Covenants, Conventions,
Declarations and Recommendations are different forms
of International Legal Instrumenst. But what is the difference between
an International Convention or Covenant on the one hand and a Declaration,
Recommendation and Resolution on the other hand? What does it mean
when a state Party makes a "reservation" ?
On this page you will find defnitions of terms used in international
law that might need further explanation:
Covenants and Conventions
are specific forms of treaties which can be bilateral (between two
countries) or multilateral (between more than two countries). If
done under the auspices of the United Nations, Covenants and Conventions
are first adopted by resolution by the General Assembly and then
opened for both signature and ratification. All treaties entered
into by member states to the UN are registered with the UN secretariat.
The term "convention" can have both a generic and a specific
meaning.
(a) Convention as a generic term:
Art.38 (1) (a) of the Statute of the International
Court of Justice refers to "international conventions,
whether general or particular" as a source of law, apart
from international customary rules and general principles of international
law and - as a secondary source - judicial decisions and the teachings
of the most highly qualified publicists. This generic use of the
term "convention" embraces all international agreements,
in the same way as does the generic term "treaty". Black
letter law is also regularly referred to as "conventional
law", in order to distinguish it from the other sources of
international law, such as customary law or the general principles
of international law. The generic term "convention"
thus is synonymous with the generic term "treaty".
(b) Convention as a specific term:
Whereas in the last century the term "convention" was
regularly employed for bilateral agreements, it now is generally
used for formal multilateral treaties with a broad number of parties.
Conventions are normally open for participation by the international
community as a whole, or by a large number of states. Usually
the instruments negotiated under the auspices of an international
organization are entitled conventions (e.g. Convention on Biological
Diversity of 1992, United Nations Convention on the Law of the
Sea of 1982, Vienna Convention on the Law of Treaties of 1969).
The same holds true for instruments adopted by an organ of an
international organization (e.g. the 1951 ILO Convention concerning
Equal Remuneration for Men and Women Workers for Work of Equal
Value, adopted by the International Labour Conference or the 1989
Convention on the Rights of the Child, adopted by the General
Assembly of the UN).
An updated list
of which countries are member to which treaties can be found under:
http://www.unhchr.ch/html/intlinst.htm
Committee
Under some Conventions, Committees have
been established to monitor how states that are party to the respective
Convention implement the relevant rights and obligations on their
national level. Furthermore, these Committees provide explanations
as to what the human rights mentioned in the respective Convention
actually mean.
Treaty
The term "treaty"
can be used as a common generic term or as a particular term which
indicates an instrument with certain characteristics.
(a) Treaty as a generic term: The
term "treaty" has regularly been used as a generic term
embracing all instruments binding at international law concluded
between international entities, regardless of their formal designation.
Both the 1969 Vienna Convention and the 1986 Vienna Convention
confirm this generic use of the term "treaty". The 1969
Vienna Convention defines a treaty as "an international agreement
concluded between States in written form and governed by international
law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation".
The 1986 Vienna Convention extends the definition of treaties
to include international agreements involving international organizations
as parties. In order to speak of a "treaty" in the generic
sense, an instrument has to meet various criteria. First of all,
it has to be a binding instrument, which means that the contracting
parties intended to create legal rights and duties. Secondly,
the instrument must be concluded by states or international organizations
with treaty-making power. Thirdly, it has to be governed by international
law. Finally the engagement has to be in writing. Even before
the 1969 Vienna Convention on the Law of Treaties, the word "treaty"
in its generic sense had been generally reserved for engagements
concluded in written form.
(b) Treaty as a specific term:
There are no consistent rules when state practice employs the
terms "treaty" as a title for an international instrument.
Usually the term "treaty" is reserved for matters of
some gravity that require more solemn agreements. Their signatures
are usually sealed and they normally require ratification. Typical
examples of international instruments designated as "treaties"
are Peace Treaties, Border Treaties, Delimitation Treaties, Extradition
Treaties and Treaties of Friendship, Commerce and Cooperation.
