Why a treaty?

Treaties, or often known as Conventions, Agreements, Statutes and Charters, have played a vital role in developing what we know as international treaty law today. The idea of state consent to practice an international treaty law is what stands as the foundation for any treaty which even the Vienna Convention on Laws of Treaties points out in its definition for treaties in article 1 where it defines it as an agreement concluded. However, most scholars argue that treaties also serve as the most important source of international law as a whole.

Now the entire idea behind any treaty is the principle of pacta sunt servanda or the idea of “agreement must be kept”. It is very natural that by making an obligatory document each party of the treaty would exercise full confidence over the fulfilment of the agreement by the other even with the possibility to obstacles in the goal of this agreement. Thus, treaty becomes an effective way of binding two or more countries and creating any international law.  

But the essence of a treaty defining an entire regime of modern international law comes from what we know as law-making treaties. Law-making treaties are agreements where states deliberate on their perception of international law on a particular aspect and establish a new rule to guide them for the future in their international conduct. Such law-making treaties, of necessity, require the participation of a large number of states thus producing rules that has the capacity to bind all. For example, the Nuclear Non-Proliferation Treaty is one of such law-making treaties. It seeks to solidify non-proliferation of nuclear weapons and while safeguarding the members through the arsenals of the P5 nations (USA, UK, Russia, China and France). This particular treaty has been signed and ratified by almost all nations in the world and thus, creating non-proliferation of nuclear weapons a well established obligatory law in the international legal system.

Such multilateral treaties and conventions, have also facilitated the creation of further treaties and the formal international bodies through the primary constitutional treaties with powers to make decisions, or to issue regulatory documents. For example, if we take a look at the United Nations, we would observe that every principle or treaty that are signed prescribing certain commitments are always given with the example of UN Charter. The United Nations Convention on Laws of Seas and the United Nations Framework Convention on Climate Change are some of the many where one can see a clear reference to uphold the primary principles of the charter. It also creates organs such as the General Assembly which in turn creates conventions and treaties such as the Convention on Elimination of All Forms of Discrimination against Women while also creating soft laws with resolutions such as the Declaration on Elimination of Violence against Women.

While it is true that for becoming a member of any treaty or convention state consent to all its provision through an official signature is well known practice, treaties often preserve the option of reservations as well. The Vienna Convention on Laws of Treaties, defines reservation as unilateral statements, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to any treaty, whereby it purpose is to exclude or to modify the legal arrangements of certain provisions of the treaty while applying in their State. Although it seems that this would challenge the universal law-making nature of such a treaty by creating an opportunity of diversity as each State interest differ, farsighted treaty makers have shown that not all reservations become an absolute hinder because the document itself has always been consensual. Further there either exists monitoring bodies for such reservation proposal for such a treaty or well accepted principles that are always taken advise of. The Guide to Practice on Reservations to Treaties by the International Law Commission are such principles which points out that

i.          The status of the party of the treaty would depend on the intention expressed by the reserving party on whether it still wishes to be bound by the treaty without the benefit of the reservation or whether it considers that it is not bound by the treaty.

ii.         Unless the party chooses the latter, it is considered that the former exists.

Thus, always maintaining the uniform universal legal nature of the binding treaty.

However, one might argue that the idea of pacta sunt servanda isn’t absolute in nature and there have been instances where states have ceased to continue an existing agreement. For example, North Korea’s exit from the Nuclear Non-Proliferation Treaty or the US withdrawal from the United Nations Framework Convention on Climate Change. Although the well established rule is that a treaty is over after its purpose is completed, but for a country to not oblige itself even when the norms are still effective, the treaty itself creates a provision for terminating a nation's obligation if need be. The Nuclear Non-Proliferation Treaty contains a withdrawal clause in Article 10 while the United Nations Framework Convention on Climate Change has it in Article 25. But does that not take away the importance of a treaty? Not necessarily. Treaties that have formed or wishes to form backbone for times to come have been seen to have no provision for termination. The International Covenant on Civil and Political Rights, that ensures the very essence of human fundamental rights for the countries implement is one such example. While deliberating upon the treaty, the United Nations Human Rights Committee committee noted that because their exists no termination clause over the ICCPR, the treaty would always continue to remain obligatory for Nations.

As I look to conclude this essay, my intention is to elucidate how the world is a strange place, and its inhabitants even stranger. We either continue to be a product of a farsighted idea or build the bridges for our successors to be a part of.