Treaties: Formation, application, termination and reservation

Introduction

The world is now global and states share resources. International trade connects the world, and trade economics helps states become a part of the development processes. In the process, there are possibilities of conflict in interests. Treaties help in regulating behaviour and ensure mutual benefits. Through treaties, countries decide the negotiation points and terms of the agreements.

Definition(s) of Treaties:

Treaty is a kind of agreement between countries or states, mutually agreed upon. The document provides rights to the parties and decides obligations. It is sometimes known as a pact or convention. Treaty must be a written document mutually agreed upon and signed by the parties. International Laws are regulating the treaty. “The Vienna Convention on the Law of Treaties (1969) (‘VCLT’)., is defined the word ‘treaty’ as:

‘An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or two or more related instruments and whatever its particular designation’ (Article 2 (1) (a)).

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Features of Treaties:

Main features of treaties derived from the definition-

1. Treaties are written documents which means the verbal agreements are not liable. Negotiation points or agreements should be clearly described and signed by the states/nations involved.
2. Treaties are regulated by international laws and regulations and bound states with legal obligations.
3. It might be composed of one or two legal instruments to describe the terms of agreements in an unambiguous manner.

Types of treaties

International treaties are of two types, Bilateral and Multilateral.

• Bilateral treaties- when only two states are involved in a treaty agreement with the legal instrument of written law, are called bilateral treaties. For example, India signed Bilateral Investment treaties (BIT) with the United Kingdom in 1994 to promote financially viable activities between the states.
• Multilateral treaties: When three or more three states are involved in a treaty agreement through legal instruments, it is called multilateral treaties and such as UNCLOS (united nation convention on the law of sea, 1982), related to the sea territories, and Kyoto Protocol 2005, associated with the reduction of Green-House gases.

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Process of Treaty Formation

The treaty formation has the following steps:

Drafting and Negotiation 

It is the first step of the treaty formation. The representatives of the state present their points/terms for the agreement. Representatives of the state can be government officials or diplomats; they hold the power of negotiation on behalf of the state. The parties of the treaty agreement find the common areas for negotiation. It is a complex process and takes many rounds of discussion before reaching the common negotiable terms.

Expressing consent

Taking the consent on the drafted negotiation document is an important step. It obligated states to follow the rule commonly decided by the states. VCLT gave two kinds of consent processes under article 9 and article 11.

• Article 9 – Article 9 deals with the consent of the majority. This process is more suitable for multilateral treaties or global conventions. In this process, the treaty is adopted when two-thirds or a majority of the state representative vote agrees on it.
• Article 11- The treaty applies to the exchange of signatures between parties. It includes the exchange of signature, treaty, or instrument of exchange.

Ratification

When the states accept the treaty, ratification comes into the picture. Ratification means the treaty is effective in the concerned states and states need to create some legal rights and obligations. Article 14 of VCLT deals with the ratification of the treaty.

Reservation

Term reservation refers to the exclusion of some areas of the treaty. According to the VCLT, the reservation is defined as:

“Reservation is a unilateral statement, however, phrased or named, made by a State when signing, ratifying, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of specific provisions of the treaty in their application to that state.

Reservation gives liberty to the states to demand some exclusion for the benefit of their states. The reservation can only be asked before the signing or ratification.

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Termination of Treaties 

1. Treaties can be declared invalid in case of fraud, errors, and corruption of state representatives. Treaties can be terminated on various grounds.
2. The termination of the treaty by consent. Parties can consult at any point and mutually terminate the treaties.
3. The parties can withdraw their participation from the agreement.
4. Treaty can be terminated based on the material beach; if one part of the bilateral treaty violates the agreement’s provision, the other party can terminate the agreement.

If the fundamental nature of the treaty gets changed, the treaty can be terminated.

The Vienna Convention on the Law of Treaties (1969) (‘VCLT’) defined the ground of termination in part V of the VLCT in section 3. The comprehensive description of various grounds is explained in article 60.

Conclusion

In the global world, human communities are bound together. States exchange various capital and want to flourish. In this context, a unified legal framework is needed. The Vienna Convention on the Law of Treaties (1969) (‘VCLT’) delivers an inclusive legal framework for international treaties. The codified structure and legitimacy of VCLT secure the parties’ rights and bind them with the obligations decided by the involved states.