The use of the term "treaty" for international instruments
has considerably declined in the last decades in favor of other
terms.
A "Declaration"
and a "Recommendation" is generally a document
of intent, and, in most cases, does not create a legally binding
obligation on the countries which have signed it. The terms are
often deliberately chosen to indicate that the parties do not intend
to create binding obligations but merely want to declare certain
aspirations. Declarations and Recommendations cannot be ratified.
The term "declaration"
is used for various international instruments. An example is the
1992 Rio Declaration. Declarations can however also be treaties
in the generic sense intended to be binding at international law.
It is therefore necessary to establish in each individual case whether
the parties intended to create binding obligations. Some instruments
entitled "declarations" were not originally intended to
have binding force, but their provisions may have reflected customary
international law or may have gained binding character as customary
law at a later stage. Such was the case with the 1948 Universal
Declaration of Human Rights. Declarations that are intended to have
binding effects could be classified as follows:
(a) An interpretative declaration
is an instrument that is annexed to a treaty with the goal of
interpreting or explaining the provisions of the latter.
(b) A declaration can also be an
informal agreement with respect to a matter of minor importance.
(c) A series of unilateral declarations
can constitute binding agreements. A typical example are declarations
under the Optional Clause of the Statute of the International
Court of Justice that create legal bonds between the declarants,
although not directly addressed to each other.
(d) A declaration can also be a
treaty in the proper sense. A significant example is the Joint
Declaration between the United Kingdom and China on the Question
of Hong Kong of 1984.
The term "Ratification"
means that after representatives of a country have signed a treaty,
this signature is approved by the head of state or government of
that country. In other words, Ratification defines the international
act whereby a state indicates its consent to be bound to a treaty
if the parties intended to show their consent by such an act. In
the case of bilateral treaties, ratification is usually accomplished
by exchanging the requisite instruments, while in the case of multilateral
treaties the usual procedure is for the depositary to collect the
ratifications of all states, keeping all parties informed of the
situation. The institution of ratification grants states the necessary
time-frame to seek the required approval for the treaty on the domestic
level and to enact the necessary legislation to give domestic effect
to that treaty. [Arts.2 (1) (b), 14 (1) and 16, Vienna Convention
on the Law of Treaties 1969]
A "Resolution" is a documents
without legally binding force - with the exception of the Resolutions
of the UN Security Council. Resolutions cannot be signed by states.
As they are usually issued by UN bodies, they can however carry
considerable weight and often are much more detailed about one particular
subject than other International Legal Instruments.
Agreement
The term "agreement"
can have a generic and a specific meaning. It also has acquired
a special meaning in the law of regional economic integration.
(a) Agreement as a generic term:
The 1969 Vienna Convention on the Law of Treaties employs the
term "international agreement" in its broadest sense.
On the one hand, it defines treaties as "international agreements"
with certain characteristics. On the other hand, it employs the
term "international agreements" for instruments, which
do not meet its definition of "treaty". Its Art.3 refers
also to "international agreements not in written form".
Although such oral agreements may be rare, they can have the same
binding force as treaties, depending on the intention of the parties.
An example of an oral agreement might be a promise made by the
Minister of Foreign Affairs of one State to his counterpart of
another State. The term "international agreement" in
its generic sense consequently embraces the widest range of international
instruments.
(b) Agreement as a particular term:
"Agreements" are usually less formal and deal with a
narrower range of subject-matter than "treaties". There
is a general tendency to apply the term "agreement"
to bilateral or restricted multilateral treaties. It is employed
especially for instruments of a technical or administrative character,
which are signed by the representatives of government departments,
but are not subject to ratification. Typical agreements deal with
matters of economic, cultural, scientific and technical cooperation.
