure a treaty is honored. Australian treaties generally fall under the following categories: extradition, postal agreements and money orders, trade and international conventions.


Brazil

The federal
constitution of Brazil The Constitution of the Federative Republic of Brazil ( pt, Constituição da República Federativa do Brasil) is the supreme law of Brazil. It is the foundation and source of the legal authority underlying the existence of Brazil and the feder ...
states that the power to enter into treaties is vested in the president of Brazil and that such treaties must be approved by the
Congress of Brazil The National Congress of Brazil ( pt, Congresso Nacional do Brasil) is the legislative body of Brazil's federal government. Unlike the state legislative assemblies and municipal chambers, the Congress is bicameral, composed of the Federal Sena ...
(Articles 84, Clause VIII, and 49, Clause I). In practice, that has been interpreted as meaning that the executive branch is free to negotiate and sign a treaty but that its ratification by the president requires the prior approval of Congress. Additionally, the
Supreme Federal Court The Supreme Federal Court ( pt, Supremo Tribunal Federal, , abbreviated STF) is the supreme court (court of last resort) of Brazil, serving primarily as the Constitutional Court of the country. It is the highest court of law in Brazil for const ...
has ruled that after ratification and entry into force, a treaty must be incorporated into domestic law by means of a presidential decree published in the federal register for it to be valid in Brazil and applicable by the Brazilian authorities. The court has established that treaties are subject to
constitutional review Constitutional review, or constitutionality review or constitutional control, is the evaluation, in some countries, of the constitutionality of the laws. It is supposed to be a system of preventing violation of the rights granted by the constitution ...
and enjoy the same hierarchical position as ordinary legislation (''leis ordinárias'', or "ordinary laws", in Portuguese). A more recent ruling by the
Supreme Court of Brazil The Supreme Federal Court ( pt, Supremo Tribunal Federal, , abbreviated STF) is the supreme court (court of last resort) of Brazil, serving primarily as the Constitutional Court of the country. It is the highest court of law in Brazil for con ...
in 2008 has altered that somewhat by stating that treaties containing human rights provisions enjoy a status above that of ordinary legislation, subject to only the constitution itself. Additionally, the 45th Amendment to the constitution makes human rights treaties approved by Congress by a special procedure enjoy the same hierarchical position as a
constitutional amendment A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, t ...
. The hierarchical position of treaties in relation to domestic legislation is of relevance to the discussion on whether and how the latter can abrogate the former and vice versa. The constitution does not have an equivalent to the supremacy clause in United States Constitution, which is of interest to the discussion on the relation between treaties and legislation of the states of Brazil.


India

In India, subjects are divided into three lists: union, state and concurrent. In the normal legislation process, the subjects on the union list must be legislated by the Parliament of India. For subjects on the state list, only the respective state legislature can legislate. For subjects on the concurrent list, both governments can make laws. However, to implement international treaties, Parliament can legislate on any subject and even override the general division of subject lists.


United States

See the article on the
Bricker Amendment The Bricker Amendment is the collective name of a number of slightly different proposed amendments to the United States Constitution considered by the United States Senate in the 1950s. None of these amendments ever passed Congress. Each of them ...
for the history of the relationship between treaty powers and Constitutional provisions. The
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
ruled in the ''
Head Money Cases The ''Head Money Cases'', 112 U.S. 580 (1884), also referred to as ''Edye v. Robertson'', were a group of cases decided together by the United States Supreme Court. Background Pursuant to the Immigration Act of 1882, officers from the customhouse ...
'' (1884) that "treaties" do not have a privileged position over Acts of Congress and can be repealed or modified by legislative action just like any other regular law. The Court's decision in ''
Reid v. Covert ''Reid v. Covert'', 354 U.S. 1 (1957), was a 6-to-2 landmark decision of the United States Supreme Court holding that United States citizen civilians outside of the territorial jurisdiction of the United States cannot be tried by a United States ...
'' (1957) held that treaty provisions that conflict with the U.S. Constitution are null and void under U.S. law.


Treaties and indigenous peoples

Treaties formed an important part of European
colonization Colonization, or colonisation, constitutes large-scale population movements wherein migrants maintain strong links with their, or their ancestors', former country – by such links, gain advantage over other inhabitants of the territory. When ...
and, in many parts of the world, Europeans attempted to legitimize their sovereignty by signing treaties with
indigenous people Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
s. In most cases, these treaties were in extremely disadvantageous terms to the native people, who often did not comprehend the implications of what they were signing. In some rare cases, such as with Ethiopia and the Qing dynasty, local governments were able to use the treaties to at least mitigate the impact of European colonization. This involved learning the intricacies of European diplomatic customs and then using the treaties to prevent power from overstepping their agreement or by playing different powers against each other. In other cases, such as New Zealand with the
Māori Māori or Maori can refer to: Relating to the Māori people * Māori people of New Zealand, or members of that group * Māori language, the language of the Māori people of New Zealand * Māori culture * Cook Islanders, the Māori people of the Co ...
and Canada with its First Nations people, treaties allowed native peoples to maintain a minimum amount of autonomy. Such treaties between colonizers and indigenous peoples are an important part of political discourse in the late 20th and early 21st century, the treaties being discussed have international standing as has been stated in a treaty study by the UN.


