International Treaties

download International Treaties

of 44

Transcript of International Treaties

  • 8/8/2019 International Treaties

    1/44

    Treaties

    West Bengal

    IIT Kharagpur

    Rajiv Gandhi School of Intellectual Property Law

    Assistant Professor of Law

    Dr. Raju KD

    1KDR/IIT KGP/RGSOIPL/-2008

  • 8/8/2019 International Treaties

    2/44

    Objectivey the maintenance of international peace and security,

    the development of friendly relations and the

    achievement of co-operation among nations,

    KDR/IIT KGP/RGSOIPL/-2008 2

  • 8/8/2019 International Treaties

    3/44

    Developmentsy International Law Commission draft articles 1966.

    yVienna Convention on Law of the Treaties 85 Articles

    and an Annex.y Convention entered into force in 1980.

    y Source of law codification of existing laws on treaties Namibia case (A.O) ICJ held that

    y the rules laid down by the Vienna Convention.Concerning termination of a treaty relationship onaccount of breach may in may respects be consideredas a codification of the existing customary law on the

    subject. KDR/IIT KGP/RGSOIPL/-2008 3

  • 8/8/2019 International Treaties

    4/44

    Applicabilityy It does not deal with:

    y 1. treaties between states and organizations or between

    two organizationsy 2. questions of state succession

    y 3. the effect of war on treaties.

    KDR/IIT KGP/RGSOIPL/-2008 4

  • 8/8/2019 International Treaties

    5/44

    International conventionsyVienna Convention of the Law of the Treaties, 1969

    y Entered into force in 1980.

    y Deals only with treaties between states Art. 1.

    KDR/IIT KGP/RGSOIPL/-2008 5

  • 8/8/2019 International Treaties

    6/44

    Definitiony S.2. "treaty" means an international agreement

    concluded between States with an intention to create

    legal obligations in written form and governed byinternational law, whether embodied in a singleinstrument or in two or more related instruments and

    whatever its particular designation;

    y

    "ratification", "acceptance", "approval" and "accession"mean in each case the international act so namedwhereby a State establishes on the international planeits consent to be bound by a treaty;

    KDR/IIT KGP/RGSOIPL/-2008 6

  • 8/8/2019 International Treaties

    7/44

    Treatiesy The object of a treaty is to impose binding obligations

    on the states who are parties to it.

    y Based on the maxim pacta sunt servanday Two or more states establish or seek to establish a

    relationship between themselves governed byinternational law.

    KDR/IIT KGP/RGSOIPL/-2008 7

  • 8/8/2019 International Treaties

    8/44

    Examplesy Heads of sovereign states

    y Inter governmental form technical or non-political

    agreements.y Ministers of the countries.

    y Inter state form drafted expressly or impliedly as anagreement between states.

    y Inter departmental agreement.y Political heads of the countries.

    y Even a treaty need not be in the form of writing.

    KDR/IIT KGP/RGSOIPL/-2008 8

  • 8/8/2019 International Treaties

    9/44

    Different formsy 1. Convention

    y 2. Protocol

    y 3. Agreementy 4. Arrangement

    y 5. process-verbal

    y 6. statute

    y 7. covenant

    y 8. Declaration

    y 9. exchange of notes.

    KDR/IIT KGP/RGSOIPL/-2008 9

  • 8/8/2019 International Treaties

    10/44

    Conventionsy Proper formal instrument of a multilateral character.

    y Standard formal instruments of a multilateral

    character.y Instruments adopted by international organisations

    like ILO or ICAO.

    KDR/IIT KGP/RGSOIPL/-2008 10

  • 8/8/2019 International Treaties

    11/44

    Protocolsy Less formal than a treaty or convention.

    yAn instrument subsidiary to convention

    yAncillary matters such as the interpretation ofparticular clauses.

    yAncillary instrument to a convention.

    yA supplementary treaty.

