The Formation of International Treaties

Added on - 22 Nov 2020

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Formation ofInternationalTreaties
International treaties are one of the mostprominent source of international law. The study offormation or conclusion of an international treaty isof importance as these impose certain obligationson the states which are party these treaties underinternational law. The international treaties holds animportant position in international law as it isformulated and becomes part of the municipal lawand various other rights and duties are determinedas per the treaty obligations. The treaties are also ofsignificance under international law as wheneverany international dispute arises between the statesthen the International Court endeavours on findingout a treaty on the matter while deciding the case. Ifthere is any international treaty concerning thedispute the court bases its decision in accordance tothe provisions of that particular treaty.The term treaty can be understood byexamining the various definitions given bydistinguished scholars and provided under theVienna Convention. According to Prof. Oppenheim,international treaties are contractual agreements1
between the States which results in creation of legalrights and treaties.1According to Prof. Schwarzenberger treatiesare agreements entered in by the subjects ofinternational law which leads to creation of abinding obligation under the international law.McNair defines treaty as a writtenagreement involving two or more States orInternational Organisation for creation for creationof relations between them while operating withinthe spheres of International Law.A treaty, according to the definitionprovided underArticle 2(1) (a)in theViennaConvention on the Law of Treaties, 1969 (VLCT)isa written international agreement which isconcluded between the States and governed by theinternational law.2The international treaties has variety ofnomenclature, which are – Protocol, Agreement,Convention, Arrangement, Process-Verbal, Statute,1Arend, A.C. and Beck, R.J., 2014.International lawand the use of force: beyond the UN Charter paradigm.Routledge.2Aust, A., 2013.Modern treaty law and practice.Cambridge University Press.2
Declaration, Modus Vivendi, Exchange of notes,General Act, and Final Act. The treaties are furtherclassified and McNair classifies the internationaltreaties as – firstly, the treaties having character ofconveyance, secondly, the treaty contracts, thirdly,the law-making treaties, and lastly, the othertreaties.The parties competent to enter into a treatyobligation are only the Sovereign States. Accordingto the principle of sovereignty under theinternational law, the sovereign states haveextensive power to the make, formulate or enter intoa treaty. The states not being wholly sovereign arenot competent to make a treaty obligation, as thePermanent Court of International Justice stated inthe Wimbledon case3that it is the sovereigncapacity of the states which allows them to enterinto international engagements.Formation of treaty –The sovereign statescan achieve certain goals by being in isolation butinternational support gives the states an opportunityto pursue the goals with all the more efficiency. The3Case of S.S. Wimbledon, Britainet. al.v Germany, (1923)PCIL Series A013
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