A treaty is an express agreement under International Law entered into by actors in International Law, namely sovereign states and International organizations. A treaty may also be known as (International) agreement, protocol, Covenant, Convention, exchange of letters, etc. Regardless of the terminology, all of these international agreements under International Law are equally treaties and the rules are the same.
Treaties can be compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under International Law.
Formation of treaties:
There is no specific form for the conclusion of treaties. An oral agreement between the representatives of the States charged with the task of conducting negotiations and empowered to bind their respective countries is sufficient to have a binding effect if it is the intention of the representative to conclude a legally binding transaction. The enormous importance of the issue involved in such agreements however necessities the compliance of formal requirements and reducing the agreements into a document.
Various Stages of formation of the treaties :
According to Starke the various Stages of formation of the treaties are as follows –
1) Accrediting of Representatives:
Each of the State Conducting negotiation appoints a representative or plenipotentiary for this purpose. He is provided with an instrument given by the Minister for Foreign Affairs showing his authority to conduct such negotiations, which is known as the full power
2) Negotiation
It is a bilateral process, sometimes multilateral. There are proposals as to negotiation. In our commercial transaction, there is a bargain there are proposals and counter proposals. Ultimately leading towards the concluded Contract. in respect of two or more States, so as to have the discussion with Pleni Potentials. These negotiations are depended upon the terms of credentials and powers of the representatives. In practices, before signing the text after negotiation the delegates obtain fresh instruction to sign the treaties with or without Reservation. If the proposal is accepted, then it is said to be a draft treaty. In draft treaties, the Conclusion of discussions is put together in the precise statement and reduced into writing the Commonly agreed terms in various proposals. It is a premature stage of the final draft.
3) Signature -
When the final draft of a treaty is drawn up, the instrument is ready for signature. The signature is affixed at a formal closing session. A treaty generally comes into force on signature by plenipotentiaries of the Contracting States unless the States desire to subject it to ratification. Treaties and conventions are generally always sealed.
4) Ratification
It is an act of adopting an international treaty by the parties thereto. In other words, ratification implies the confirmation of the treaty entered into by the representatives of the different states. States may be bound by the treaties only when they have given their consent. There are number of ways in which a State may express its consent to a treaty. It may be given either by signature, exchange of instruments, ratification or accession.
When there are no full powers, conferred on the representatives when the parties are representatives in absence of Pleni Potentials then such treaties are negotiated by the representatives by their signature subject to ratification. When they have limited power then treaty can be reserved for ratification by the state Pleni Potentials. It is the basic term stipulated in the credentials itself. Thus ratification in a sort of confirmation by Pleni Potentials or Head of the states. The Head of State may ratify the Treaty contract made by their representative on their behalf. Pleni Potentials may ratify or refuse the treaty contract, but generally, ratification is the rule and refusal is an exception.
Ratification of a Treaty may withhold on the following grounds
i) If the representative or plenipotentiary has exceeded his powers;
ii) If any deceit as to matters of fact has been practiced upon him
iii) If the performance of treaty obligations becomes impossible
iv) If there has not been consensus ad idem (meeting of mind) e.g. there has not been agreed as to the same thing.
5) Accession and Adhesion
A third state can become a party to an already existing treaty by means of accession. Accession and Adhesion is a consequential part of the treaty. Accession is a process when a non-party state joins the already concluded treaties. They are not the original members of such treaty. Adhesion is a process when a non-party State accepts the terms and conditions of the already concluded treaty.
6) Entry into force:
There can be a specific provision in a treaty as to the effective date or date of application of the treaty. It can be by signing process or by ratification. If the treaties are signed by the Plenipotentiary then it will come into force. Multilateral treaties come into operation on the deposit of a prescribed member of ratifications and accessions.
7) Registration and Publication :
After the treaty has been so ratified, it has to be registered at the headquarters of the international organization. According to Article 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. No such treaty or international engagement was binding on any state until it was so registered. This means that in case of any dispute, the treaty could not be relied upon if it was not registered. To the same effect are the provisions in the United Nations Charter. Article 102 of the Charter reads: ----
Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.
The second part of Article 102 clearly prohibits State to bring before the bar of world opinion any secret treaty. The effect of nonregistration is, however, limited to this extent that parties to the treaty cannot invoke it before any organ of the United Nations.
8) Incorporation of treaty into State Law:
Incorporation of the treaty into State Law: The final stage of the treaty is actual incorporation in the multiple law of the Contracting State where such incorporation is necessary in order to assume a binding character.
Conclusion:
A treaty is an agreement or contract entered between two or more States whereby they undertake to carry out obligations imposed on each of them. there are eight Stages in the formation of treaties.