    KDR/IIT KGP/RGSOIPL/-2008 11

  • 8/8/2019 International Treaties

    12/44

    Agreementy Less formal

    y Fewer parties

    y Technical or administrative character only.y Signed by representatives of governments.

    y Not subject to ratification.

    KDR/IIT KGP/RGSOIPL/-2008 12

  • 8/8/2019 International Treaties

    13/44

    Process Verbaly Summary of the proceedings and conclusions of a

    diplomatic conference.

    yMinor alteration to a convention.

    y Not subject to ratification.

    KDR/IIT KGP/RGSOIPL/-2008 13

  • 8/8/2019 International Treaties

    14/44

    Statutey Collection of constituent rules relating to the

    functioning of an international institution.

    yStatute of the ICJ.

    y Collection of rules laid down by internationalagreement.

    yAn accessory instrument to a convention setting out

    certain regulations to be applied.

    KDR/IIT KGP/RGSOIPL/-2008 14

  • 8/8/2019 International Treaties

    15/44

    Covenanty Engagements of fundamental importance.

    y United Nations Covenant on Civil and Political Rights.

    y Covenant on Economic, Social and Cultural Rights,1966.

    KDR/IIT KGP/RGSOIPL/-2008 15

  • 8/8/2019 International Treaties

    16/44

    DeclarationyJoint declaration, 19 December 1984 between UK and

    China on the revision ofHong Kong to Chinese by

    1997.yAn informal instrument appended to a treaty or

    convention interpreting or explaining the provisions ofthe latter.

    y

    Minor importance.y Resolution in a diplomatic conference.

    KDR/IIT KGP/RGSOIPL/-2008 16

  • 8/8/2019 International Treaties

    17/44

    Modus vivendiy Is an instrument recording an international agreement

    of a temporary or provisional nature intended to be

    replaced by an arrangement of a more permanent anddetailed character.

    KDR/IIT KGP/RGSOIPL/-2008 17

  • 8/8/2019 International Treaties

    18/44

    Exchange of notesy Informal method.

    y Through diplomatic route or military representatives.

    KDR/IIT KGP/RGSOIPL/-2008 18

  • 8/8/2019 International Treaties

    19/44

    Practices and entry into forcey 1. Accreditation of negotiators

    y 2. Negotiations and adoption.

    y 3. Authentication, signature and exchange ofinstruments.

    y 4. Ratification.

    y 5. Accessions and adhesions

    y 6. Entry into force

    y 7. Registration and publication

    y 8. Application and enforcement

    KDR/IIT KGP/RGSOIPL/-2008 19

  • 8/8/2019 International Treaties

    20/44

    Credentialsy First step to appoint negotiators.

    y Power to attend and negotiate with other states.

    y Power to sign is not required for negotiations.y The power to negotiate signed by the head of the state

    or Minister of Foreign Affairs is known as Full Powersor Pleins Pouvoirs.

    y The sending for negotiations with Full Powers A.7.1(b).

    KDR/IIT KGP/RGSOIPL/-2008 20

  • 8/8/2019 International Treaties

    21/44

    Negotiation and adoptiony Either through discussions in case of bilateral treaties.

    y Multilateral diplomatic conferences.

    y Different committees were constituted like steeringcommittees and drafting committees.

    y The Conference appoints a prominent member asRapporteur.

    yA.9(2) vote of two thirds of the states present andvoting.

    y Even can be adopted by consensus.

    KDR/IIT KGP/RGSOIPL/-2008 21

  • 8/8/2019 International Treaties

    22/44

    Authentication, signature and exchange of

    instruments

    y Once the final draft is agreed upon it will be madepublic for sometime.

    y

    Signature is effected at a formal closing session.y It should be authenticated by a resolution.

    y Heads of the states may sign.

    y 1919- Woodrow Wilson Treaty of Versailles.

    y 1972 US USSR Anti-ballistic Missile System.