Agreements also frequently deal with financial matters, such as
avoidance of double taxation, investment guarantees or financial
assistance. The UN and other international organizations regularly
conclude agreements with the host country to an international
conference or to a session of a representative organ of the Organization.
Especially in international economic law, the term "agreement"
is also used as a title for broad multilateral agreements (e.g.
the commodity agreements). The use of the term "agreement"
slowly developed in the first decades of this century. Nowadays
by far the majority of international instruments are designated
as agreements.
(c) Agreements in regional integration
schemes: Regional integration schemes are based on general framework
treaties with constitutional character. International instruments
which amend this framework at a later stage (e.g. accessions,
revisions) are also designated as "treaties". Instruments
that are concluded within the framework of the constitutional
treaty or by the organs of the regional organization are usually
referred to as "agreements", in order to distinguish
them from the constitutional treaty. For example, whereas the
Treaty of Rome of 1957 serves as a quasi-constitution of the European
Community, treaties concluded by the EC with other nations are
usually designated as agreements. Also, the Latin
American Integration Association (LAIA) was established
by the Treaty of Montevideo of 1980, but the subregional instruments
entered into under its framework are called agreements.
Charter
The term "charter"
is used for particularly formal and solemn instruments, such as
the constituent treaty of an international organization. The term
itself has an emotive content that goes back to the Magna Carta
of 1215. Well-known recent examples are the Charter of the United
Nations of 1945 and the Charter of the Organization of American
States of 1952.
Protocol
The term "protocol"
is used for agreements less formal than those entitled "treaty"
or "convention". The term could be used to cover the following
kinds of instruments:
(a) A Protocol of Signature is
an instrument subsidiary to a treaty, and drawn up by the same
parties. Such a Protocol deals with ancillary matters such as
the interpretation of particular clauses of the treaty, those
formal clauses not inserted in the treaty, or the regulation of
technical matters. Ratification of the treaty will normally ipso
facto involve ratification of such a Protocol.
(b) An Optional Protocol to a Treaty
is an instrument that establishes additional rights and obligations
to a treaty. It is usually adopted on the same day, but is of
independent character and subject to independent ratification.
Such protocols enable certain parties of the treaty to establish
among themselves a framework of obligations which reach further
than the general treaty and to which not all parties of the general
treaty consent, creating a "two-tier system". The Optional
Protocol to the International Covenant on Civil and Political
Rights of 1966 is a well-known example.
(c) A Protocol based on a Framework
Treaty is an instrument with specific substantive obligations
that implements the general objectives of a previous framework
or umbrella convention. Such protocols ensure a more simplified
and accelerated treaty-making process and have been used particularly
in the field of international environmental law. An example is
the 1987 Montreal Protocol on Substances that Deplete the Ozone
Layer adopted on the basis of Arts.2 and 8 of the 1985 Vienna
Convention for the Protection of the Ozone Layer.
(d) A Protocol to amend is an instrument
that contains provisions that amend one or various former treaties,
such as the Protocol of 1946 amending the Agreements, Conventions
and Protocols on Narcotic Drugs.
(e) A Protocol as a supplementary
treaty is an instrument which contains supplementary provisions
to a previous treaty, e.g. the 1967 Protocol relating to the Status
of Refugees to the 1951 Convention relating to the Status of Refugees.
(f) A Proces-Verbal is an instrument
that contains a record of certain understandings arrived at by
the contracting parties.
Modus Vivendi
A modus vivendi is an instrument
recording an international agreement of temporary or provisional
nature intended to be replaced by an arrangement of a more permanent
and detailed character. It is usually made in an informal way, and
never requires ratification.