See also
Grounds of Invalid Treaties
Basic Purpose and Principles of United Nations
Asylum
Kinds of Asylum
Treaties can be compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under International Law.
Formation of treaties:
There is no specific form for the conclusion of treaties. An oral agreement between the representatives of the States charged with the task of conducting negotiations and empowered to bind their respective countries is sufficient to have a binding effect if it is the intention of the representative to conclude a legally binding transaction. The enormous importance of the issue involved in such agreements however necessities the compliance of formal requirements and reducing the agreements into a document.
Various Stages of formation of the treaties :
According to Starke the various Stages of formation of the treaties are as follows –
1) Accrediting of Representatives:
Each of the State Conducting negotiation appoints a representative or plenipotentiary for this purpose. He is provided with an instrument given by the Minister for Foreign Affairs showing his authority to conduct such negotiations, which is known as the full power
2) Negotiation
It is a bilateral process, sometimes multilateral. There are proposals as to negotiation. In our commercial transaction, there is a bargain there are proposals and counter proposals. Ultimately leading towards the concluded Contract. in respect of two or more States, so as to have the discussion with Pleni Potentials. These negotiations are depended upon the terms of credentials and powers of the representatives. In practices, before signing the text after negotiation the delegates obtain fresh instruction to sign the treaties with or without Reservation. If the proposal is accepted, then it is said to be a draft treaty. In draft treaties, the Conclusion of discussions is put together in the precise statement and reduced into writing the Commonly agreed terms in various proposals. It is a premature stage of the final draft.
3) Signature -
When the final draft of a treaty is drawn up, the instrument is ready for signature. The signature is affixed at a formal closing session. A treaty generally comes into force on signature by plenipotentiaries of the Contracting States unless the States desire to subject it to ratification. Treaties and conventions are generally always sealed.
4) Ratification
It is an act of adopting an international treaty by the parties thereto. In other words, ratification implies the confirmation of the treaty entered into by the representatives of the different states. States may be bound by the treaties only when they have given their consent. There are number of ways in which a State may express its consent to a treaty. It may be given either by signature, exchange of instruments, ratification or accession.
When there are no full powers, conferred on the representatives when the parties are representatives in absence of Pleni Potentials then such treaties are negotiated by the representatives by their signature subject to ratification. When they have limited power then treaty can be reserved for ratification by the state Pleni Potentials. It is the basic term stipulated in the credentials itself. Thus ratification in a sort of confirmation by Pleni Potentials or Head of the states. The Head of State may ratify the Treaty contract made by their representative on their behalf. Pleni Potentials may ratify or refuse the treaty contract, but generally, ratification is the rule and refusal is an exception.
Ratification of a Treaty may withhold on the following grounds
i) If the representative or plenipotentiary has exceeded his powers;
ii) If any deceit as to matters of fact has been practiced upon him
iii) If the performance of treaty obligations becomes impossible
iv) If there has not been consensus ad idem (meeting of mind) e.g. there has not been agreed as to the same thing.
5) Accession and Adhesion
A third state can become a party to an already existing treaty by means of accession. Accession and Adhesion is a consequential part of the treaty. Accession is a process when a non-party state joins the already concluded treaties. They are not the original members of such treaty. Adhesion is a process when a non-party State accepts the terms and conditions of the already concluded treaty.
6) Entry into force:
There can be a specific provision in a treaty as to the effective date or date of application of the treaty. It can be by signing process or by ratification. If the treaties are signed by the Plenipotentiary then it will come into force. Multilateral treaties come into operation on the deposit of a prescribed member of ratifications and accessions.
7) Registration and Publication :
After the treaty has been so ratified, it has to be registered at the headquarters of the international organization. According to Article 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. No such treaty or international engagement was binding on any state until it was so registered. This means that in case of any dispute, the treaty could not be relied upon if it was not registered. To the same effect are the provisions in the United Nations Charter. Article 102 of the Charter reads: ----
Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.
The second part of Article 102 clearly prohibits State to bring before the bar of world opinion any secret treaty. The effect of nonregistration is, however, limited to this extent that parties to the treaty cannot invoke it before any organ of the United Nations.
8) Incorporation of treaty into State Law:
Incorporation of the treaty into State Law: The final stage of the treaty is actual incorporation in the multiple law of the Contracting State where such incorporation is necessary in order to assume a binding character.
Conclusion:
A treaty is an agreement or contract entered between two or more States whereby they undertake to carry out obligations imposed on each of them. there are eight Stages in the formation of treaties.
See also
Grounds of Invalid Treaties
Basic Purpose and Principles of United Nations
Asylum
Kinds of Asylum
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