Treaty: An Agreement Between Parties on the International Scene - Assignment Example

?International Law: “A Treaty Is Basically An Agreement Between Parties On The International Scene. Although Treaties May Be Concluded, Or Made, Between States and International Organisation, They Are Primarily Concerned With Relations between States” Table of Contents Literature Review 4 Discussion 7 Conclusion 12 References 13 Introduction A treaty if often referred as an agreement under the obligatory of an international law between two or more states sharing similar interests but possessing unique characteristics. A treaty is an official written agreement by which individual states tend to legally bind each others. It is also known as convention, protocol or exchange of letters among the partnership states. The International Law of Treaties is a set of guidelines, rules and regulations that comprises procedures, operations, termination guidelines, modifications and invalidity concerns related to treaties signed between two or more states. Sources of international law are referred as materials as well as procedures by which a state tends to impose certain guidelines and rules in order to regulate the international trade community. Moreover, international law is also characterised as a kind of obligation which exists between two or more states. It comprises international institutions which play major roles administrating the issues regarding legal matters in terms of global telecommunication, human rights and ‘the law of the sea’. It is a decentralized form of law which is developed by the states generally in the form of global conferences, treaties and usual international law enactments1. Based on this context, the study concentrates on the nature and operation of the treaties as a valid source of international law. Literature Review It is in this context that various studies have been conducted with the sole intention to understand the implications of international law in relation to the treaties signed by two or more states. At a larger context, the treaties are observed to impose significant impacts upon the inter-state relationship, in relation to which, international law practices also play an influencing role acting as principles or rather guidelines for treaties. It is in this context that Kennedy (1987) states certain doctrines regarding the sources of international law studied by various scholarly writers concentrating on the conditions under which treaties and basic guidelines of the law acted as a hierarchy. As stated by Kennedy (1987), the ‘International Court of Justice (ICJ)’ whose operation is determined according to the international law, court is bound to be applied under the four sources i.e., ‘global conference’, ‘international custom’, ‘general guidelines of the law’ and ‘judicial decisions’. Notably, all these four sources have been mentioned in Article 38(1) of the Statue of the ICJ. Moreover this article also states that as per the enumeration of these sources, ICJ should be scrutinized in order to find the necessary legal concerns to resolve the cases of the states involved through treaties2. According to D’Amato (1962), treaties are often enacted as a source of ‘General Rules of the International Law’. It is in this context that the example of the ‘Nottebohm Case’ which took place in the year 1955 is regarded as a significant illustration of ICJ’s judgements regarding treaties. Undoubtedly, this case has been considered as an isolated instance regarding the utilization of the treaties. It was fundamentally owing to the reason that this case was related with the report regarding the international tribunals where one party(s) supports the argument of the treaty while the other party(s) perceives a contradictory view concerning similar aspects. In addition, D’Amato (1962) affirms that customary international laws only recover the small section of the global functioning norms and frequently concentrate upon the interference of rules and regulations of the treaty within the field of customary practices. In modern times certain areas of international law has developed drastically encouraging greater emphasize by the treaties. . Furthermore, treaties also help to developed innovative international rules regarding the sovereignty of the particular nation. This sovereignty law further tends to bind all the associated nations where they should follow their individual international statutory rules in order to make successful acceptance of the treaty. Multilateral as well as bilateral treaties are also observed to be linked with this category of sovereignty laws where wide number of regulations and the ‘rule-making’ possibilities is considered as a significant concern4. In this similar context D’Amato (1962) states that international rules are enacted as an interpretation of the treaties which are perceptible towards the customary rules. Contextually, international law specifies that a treaty is acted as a binding rule among two or more communities3. According to Sangroula (2001), the features and the significance of international treaties can be considered as valid sources of international law. Correspondingly, it can also be affirmed that to a certain extent, global treaties were responsible for the development of the international rules and standards of the states where other global communities become interlinked and follow similar rules. Contextually, international treaties can also be treated as the indication for the creation of global rules implying uniformity and facilitated cooperation within states which are again debated as increasing significant in the recent phenomenon of world politics. In addition, Sangroula (2001) also states the three importance spectrums which can be considered as fruitful evidences regarding the creation of international laws in relation to signing treaties, engaging two or more states with the sole intention to enhance inter-state relationship through mutual interdependency which can be illustrated as the enforcement quality, universality, and ethical considerations. Correspondingly, one of the significant weaknesses that can be recognized regarding the implementation of treaties is related with ‘enforcement quality’ which apparently signifies the intention of such international partnerships