The Law of Treaties
| Author | John H. Currie |
| Profession | Faculty of Law University of Ottawa |
| Pages | 103-159 |
CHAPTER
THE LAW OF
TREATIES
A.
NATURE
AND
IMPORTANCE
OF
TREATIES
As
described
above,1
treaties
are
express
and
usually formalized agree-
ments between states
—
they
set out the
parties' mutual legal rights
and
obligations,
and are
governed
by
international law. They
may
take
the
form
of
reciprocal undertakings between
as few as two
states ("bilateral"
treaties),
or
more generalized agreements adhered
to by
several
or
even,
on
occasion, most states
in the
world ("multilateral" treaties). Their
subject
matter ranges
from
very
specific
undertaking-and-performance
agreements
between states
—
akin
to
domestic
law
contracts
and
there-
fore
sometimes called "treaty-contracts"
— to
broad codifications
or
restatements
of
certain substantive areas
of
international law,
designed
to
govern
the
ongoing conduct
of all the
parties
in the
relevant subject-
area
(sometimes called "law-making"
or
"codification" treaties).
Treaties
are
thus
supple legal tools
in the
hands
of
states, permit-
ting them
to
enter into individual relationships with other states
on
very
specific
issues
or
projects,
or to
establish widely applicable
norms
intended
to
govern legal relationships with
as
many other states
as
will
expressly agree
to
their terms. Indeed,
in the
twentieth century states
have
even made
use of
treaties
to
reshape
and
redefine
the
structure
of
the
international legal system
itself.
For
example,
the
United Nations,
1 See
above
Chapter
3
(C)(2).
103
4
104
PUBLIC
INTERNATIONAL
LAW
with
its
enormous institutional apparatus, including
the
International
Court
of
Justice,
is
merely
the
product
of one of the
most successful
and
widely
ratified
multilateral treaties
of all
time,
the
Charter
of
the
United
Nations
and its
annexed Statute
Justice.2
Thanks largely
to
such institutional innovations, treaties have
had
pride
of
place
in
developing
and
clarifying
international
law in the
twentieth century. Previously, customary international
law was
clearly
the
primary source
of
generally applicable international norms, early
treaty
practice being largely bilateral
and
situation-specific
in
nature.
This
began
to
change
in the
late
nineteenth
and
early twentieth centu-
ries with
the
elaboration
of
broader-based treaty regimes, mostly con-
cerned with
the
conduct
of war and
humanitarian
law.3
The
last
half
of
the
twentieth century, however, witnessed explosive growth
in the
number
of
multilateral codification
or
law-making treaties
in
virtually
all
areas
of the
law.
As
suggested above,
this
phenomenal growth
can be
attributed
partly
to the
establishment
of
international institutions such
as the
United Nations
and its
agencies, which have provided permanent
fora
for
the
negotiation
of
such broad-based agreements.
Of
particular
importance
to
this process
has
been
the
work
of the
International
Law
Commission
(ILC),
established
by the
General Assembly
of the
United
Nations
in
1947
in
partial
fulfilment
of its
mandate
to
"encourage
the
progressive development
of
international
law and its
codification."4
The
ILC
has
been
at the
forefront
of the
"codification" movement, steadily
producing
draft
texts
in a
variety
of
fields,
texts that have served
as the
starting point
for
state negotiations leading
to the
conclusion
of
some
of
the
most successful multilateral
treaties.5
The
rise
in the
relative importance
of
treaties
as a
source
of
gener-
ally applicable international
law can
also
in
part
be
attributed
to the
peculiar advantages
offered
by
treaties
as
law-making devices. These
2
Charter
of
the
United
Nations,
26
June
1945, Can. T.S. 1945
No. 7
(entered
into
force
24
October
1945)
[hereinafter
UN
Charter];
26
June 1945, Can. T.S. 1945
No. 7
(entered
into
force
24
October
1945)
[hereinafter
1C]
Statute}.
3 For
example,
Convention
for the
Pacific
Settlement
of
International
Disputes
(Hague
I),
29
July
1899,
reproduced
in
J.B.
Scott,
The
Hague
Peace
Conferences
of
1899
and
1907,
vol.
II
(New
York:
Garland,
1972)
at 80; and
Convention
Respecting
the
Laws
and
Customs
of
War on
Land
(Hague
IV),
18
October
1907,
reproduced
in
ibid,
at
368.
4 UN
Charter,
above
note
2,
Article
13(1).
See
also
above
Chapter
3
(D)(2).
5 For a
more
thorough
overview
of the
mandate,
procedure,
and
work
of the
ILC,
see the
International
Law
Commission's
homepage
at
index.htm>.
The
Law of
Treaties
105
include
the
speed
and
clarity with which
the law may be
codified,
cre-
ated,
or
advanced, which
has
been important
in
accommodating
the
dramatically increased intensity
and
breadth
of
international discourse
since
the
Second World War.
Given their requirement
of
express consent, moreover, treaties
dovetail neatly with positivist notions
of the
source
of
binding obliga-
tion
in
international law. They represent
the
ultimate embodiment
of
the
theory
of
consent
and
thus
of the
sovereignty
of
states.6
As
such,
states
may
feel
they
are
"taking charge"
of
their
own
legal obligations
by
participating
in
multilateral treaty negotiations, thus providing
yet
more momentum
to the
multilateral
treaty
juggernaut.
Numerous
terms have been coined
to
refer
to
treaties
in one
form
or
another,
the
most common
of
which include "conventions," "char-
ters," "covenants," "protocols," "pacts," "acts," "statutes,"
or,
simply,
"agreements."
While
various
factors
will influence states
in
their
choice
of
title
for any
particular treaty,
the
term used
has no
legal sig-
nificance
in
itself.
All
treaties, whatever their designation,
and as
long
as
they
represent
the
express will
of the
parties
to be
bound
by
their
terms
in
accordance with international law,
are
equally binding upon
the
parties.
B.
THE
It is one of the
ironies
of
international
law
that
the
legal rules govern-
ing the
formation,
legal
effects,
and
dissolution
of
treaties have
for the
most part evolved
as a
matter
of
customary international
law.7
Through
the
centuries states have,
by
their conduct
and
attitude, confirmed that
an
express agreement between them must
be
honoured
in
good
faith.
6 See
above Chapter
3.
Even this most
positivist
of
formal international legal
sources
has a
natural
law
seam
running
through
it,
however.
Although
states
are
only
bound
by
treaties
to
which
they expressly consent, once that consent
is
unconditionally given
it
cannot unilaterally
be
withdrawn.
The
fundamental rule
that treaties must
be
performed
in
good
faith
(see further below Section G(l),
"Pacta
Su.nl
Servanda)"
is a
clear derogation
from
the
theory
of
consent:
see
above
Chapter
3
(C)
(2).
7
The
role
of
domestic
law is of
course also important
in the
treaty formation
process,
but
this
chapter focuses solely
on the
international legal rules governing
treaties.
The
significance
of
domestic constitutional orders
on
treaty formation
and
implementation will
be
discussed below
in
Chapter
6.
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