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Encyclopedia > Treaty
The first two pages of the Treaty of Brest-Litovsk, in (left to right) German, Hungarian, Bulgarian, Ottoman Turkish and Russian
The first two pages of the Treaty of Brest-Litovsk, in (left to right) German, Hungarian, Bulgarian, Ottoman Turkish and Russian

A treaty is an agreement under international law entered into by actors in international law, namely states and international organizations. A Treaty may also be known as: (international) agreement, protocol, covenant, convention, exchange of letters, exchange of notes, memorandum of understanding, etc. Regardless of the terminology, all of these international agreements under international law are equally treaties and the rules are the same. Image File history File links Size of this preview: 800 × 600 pixel Image in higher resolution (1600 × 1200 pixel, file size: 487 KB, MIME type: image/jpeg) Photocopy of the first two pages of Brest-Litovsk Peace Treaty between Soviet Russia and Germany , March 1918 This photo was made in... Image File history File links Size of this preview: 800 × 600 pixel Image in higher resolution (1600 × 1200 pixel, file size: 487 KB, MIME type: image/jpeg) Photocopy of the first two pages of Brest-Litovsk Peace Treaty between Soviet Russia and Germany , March 1918 This photo was made in... The first two pages of the Treaty of Brest-Litovsk, in (left to right) German, Hungarian, Bulgarian, Ottoman Turkish and Russian The Treaty of Brest-Litovsk was a peace treaty signed on March 3, 1918, at Brest-Litovsk (now Brest, Belarus) between the Russian SFSR and the Central Powers, marking... Ottoman Turkish (Turkish: or , Ottoman Turkish: ‎ ) was the variant of the Turkish language that was used as the administrative and literary language of the Ottoman Empire. ... This article or section is in need of attention from an expert on the subject. ... For other uses, see State (disambiguation). ... For the political science journal, see: International Organization An international organization (also called intergovernmental organization) is an organization of international scope or character. ... This does not cite any references or sources. ... A memorandum of understanding (MOU) is a legal document describing a bilateral agreement between parties. ...


However, in United States constitutional law, only a treaty that has achieved advice and consent of two-thirds of the United States Senate present is properly designated as a "treaty". If, instead, the President presents a negotiated instrument to the whole Congress for majority approval, the agreement is typically called a "congressional-executive agreement". For example, the North American Free Trade Agreement (NAFTA) and most other U.S. trade agreements are executive agreements. However, in the United States, treaties that are in fact congressional-executive agreements are equal to legislation. Because of this rule, such treaties and statutes can override each other—whichever is latest in time is controlling. Nevertheless, a treaty in the true constitutional sense overrides all other laws except the constitution. NAFTA redirects here. ... For other uses of terms redirecting here, see US (disambiguation), USA (disambiguation), and United States (disambiguation) Motto In God We Trust(since 1956) (From Many, One; Latin, traditional) Anthem The Star-Spangled Banner Capital Washington, D.C. Largest city New York City National language English (de facto)1 Demonym American... The Statute of Grand Duchy of Lithuania A statute is a formal, written law of a country or state, written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. ...


Treaties can be loosely 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 for that breach. The central principle of treaty law is expressed in the maxim pacta sunt servanda — "pacts must be respected". A contract is any promise or set of promises made by one party to another for the breach of which the law provides a remedy. ... A Brocard is a juridical principle usually expressed in Latin (and often derived from juridical works of the past), traditionally used to concisely express a wider legal concept or rule. ... Pacta sunt servanda (Latin for pacts must be respected) is a Brocard, a basic principle of civil law and of international law. ...

Contents

Bilateral and multilateral treaties

A multilateral treaty has several parties, and establishes rights and obligations between each party and every other party. Multilateral treaties are often, but not always, open to any state; others are regional.


Bilateral treaties by contrast are negotiated between a limited number of states, most commonly only two, establishing legal rights and obligations between those two states only. It is possible however for a bilateral treaty to have more than two parties; consider for instance the bilateral treaties between Switzerland and the European Union (EU) following the Swiss rejection of the European Economic Area agreement. Each of these treaties has seventeen parties. These however are still bilateral, not multilateral, treaties. 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.  EFTA countries (except Switzerland)  EU countries Together these form the EEA. The European Economic Area (EEA) came into being on January 1, 1994 following an agreement between the European Free Trade Association (EFTA) and the European Union (EU). ...