within states. It is worth mentioning in this regard that in majority instances treaties were observed to facilitate strategic partnerships among states such as the North American Free Trade Agreement (NAFTA)4 and General Agreement on Tariffs and Trade (GAAT)5. However, the practice of international treaties were also criticised by Sangroula (2001), affirming that since ancient periods, treaties had been recorded to fail and therefore lead to the conclusion of inter-state partnerships. Hence, focusing on this particular aspect, it can be stated that treaties cannot be considered as quite effective tools to preserve better growth through inter-state relationships in terms of its ‘enforcement qualities’6. Another spectrum identifiable in relation to the practicing of international treaties concentrates upon expanding as well as institutionalizing the ‘universality’ of human rights as one of the essential attainments by the international treaties, especially following from the year 1945. Human rights rules related with international conventions have obtained wider commendation and enforcement ability which can again be signified as considerable sources of international law enactments. Contextually, one of the major attributes related with these treaties is considered as a ‘treaty mechanism’ which provides reliable sources for the international law practices7. Correspondingly, the other spectrum is when treaties develop certain obligatory rules for the parties engaged in terms of relevant ethical considerations. Prior to the implementation of the treaty, it is necessary for the involved states to recognise the beliefs and perspectives of community people which are considered as significant sources from an ethical viewpoint8. Discussion Treaties as well as global conferences altogether comprise two principle sources, which can be identified as the public global law and the customary international law. Public global law can be referred as the body of the law which is created as an essential part of the guidelines and rules where the intra-community players of the states deem themselves compelled to observe their relation with each other. While on the other hand, customary international law has been conventionally concerned with the relations of self-governing and autonomous states. Moreover, implications of international law are also concerned with the rules which are governing global organizations playing a major role in maintaining the relations among the states and the individuals. In case of ‘Cross-over’ situations, a state is forced to accept a treaty provision even if that particular state is not a party of the already implemented treaties concentrating upon the similar issue. Furthermore, it has been observed that the primary objectives of international treaties are to control the role of the states and create beneficial agreements between two or more nations which might influence the laws relating with the human rights. It is necessary to consider in this regard that the role played by customary international laws in order to effectively comprehend the core functionalities and the nature of the treaties and other global agreements regarding the international relation of the states. Therefore, it can be observed that initially treaties and international conventions are formally hand written and enter into a state through a process of signature, negotiation and their ultimate approval, which is then deemed as subjected to customary global laws to be developed as the outcome of beliefs and shared practices of the states9. Contextually, international law is implemented for the states through which the ‘self-help’ initiatives are considered in order to implement their obligations within the international law. It is worth mentioning in this regard that since many decades, the mechanism of ‘self-help’ was considered as the outcome of the war between the nations or states creating a deep impression upon their economic concerns. In this similar context, international law has the ability to identify the rules and regulations of the states through which the community people are observed to be fully engaged. This aspect is often considered as a lawful counter-measure which is underlying from the breaking of political relation to the impositions towards authorization of the treaty10. There are three main types of treaties which can be established on the basis of the international law, i.e. ‘general multilateral treaty’, ‘regional multilateral treaty’, and ‘bilateral treaty’. Correspondingly, general multilateral treaty is regarded as a kind of treaty which is open for all the international states of the nation. The treaty, also known as ‘regional multilateral treaty’, is generally implemented for the large regional groups of a state. Another type of treaty helps to establish a kind of combined mechanism through which states can control or direct the community regarding a particular activity. Contextually, the third type of treaty is known as ‘bilateral treaty’ which is developed among the small numbers of communities of a state. This treaty is generally considered as contractual terms where the parties equally exchange both compulsion as well as rights11. International laws are hereby observed to be developed in different forms that direct and manage relationships among the various social groupings comprising tribes, social classes’ independent cities and states of a country. By taking into concern, the obligatory nature of international treaties, one primary issue has emerged as a vital concern in terms of state sovereignty. For example, a conference held in the year 2003, focusing upon the treaties between Australia and United Kingdom acknowledged that the agreement will be concentrated towards ensuring avoidance of double taxation as well as averting fiscal evasion which might impose negative impacts on the economic growth of both the states12. Based on this context, it can be affirmed that to a certain degree, the treaty signed in the year 2003 between Australia and UK, was philosophically guided by the notion towards enhancing inter-state relationship through economic security and stability. It is worth mentioning in this context that treaties are signed in accordance to any of the three types of international laws such as ‘Public