Treaty making process

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What is a Treaty?
Treaties, the Constitution and the National Interest
Negotiating and implementing Treaties

What is a Treaty?
A treaty is an agreement between States (countries) which is binding at international law. In some cases
international organisations can be parties to treaties. An agreement between an Australian State or
Territory and a foreign Government will not, therefore, be a treaty. Even if a document is agreed between
two or more sovereign countries, it will not be a treaty unless those countries intend the document to be
binding at international law. A treaty may also be called a treaty', convention', protocol', covenant' or
exchange of letters'
Treaties can be bilateral - between Australia and one other country. An aviation agreement between
Australia and the United States is one example. Multilateral treaties are those between three or more
countries: an example is the United Nations Charter. Multilateral treaties are generally developed under
the auspices of international (inter-governmental) organisations such as the United Nations or the
International Labour Organisation, but regional multilateral treaties (like the Convention for the Protection
of the Natural Resources and Environment of the South Pacific Region SPREP') are of growing
importance for Australia.
Frequently, declarations', such as the Declaration on the Rights of the Child, are adopted by the UN
General Assembly. However, those declarations are not treaties as they are not intended to be binding by
reason of their adoption. Such declarations may, however, be part of a long process that leads ultimately
to the negotiation of a UN convention such as the United Nations Convention on the Rights of the Child.
They may also, in certain circumstances, assist in the interpretation of a treaty, as is the case with the
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among
States (1970).

Why are Treaties necessary?

Arguably, the need for treaties has increased as the world's interdependence has intensified. Continuing
technological innovation, economic globalisation and the growth of transnationalism has resulted in an
enormous increase in the frequency and rapidity of global interaction. Such challenges require both
national and international responses. Where a problem cannot be adequately addressed by a country
acting alone (for example, in relation to ozone depletion or the depletion of migratory fish stocks), acting
cooperatively at the international level becomes essential for a country to protect its own interests.

What subjects are covered by Treaties?

In recent decades, the issues subject to treaties have expanded. Australia is a Party to agreements on
postal, shipping and social security and health arrangements, defence and security, nuclear nonproliferation, the environment, civil aviation, maritime delimitation, technological exchanges, and
agreements designed to establish universal standards in relation to the treatment of civilians in time of
war. Australia has also invested considerable energy into outlawing the use of weapons of mass
destruction, and into various aspects of law of the sea and the international trading system. The need for
global rules on the protection and promotion of human rights, education, the environment, wildlife and the
world's cultural and natural heritage is now widely accepted. Most recently, the establishment of effective
international regimes to combat criminal activity which does not respect national borders, including
terrorism, has taken on a new urgency.

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Treaties, the Constitution and the National

Interest
The power to enter into treaties is an executive power within Section 61 of the Australian Constitution and
accordingly, is the formal responsibility of the Executive rather than the Parliament. Decisions about the
negotiation of multilateral conventions, including determination of objectives, negotiating positions, the
parameters within which the Australian delegation can operate, and the final decision as to whether to
sign and ratify are taken at Ministerial level, and in many cases, by Cabinet.
As well as providing certainty, Australia's constitutional system also ensures that checks and balances
operate. This occurs through Parliament's role in examining all proposed treaty actions and in passing
legislation to give effect to treaties and the judiciary's oversight of the system. This efficiency and certainty
of process enables the Government to negotiate with its overseas counterparts with authority and
credibility, and contributes to Australia becoming a source of influence in the treaty's negotiation.
Bilateral agreements that conform to a model text previously approved by Cabinet are normally not
subsequently referred to Cabinet. These types of agreements include Investment Promotion and
Protection Agreements, Mutual Assistance in Criminal Matters Treaties, Extradition Treaties and Aviation
Agreements. They are, however, considered by Ministers prior to approval being given by Federal
Executive Council for signature of the treaty.

Isn't there something undemocratic about treaty making

being in the hands of the Executive?
Although the Constitution does not confer on the Parliament any formal role in treaty making, all treaties
(except those the Government decided are urgent or sensitive) are tabled in both Houses of Parliament
for at least 15 sitting days prior to binding treaty action being taken. A treaty is generally tabled after it has
been signed for Australia, but before any treaty action is taken which would bind Australia under
international law. Such action would include entering into a new treaty, negotiating an amendment to an
existing treaty or withdrawing from a treaty.
Treaties are tabled in the Parliament with a National Interest Analysis (NIA) which notes the reasons why
Australia should become a party to the treaty. Where relevant, this includes a discussion of the
foreseeable economic, environmental, social and cultural effects of the treaty action; the obligations
imposed by the treaty; its direct financial costs to Australia; how the treaty will be implemented
domestically; what consultation has occurred in relation to the treaty action and whether the treaty
provides for withdrawal or denunciation. Tabled NIAs are included in the Australian Treaties Library.
Treaties which affect business or restrict competition are also required to be tabled with a Regulation
Impact Statement (RIS).
The Joint Standing Committee on Treaties (JSCOT) considers tabled treaties. The Committee can also
consider any other question relating to a treaty or international instrument that is referred to it by either
House of Parliament or a Minister.
Since negotiations for major multilateral treaties are generally lengthy and quite public, parliamentary
debate often takes place as the issues become publicly known. For example, as the Climate Change
Convention was negotiated over a period of years, issues associated with the draft convention were the
subject of questions without notice, questions on notice, and debate. In cases when implementing
legislation is necessary prior to ratification, Parliament has a further opportunity to debate a treaty.

