Treaties constitute the most important sources of international law as they require the express consent of the contracting parties. Article 38(1)(a) of the statute of the ICJ lays down that the court while deciding any dispute shall apply international conventions, whether general or particular, establishing rules expressly recognised by the contesting states, in preference to other sources of international law. Treaties therefore have acquired a dominant importance in international law.
MEANING OF TREATY
Treaties are basically express agreements between parties on the international scene and are a form of substitute legislation undertaken by states. Treaties are known by a variety of names ranging from conventions, international agreements, pacts, general acts, characters, declarations and covenants.
According to Article 2 of the Vienna Convention, 1969, “A treaty is an agreement whereby two or more states established or seek to establish relationship between them governed by international law”.
Treaties can play the role of contracts between two or more parties, such as an extradition treaty or a defence pact. They can also be legislation to regulate a particular aspect of international relations, or form the constitutions of international organisations. Article 38(1)(a) of the Statute of the ICJ which uses the term ‘international convention’, concentrates upon treaties as a source of contractual obligation but also acknowledges the possibility of a state expressly accepting the obligations of a treaty to which it is not formally a party.
KINDS OF TREATIES
The binding force of any treaty in leading to the formation of rules of international law depends on the nature of the treaty concerned. In this connection there is a useful, although not rigid, distinction between the following categories:
- Law-Making Treaties: These treaties have a large number of parties and create universal or general norms. They serve the same functions in the international field as legislation does in the state field. There has been an astonishing development of ‘law-making’ treaties since the middle of the 19th century. Law making treaties may be of two kinds: (i) enunciating universal rules e.g., united nations charter and (ii) laying down general rules e.g., Vienna Convention on the law of treaties, 1969.
- Treaty-Contracts: Treaty-contracts simply purport to lay down special obligations between the parties only. Since treaties help in the formation of international law through the operation of the principles governing the development of customary rules. a series or a recurrence of treaties laying down a similar rule may produce a principle of customary international law. A treaty is therefore, of considerable evidentiary value as to the existence of a rule which has crystallized law by an independent process of development.
PACTA SUNT SERVANDA
The most fundamental principle of international law and undoubtedly the basis of validity of treaties is Pacta Sunt Servanda. According to this principle, treaties are binding upon the parties and treaties must be performed in good faith. States are bound to fulfill in good faith the obligations assumed by them under treaties. This is arguably the oldest principle of international law. It was reaffirmed in Article 26 of the 1969 Vienna Convention on the law of treaties and underlies every international agreement for in the absence of a certain minimum belief that states will perform their treaty7 obligation in good faith, there is no reason for countries to enter into such obligations with each other.
FORMATION OF TREATIES
treaties may be made or concluded by the parties in virtually any manner they wish. There is no prescribed form or procedure, and how a treaty is formulated and by whom it is actually signed will depend upon the intention and agreement of the states concerned. Nevertheless, there are certain rules that apply in the formation of international conventions. They are as follows:
- Accrediting of persons by the contracting states
- negotiation and Adoption
- Accession or Adhesion
- Entry into force
- Registration and publication
- Application and Enforcement
RESERVATION OF TREATIES
A state may often wish to sign or ratify or otherwise consent to be bound by a treaty in such manner that certain provisions of the treaty do not bind it, or apply to it subject to modification. This can be effected principally by: (a) express provision in the treaty itself; (b) by agreement between the contracting states; (c) by a reservation duly made.
The term ‘reservation’ has been defined in article 2(1) of the Vienna convention as, “a unilateral statement made by a state when 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 the state”. Thus, a state may accept a treaty subject to certain conditions unless the reservation is prohibited by the treaty.
Reservation may be expressly allowed by the treaty, or expressly prohibited by the treaty; it is when the treaty is silent about reservations, that the problems arise. The modern practice of state shows that even in such cases a state entitled to make reservation in a treaty and the relation of those states which do not oppose the said reservation are governed by the treaty.