International Law’, ‘Private International Law’ and ‘Foreign Law’. Contextually, these laws are to be considered when the treaty is being signed between two or more states in the international platform. Similarly, ‘Public International Law’ direct and maintain the relationship among the governmental bodies of two or more states, where the intergovernmental organizations, relevant human rights related issues, global trade and the issues related with intellectual property rights are taken into consideration. Correspondingly, ‘Private International Law’ directs and manages the options specified in the treaty when a disagreement within the international states is recorded. Unlike the aforementioned two categorisations of international laws, ‘Foreign law’ is considered as a law of autonomous nation which describes the responsibilities of the government related with the community people where they attempt to govern and maintain a healthy relationship among the people13. Article 38(1) of the International Court of Justice (ICJ) is primarily considered as a definitive statement in relation to the sources of the international law. Under this article, it is necessary for the court to apply on the basis of the four aspects discussed henceforth. Firstly, ‘global conferences’ are considered to be the foremost and a vital aspect, by which courts expressively tend to identify the rules and policies of the participating states. Secondly, ‘international custom’ is considered as evidence in this context, emphasising upon the implementation of the statutory procedures which has already been accepted by the states. Thirdly, ‘general guidelines of the law’ applied by the court which was already been recognized by the national citizen of a state is regarded as another crucial aspect by ICJ. Fourthly, it is acknowledged in this regard that the court should be permitted with the flexibility in making ‘judicial decisions’ in relation to the establishment, continuation or conclusion of a treaty with the help of highly knowledgeable juristic writers which can further reward greater advantages to the parties in effectively obtaining the complete benefits from the agreement14. Under the United Nation (UN) human rights treaties, most of the UK’s reservation appeared as a contradictory to the country’s obligatory rules under the principles mentioned in ‘European Convention of Human Rights (ECHR)’. To be illustrated, International Covenant on Civil and Political Rights (ICCPR) reservation focuses on the liberty and responsibilities rendered to the armed forces to operate within the states associated through treaties. Again, the Committee on the Elimination of Discrimination against Women (CEDAW) reservation basically focuses on pension schemes and its benefits involving female populaces. However, it can be observed in this regard that all these reservation schemes do not relate with the principles mentioned under ECHR denoting an additional dimension of the interstate relationship between the states grouped as UN. Contextually, such additional concerns have often been criticised in the international context as inspired by UK’s aspiration to defend itself from unwanted immigration, thereby segregating itself from the other states of the global platform15. It becomes quite apparent in this regard that even if treaties are not signed with the sole intention of facilitating interstate relationship through mutual benefits in economic or social terms, these international trade laws related instruments do have a significant effect on determining the global position as well as the aspirations of the engaged states in the international context. Conclusion In today’s world, the necessities of international treaties are often deemed to be quite essential regarding the independence of the states interrelated through the agreement. At present scenario there is ongoing development of technological innovation, globalisation, economic downturn and emergence of transition which is the outcome of drastic increase regarding the rapidity of global interaction. Hence, in this scenario, treaties can be observed as playing a crucial role in order to maintain a peaceful global interaction. The idea that emerges from the overall discussion is that international treaties play the role of a significant source when implementing or rather practicing as well as configuring the already enacted the international statutory regulations. At the ground level, the sources of the international law are generally influenced by the community people of the nation in order to seek the contents of the treaties mentioned under the Article 38(1) of the ‘Statue of the International Court of Justice’. Most of the juristic writers agree with the sources which are mentioned in this Article. References Australian Government: Department of Foreign Affairs and Trade, ‘Treaty Making Process’ [2012] (Treaties, the Constitution and the National Interest) accessed 22 December 2012. Anthony D'Amato, ‘Treaties as a Source of General Rules of International Law’ (1962) Harvard International Law Journal 1, 43. Australian Taxation Office for the Commonwealth of Australia, ‘Australia and the United Kingdom Treaty - Key Points’ [No Date] (Tax Treaties) accessed 22 December 2012. David Kennedy, ‘The Sources of International Law’ (1987) 2(1) American University International Law Review 1, 96. Florida Coastal School of Law, ‘International Law: The Basics’ [2012] (Library & Technology Center) accessed 22 December 2012. J. Craig Barker, ‘Mechanism to Create and Support Conventions, Treaties and Other Responses’ [2004] (The Binding nature of the International Law) accessed 22 December 2012. Liberty: Protection Civil Liberties and Promoting Human Rights, ‘Review of the UK’s Reservations to International Human Rights Treaty Obligations’ [2012] (International Legal Principles governing Reservations) accessed 22 December 2012. Office of the United States Trade Representative, ‘North American Free Trade Agreement (NAFTA)’ [No Date] (Free Trade Agreements) accessed 22 December 2012. WTO, ‘The General Agreement on Tariffs and Trade’ [1986] (Text of the General Agreement) accessed 22 December 2012. Yubaraj Sangroula, ‘International Treaties: Features and Importance’ [No Date] (Kathmandu School of Law) accessed 22 December 2012. Read More