Why are international treaties important to Australia?

Australia participates in treaty making because it is in the national interest to do so. If the projection of
military and economic power were the main means by which national objectives were pursued, Australia
would be vulnerable. Our geographic isolation and small population would be seen as a weakness.
Nations, particularly States with a relatively small population such as Australia, benefit from a world where
interaction between countries takes place within a framework based on fair, agreed and transparent rules
as agreed in treaties. Australia is not a member of any single rigid regional grouping; rather, we build
global or regional alliances and through them, seek to influence the standards by which international
relations are conducted.

How can Australia influence the terms of these treaties?

International conventions bring considerable benefits in a wide range of areas to individual nations,
particularly small and middle-sized countries. Australia has its say in the drafting of these treaties by
becoming involved in the international fora in which they are negotiated. As a middle ranking power,
Australia's negotiating resources are finite. As a consequence, successive Governments have often
sought to build international coalitions to advance our national interests. For example, in the Uruguay
Round of GATT negotiations, the Cairns Group, a coalition of likeminded agricultural exporting nations led
by Australia, achieved a favourable outcome on agriculture, which brought Australia well over $1 billion
per annum in increased agriculture exports and contributed to an increase in Australia's exports by $5
billion and in Australia's gross domestic product by $4.4 billion by 2002.
Australia has also helped shape a revised Law of the Sea Convention, in the process, gaining sovereign
rights over extensive areas of sea and continental shelf. In the field of disarmament, Australia put together
a comprehensive draft of a Chemical Weapons Convention and through active diplomacy, was
instrumental in achieving a convention now approaching universal acceptance. Australia played a similar
catalytic role in relation to the Comprehensive Test Ban Treaty, which aims to ban the testing of nuclear
weapons.
Treaties also provide for international cooperation on law enforcement, such as in relation to drug
trafficking; establish resource management regimes to encourage sustainable development, and enhance
global and regional security, all of which benefit Australia.

Does ratification of international treaties result in a loss

of sovereignty?
Ratification of international treaties does not involve a handing over of sovereignty to an international
body. Treaties may define the scope of a State's action, and treaties which Australia ratifies may influence
the way in which Australia behaves, internationally and domestically. Implicit, however, in any Australian
decision to ratify a treaty is a judgement that any limitations on the range of possible actions which may
result are outweighed by the benefits which flow from the existence of a widely endorsed international
agreement.
The Government also retains the right to remove itself from treaty obligations if it judges that the treaty no
longer serves Australia's national and international interests.
Some treaties establish a committee, which receives reports and monitors the implementation of
obligations flowing from the treaty by States Parties. One such treaty body is the United Nations Human
Rights Committee, which is responsible, among other things, for monitoring States Parties'
implementations of their obligations under theInternational Covenant on Civil and Political Rights
(ICCPR). But any assessments such treaty bodies make are of an advisory nature only. They are not
binding and the Human Rights Committee has no enforceable legal jurisdiction over nation states which
have acceded to the ICCPR or its First Optional Protocol.

Consultation
The Government's decision on whether a treaty is in the national interest is based on information obtained
during consultations with relevant stakeholders. Consultation does not take place merely so that those
with an interest feel included in the process. The practice is to provide information about the treaty in
question and, if possible, develop a consensus within the community before taking definitive treaty action.
Inevitably, the final decision necessarily involves a balancing of competing interests.

State and territory governments

The State and Territory Governments are a primary focus of the consultation process. Many international
treaties need State and Territory cooperation for their domestic implementation and, accordingly,
discussions with State and Territory Governments occur at many levels ranging from that of experts to
standing Ministerial Committees.
Another important mechanism for federal/state consultation is the Commonwealth-State-Territory
Standing Committee on Treaties (SCOT) which consists of representatives from the Premier's or Chief
Minister's Departments in every State and Territory. SCOT is chaired by a senior official of the Prime
Minister's Department and also has representatives from the Department of Foreign Affairs and Trade and
the Attorney General's Department. This committee receives on a biannual basis a Treaties Schedule
listing all international treaties that Australia is currently negotiating or which are under review. State and
Territory representatives have the opportunity to seek further details, offer views and comments, and flag
those matters on which they wish to be consulted or to improve the consultative mechanism.