Adoption
"Adoption" is the formal act by which the form and content
of a proposed treaty text are established. As a general rule, the
adoption of the text of a treaty takes place through the expression
of the consent of the states participating in the treaty-making
process. Treaties that are negotiated within an international organization
will usually be adopted by a resolution of a representative organ
of the organization whose membership more or less corresponds to
the potential participation in the treaty in question. A treaty
can also be adopted by an international conference which has specifically
been convened for setting up the treaty, by a vote of two thirds
of the states present and voting, unless, by the same majority,
they have decided to apply a different rule. [Art.9,
Vienna Convention of the Law of Treaties 1969]
Acceptance and Approval
The instruments of "acceptance"
or "approval" of a treaty have the same legal effect as
ratification and consequently express the consent of a state to
be bound by a treaty. In the practice of certain states acceptance
and approval have been used instead of ratification when, at a national
level, constitutional law does not require the treaty to be ratified
by the head of state. [Arts.2
(1) (b) and 14 (2), Vienna Convention on the Law of Treaties 1969]
Accession
"Accession" is
the act whereby a state accepts the offer or the opportunity to
become a party to a treaty already negotiated and signed by other
states. It has the same legal effect as ratification. Accession
usually occurs after the treaty has entered into force. The Secretary-General
of the United Nations, in his function as depositary, has also accepted
accessions to some conventions before their entry into force. The
conditions under which accession may occur and the procedure involved
depend on the provisions of the treaty. A treaty might provide for
the accession of all other states or for a limited and defined number
of states. In the absence of such a provision, accession can only
occur where the negotiating states were agreed or subsequently agree
on it in the case of the state in question. [Arts.2
(1) (b) and 15, Vienna Convention on the Law of Treaties 1969]
Act of Formal Confirmation
"Act of formal confirmation"
is used as an equivalent for the term "ratification" when
an international organization expresses its consent to be bound
to a treaty. [Arts.2 (1) (b
bis) and 14, Vienna Convention on the Law of Treaties between States
and International Organizations or between International Organizations
1986]
Amendment
The term "amendment"
refers to the formal alteration of treaty provisions affecting all
the parties to the particular agreement. Such alterations must be
effected with the same formalities that attended the original formation
of the treaty. Many multilateral treaties lay down specific requirements
to be satisfied for amendments to be adopted. In the absence of
such provisions, amendments require the consent of all the parties.[Art.40,
Vienna Convention of the Law of Treaties 1969]
Definitive Signature
When the treaty is not
subject to ratification, acceptance or approval, "definitive
signature" establishes the consent of the state to be bound
by the treaty. Most bilateral treaties dealing with more routine
and less politicized matters are brought into force by definitive
signature, without recourse to the procedure of ratification. [Art.12,
Vienna Convention on the Law of Treaties 1969]
Entry into Force
Typically, the provisions
of the treaty determine the date on which the treaty enters into
force. Where the treaty does not specify a date, there is a presumption
that the treaty is intended to come into force as soon as all the
negotiating states have consented to be bound by the treaty. Bilateral
treaties may provide for their entry into force on a particular
date, upon the day of their last signature, upon exchange of the
instruments of ratification or upon the exchange of notifications.
In cases where multilateral treaties are involved, it is common
to provide for a fixed number of states to express their consent
for entry into force. Some treaties provide for additional conditions
to be satisfied, e.g., by specifying that a certain category of
states must be among the consenters. The treaty may also provide
for an additional time period to elapse after the required number
of countries have expressed their consent or the conditions have
been satisfied. A treaty enters into force for those states which
gave the required consent. A treaty may also provide that, upon
certain conditions having been met, it shall come into force provisionally.
[Art.24, Vienna Convention on the Law of Treaties 1969]
Provisional Application and Provisional Entry into Force of Treaties
Provisional Application
The growing use of provisional
application clauses in treaties is a consequence of the need felt
to give effect to treaty obligations prior to a state’s formal
ratification of/accession to a treaty. The obligations relating
to provisional application are undertaken by a conscious voluntary
act of the state consistent with its domestic legal framework.
Provisional application of a treaty that has entered into force
The provisional application of a treaty
that has entered into force may occur when a state undertakes to
give effect to the treaty obligations provisionally although its
domestic procedures for ratification/accession have not yet been
completed. The intention of the state would be to ratify/accede
to the treaty once its domestic legal requirements have been met.
