ULUSLARARASI KAMU HUKUKU I

Prior to 1969, the law of treaties was mainly comprised of customary rules of international law. These rules have been codified and clarified in the 1969 Vienna Convention on the Law of Treaties (referred here as the Convention). The Convention governs the law and practice of treaties concluded between states.

McNair defines treaty as “a written agreement by which two or more states or international organizations create or intend to create a relation between themselves, operating within the sphere of international law” (McNair,1961). According to Oppenheim, international treaties are agreements, of a contractual character, between states or organizations of states, creating legal rights and obligations between the parties (Oppenheim, vol. I, 1992). The Vienna Convention defines treaty as “an international agreement concluded between states in written form and governed by international law” (Art. 2(1)/a).

The terms treaty, pact, charter, constitution, statute, convention, General Act, Final Act (when it is an independent instrument) are generally used for formal instruments of multilateral character. The terms such as memorandum of understanding, procés vérbal, arrangement, exchange of notes are used for less formal instruments and generally related to transactions of provisional or temporary nature.

The Vienna Convention is limited to written treaties in the interest of clarity and simplicity,without denying the legal validity of oral agreements. An agreement, to be termed as a treaty, should be governed by international law and not by national law. Like terminology, international law does not prescribe any form or procedure for the making of a treaty, though the constitutional law of certain states prescribes both. Only the entities enjoying international legal personality can be parties to a treaty. Article 6 of the Vienna Convention provides that “every state possesses capacity to conclude treaties.”

Full powers is a formal document emanating from the competent authority of a state designating a person or persons to represent the state for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the state to be bound by a treaty, or for accomplishing any other act with respect to a treaty (Art. 2(1)/c, Vienna Convention). Before the start of the formal negotiations of a treaty, normally there is a reciprocal examination of the full powers in order to avoid any trouble resulting from negotiation with a representative, not duly authorized to negotiate.

A reservation is a unilateral statement made by a state at the time of signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state (Art. 2(1)/d). The object of a state making the reservation is to alter its obligations with regard to other parties. A declaration in the nature of interpretation of certain provisions in a particular way, which does not vary the obligations of that signatory vis-a-vis other signatories, is not a true reservation.

Error, to be a ground of invalidity, must be the one related to a fact or situation assumed by the state concerned. That fact or situation has formed an essential basis of State’s consent to the treaty. However, (a) if the State has contributed by its own conduct to the error or (b) if the circumstances were such as to put that state on notice of a possible error, or (c) the error related only to the wording of the text of the treaty, it cannot become a ground for the invalidation of the treaty (Art. 48).

Jus cogens literally means “compelling law.” It designates norms from which no derogation is permitted by way of particular agreements. It stems from the idea already known in Roman law that certain legal rules cannot be contracted out. Jus cogens is opposed to jus dispositivum, i.e., rules that yield to the will of the parties. In case of a contrary disposition of the parties, one can contract out of jus dispositivum but not out of jus cogens.

Treaties that are perpetual in nature and silent on the termination or withdrawal may be revoked because of vital changes in circumstances. This is based on the principle, traditionally known as conventio omnis intelligitur rebus sic stantibus, that is, treaties are concluded under the tacit condition rebus sic stantibus (literally means “things remaining as they are”). The principle is an express or implied term in every treaty.

The preparatory work (travaux préparatoires) is, in general terms, the record of the drafting of a treaty, including the records of negotiations between the participating states and, in some cases, the records of the work of independent bodies of experts. Preparatory work may be a manifestation of the common intention of the parties to the treaty.

McNair defines treaty as “a written agreement by which two or more states or international organizations create or intend to create a relation between themselves, operating within the sphere of international law” (McNair, 1961).

The terms treaty, pact, charter, constitution, statute, convention, General Act, Final Act (when it is an independent instrument) are generally used for formal instruments of multilateral character. The terms such as memorandum of understanding, procés vérbal, arrangement, exchange of notes are used for less formal instruments and generally related to transactions of provisional or temporary nature. The terms like declarations, agreements, modus vivendi or joint communiqué are common to both formal and less formal types of agreements.

Prior to 1969, the law of treaties was mainly comprised of customary rules of international law. These rules have been codified and clarified in the 1969 Vienna Convention on the Law of Treaties

The Vienna Convention defines treaty as “an international agreement concluded between states in written form and governed by international law”

Irrespective of the form or terminology of a particular instrument, an agreement should have the following characteristics to be considered as a treaty:
• it should be embodied in a written instrument between two or more
entities;
• those entities should be endowed with international personality; and
• it should be governed by international law.

Quid pro quo means thatsome favor or advantage given to someone in return for something they have done

There are three main approaches to treaty
interpretation:
• Textual (ordinary meaning of the words),
• The intention of the parties,
• Teleological (the object and purpose of the treaty).

There are three main approaches to treaty
interpretation:
• Textual (ordinary meaning of the words),
• The intention of the parties,
• Teleological (the object and purpose of the
treaty).

Amendment is related to the individual provisions of a treaty, whereas revision concerns with the general review of the whole treaty.

Modification is about inter-se agreements concluded between certain parties and it refers to varying the provisions of the treaty in their mutual relations.