Australia

In the case of Indigenous Australians, no treaty was ever entered into with the Indigenous peoples entitling the Europeans to land ownership, mostly adopting the doctrine of '' terra nullius'' (with the exception of
South Australia South Australia (commonly abbreviated as SA) is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Australia's states and territories ...
). This concept was later overturned by '' Mabo v Queensland'', which established the concept of native title in Australia well after colonization was already a ''fait accompli''.


Victoria

On 10 December 2019, the Victorian
First Peoples' Assembly The Victoria State Government, also referred to as just the Victorian Government, is the state-level authority for Victoria, Australia. Like all state governments, it is formed by three independent branches: the executive, the judicial, and th ...
met for the first time in the Upper House of the
Parliament of Victoria The Parliament of Victoria is the bicameral legislature of the Australian state of Victoria that follows a Westminster-derived parliamentary system. It consists of the King, represented by the Governor of Victoria, the Legislative Assembly ...
in Melbourne. The main aim of the Assembly is to work out the rules by which individual treaties would be negotiated between the Victorian Government and individual Aboriginal Victorian peoples. It will also establish an independent Treaty Authority, which will oversee the negotiations between the Aboriginal groups and the Victorian Government and ensure fairness.


United States

Prior to 1871, the government of the United States regularly entered into treaties with Native Americans but the Indian Appropriations Act of 3 March 1871 had a rider attached that effectively ended the President's treaty-making by providing that no Indian nation or tribe shall be acknowledged as an independent nation, tribe, or power with whom the United States may contract by treaty. The federal government continued to provide similar contractual relations with the Indian tribes after 1871 by agreements, statutes, and executive orders.


Canada

Colonization in Canada saw a number of treaties signed between European settlers and Indigenous First Nations peoples. Historic Canadian treaties tend to fall into three broad categories: commercial, alliance, and territorial. Commercial treaties first emerged in the 17th century and were agreements made between the European
fur trading The fur trade is a worldwide industry dealing in the acquisition and sale of animal fur. Since the establishment of a world fur market in the early modern period, furs of boreal, polar and cold temperate mammalian animals have been the mo ...
companies and the local First Nations. The
Hudson's Bay Company The Hudson's Bay Company (HBC; french: Compagnie de la Baie d'Hudson) is a Canadian retail business group. A fur trade, fur trading business for much of its existence, HBC now owns and operates retail stores in Canada. The company's namesake b ...
, a British trading company located in what is now Northern Ontario, signed numerous commercial treaties during this period. Alliance treaties, commonly referred to as "treaties of peace, friendship and alliance" emerged in the late 17th to early 18th century. Finally, territorial treaties dictating land rights were signed between 1760 and 1923. The Royal Proclamation of 1763 accelerated the treaty-making process and provided the Crown with access to large amounts of land occupied by the First Nations. The Crown and 364 First Nations signed 70 treaties that are recognized by the Government of Canada and represent over 600,000 First Nation individuals. The treaties are as follows: * Treaties of Peace and Neutrality (1701–1760) * Peace and Friendship Treaties (1725–1779) * Upper Canada Land Surrenders and the Williams Treaties (1764-1862/1923) * Robinson Treaties and Douglas Treaties (1850–1854) * The Numbered Treaties (1871–1921)


Treaty perceptions

There is evidence that "although both Indigenous and European Nations engaged in treaty-making before contact with each other, the traditions, beliefs, and worldviews that defined concepts such as “treaties" were extremely different". The Indigenous understanding of treaties is based on traditional culture and values. Maintaining healthy and equitable relationships with other nations, as well as the environment, is paramount. Gdoo-naaganinaa, a historic treaty between the Nishnaabeg nation and the
Haudenosaunee Confederacy The Iroquois ( or ), officially the Haudenosaunee ( meaning "people of the longhouse"), are an Iroquoian-speaking confederacy of First Nations peoples in northeast North America/ Turtle Island. They were known during the colonial years to ...
is an example of how First Nations approach treaties. Under Gdoo-naaganinaa, also referred-to in English as ''Our Dish'', the neighbouring nations acknowledged that while they were separate nations they shared the same ecosystem or ''Dish''. It was agreed that the nations would respectably share the land, not interfering with the other nation's sovereignty while also not monopolizing environmental resources. First Nations agreements, such as the Gdoo-naaganigaa, are considered "living treaties"’ that must be upheld continually and renewed over time. European settlers in Canada had a different perception of treaties. Treaties were not a living, equitable agreement but rather a legal contract over which the future creation of Canadian law would later rely on. As time passed, the settlers did not think it necessary to abide by all treaty agreements. A review of historic treaties reveals that the European settler understanding is the dominant view portrayed in Canadian treaties.