Industry and other interest groups

Consultation with industry bodies and interest groups spans a wide range of processes, from standing
bodies to informal methods. The Department of Foreign Affairs and Trade (DFAT) holds formal
consultations with Non Government Organisations (NGOs) interested in international human rights issues
where international instruments are on the agenda. The National Consultative Committee on Peace and
Disarmament considers arms control issues, and the Trade Policy Advisory Committee enables the
business community's interests in trade policy negotiations to be reflected in Government positions.
Community consultation outside these standing arrangements is, however, an ongoing process. There
are numerous other occasions and forums offered by DFAT at which interest groups or individuals have
opportunities to seek information or raise concerns about the treaty process.

Enhancing consultations
It is not always possible to know all the community groups which might wish to contribute to the process
of setting Australia's objectives and positions. To facilitate public input, the Government prepares a list of
all multilateral treaties currently under negotiation or review which can be found on the Australian Treaties
Library Internet site. The list is updated approximately twice a year and tabled in both Houses of the
Commonwealth Parliament. The list includes the name of the contact officer in the responsible
Department to whom comments or questions can be directed for each treaty under negotiation. This
provides greater transparency in the treaty making process and ensures that interested groups and
individuals are in a position to contribute freely to Australia's negotiating position.
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Negotiating and implementing Treaties

NGO and state and territory participation

Since expert, technical views are often needed by officials at international negotiations, representatives
from the States, Territories, industry groups and other NGOs often serve as advisers to Australian
delegations. These advisers are in a position to report back to their organisations on the room for
manoeuvre for Australian initiatives and positions. This process is frequently employed when key new
multilateral regimes are being negotiated in areas like the environment, trade, human rights and the law of
armed conflict.

How does Australia become a party to a Treaty?

How a country joins a treaty is determined by the treaty in question. All bilateral treaties have a two stage
entry into force mechanism. This allows a bilateral treaty to be tabled in Parliament after its signature but
before binding treaty action is taken that would bring the treaty into force.
Modern multilateral treaties typically do not provide that signature alone is sufficient to bind a country to
the terms of a treaty. When the text of a multilateral treaty is finalised, the common practice is to have the
treaty open for signature' for a specified period. Countries may sign the treaty within that period but are
not legally bound by its provisions until ratification occurs. Where a country has not signed a multilateral
treaty, it will nevertheless generally be able to become a party to it. This is typically called an act of
accession.

What is the scope of the Commonwealth's power to

legislate?
If Commonwealth legislation is required to give effect to a treaty, the Government relies on the external
affairs power in Section 51 (xxix) of the Constitution. In certain specific cases, however, for example, in
giving effect to air navigation and shipping treaties, the Government relies on the trade and commerce
power as well as the external affairs power. In many other cases, there is no need to rely on the external
affairs power because the subject of that treaty already lies within other Commonwealth powers or
because State and Territory Governments will enact appropriate legislation.
The Constitution also limits the Commonwealth's ability to exercise the external affairs power. For
example, the Commonwealth Government may not remove constitutional rights, such as freedom of
interstate trade, merely by relying on treaty provisions. Also, the Commonwealth's exercise of legislative
powers, including the external affairs power, is subject to a principle that the continued existence of one or
more States, or their capacity to function as States, must not be impaired.
Neither does the conclusion of a treaty automatically bring the entire subject matter within the legislative
capacity of the Federal Government. For example, Australia's accession to the Convention on the
Conservation of Nature in the South Pacific does not mean that the Commonwealth has thereby gained
legislative power over the subject of nature conservation.' The external affairs power only enables
legislation to be passed to give effect to the terms of the treaty, and for legislation to be valid, it must be
reasonably considered to be appropriate and adapted to the implementation of a treaty.
Perhaps the most important constraint upon the Commonwealth is the fact that treaty making processes
in Australia operate within a democratic context. This includes, ultimately, the knowledge that action by
the Commonwealth Government which was widely perceived as contrary to Australia's interests could
result in its defeat at the next election.

