A treaty, one of the viable sources of international law, is the body of agreements that involve two or more parties; governmental bodies like states, countries, or non-governmental bodies like companies, multinational corporations, among others.
A treaty is more than a mere point of concurrence, as in smaller issues, rather it’s the body, set or group of terms of agreements that are signed to manage very turbulent issues. On the other hand, it is a set of agreed terms on a bigger level.
It is the result of an agreement that emanates from several negotiations that make decisions of the rights and obligations which are legally binding on the signatories under international law.
Summarily, the treaty is a primary source of international law. Treaty between two states, for an instance, will become the law; the rights, as well as the liabilities of the treaty, will be the law for both states.
In terms of the development of a treaty as legally binding in international law, the Vienna Convention on the Law of Treaties 1969 gives the general frameworks on the treaties and their execution.
Even though international law governs the law of treaties, parties do not necessarily state. Including multinational corporations or aboriginal people and states can sign a treaty
Types of Treaties
Treaty has been categorized into different rubrics based on many considerations and natures. But the popular and widely postulated types of treaties are two; bilateral and multilateral treaties.
A bilateral treaty (also known as a bipartite treaty) is a treaty between two states. The terms of agreements only bind the two states. For an instance, the 1978 Camp David Accords that was signed between ‘Israel and Egypt’ is a bilateral treaty because it only involved two states.
Parties involved in these treaties are more than two. They are the treaties that are signed among a number of states. It is still a single treaty but signed by many states. In other words, there are only a set of terms of the agreement that are legally binding and are signed by many signatories.
For example, over 189 countries including the United Kingdom, the United States, the Soviet Union and others signed the Non-Proliferation Treaty (NPT). While NPT is a single body of agreements, the signatories are many. From 1760 to 1923 over 56 land treaties had been signed by the British Empire with the “Aboriginal Peoples of Australia, the United States, and Africa.”
Formation of Treaties
The truth is, there is no single way of establishing a treaty. Treaty can be presented in several ways; usually in form of notes exchanges or as a contract. Notably, the development of modern treaties has made it move away from the oratorical agreement to much more sophisticated treaties.
In all matters, there are common features of every treaty; it introduces its preamble, the terms agreed upon by the parties involved, the period of the treaty’s validity, reservation of the treaties, the ratification, and lastly the signatures of the involved parties.
Among the factors to be considered are all parties’ consent to a treaty, which is crucial for the text’s adoption. If the adoption of the treaty is at an international conference, “a two-thirds majority shall be required for the adoption of text unless agreed upon otherwise.” Secondly, the expression of consent is another factor to be considered.
After the authentication of the text, this is to ensure support one way or the other. Usually by way of signatures, ratification, accession or by exchanging instruments required for the treaty. The following steps are processes in the formation of a treaty.
Accreditation of Representatives
The first stage of the treaty’s formation is the accreditation of the representatives. The parties involved in the treaty will appoint representatives that will act on their behalf. In this case, the decision of the representative/plenipotentiary is the decision of the state in the new terms of the agreement.
Moreover, such a representative will be provided with every needed instrument (including bargaining position of the home country to safeguard the national interest) by the Minister of Foreign Affairs, making him/her an ambassador with full bargain potential.
Negotiation is perhaps the most complex stage of treaty formation. Proposals and counter-proposals are raised and discussed among the signatories in this stage.
This is the utmost stage that leads to the contract. Notably, the discussions and stakes of the states involved are totally dependent upon the credentials, power and diplomatic skills of the representatives.
The delegates are to attempt new instructions to sign the treaties with or without reservation, and afterwards, the treaty will be drafted if the proposal is accepted. In the draft, the end result of the discussions will be gathered in a brief statement and reduced into writing the agreed terms that are universally agreed in several proposals.
With the last draft of the treaty, it is ripe for signature. This is usually affixed at a formal closing session and the treaty comes into a viable force on signature by plenipotentiaries of the states involved. This is usually the choice of the states not to subject it to ratification
This is a process of adopting an international treaty by the involved parties. It makes firm, confirm the treaty signed by the states’ representatives.
With the ratification of a treaty, the signatories are officially given their consent to the signed terms of agreements by giving it due to recognition both at home and in the international arena. This expression can be by exchange of instruments, signature or accession.
In some cases, the ratification of a treaty may withhold. These situations include: “If the representative has exceeded his powers, if there is a raised of any deceit as to matters of fact has been practised upon representatives, among others.
Registration and Publication
After the ratification of the treaty, there should follow its registration at the headquarters of the international organization. This should be a viable host, in terms of an international organisation, for the treaty.
For an instance, according to the 18 of the Covenant of the League, “every treaty or international engagement should be registered with the Secretariat of the League and published by it as soon as possible.”
In fact, any treaty or international dealing is binding on any party until it was registered. In this case, there is no kind of reliance on the treaty during wartime.
Incorporation of the treaty into State Law
This is the final stage of treaty formation. In this case, each state should enter the treaty into the state law. This incorporation is to assume binding and the total subject of the signed terms of agreements.
A treaty is agreed-upon terms and conditions on a higher level, that is between two or more states which make the engagement binding on each state. As examined above, there are eight (8) stages in the formation of treaties.
They are the accreditation of representatives, negotiation, signature, ratification/adoption, registration and publication, and lastly, incorporation of the treaty into state law.
- Fon, Vincy & Parisi, Francesco. (2007). The Formation of International Treaties. Review of Law & Economics. 3. 4-4. 10.2202/1555-5879.1148.
- Shaw, Malcolm. “treaty”. Encyclopedia Britannica, 27 Aug. 2019, https://www.britannica.com/topic/treaty. Accessed 12 February 2022.
- Bauer, Patricia. “Vienna Convention on the Law of Treaties”. Encyclopedia Britannica, 16 May. 2021, https://www.britannica.com/topic/Vienna-Convention-on-the-Law-of-Treaties. Accessed 12 February 2022.
- SRD LAW NOTES. Formation of treaties (Various Stages in the Formation of treaties). https://www.srdlawnotes.com/2017/08/formation-of-treaties-various-stages-in.html.Accessed 12 February 2022.
- How the 1919 Treaty of Versailles Ended peace in Europe: an AAUAite perspective. Link: https://tadexprof.com/2021/07/how-the-1919-treaty-of-versailles-ended-peace-in-europe-an-aauaite-perspective/