Adding and amendment treaty obligations

Reservations

Main article: Reservation (law)

Reservations are essentially caveats to a state's acceptance of a treaty. Reservations are a unilateral statement purporting to exclude or to modify the legal obligation and its effects on the reserving state.[1] These must be included at the time of signing or ratification--a party cannot add a reservation after it has already joined a treaty. A reservation, in international law, is defined by the 1969 Vienna Convention on the Law of Treaties as a In effect, a reservation allows a State to avoid or modify a certain obligation detailed in a treaty. ... Caveat, the third-person singular present subjunctive of the Latin cavere, means warning (or more literally, let him beware); it can be shorthand for Latin phrases such as Caveat lector Caveat emptor Caveat venditor More narrowly, caveat can also refer to CAVEAT, a Canadian lobby group; The Paulette Caveat about...


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 have 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.[2]


Amendments

There are three ways an existing treaty can be amended. First, formal amendment requires States 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 a 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, or administrative (not principled changes). Finally, a change in customary international law (state behavior) can also amend a treaty, where state behavior evinces a new interpretation of the legal obligations under the treaty.


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; sometimes this is made clearer by calling it an "optional protocol", especially where many parties to the first agreement do not support the protocol. Look up Protocol in Wiktionary, the free dictionary. ...


Some examples: the United Nations Framework Convention on Climate Change (UNFCCC) established a framework for the development of binding greenhouse gas emission limits, while the Kyoto Protocol contained the specific provisions and regulations later agreed upon. UNFCCC logo. ... Kyoto Protocol Opened for signature December 11, 1997 in Kyoto, Japan Entered into force February 16, 2005. ...


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, as a non-self-executing treaty cannot be acted upon 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 an additional 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 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. An interstate compact is an agreement between two or more U.S. states. ... A memorandum of understanding (MOU) is a legal document describing an agreement between parties. ...


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. World map with nuclear weapons development status represented by color. ...


The terminology can also be confusing because a treaty may and usually is named something other than a treaty, such as a convention, protocol, or simply agreement. Conversely some legal documents such as the Treaty of Waitangi are internationally considered to be documents under domestic law. One of the few extant copies of the Treaty of Waitangi The Treaty of Waitangi (Māori: Tiriti o Waitangi) is a treaty signed on February 6, 1840 by representatives of the British Crown, and Māori chiefs from the North Island of New Zealand. ...


Ending treaty obligations

See also: Denunciation

Denunciation refers to the announcement of a treatys termination. ...

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. Many treaties expressly forbid withdrawal. Other treaties are silent on the issue, and so if a state attempts withdrawal through its own unilateral denunciation of the treaty, a determination must be made regarding whether permitting withdrawal is contrary to the original intent of the parties or to the nature of the treaty. Human rights treaties, for example, are generally interpreted to exclude the possibility of withdrawal, because of the importance and permanence of the obligations.


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 of course terminates the treaty. When a state withdraws from a multi-lateral treaty, that treaty will still otherwise remain in force between the other parties, unless, of course, 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. The issue must be presented to an international tribunal or arbiter (usually specified in the treaty itself) to legally establish that a sufficiently serious breach has in fact occurred. Otherwise, a party that prematurely and perhaps wrongfully suspends or terminates its own obligations due to an alleged breach itself runs the risk of being held liable for breach. Additionally, parties may choose to overlook treaty breaches while still maintaining their own obligations towards the party in 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.


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.


Invalid treaties

There are several reasons an otherwise valid and agreed upon treaty may be rejected as a binding international agreement, most of which involve errors at the formation of the treaty.


Ultra vires treaties

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 law. 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 is given by a representative who ignored restrictions he is subject to by his sovereign during the negotiations, if the other parties to the treaty were notified of those restrictions prior to his signing.


Misunderstanding, fraud, corruption, coercion

Articles 46-53 of the Vienna Convention 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 state'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.


Peremptory norms

A treaty is null and void if it is in violation of a peremptory norm. 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 genocide, slavery, torture, and piracy, meaning that no state can legally assume an obligation to commit or permit such acts. A peremptory norm (also called jus cogens, Latin for compelling law) is a fundamental principle of international law considered to have acceptance among the international community of states as a whole. ...


Role of the United Nations

The United Nations Charter states that 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 proliferation of secret treaties that occurred in the 19th and 20th century. The Charter also states that its members' obligations under it outweigh any competing obligations under other treaties. This article or section does not cite any references or sources. ... This article is about the United Nations, for other uses of UN see UN (disambiguation) Official languages English, French, Spanish, Russian, Chinese, Arabic Secretary-General Kofi Annan (since 1997) Established October 24, 1945 Member states 191 Headquarters New York City, NY, USA Official site http://www. ... The International Court of Justice (known colloquially as the World Court or ICJ; French: ) is the primary judicial organ of the United Nations. ... A secret treaty is a treaty between nations that is not revealed to other nations or interested observers. ...


