Chapter 8: Law of Treaties & Conventions and International Law

Law of Treaties & Conventions and International Law

“Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

Object of Treaty: The object of treaties is to impose binding obligations on the states who are parties to it once a state has bound itself by agreement in a treaty; it is not entitled to withdraw from its obligations without the consent of other states.

An agreement between two or more States will not be a treaty unless those countries intend the document to be binding at international law. 

Types of international treaties: There are two types of treaties-

      i.        Bilateral treaties (between two States) are agreements made by two countries.

    ii.        Multilateral treaties (between three or more States) are agreements made by three or more countries. As chief executive of the United States, the President has the authority to create international agreements with other nations without Senate approval.

A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms.

Treaties & Domestic (Indian) Law: Treaties do not become part of municipal law and courts in India cannot interpret them unless Parliament enacts a legislation by exercising power conferred under Article 253 of the Constitution read with Entry 14 of the List I of the Seventh Schedule to the Constitution in order to make it part of domestic law. As per the existing norms, a treaty is enforceable only when it is ratified by India after completing the constitutional procedure.

Constitutional procedure: The instruments of ratification or accession are prepared by the Legal and Treaties Division and put up for the President's signature. In case of a bilateral treaty, the Instruments of Ratification become effective only after they are exchanged, which may be done through the concerned Territorial Division.

In India, international treaties are ratified by-

      i.        Parliament.

    ii.        President.

   iii.        Prime Minister.

   iv.        The Union Cabinet.

Sources of international law can be classified into the following categories:

      i.        International treaties

    ii.        International customs

   iii.        General principles of law recognised by civilised nations

   iv.        Decision of judicial or arbitral tribunals

    v.        Juristic works

   vi.        Decisions or determination of the organs of international institutions

International treaties are most frequent means of creating international rules or standards that States and other actors of international community are supposed to abide by. Their importance has been highly increased in the context of modern international law.

Types of treaties: There are two types of treaties-

1.    Lawmaking Treaties- According to Slomanson, lawmaking treaties are treaties that set up a new rule in international law. A multilateral treaty that purports to codify generally applicable, substantive rules of international law, and which is designed to attract as many parties as possible.

2.    Contractual Treaties- Contractual treaties are treaties by which the parties agree to exchange pieces of territory or settle a dispute or claims—that is, by which they deal with a particular kind of business. These two parties can be two states, or two international organizations, or one state and one international organization. Similar to a contract, it is also called a contractual treaty. An example is the Camp David Accords between Egypt and Israel, signed in September 1978.

Theories as to the Law of Nature: According to the exponents of this theory, international law is part of the law of nature. States follow international law because it is a part of the law of nature which is a higher law. In their view, it is the natural law which has conferred binding force on international law.

Modus Vivendi is an instrument recording an international agreement of a temporary or provisional nature intended to be replaced by an arrangement of a more permanent and  detailed character. It is usually made in most informal way.