What happens once the Government has decided to enter

into a Treaty?
Once an in-principle decision has been taken to agree to a treaty, the Commonwealth Government
considers whether:

a.

specific implementing action is required;

b.

if so, whether existing legislation (Federal or State) is adequate; and

c.

if not, whether the treaty should be implemented by legislation at the Commonwealth or

State/Territory level.
The prior approval of the Federal Executive Council is also required for Australia to enter into a treaty. The
Executive Council comprises the Governor-General and all serving Ministers and Parliamentary
Secretaries. A meeting of the Executive Council requires the presence of the Governor-General plus two
Ministers and/or Parliamentary Secretaries. The Executive Council requires certain documentation be
presented to it showing that the decision to accept the rights and responsibilities associated with a treaty
has been approved by Cabinet or by the relevant Ministers.

Do all treaties require legislation to operate in Australia?

The general position under Australian law is that treaties which Australia has joined, apart from those
terminating a state of war, are not directly and automatically incorporated into Australian law. Signature
and ratification do not, of themselves, make treaties operate domestically. In the absence of legislation,
treaties cannot impose obligations on individuals nor create rights in domestic law. Nevertheless,
international law, including treaty law, is a legitimate and important influence on the development of the
common law and may be used in the interpretation of statutes.

New legislation is not always necessary

Many treaties do not require new or prior legislation, as they can be implemented through executive
action (for example, trade cooperation, defence logistics and procurement treaties). Other treaties,
including a number of international human rights and industrial relations treaties, have been ratified on the
basis of an assessment by the Commonwealth that existing Commonwealth or State/Territory legislation
is sufficient to implement the provisions of the convention (in other words, we are already meeting
domestically the terms of the convention and no further action is necessary), or that the particular treaty
obligations can be implemented progressively and without radical change to existing laws.

Relying on existing legislation may sometimes be

problematic
Difficulties can arise if ratification relies on existing State or Territory legislation and that legislation is
subsequently altered in a way that is incompatible with the relevant treaty. In such cases, consideration
may be given to the Commonwealth passing legislation to bring Australia's laws back into line with its
international obligations. Sometimes the interpretation of obligations under a treaty may evolve to the
extent that the existing State/Territory law is no longer adequate to give effect to those obligations. Again,
if a State or Territory is unwilling to effect necessary amendments to its own law, the Commonwealth may
consider passing its own legislation.

If obligations are not fully covered by existing legislation,

new laws may be needed
If new legislation is required to implement the treaty, the normal practice is to require that it be passed
before seeking Executive Council approval to enter into the treaty. This is because subsequent
Parliamentary passage of the necessary legislation cannot be presumed, entailing a risk that Australia
could find itself legally bound by an international obligation which it could not fulfil.
Examples of treaties where specific legislation will be necessary are those requiring specific outcomes
which can only be achieved by imposing legislative requirements on individuals. For example, legislation

was necessary to give effect to an obligation under the Montreal Protocol to ban the manufacture of, and
trade in, certain products containing harmful ozone depleting substances.

Is treaty making being used by the Commonwealth to

grab power from the States?
Globalisation has changed the way all levels of Government interact with the international system. The
States and Territories are increasingly aware of the benefit of having a global voice', and playing a
greater role in the world's deliberations on international rule making. State tourism offices, premiers' trips
overseas to raise finance or attract investment, relevant ministers working with their counterparts to
develop specific trade opportunities are just some examples of these trends. The increased presence of
State and Territory representatives on delegations to international meetings (including for the negotiation
and implementation of international treaties) demonstrates the importance of treaties to the States and
Territories.
The Principles and Procedures for Commonwealth-State-Territory Consultation on Treaties sets out the
arrangements governing the provision of information, consultative mechanisms and the implementation of
treaties and other international instruments that are of particular sensitivity and importance to the State
and Territory Governments. Under these procedures, the Commonwealth may consider relying on State
or Territory legislation where the treaty affects an area of particular concern to the States or Territories and
adoption of that course is consistent with the national interest and the effective and timely discharge of
treaty obligations.

Treaty
From Wikipedia, the free encyclopedia

This article is about an agreement under international law entered into by actors in international law. For
the Yothu Yindi song, see Treaty (song).

The first two pages of the Treaty of Brest-Litovsk, in (left to right) German, Hungarian, Bulgarian, Ottoman Turkish and
Russian

A treaty is an agreement under international law entered into by actors in international law, namely sovereign
states and international organizations. A treaty may also be known as an (international)
agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless
of terminology, all of these forms of agreements are, under international law, equally considered treaties and
the rules are the same.[1]
Treaties can be loosely compared to contracts: both are means of willing parties assuming obligations among
themselves, and a party to either that fails to live up to their obligations can be held liable under international
law.

Modern usage[edit]
A treaty is an official, express written agreement that states use to legally bind themselves. [2] A treaty is the
official document which expresses that agreement in words; and it is also the objective outcome of a
ceremonial occasion which acknowledges the parties and their defined relationships.