    KDR/IIT KGP/RGSOIPL/-2008 22

  • 8/8/2019 International Treaties

    23/44

    Open for signaturey Common practice to open the convention for signature

    by certain states.

    y

    Generally this period does not exceed 9 months.yAfter expiry of the date no signature

    y Signature, without reservation

    y Signature subject to later acceptance

    yAcceptance simpliciter.

    y Signature subject to reservation.

    KDR/IIT KGP/RGSOIPL/-2008 23

  • 8/8/2019 International Treaties

    24/44

    Exchange of instrumentsy Exchange by representatives.

    y Result: parties becomes bound by the treaty Vienna

    convention Art. 13.

    KDR/IIT KGP/RGSOIPL/-2008 24

  • 8/8/2019 International Treaties

    25/44

    Ratificationy Signed treaty will be send to respective governments

    for approval.

    y

    Ratification is the approval by the head of the state.yA. 2(1)(b) - 'ratification', 'acceptance', 'approval' and

    'accession' mean in each case the international act sonamed whereby a State establishes on the

    international plane its consent to be bound by a treaty;

    KDR/IIT KGP/RGSOIPL/-2008 25

  • 8/8/2019 International Treaties

    26/44

    Object of ratificationy Opportunity to re-examine the instrument before

    undertaking any obligations.

    y

    Enable the state to pass any domestic legislation orparliament approval in between signature andratification.

    y In international law there is neither a legal nor a moral

    duty to ratify a treaty.y Obligation not to defeat the object and purpose of a

    treaty - A.18 of the Convention.

    KDR/IIT KGP/RGSOIPL/-2008 26

  • 8/8/2019 International Treaties

    27/44

    S.18y A State is obliged to refrain from acts which would defeat

    the object and purpose of a treaty when:

    y (a) it has signed the treaty or has exchanged instrumentsconstituting the treaty subject to ratification, acceptanceor approval, until it shall have made its intention clear notto become a party to the treaty; or

    y (b) it has expressed its consent to be bound by the treaty,

    pending the entry into force of the treaty and provided thatsuch entry into force is not unduly delayed.

    KDR/IIT KGP/RGSOIPL/-2008 27

  • 8/8/2019 International Treaties

    28/44

    Exchange or deposit of ratificationsyAfter exchange it should be deposited or exchanged

    between the parties.

    y

    Notice of ratification is necessary.y Bilateral treaties exchange

    y Multilateral deposit with authorised authority

    KDR/IIT KGP/RGSOIPL/-2008 28

  • 8/8/2019 International Treaties

    29/44

    Accessions and adhesionsyA state not signed the treaty can accede or adhere to it.

    yAccede full treaty without any reservation.

    yAdhere acceptance of part of a treaty.yAccession after prescribed ratifications.

    y Same form as of ratifications accessions.

    KDR/IIT KGP/RGSOIPL/-2008 29

  • 8/8/2019 International Treaties

    30/44

    Entry into force, RegistrationyAccording to the provisions of the treaty A.24.

    y Deposit of prescribed number of ratifications.

    KDR/IIT KGP/RGSOIPL/-2008 30

  • 8/8/2019 International Treaties

    31/44

    A.102 of UNChartery 1. Every treaty and every international agreement

    entered into by any Member of the United Nations

    after the present Charter comes into force shall as soonas possible be registered with the Secretariat andpublished by it.

    y 2. No party to any such treaty or internationalagreement which has not been registered inaccordance with the provisions of paragraph 1 of this

    Article may invoke that treaty or agreement before anyorgan of the United Nations.

    KDR/IIT KGP/RGSOIPL/-2008 31

  • 8/8/2019 International Treaties

    32/44

    Registrationy It means that, non registered treaties cannot be

    challenged in ICJ.

    y

    The treaty will be published by the UNTreaty Series

    KDR/IIT KGP/RGSOIPL/-2008 32

  • 8/8/2019 International Treaties

    33/44

    Application and enforcementy Incorporation in the municipal law of state parties.

    y Provisional application provisions.

