|| Academic Paper |
During the previous century, the occurrence of two world wars and the realization of serious human impact on the environment have compelled states to mutually promulgate several series of treaties aimed at either protecting the environment or reducing the potential of war for terrible human suffering. In addition, cultural exchanges and the increase in the level of understanding among nations significantly contributed to the ratification of treaties that celebrate and protect human rights, historical/cultural sites, and natural wonders.
 |
Nuclear zoning as implemented by international treaties
|
Some notable treaties include the following:
- The Treaty of Nanking (1842). This treaty was signed as a result of the first Opium War waged by the Qing Dynasty of China against the United Kingdom, stipulating among other things, the cessation of Hong Kong and adjacent territories to British Rule. Successive treaties that expand and amended the original terms resulted to the return of Hong Kong and Kowloon to China in 1997.
- Convention Respecting the Free Navigation of the Suez Canal (Constantinople, 1888). This treaty seeks to provide safe passage to all ships regardless of nationality or allegiance and regardless of whether the territories surrounding it are in war or in peace.
- The Geneva Conventions (1864, 1906, 1929, 1949). These conventions seek to standardize the treatment of the victims of war. The terms of the conventions are comprehensive and have been updated by three protocols ratified in 1997 and 2005. The articles of these treaties defined the basic rights of military prisoners, established protection for any person wounded in armed conflicts, and sets the parameters by which civilians located in or near war zones can be protected. The 1949 treaty have been ratified by 194 countries.
- 4. The Charter of the United Nations (1945). This treaty establishes the United Nations as an international organization and granted it the seed policing, regulatory, legislative, and executive powers that it possesses. Ratified originally by 50 countries, The UN Charter is now recognized by 192 member states. Paramount among the terms of the charter is the provision that binds signatory states to accept the charter's pre-eminence over any other treaty or treaties the states have entered into.
- The General Agreement on Tariffs and Trade (1947). This agreement aimed to improve international commerce by reducing or standardizing tariffs imposed by countries on various commodities and products. In 1995, GATT was superseded and replaced by the World Trade Organization (WTO). While GATT was merely an agreement among signatory states, the WTO is an institutional body with mutually granted influence to supervise and liberalize trade not only among states but upon commodities and services that cross international borders.
- North Atlantic Treaty (1949). This is the treaty that established NATO as an international military alliance for mutual defense.
- The Warsaw Pact (1955). Formally called the Treaty of Friendship, Cooperation and Mutual Assistance, this pact has aims similar to the North Atlantic Treaty but was ratified by communist countries led by the former Soviet Union which were then ideologically opposed to the countries that make up NATO. The Warsaw Pact was formally ended in 1991 following the fall of communist governments in Europe.
- The Universal Declaration of Human Rights (1948). This declaration was signed by majority of the UN General Assembly and was executed primarily as a reaction to the atrocities committed by Germany during the second world war. The declaration aims to categorically state and cite the rights all human beings inherently possess and are entitled to.
- The Kyoto Protocol (1997). Ratified by 191 nations, this treaty aims to contain global warming by obliging some signatory nations to significantly reduce their emissions of greenhouse gases.
- Convention Concerning the Protection of World Cultural and Natural Heritage (1972). Ratified by 186 countries, this treaty established the UNESCO (United Nations Educational, Scientific, and Cultural Organization) World Heritage Site program that seeks to preserve specific places with significant cultural or natural importance. To date, 911 sites across the globe have been granted World Heritage Site status.
The 1969 Vienna Convention (1969)
As mentioned, nations have entered into bilateral or multilateral treaties for centuries in pursuing interests that coincide, conflict, or complement those of other nations. They did so whether in written form or verbally, with only an easily breached customary compliance to treaties binding signatory states to the treaty's terms and conditions.
As mentioned, nations have entered into bilateral or multilateral treaties for centuries in pursuing interests that coincide, conflict, or complement those of other nations. They did so whether in written form or verbally, with only an easily breached customary compliance to treaties binding signatory states to the treaty's terms and conditions.
To better regulate the execution and enforce the validity of international treaties, the 1969 Vienna Convention on the Laws of Treaties was drafted and ratified. Often called the "Universal Treaty on Treaties," the Convention seeks to institutionalize the way states create, enter into, ratify, and enforce international treaties. The scope of the convention is restricted to treaties mutually agreed on by states and does not cover treaties between states and international organizations or those ratified by international organizations.
Used as the benchmark for contemporary treaties, the Vienna Convention prescribes rules on the creation, signing, ratification, and methods on how to express reservations on specific treaty terms and conditions and how signatory states may respond to reservations.
Under what conditions does a treaty bind a state and enters into force?