Modern form[edit]

Since the late 19th century, most treaties have followed a fairly consistent format. A treaty typically begins with
a preamble describing the contracting parties and their joint objectives in executing the treaty, as well as
summarizing any underlying events (such as a war). Modern preambles are sometimes structured as a single
very long sentence formatted into multiple paragraphs for readability, in which each of the paragraphs begins
with a verb (desiring, recognizing, having, and so on).
The contracting parties' full names or sovereign titles are often included in the preamble, along with the full
names and titles of their representatives, and a boilerplate clause about how their representatives have
communicated (or exchanged) their full powers (i.e., the official documents appointing them to act on behalf of
their respective states) and found them in good or proper form.
The end of the preamble and the start of the actual agreement is often signaled by the words "have agreed as
follows."
After the preamble comes numbered articles, which contain the substance of the parties' actual agreement.
Each article heading usually encompasses a paragraph. A long treaty may further group articles under chapter
headings.
Modern treaties, regardless of subject matter, usually contain articles governing where the final authentic
copies of the treaty will be deposited and how any subsequent disputes as to their interpretation will be
peacefully resolved.
The end of a treaty is often signaled by a clause like "in witness whereof" or "in faith whereof," the parties have
affixed their signatures, followed by the words "DONE at," then the site(s) of the treaty's execution and the
date(s) of its execution. The date is typically written in its most formal, longest possible form. For example, the
Charter of the United Nations was "DONE at the city of San Francisco the twenty-sixth day of June, one
thousand nine hundred and forty-five." If the treaty is executed in multiple copies in different languages, that
fact is always noted, and is followed by a stipulation that the versions in different languages are equally
authentic.
The signatures of the parties' representatives follow at the very end. When the text of a treaty is later reprinted,
such as in a collection of treaties currently in effect, an editor will often append the dates on which the
respective parties ratified the treaty and on which it came into effect for each party.

Bilateral and multilateral treaties[edit]

Bilateral treaties are concluded between two states [3] or entities. It is possible, however, for a bilateral treaty to
have more than two parties; consider for instance the bilateral treaties betweenSwitzerland and the European
Union (EU) following the Swiss rejection of the European Economic Area agreement. Each of these treaties
has seventeen parties. These however are still bilateral, not multilateral, treaties. The parties are divided into
two groups, the Swiss ("on the one part") and the EU and its member states ("on the other part"). The treaty
establishes rights and obligations between the Swiss and the EU and the member states severally--it does not
establish any rights and obligations amongst the EU and its member states. [citation needed]
A multilateral treaty is concluded among several countries.[3] The agreement establishes rights and obligations
between each party and every other party. Multilateral treaties are often regional. [citation needed] Treaties of "mutual
guarantee" are international compacts, e.g., the Treaty of Locarno which guarantees each signatory against
attack from another.[3]

Adding and amending treaty obligations[edit]

Reservations[edit]
Main article: Reservation (law)
Reservations are essentially caveats to a state's acceptance of a treaty. Reservations are unilateral statements
purporting to exclude or to modify the legal obligation and its effects on the reserving state. [4] These must be
included at the time of signing or ratification, i.e. "a party cannot add a reservation after it has already joined a
treaty".
Originally, international law was unaccepting of treaty reservations, rejecting them unless all parties to the
treaty accepted the same reservations. However, in the interest of encouraging the largest number of states to
join treaties, a more permissive rule regarding reservations has emerged. While some treaties still expressly
forbid any reservations, they are now generally permitted to the extent that they are not inconsistent with the
goals and purposes of the treaty.
When a state limits its treaty obligations through reservations, other states party to that treaty have the option
to accept those reservations, object to them, or object and oppose them. If the state accepts them (or fails to
act at all), both the reserving state and the accepting state are relieved of the reserved legal obligation as
concerns their legal obligations to each other (accepting the reservation does not change the accepting state's
legal obligations as concerns other parties to the treaty). If the state opposes, the parts of the treaty affected by
the reservation drop out completely and no longer create any legal obligations on the reserving and accepting
state, again only as concerns each other. Finally, if the state objects and opposes, there are no legal
obligations under that treaty between those two state parties whatsoever. The objecting and opposing state
essentially refuses to acknowledge the reserving state is a party to the treaty at all. [5]

Amendments[edit]
There are three ways an existing treaty can be amended. First, formal amendment requires State parties to the
treaty to go through the ratification process all over again. The re-negotiation of treaty provisions can be long
and protracted, and often some parties to the original treaty will not become parties to the amended treaty.
When determining the legal obligations of states, one party to the original treaty and one a party to the
amended treaty, the states will only be bound by the terms they both agreed upon. Treaties can also be
amended informally by the treaty executive council when the changes are only procedural, technical change in
customary international law can also amend a treaty, where state behavior evinces a new interpretation of the
legal obligations under the treaty. Minor corrections to a treaty may be adopted by a procs-verbal; but a
procs-verbal is generally reserved for changes to rectify obvious errors in the text adopted, i.e. where the text
adopted does not correctly reflect the intention of the parties adopting it.