Treaties today

Canada today recognizes 25 additional treaties called Modern Treaties. These treaties represent the relationships between 97 Indigenous groups which includes over 89,000 people. The treaties have been instrumental in strengthening Indigenous stronghold in Canada by providing the following (as organized by the Government of Canada) : * Indigenous ownership over 600,000 km² of land (almost the size of Manitoba) * capital transfers of over $3.2 billion * protection of traditional ways of life * access to resource development opportunities * participation in land and resources management decisions * certainty with respect to land rights in round 40% of Canada's land mass * associated self-government rights and political recognition


See also

*
Bilateral treaty A bilateral treaty (also called a bipartite treaty) is a treaty strictly between two state entities. It is an agreement made by negotiations between two parties, established in writing and signed by representatives of the parties. Treaties can span ...
* Multilateral treaty * Peace treaty * Treaty of Friendship * ' * ' *
List of intergovernmental organizations The following is a list of the major existing intergovernmental organizations (IGOs). For a more complete listing, see the '' Yearbook of International Organizations'', which includes 25,000 international non-governmental organizations (INGOs), ...
*
List of treaties This list of treaties contains known agreements, pacts, peaces, and major contracts between states, armies, governments, and tribal groups. Before 1200 CE 1200–1299 1300–1399 1400–1499 1500–1599 1600–1699 1700–1799 ...
* Manrent (feudal
Scottish Clan A Scottish clan (from Gaelic , literally 'children', more broadly 'kindred') is a kinship group among the Scottish people. Clans give a sense of shared identity and descent to members, and in modern times have an official structure recognise ...
treaty) *
Supranational union A supranational union is a type of international organization that is empowered to directly exercise some of the powers and functions otherwise reserved to states. A supranational organization involves a greater transfer of or limitation of ...
* Treaty ratification *
Vienna Convention on the Law of Treaties The Vienna Convention on the Law of Treaties (VCLT) is an international agreement regulating treaties between states. Known as the "treaty on treaties", it establishes comprehensive rules, procedures, and guidelines for how treaties are defined ...


Notes


References

* Branch, Government of Canada; Indigenous and Northern Affairs Canada; Communications (2008-11-03). "Treaties and agreements". ''www.rcaanc-cirnac.gc.ca''. Retrieved 2021-02-05. *Korean Mission to the Conference on the Limitation of Armament, Washington, D.C., 1921–1922. (1922). ''Korea's Appeal to the Conference on Limitation of Armament.'' Washington: U.S. Government Printing Office. *Miller, James Rodger (2009-01-01). ''Compact, Contract, Covenant: Aboriginal Treaty-making in Canada''. University of Toronto Press. * Nicolson, Harold. (1936). ''Diplomacy,'' 1st ed. Oxford: Oxford University Press. * Seah, Daniel
"Problems Concerning the International Law-Making Practice of ASEAN: A Reply to Chen Zhida"
Asian Journal of International Law (2015) * Shaw, Malcolm Nathan. (1977). ''International Law,'' 1st ed. Sevenoaks, Kent: Hodder and Stoughton. *Simpson, Leanne (2008). "Looking after Gdoo-naaganinaa: Precolonial Nishnaabeg Diplomatic and Treaty Relationships". ''Wíčazo Ša Review''. 23 (2): 29–42. doi:10.1353/wic.0.0001. ISSN 1533-7901
Timothy L. Meyer
"From Contract to Legislation: The Logic of Modern International Lawmaking" 14 Chicago Journal of International Law 559 (2014), available a
From Contract to Legislation: The Logic of Modern International Lawmaking


External links


Treaties and Selected other International Instruments – Resources

United Nations Treaty Collection


on ''The Guide to Practice on Reservations to Treaties'' in th

of the
United Nations Audiovisual Library of International Law The United Nations Audiovisual Library of International Law is a free online international law research and training tool. It was created and is maintained by the Codification Division of the United Nations Office of Legal Affairs as a part of its m ...

Procedural history and related documents
on the ''Articles on the Effects of Armed Conflicts on Treaties'' in th

of the
United Nations Audiovisual Library of International Law The United Nations Audiovisual Library of International Law is a free online international law research and training tool. It was created and is maintained by the Codification Division of the United Nations Office of Legal Affairs as a part of its m ...

ISEA International Energy Treaties


from ''UCB Libraries GovPubs''

from the American Society of International Law
Treaty Affairs
at the United States Department of State
Treaties Office
at the European Union
Peace Palace Library – Research Guide
{{Authority control Sources of law