INTERNATIONAL TRANSACTIONS AND OTHER INSTRUMENTSKent Alvin Guzman

Kaye Elianne Barbero

International agreement, instrument by which states and other subjects of international law, such as certain international organizations, regulate matters of concern to them. The agreements assume a variety of form and style, but they are all governed by the law of treaties, which is part of customary international law.

A. What is a treaty?

Treaties are international agreement in written form which is entered into by states or entities possessing the treaty-king capacity, for the purpose of regulating their mutual relations under the law of nations. Treaties have used to record agreements between States concerning such widely diverse matters e.g:

1. the lease (rent) of naval bases2. the sale or cession of territory3. the regulation of conduct of hostilities4. the termination of war5. the formation of alliances6. the regulation of commercial relations7. the settling of claims8. the establishment of international organizations

In 1969, a treaty was finally adopted by the Conference on the Law of Treaties in Vienna, known as the Convention of the Law of Treaties (Vienna Convention).

Various names have been used to designate international agreements. Besides “treaty”, the terms convention, pact, protocol, agreement, arrangement, accord, final act, general act, exchange of notes, covenants, concordats, etc. have been employed.

B. Functions of treaties1. Enable parties to settle actual and potential conflicts2. Make it possible for the parties to modify the rules of international customary

law (“general practice accepted as law”)3. Lead to a transformation of unorganized international society into one which

may be organized on any chosen level of social integration4. Provide the humus for the growth of international customary law.

C. Essential Requisites of a Valid Treaty:To be valid, a treaty must:1. Entered into by parties with the treaty-making capacity.2. Entered through their authorized representatives3. Entered without the attendance of duress, fraud, mistake, or other vice of

consent 4. Legality of the object or subject matter of the treaty.5. In accordance with their respective constitutional processes

D. Treaty-making process1. Negotiation – may be undertaken directly by the head of state but he now

usually assigns this task to his authorized representatives. It is the standard practice for one of the parties to submit a draft of the proposed treaty, which together with the counter proposals, becomes the basis of the subsequent negotiations. If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature.

2. Signature –this step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties.

3. Ratification –is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives.

4. Exchange of the instruments of ratification which signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.

N.B. Under Article 102 of the UN Charter, a treaty not registered with the Secretariat, by which it shall be published, cannot be invoked before any organ of the U.N. such as the ICJ.

E. Binding Effect of TreatiesAs a rule, a treaty is binding only on the contracting parties, including not only the original signatories but also other states which, although they may not have participated in the negotiation of the agreement, have been allowed by its term to sign it later by a process known as accession (consent, concurrence).

F. Observance of treatiesOne of the fundamental rules of international law is “pacta sunt servanda”. This requires the performance in good faith of treaty obligation. A state which has contracted valid international obligation is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligation undertaken.

G. Termination of treatiesA treaty may be terminated in any of the following ways:1. By expiration of the term, which may be fixed or subject to a treaty condition2. By accomplishment of the purpose3. By impossibility of performance4. By loss of the subject matter5. By desistance of the parties6. By extinction of one of the parties if the treaty is bipartite7. By vital change of circumstances under the doctrine of rebus sic stantibus8. By outbreak of war between the parties9. Violation of the treaty by one of the parties

OTHER INSTRUMENTS

Act or Final Act or Protocol de cloture-is an instrument which records the summary of a diplomatic conference. It reproduces the treaties, conventions, or resolution agreed upon by the participants of the conference. Agreement, arrangement or accord (used interchangeably)-is an instrument of a more limited subject and of lesser importance than a formal treaty or convention.Compromis d’ Arbitrage-is an agreement to submit a dispute to an arbitration or judicial settlementConcordat-is an agreement by the Pope with heads of states on ecclesiastical affairs.Convention-is a term used by the UN for agreements involving all or almost all members of the UNO on particular subject, such as the Vienna Convention on TreatiesCovenant-is an international compact which has binding effect, usually on many states.

Declaration-is understood in three ways: 1. as the title of a body of stipulations of a treaty, according to which the parties undertake to pursue in the future a certain line of conduct;2. a unilateral statement which may create rights and duties for other states3. a description of an action taken when a state communicates with other States, or an explanation and justification of a line of conduct pursued in the past, or an explanation of views and intentions concerning certain matters. The second and the third types do not possess the character of a treaty. Exchange of Notes-is an informal method by which states subscribe to a certain understanding or recognize certain obligations as binding upon them. Exchange of Agreement-is an international agreement entered into between the executive departments of governments concerning matters of lesser importance than those dealt with by treaties. Usually, they do not require the concurrence of legislative bodies to make them effective. Modus Vivendi-is a temporary agreement or arrangement between two states, providing for a workable compromise in a pending dispute.Pact-is a treaty surrounded by a special atmosphere of sentiment, with an intention to guarantee, such as treaties of friendship.Protocol-is an instrument which amended or supplement an existing treaty or convention.Charter-is a multilateral agreement in the form of a constitution of states establishing an international organ for a certain purpose.