Protocols[edit]
See also: Environmental protocol
In international law and international relations, a protocol is generally a treaty or international agreement that
supplements a previous treaty or international agreement. A protocol can amend the previous treaty, or add
additional provisions. Parties to the earlier agreement are not required to adopt the protocol. Sometimes this is
made clearer by calling it an "optional protocol", especially where many parties to the first agreement do not
support the protocol.

Some examples: the United Nations Framework Convention on Climate Change (UNFCCC) established a
framework for the development of binding greenhouse gas emission limits, while theKyoto Protocol contained
the specific provisions and regulations later agreed upon.

Execution and implementation[edit]

Treaties may be seen as 'self-executing', in that merely becoming a party puts the treaty and all of its
obligations in action. Other treaties may be non-self-executing and require 'implementing legislation'a change
in the domestic law of a state party that will direct or enable it to fulfill treaty obligations. An example of a treaty
requiring such legislation would be one mandating local prosecution by a party for particular crimes.
The division between the two is often not clear and is often politicized in disagreements within a government
over a treaty, since a non-self-executing treaty cannot be acted on without the proper change in domestic law. If
a treaty requires implementing legislation, a state may be in default of its obligations by the failure of its
legislature to pass the necessary domestic laws.

Interpretation[edit]
The language of treaties, like that of any law or contract, must be interpreted when the wording does not seem
clear or it is not immediately apparent how it should be applied in a perhaps unforeseen circumstance.
The Vienna Convention states that treaties are to be interpreted "in good faith" according to the "ordinary
meaning given to the terms of the treaty in their context and in the light of its object and purpose." International
legal experts also often invoke the 'principle of maximum effectiveness,' which interprets treaty language as
having the fullest force and effect possible to establish obligations between the parties.
No one party to a treaty can impose its particular interpretation of the treaty upon the other parties. Consent
may be implied, however, if the other parties fail to explicitly disavow that initially unilateral interpretation,
particularly if that state has acted upon its view of the treaty without complaint. Consent by all parties to the
treaty to a particular interpretation has the legal effect of adding an additional clause to the treaty this is
commonly called an 'authentic interpretation'.
International tribunals and arbiters are often called upon to resolve substantial disputes over treaty
interpretations. To establish the meaning in context, these judicial bodies may review the preparatory work from
the negotiation and drafting of the treaty as well as the final, signed treaty itself.

Consequences of terminology[edit]
One significant part of treaty making is that signing a treaty implies recognition that the other side is a
sovereign state and that the agreement being considered is enforceable under international law. Hence,
nations can be very careful about terming an agreement to be a treaty. For example, within the United States,
agreements between states are compacts and agreements between states and the federal government or
between agencies of the government are memoranda of understanding.
Another situation can occur when one party wishes to create an obligation under international law, but the other
party does not. This factor has been at work with respect to discussions betweenNorth Korea and the United
States over security guarantees and nuclear proliferation.

The terminology can also be confusing because a treaty may and usually is named something other than a
treaty, such as a convention, protocol, or simply agreement. Conversely some legal documents such as
the Treaty of Waitangi are internationally considered to be documents under domestic law.

Ending treaty obligations[edit]

See also: Denunciation

Withdrawal[edit]
Treaties are not necessarily permanently binding upon the signatory parties. As obligations in international law
are traditionally viewed as arising only from the consent of states, many treaties expressly allow a state to
withdraw as long as it follows certain procedures of notification. Many treaties expressly forbid withdrawal.
Other treaties are silent on the issue, and so if a state attempts withdrawal through its own unilateral
denunciation of the treaty, a determination must be made regarding whether permitting withdrawal is contrary to
the original intent of the parties or to the nature of the treaty.[citation needed] Human rights treaties, for example, are
generally interpreted to exclude the possibility of withdrawal, because of the importance and permanence of the
obligations.[citation needed]
If a state party's withdrawal is successful, its obligations under that treaty are considered terminated, and
withdrawal by one party from a bilateral treaty of course terminates the treaty. When a state withdraws from a
multi-lateral treaty, that treaty will still otherwise remain in force among the other parties, unless, of course,
otherwise should or could be interpreted as agreed upon between the remaining states parties to the treaty.
[citation needed]

Suspension and termination[edit]