    KDR/IIT KGP/RGSOIPL/-2008 33

  • 8/8/2019 International Treaties

    34/44

    A.253 of the Constitution ofIndia

    y Notwithstanding anything in the foregoingprovisions of this Chapter, Parliament has power to

    make any law for the whole or any part of theterritory of India for implementing any treaty,agreement or convention with any other country orcountries or any decision made at any

    international conference, association or otherbody.

    KDR/IIT KGP/RGSOIPL/-2008 34

  • 8/8/2019 International Treaties

    35/44

    Reservationy Certain provisions of the treaty do not bind it, or apply

    with modifications. This can be effected by:

    1. Express provision in the treaty itself2. By agreement between the contracting states;

    3. By a reservation duly made

    KDR/IIT KGP/RGSOIPL/-2008 35

  • 8/8/2019 International Treaties

    36/44

    Ratificationsy S.2(1) (d) 'reservation' means a unilateral statement,

    however phrased or named, made by a State, whensigning, ratifying, accepting, approving or acceding toa treaty, whereby it purports to exclude or to modifythe legal effect of certain provisions of the treaty intheir application to that State;

    KDR/IIT KGP/RGSOIPL/-2008 36

  • 8/8/2019 International Treaties

    37/44

    Reservationy 17(1): Without prejudice to articles 19 to 23, the consent

    of a State to be bound by part of a treaty is effectiveonly if the treaty so permits or the other contractingStates so agree.

    y 2. The consent of a State to be bound by a treaty whichpermits a choice between differing provisions iseffective only if it is made clear to which of theprovisions the consent relates.

    KDR/IIT KGP/RGSOIPL/-2008 37

  • 8/8/2019 International Treaties

    38/44

    Sovereigntyy Reservation as an incident of sovereignty and perfect

    equality of states.

    y

    It applies to relations with other parties.yAssent of other states party to the treaty are necessary.

    y Reservations are made as a Protocol of Signature.

    yA.23 - Objections to the reservation must be in writing

    and communicated to other members.

    KDR/IIT KGP/RGSOIPL/-2008 38

  • 8/8/2019 International Treaties

    39/44

    Effect of reservationy If the reservation is incompatible with the convention,

    it may legitimately consider that the reserving state isnot a party thereto.

    y If a state is not ratified a treaty dont have the right toobject to a reservation.

    KDR/IIT KGP/RGSOIPL/-2008 39

  • 8/8/2019 International Treaties

    40/44

    ICJ advisory opiniony Reservations to Genocide Convention, ICJ Reports

    (1951), 15.

    y

    a state which has madea reservation which has beenobjected to by one or more of the parties to theConvention but not by others, can be regarded asbeing a party to the Convention if the reservation iscompatible with the object and purpose of theconvention.

    KDR/IIT KGP/RGSOIPL/-2008 40

  • 8/8/2019 International Treaties

    41/44

    Amendment of treatiesyAltering the provisions of treaties by revision,

    amendment, and modification.

    y

    A.39 amended by agreement of the parties.

    KDR/IIT KGP/RGSOIPL/-2008 41

  • 8/8/2019 International Treaties

    42/44

    Invalidity of treatiesy 1. treaty making incapacity

    yA.46 representative exceeded their treaty making

    power.yA.47 if the restriction and power of the

    representative is not notified to other members prior,no invalidity.

    y2. Error ground for invalidity error of fact orsituation.

    y Not error of law.

    KDR/IIT KGP/RGSOIPL/-2008 42

  • 8/8/2019 International Treaties

    43/44

    Invalidityy 3. A.49 - fraud fraudulent conduct of negotiating

    state.

    y

    No precedentsyA. 50 - Procured through corruption of its

    representative.

    yA. 51-52 coercion coercion of representative.

    y Use of force in violation of the principles of international law.

    y Conflict with norms of Jus Cogens

    KDR/IIT KGP/RGSOIPL/-2008 43

  • 8/8/2019 International Treaties

    44/44

    Thank you

    KDR/IIT KGP/RGSOIPL/-2008 44