States freely entering into treaties with other states assume the obligations required by the treaty and are liable to sanctions if they fail to meet the obligations. In modern usage, the ratification of treaties by mutually agreeing states legally binds the states to fulfill the terms of the treaty. However, while binding, treaties may be amended in various ways or, in some instances, may justifiably be terminated. In addition, a state may not be bound unless it has consented to be bound in the form of signature, exchange of instruments, ratification, and other expressed means. Blatant coercion frees the coerced state from the obligations of the treaty.
Article 11 of the Vienna Convention cites the methods by which states may be bound by a treaty:
"The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed."
States may be bound by tacit ratification. In particular, if a state claims particular rights based on the force of a treaty it has yet to ratify, it already tacitly agrees to the treaty and will be stopped from alleging that it is not bound by the very treaty it invokes.
States may also accede to a treaty even if they have not participated in its negotiation and ratification if they are so invited by the original signatories. This is the case of new NATO members such as Poland and the Czech Republic which have just joined after the fall of communism in Eastern Europe and were subsequently invited by NATO members to join the organization.
Generally, treaties are concluded and entered into force when all the negotiating states express their consent to be bound by its terms and conditions through the form of signature, ratification, exchange of letters, or other commonly accepted instruments. However, provisions-such as those that give ample period for some negotiating states to align their respective municipal laws with the parameters set by the treaty-may be delay the treaty's entry into force.
What motivates states to enter into treaties and what motivates them to enforce the treaties?
There are many reasons states enter into treaties but the paramount rationale is the pursuit of state interests-whether in terms of economic, security, or political benefits. Examples abound and include the following:
- North American Free Trade Agreement. This treaty among the United States, Canada, and Mexico, seeks to eliminate cross border trade barriers within the territories controlled by the signatories.
- Treaty of Rarotonga. This treaty is a strong statement on international security that also reflects the stance of the signatory states on the manufacture, storage, transport, and use of nuclear weapons. Also known as the South Pacific Nuclear Free Zone, the treaty denotes which countries also signed (but not necessarily ratify) the agreement: the United States, France, the United Kingdom, and China.
- The Timor Gap Treaty. This treaty, ratified by Indonesia and Australia, allows for the joint exploration of petroleum resources by the two parties in a disputed portion of the Timor Sea which are claimed by both countries.
For basically the same reasons they enter into treaties in the first place, states are motivated to ensure that treaties are enforced because-unless the circumstances necessitating the ratification of the treaty change dramatically-it is in their best interest to do so. Historically, breaches in treaty terms are not uncommon but following the codification of treaty rules by the Vienna Convention and the growing influence of the United Nations, states which do not enforce the treaties they are party to significantly lose credibility in the international community.
A treaty binds participating states once it is concluded and entered into force through signing or ratification. Treaty signing involves delegates of participating states who have been authorized to represent, negotiate, provisionally accept, and perform other functions that will facilitate the treaty process. In essence, the signing process is a formal expression of the agreement of participating states on the provisions stipulated in the final draft of the treaty. By signing the treaty, the state agrees to be bound by the terms provided by the treaty.
As stipulated by the Vienna Convention on the Law of Treaties, the instruments of ratification establish a state's consent to be bound by the treaty upon:
- the exchange of instruments among concerned parties
- the instruments are with the depository body
- the concerned state or depository body is duly notified
In addition to actual signing or ratification, some treaties have provisions allowing for the process of accession as a way by which states may also be bound to a treaty. Accession allows states which have not been party to a treaty negotiation to also uphold and be committed to the treaty's terms and conditions. The acceding state may immediately be bound to the treaty without the need to have it ratified.
Full commitment to a treaty involves two related stages:
- Provisional Acceptance - this denotes a state's official consent to the wording of a treaty's final draft (its essence in principle) as expressed by the signature of the state's authorized delegates.
- Final Acceptance - this denotes states' willingness to be legally bound to a treaty as expressed by state ratification. Ratification provides time for each participating state to-
- implement necessary changes to its domestic laws in order to implement the treaty
- obtain consent from its legislative agencies such as parliaments or senates that might be constitutionally required to review and conform to international treaties
- reexamine the treaty provisions before giving its complete commitment
Tacit ratification occurs when a state executes a treaty without formally ratifying it. An example is the United States Charter which was signed by more than 190 sovereign states including Israel. Some states-mostly Arab countries-have refused to attribute statehood to Israel. For the Arab states which have not formally expressed reservations on the issue of Israel's statehood, there exists a tacit recognition by their signing of the UN Charter which regards Israel as a state.