If a party has materially violated or breached its treaty obligations, the other parties may invoke this breach as
grounds for temporarily suspending their obligations to that party under the treaty. A material breach may also
be invoked as grounds for permanently terminating the treaty itself.[citation needed]
A treaty breach does not automatically suspend or terminate treaty relations, however. The issue must be
presented to an international tribunal or arbiter (usually specified in the treaty itself) to legally establish that a
sufficiently serious breach has in fact occurred. Otherwise, a party that prematurely and perhaps wrongfully
suspends or terminates its own obligations due to an alleged breach itself runs the risk of being held liable for
breach. Additionally, parties may choose to overlook treaty breaches while still maintaining their own obligations
towards the party in breach.[citation needed]
Treaties sometimes include provisions for self-termination, meaning that the treaty is automatically terminated if
certain defined conditions are met. Some treaties are intended by the parties to be only temporarily binding and
are set to expire on a given date. Other treaties may self-terminate if the treaty is meant to exist only under
certain conditions.[citation needed]
A party may claim that a treaty should be terminated, even absent an express provision, if there has been a
fundamental change in circumstances. Such a change is sufficient if unforeseen, if it undermined the essential
basis of consent by a party, if it radically transforms the extent of obligations between the parties, and if the
obligations are still to be performed. A party cannot base this claim on change brought about by its own breach
of the treaty. This claim also cannot be used to invalidate treaties that established or redrew political
boundaries.[citation needed]

Invalid treaties[edit]
There are several reasons an otherwise valid and agreed upon treaty may be rejected as a binding
international agreement, most of which involve problems created at the formation of the treaty.[citation needed] For
example, the serial Japan-Korea treaties of 1905, 1907 and 1910 were protested;[6] and they were confirmed as
"already null and void" in the 1965 Treaty on Basic Relations between Japan and the Republic of Korea.[7]

Ultra vires treaties[edit]

A party's consent to a treaty is invalid if it had been given by an agent or body without power to do so under
that state's domestic law. States are reluctant to inquire into the internal affairs and processes of other states,
and so a "manifest violation" is required such that it would be "objectively evident to any State dealing with the
matter". A strong presumption exists internationally that a head of state has acted within his proper authority. It
seems that no treaty has ever actually been invalidated on this provision. [citation needed]
Consent is also invalid if it is given by a representative who ignored restrictions he is subject to by his sovereign
during the negotiations, if the other parties to the treaty were notified of those restrictions prior to his signing.
[citation needed]

According to the preamble in The Law of treaties, treaties are a source of international law. If an act or lack
thereof is condemned under international law, the act will not assume international legality even if approved by
internal law.[8] This means that in case of a conflict with domestic law, international law will always prevail. [9]

Misunderstanding, fraud, corruption, coercion[edit]

Articles 4653 of the Vienna Convention on the Law of Treaties set out the only ways that treaties can be
invalidatedconsidered unenforceable and void under international law. A treaty will be invalidated due to
either the circumstances by which a state party joined the treaty, or due to the content of the treaty itself.
Invalidation is separate from withdrawal, suspension, or termination (addressed above), which all involve an
alteration in the consent of the parties of a previously valid treaty rather than the invalidation of that consent in
the first place.
A state's consent may be invalidated if there was an erroneous understanding of a fact or situation at the time
of conclusion, which formed the "essential basis" of the state's consent. Consent will not be invalidated if the
misunderstanding was due to the state's own conduct, or if the truth should have been evident.
Consent will also be invalidated if it was induced by the fraudulent conduct of another party, or by the direct or
indirect "corruption" of its representative by another party to the treaty. Coercion of either a representative, or
the state itself through the threat or use of force, if used to obtain the consent of that state to a treaty, will
invalidate that consent.

Contrary to peremptory norms[edit]

A treaty is null and void if it is in violation of a peremptory norm. These norms, unlike other principles of
customary law, are recognized as permitting no violations and so cannot be altered through treaty obligations.
These are limited to such universally accepted prohibitions as those against genocide, slavery, torture,
and piracy, meaning that no state can legally assume an obligation to commit or permit such acts. [citation needed]

Role of the United Nations[edit]

The United Nations Charter states that treaties must be registered with the UN to be invoked before it or
enforced in its judiciary organ, the International Court of Justice. This was done to prevent the proliferation
of secret treaties that occurred in the 19th and 20th century. Section 103 of the Charter also states that its
members' obligations under it outweigh any competing obligations under other treaties.
After their adoption, treaties as well as their amendments have to follow the official legal procedures of the
United Nations, as applied by the Office of Legal Affairs, including signature, ratificationand entry into force.
In function and effectiveness, the UN has been compared to the pre-Constitutional United States Federal
government by some[citation needed], giving a comparison between modern treaty law and the historical Articles of
Confederation.

