52. The conclusion of treaties

28 Jan

The conclusion of treaties

1. In the practice of international relations, the treaty has gained primary importance. The process for the conclusion of treaties has been the result of persistent work, which for centuries has gradually forged the foundations of the present procedure aimed at achieving the required effectiveness in implementing the key international legal instruments.

2. The 1969 Vienna Convention on the Law of Treaties specifies that “every State possesses the capacity to conclude treaties.” The conclusion of treaties is enabled by the power of State sovereignty. (The power to conclude treaties is also extended to public international organisations.) Under its sovereignty, the State determines the internal organs and legal procedures to be involved in negotiating treaties in the international arena.

3. The conclusion of treaties is the result of understandings freely entered into between two or more States (or between these and other subjects of international law with the capacity to do so, or between such other subjects) to voluntarily consent to negotiations aimed to create, define, establish, modify or terminate a legal relationship  between them.

4. The validity of a treaty depends greatly on the ability (and consent) of the parties to conclude an agreement and implementation it. In essence, treaties are the legal instruments of the highest contract between States.

5. The procedures for the conclusion of treaties have both internal and external aspects. External procedures include negotiation the project, drafting the final document, the signing and exchange of ratifications (or the deposit of ratifications, in the case of a multilateral instrument) and registration. The internal procedures involve legislative approval, ratification of the Executive and the publication in the Official Gazette.

6. In practical terms, it should be noted that the staff assigned to participate in the negotiation phase of the conclusion of a treaty must have full knowledge of the issues to be negotiated. In accordance with the particular complexity and importance of the negotiation techniques, it is expected that the negotiators are adequately trained in those methodologies and, of course, must be firmly committed to defending the fundamental interests of the nation. In this phase outside consultants may also participate, and in some cases, representatives of civil society whose expertise and experiences have a direct bearing on the issues that are negotiated.

7. Those involved in the conclusion of a treaty must be fully aware of the provisions contained in the Vienna Convention on the Law of Treaties (1969) which governs the matter essentially between States, including the rules of interpretation and appropriate parameters for the prevention and resolution of conflicts arising from the implementation of treaties.

8. They must also have an adequate understanding of the Vienna Convention of 1986 governing all matters relating to other international instruments between States and international organisations or between the latter. They should also be fully aware of the discipline known as the Law of Treaties (the universe of public international law), containing among other relevant aspects, the principles, standards and procedures for the conclusion of treaties.

9. While the generic term commonly used to refer to this category of international commitments is “treaty,” it can assume different names in accordance with certain aspects recognised by international law, without altering its legal or ethical powers these. Consequently, the treaty can be called: convention, agreement, union, pact, partnership, agreement, protocol, proceeding, concordat, exchange of notes, exchange of letters, “modus vivendi,” among others.

10. Undoubtedly, treaties have become a means of limiting international randomness, consecrate the conciliation of interests, stabilise the balance of power and provide assurances within a fluid and changing environment.

11. Treaties, currently the most objective source manifesting the consent of States, must be in writing in accordance with the principles and rules established by international law to which they are all legally bound.

Editor’s Note: Credits to Amb. Manuel Morales Lama

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