Provisional application may be terminated at any time. In contrast,
a state which has consented to be bound by a treaty through ratification/accession
or definitive signature, is governed by the rules on withdrawal
specified in the treaty concerned (Arts. 54, 56, Vienna Convention
on the Law of Treaties 1969).
Provisional application of a treaty that has not entered into force
Provisional application of a treaty
that has not entered into force may occur when a state notifies
that it would give effect to the legal obligations specified in
that treaty provisionally. These legal obligations are undertaken
by a conscious voluntary act of the state consistent with its domestic
legal framework. Provisional application may be terminated at any
time. In contrast, a state which has consented to be bound by a
treaty through ratification/ accession or definitive signature,
is governed by the rules on withdrawal specified in the treaty concerned
(Arts. 54, 56, Vienna Convention on the Law of Treaties 1969).
Provisional application may continue
even after the entry into force of the treaty in relation to a state
applying the treaty provisionally until that state has ratified
it. Provisional application terminates if a state notifies the other
states among which the treaty is being applied provisionally of
its intention of not becoming a party to the treaty. [Art.
25 (2), Vienna Convention on the Law of Treaties 1969]
Provisional Entry into Force
There are also an increasing
number of treaties which include provisions for provisional entry
into force. Such treaties provide mechanisms for entry into force
provisionally, should the formal criteria for entry into force not
be met within a given period. Provisional entry into force of a
treaty may also occur when a number of parties to a treaty which
has not yet entered into force, decide to apply the treaty as if
it had entered into force. Once a Treaty has entered into force
provisionally, it is binding on the parties which agreed to bring
it into force provisionally.
The nature of the legal obligations
resulting from provisional entry into force would appear to be the
same as the legal obligations in a treaty that has entered into
force, as any other result would create an uncertain legal situation.
It is the criteria for formal entry into force that have not been
met but the legal standard of the obligations remains. [Art. 25
(1), Vienna Convention on the Law of Treaties 1969]
Reservation, Objection and Declaration
A reservation is a declaration made by a state by which it purports
to exclude or alter the legal effect of certain provisions of the
treaty in their application to that state. A reservation enables
a state to accept a multilateral treaty as a whole by giving it
the possibility not to apply certain provisions with which it does
not want to comply. Reservations can be made when the treaty is
signed, ratified, accepted, approved or acceded to. Reservations
must not be incompatible with the object and the purpose of the
treaty. Furthermore, a treaty might prohibit reservations or only
allow for certain reservations to be made. [Arts.2 (1) (d) and 19-23,
Vienna Convention of the Law of Treaties 1969] Any signatory
or contracting state has the option of objecting to a reservation,
inter alia, if, in its opinion, the reservation is incompatible
with the object and purpose of the treaty. The objecting state may
further declare that its objection has the effect of precluding
the entry into force of the treaty as between objecting and reserving
states. [Art.20-23, Vienna Convention on the Law of Treaties 1969]
Sometimes states make "declarations"
as to their understanding of some matter or as to the interpretation
of a particular provision. Unlike reservations, declarations merely
clarify the state's position and do not purport to exclude or modify
the legal effect of a treaty. Usually, declarations are made at
the time of the deposit of the corresponding instrument or at the
time of signature.
Signature Subject to Ratification, Acceptance or Approval
Where the signature is
subject to ratification, acceptance or approval, the signature does
not establish the consent to be bound. However, it is a means of
authentication and expresses the willingness of the signatory state
to continue the treaty-making process. The signature qualifies the
signatory state to proceed to ratification, acceptance or approval.
It also creates an obligation to refrain, in good faith, from acts
that would defeat the object and the purpose of the treaty. [Arts.10
and 18, Vienna Convention on the Law of Treaties 1969]
*
Source: United Nations
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