Relation between national law and treaties by country[edit]

Brazilian law[edit]
The Brazilian federal constitution states that the power to enter into treaties is vested in the president and that
such treaties must be approved by Congress (articles 84, clause VIII, and 49, clause I). In practice, this has
been interpreted as meaning that the executive branch is free to negotiate and sign a treaty, but its ratification
by the president is contingent upon the prior approval of Congress. Additionally, the Federal Supreme
Court has ruled that, following ratification and entry into force, a treaty must be incorporated into domestic law
by means of a presidential decree published in the federal register in order to be valid in Brazil and applicable
by the Brazilian authorities.
The Federal Supreme Court has established that treaties are subject to constitutional review and enjoy the
same hierarchical position as ordinary legislation (leis ordinrias, or "ordinary laws", in Portuguese). A more
recent ruling by the Supreme Court in 2008 has altered that scheme somewhat, by stating that treaties
containing human rights provisions enjoy a status above that of ordinary legislation, though they remain
beneath the constitution itself. Additionally, as per the 45th amendment to the constitution, human rights
treaties which are approved by Congress by means of a special procedure enjoy the same hierarchical position
as a constitutional amendment. The hierarchical position of treaties in relation to domestic legislation is of
relevance to the discussion on whether (and how) the latter can abrogate the former and vice versa.
The Brazilian federal constitution does not have a supremacy clause with the same effects as the one on
the U.S. constitution, a fact that is of interest to the discussion on the relation between treaties
and state legislation.

United States law[edit]

In the United States, the term "treaty" has a different, more restricted legal sense than exists in international
law. United States law distinguishes what it calls treaties from executive agreement, congressional-executive
agreements, and sole executive agreements. All four classes are equally treaties under international law; they
are distinct only from the perspective of internal American law. The distinctions are primarily concerning their
method of approval. Whereas treaties require advice and consent by two-thirds of the Senate, sole executive
agreements may be executed by the President acting alone. Some treaties grant the President the authority to
fill in the gaps with executive agreements, rather than additional treaties or protocols. And finally,
congressional-executive agreements require majority approval by both the House and the Senate, either before
or after the treaty is signed by the President.

Currently, international agreements are executed by executive agreement rather than treaties at a rate of 10:1.
Despite the relative ease of executive agreements, the President still often chooses to pursue the formal treaty
process over an executive agreement in order to gain congressional support on matters that require the
Congress to pass implementing legislation or appropriate funds, and those agreements that impose long-term,
complex legal obligations on the United States.
See the article on the Bricker Amendment for history of the relationship between treaty powers and
Constitutional provisions.

Indian law[edit]
In India, the legislation subjects are divided into 3 lists -Union List ,State List and Concurrent List . In the normal
legislation process, the subjects in Union list can only be legislated upon by central legislative body
called Parliament of India, for subjects in state list only respective state legislature can legislate. While for
Concurrent subjects, both center and state can make laws. But to implement international treaties, Parliament
can legislate on any subject overriding the general division of subject lists.

Treaties and indigenous peoples[edit]

Treaties formed an important part of European colonization and, in many parts of the world, Europeans
attempted to legitimize their sovereignty by signing treaties with indigenous peoples. In most cases these
treaties were in extremely disadvantageous terms to the native people, who often did not appreciate the
implications of what they were signing.
In some rare cases, such as with Ethiopia and Qing Dynasty China, the local governments were able to use the
treaties to at least mitigate the impact of European colonization. This involved learning the intricacies of
European diplomatic customs and then using the treaties to prevent a power from overstepping their
agreement or by playing different powers against each other.
In other cases, such as New Zealand and Canada, treaties allowed native peoples to maintain a minimum
amount of autonomy. In the case of indigenous Australians, unlike with the Mori of New Zealand, no treaty
was ever entered into with the indigenous peoples entitling the Europeans to land ownership, under the
doctrine of terra nullius (later overturned by Mabo v Queensland, establishing the concept of native title well
after colonization was already a fait accompli). Such treaties between colonizers and indigenous peoples are
an important part of political discourse in the late 20th and early 21st century, the treaties being discussed have
international standing as has been stated in a treaty study by the UN.

United States[edit]
Prior to 1871 the government of the United States regularly entered into treaties with Native Americans but the
Indian Appropriations Act of March 3, 1871 (ch. 120, 16 Stat. 563) had a rider (25 U.S.C. 71) attached that
effectively ended the Presidents treaty making by providing that no Indian nation or tribe shall be
acknowledged as an independent nation, tribe, or power with whom the United States may contract by treaty.
The federal government continued to provide similar contractual relations with the Indian tribes after 1871 by
agreements, statutes, and executive orders