ULUSLARARASI KAMU HUKUKU I

Irrespective of the form or terminology of a particular instrument, one of the characteristics that an agreement should have to be considered as a treaty is that it should be embodied in a written instrument between two or more entities.

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

Ratification is the international act whereby “a State establishes on the international plane its consent to be bound by a treaty” (Art. 2(1)/b, Vienna Convention). Ratification is an act of government to approve the treaty in question. Treaty becomes binding on the state after ratification.

The modern approach is based upon the ICJ’s advisory opinion in the Reservations to the Genocide Convention case (1951). According to this approach if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can, in fact, consider that the reserving state is not a party to the Convention, and if a party accepts the reservation as being compatible with the object and purpose of the Convention, it can, in fact, consider that the reserving state is a party to the Convention.

A treaty is void ab initio (from the beginning), if at the time of its conclusion it conflicts with a peremptory norm of general international law, i.e., jus cogens (Art. 53). “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates” (Art. 64). Thus, a treaty is void if it is in contradiction with the existing or new jus cogens.

Error, to be a ground of invalidity, must be the one related to a fact or situation assumed by the state concerned. However if the error is related only to the wording of the text of the treaty, it cannot become a ground for the invalidation of the treaty.

According to the Vienna Convention, only a material breach entitles a party to withdraw from a treaty. A material breach refers to “the violation of a provision essential to the accomplishment of the object or purpose of a treaty” .

A treaty may be terminated due to a supervening impossibility. This may result from “the permanent disappearance or destruction of an object indispensable for the execution of the treaty” (Art. 61/1). The ILC illustrates these circumstances as the submergence of an island which is indispensable for the execution of a treaty.If the impossibility is not permanent, it may be invoked only as a ground for suspending the operation 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).

Two or more parties to a multilateral treaty, subject to the provisions of the treaty itself and by giving notice to other parties, can conclude an agreement to modify the treaty between themselves if the treaty does not affect the rights and obligations of other parties under the treaty.

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.

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.

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.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. Through the conclusion of less formal agreements between the departments of two governments, the practice of production of full powers by states is now increasingly dispensed with.

Accession, adhesion or adherence is a method by which a state becomes a party to a treaty of which it is not a signatory. Under the earlier practice, accession could be made only after the treaty had come into force. According to present practice, a non-signatory state may accede before or after the treaty has come into force.

According to the traditional approach, a state making reservation (the reserving state) can do so only with the consent of other contracting parties. The application of this principle is not difficult in the case of a bilateral treaty or with limited membership. However, it carries some problems with regard to multilateral treaties. In this case, without the consent of all the parties to a multilateral treaty, reservation will be null and void.

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

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

The “context” has been used in a wider sense, including the background of the treaty and not confined merely to the text of the treaty. In addition to the text, the context for the purpose of the interpretation of a treaty shall comprise, including its preamble and annexes, any agreement relating to the treaty made between all the parties in connection with the conclusion of the treaty. It will also include any instrument that was made by one or more parties in connection with the conclusion of the treaty and accepted by other parties

A party to a treaty may be discharged from its obligations, or a treaty may be terminated due to a supervening impossibility. This may result from “the permanent disappearance or destruction of an object indispensable for the execution of the treaty.”

The terms like declarations, agreements, modus vivendi or joint communiqué are common
to both formal and less formal types of agreements.