36. The effective conclusion of international treaties

20 Jul

The effective conclusion of international treaties

1. Treaties are a means of limiting international randomness since they assert the reconciliation of interests, stabilise the balance of power and provide assurances within a fluid and changing environment.

2. In the current historical juncture and under the growing interdependence of states treaties have increased as usual requirements of bilateral and multilateral negotiations.

3. In essence, treaties are legal instruments of the highest hierarchy in the relations between States, and through these agreements a variety of links generates a wide range of rights and obligations. Because the scope and validity of these international commitments, their decisive effect on the present and future of nations must be adequately addressed.

4. Treaties must be expressed in writing in accordance with the principles and rules established in international law. They constitute the most objective source of international legal obligations manifested by States and other subjects of international law.

5. In this direction, it is noted that the conclusion of treaties is the result of understandings freely entered into between two or more States (or between these and other bodies subject to international law). Through their negotiations, they voluntarily consent to create, define, establish, modify or terminate a legal relationship between them. The validity of a treaty depends crucially on the ability and consent of the parties, according to international law, to conclude and cause its possible implementation.

6. The compromise of any international commitment (and particularly of a treaty) should be based on the guidelines of the State’s foreign policy. It is formulated and managed by the Head of State who may delegate the task to negotiate and sign to the Minister Foreign Affairs (or in some cases by other Ministers) or a diplomatic agent endowed with the appropriate credentials.

7. Similarly, according to the principle of unity of action outside the state and the consequent international responsibility, the conclusion of treaties will be under the control or knowledge of Ministry of Foreign Affairs, which is the State institution officially recognised by the international community to implement foreign policy and the assumption of obligations between States (and between these and other subjects of international law).

8. In the negotiating stage of the conclusion of treaties, there must be collaboration of a negotiating team specially assigned to that role. Obviously it is essential that those involved in the proceedings in question are able to demonstrate at all times that they have full knowledge of the specific issues motivating the conclusion of the treaty under their purview.

9. It is also clear that it is their responsibility of having well defined objectives in terms of foreign policy of the State they represent. These officials should master the language in which negotiation will take place (and it is advisable to have the full knowledge of the language of the counter-party). Above all, they should be properly trained in negotiation techniques which involve constant updating of their knowledge because of the frequent generation of new methods designed to ensure proper effectiveness of actions in this area.

10. It should be remembered that those designated to participate in a negotiating team of this nature tend to be generally Foreign Ministry officials (or members of the foreign service) and officials of other relevant State institutions dealing with on the subject of the treaty and who are all committed to defend the fundamental interests of the nation. They may also involve external consultants and, in some cases, representatives of civil society. The complexity and importance of a particular negotiation will require the collaboration of a multidisciplinary team, comprising experts in their field of competence. Their participation, usually as advisers, is limited to the negotiating stage of the completion of the treaty.

11. For the effective implementation of the procedures for concluding treaties, it requires that those involved are able to skilfully handle the assumptions contained in the Vienna Convention on Law of Treaties (1969), which is the international legal instrument governing the matter between States. The 1986 Vienna Convention also regulates all matters connected with the other international instruments between nations and international organisations. Similarly, they should have full mastery of treaty law which is part of public international law), and must be knowledgeable with other relevant principles, standards and procedures for the conclusion of treaties.

12. For the conclusion of treaties, the internationally established procedure includes the following steps:

a) Externally: negotiation, the project, drafting the final document, signature, exchange of ratifications (or the deposit of ratifications in the case of a multilateral instrument) and registration.

b) Internally: legislative approval, ratification by the Executive and the publication in the Official Gazette.

13. Although the generic term commonly used to refer to this category of international commitments is “treaty,” it may assume different names according to certain aspects recognised by international law, without altering the legal or ethical nature of these acts. Consequently, a treaty can be called: convention, union, pact, partnership, agreement, protocol, charters, records, concordat, among others.

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