From this cases, the concept called passive gratification applies, wherein a treaty is only partially ratified. In the US, treaty ratification involves close coordination between the Executive branch of government and the Senate. Ratification requires a 2/3 of Senate votes. A treaty is not ratified if it fails to meet this threshold even if it generates majority support. An example is the Treaty of Versailles which-shortly after the end of World War 1-was twice sent to the Senate for ratification but was also twice rejected and never ratified.
A treaty's coming into force largely depends on its expressed provisions. In multilateral treaties, the manner and date of entry into force requires a minimum number of ratifications being consolidated at a singular repository such as the United Nations. The International Convention for the Protection of All Persons from Enforced Disappearance, for example, was adopted in 2006 by the UN General Assembly and entered into force only in 2010 when 20 states had it ratified. In this case, states that are yet to ratify the treaty are not bound to it even after its entry into force. These states, however, may still be bound to the essence of the treaty provided the provisions reflect existing practices in the international community.
Termination of Treaties
There are a number of factors which can cause one or more signatory states to terminate or a treaty. These include:
- Stipulation of the treaty's effective duration in the terms and conditions of the treaty itself. For example, the provision for foreign military bases within the territory of an independent state often require the period of provision (30 years, 50 years, and so on) to be clearly stated in the document. One example of treaties with a clarified period of effectivity is the Sino-British Joint Declaration on the Question of Hong Kong, entered into by China and the United Kingdom in 1984 which stipulated the transfer of sovereignty of formerly ceded territories of Hong Kong and Kowloon back to China in 1997.
- Termination by consent of the parties. An example was the termination of the treaty that created and governed the League of Nations. The treaty-the League of Nations Treaty Series-was published beginning in 1920 and terminated in 1946 following the dissolution of the organization just after the second World War (1941-1945). In its stead, the United Nations was established.
- Breach of Treaty terms. A breach of the treaty does not automatically mean nullification or termination of the treaty. However, material breaches as defined by the Vienna Convention grants the aggrieved parties the right to suspend or terminate a treaty. One famous example of a breached treaty is the Molotov-Ribbentrop Pact between the Soviet Union and Germany and executed in the years just prior to the Second World War. The secret treaty allocates divides Europe into Soviet and German spheres of influence in anticipation of political realignments within affected countries. Nazi Germany breached the treaty in with its invasion of the Soviet Union in June 1941, thereby terminating the treaty of non-belligerence between the two countries. The Soviet Union initially denied the existence of the treaty and it was only in December 1989 that the Soviet Union confirmed as well as condemned the existence of the treaty.
- Impossibility of performance. This is recognized by the Vienna Convention but is rarely used by states to terminate treaties since the fundamental change in circumstances as a ground for termination is used instead. One hypothetical example as cited by Malanczuk and Akehurst is a treaty where there's a provision for a river's water to be used for irrigation. In this case, if the river dries up, irrigation would be impossible to deploy using the particular river stipulated in the agreement. The parties to the treaty then have the option to have it terminated due to impossibility of performance.
- Fundamental change in circumstances. Treaties are also terminated when conditions they were primarily ratified to address have changed radically that their implementation and very existence is rendered unnecessary. The Treaty of Friendship, Cooperation and Mutual Assistance, more commonly known as the Warsaw Pact, for example, was terminated following the end of the Cold War Era it was primarily established for. Spearheaded by the Soviet Union and ratified by communists states as a defensive alliance against any military attack from the Western Powers forming the NATO block, the Warsaw Pact was terminated by Czechoslovakian writer and president Vaclav Havel following the fall of communism in Europe and shortly before the dissolution of the Soviet Union in 1991.
- The emergence of a new preemptory norm. In international law, preemptory norm refers to a basic principle that is universally accepted by the community of states and which cannot be violated. In modern times, preemptory norm prohibits genocide, apartheid, slavery, torture, maritime piracy, and wars of aggression and territorial expansion. According to the Vienna Convention, any treaty that runs counter to the preemptory norm is void. 19th century treaties on the slave trade are historical examples of agreements that have become diametrically opposed to the then emerging preemptory norm (re: abolition, emancipation of enslaved people) and can have no place in the present social paradigm.
Conclusion
In the contemporary period, treaties play a significant role in the interaction and cooperation of states towards the attainment of mutual interests-whether for economic, political, or security gains. As the peace accords and protocols on the environment have shown, treaties constitute a major step towards addressing the most volatile and delicate regional and global issues. Certainly in many cases, a lot more are to be desired and worked out, but just bringing a community of nations (some of which are ideologically, historically, or culturally antagonistic to each other) to the treaty negotiating table is a steady step towards universal human aspirations such as peace and ecological balance. This is because treaties in themselves connote and demand commitment not only from the nations who drew them up but also from nations who may not have participated in their negotiation and ratification but have tacitly-and in principle-acceded to their precepts.