In function and effectiveness, the UN has been compared to the pre-Constitutional United States Federal government by some, giving a comparison between modern treaty law and the historical Articles of Confederation. The Articles of Confederation and Perpetual Union, commonly known as the Articles of Confederation, was the first governing document, or constitution, of the United States of America. ...


United States law

In the United States, the term "treaty" is used in a more restricted legal sense than in international law. U.S. law distinguishes what it calls treaties from treaty executive agreements, congressional-executive agreements, and sole executive agreements. All four classes are equally treaties under international law; they are distinct only from the perspective of internal American law. The distinctions are primarily concerning their method of ratification. Where treaties require advice and consent by 2/3rds of the Senate, sole executive agreements may be executed by the President acting alone. Some treaties grant the President the authority to fill in the gaps with executive agreements, rather than additional treaties or protocols. And finally, Congressional executive agreements require majority approval by both the House and the Senate, either before or after the treaty is signed by the President. This does not cite its references or sources. ...


Currently, international agreements are executed by executive agreement rather than treaties at a rate of 10:1. Despite the relative ease of executive agreements, the President still often chooses to pursue the formal treaty process over an executive agreement in order to gain Congressional support on matters that require the Congress to pass implementing legislation or appropriate funds, and those agreements that impose long-term, complex legal obligations on the U.S.


Brazilian law

Article 84 of the Brazilian federal constitution sets out, in its clause VIII, that the president is the only one capable of signing international treaties; its internal implementation, however, demands the approval of the Congress (Chamber of Deputies, together with the Senate), according to Article 49, paragraph I of the constitution. This article or section does not cite its references or sources. ... Brazilian Presidential Standard The President of Brazil is both the head of state and head of government of the Federative Republic of Brazil. ... Brazils bicameral National Congress (Portuguese: Congresso Nacional) consists of the Federal Senate and the Chamber of Deputies. ... The Chamber of Deputies of Brazil (Portuguese: Câmara dos Deputados) is a federal legislative body and the lower house of the National Congress of Brazil. ... In its present configuration, the Brazilian Senate (Portuguese: Senado Federal) is a federal legislative body and the upper house of the National Congress of Brazil. ...


Treaties and indigenous peoples

Treaties formed an important part of European colonization and, in many parts of the world, Europeans attempted to legitimize their sovereignty by signing treaties with indigenous peoples. In most cases these treaties were in extremely disadvantageous terms to the native people, who often did not appreciate the implications of what they were signing. For other uses, see Europe (disambiguation). ... It has been suggested that this article or section be merged with Colonialism. ... Indigenous peoples are: Peoples living in an area prior to colonization by a state Peoples living in an area within a nation-state, prior to the formation of a nation-state, but who do not identify with the dominant nation. ...


In some rare cases, such as with Ethiopia and Qing Dynasty China, the 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 a power from overstepping their agreement or by playing different powers against each other. Flag (1890-1912) Anthem Gong Jinou (1911) Qing China at its greatest extent. ...


In other cases, such as New Zealand and Canada, treaties allowed native peoples to maintain a minimum amount of autonomy. In the case of indigenous Australians, unlike with the Māori of New Zealand, no treaty was ever entered into with the indigenous peoples entitling the Europeans to land ownership. 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. This article is about the Māori people of New Zealand. ...


Notes

  1. ^ Vienna Convention on the Law of Treaties, Article 2 Sec. 1(d) Text of the Convention
  2. ^ Vienna Convention on the Law of Treaties, Article II, Reservations.

See also

Look up treaty in Wiktionary, the free dictionary.

Wikipedia does not have an article with this exact name. ... Wiktionary (a portmanteau of wiki and dictionary) is a multilingual, Web-based project to create a free content dictionary, available in over 151 languages. ... This is a chronological list of international treaties, historic agreements, peaces, edicts, pacts, etc. ... This article or section is in need of attention from an expert on the subject. ... Four political entities have a special position recognized by international treaty or agreement (Ã…land in Finland, Svalbard in Norway, as well as the special administrative regions of Hong Kong and Macau in the Peoples Republic of China). ...

External links

Wikisource has original text related to this article:
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