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Treaties, Pacts, Agreements and their Legal Efficacy

As international relationships and interactions continue to expand, so does our need for rules to govern a host of activities such as finance, trade, travel, and communication. International law is often described as common legal principles that provide rules, law, and customs. However, as we have seen, not all legal principles are interpreted in the same manner in every nation (Rourke & Boyer, 1998). For this reason, treaties and treaty-making have been successful tools to help fill in gaps and permit nation-states to construct more meaningful resolutions to international disputes. A treaty can be defined as that which involves two or more nations entering into an international agreement, pact, accord, covenant, or convention. Treaties are also contracts in which nation-states set forth expectations for future performance and are governed by international law. "Treaties create legal rights and duties, and it is this obligatory aspect that makes them part of international law" (Janis, 1988, p. 9).

Functions of Treaties
Treaties have a broad range of functions. Sometimes they define the terms of peaceful relations between nation-states that had previously been at war. They may also set out the terms of commercial trade between nations or prohibit the shipping of illegal goods. Treaties can be signed between as few as two parties or hundreds. The Nuclear Non-Proliferation Treaty, for example, in an international agreement between 189 nations that, amongst other things, prohibits the selling of nuclear technology to nations that currently have no nuclear weapons capability. The Treaty of Lisbon in 2007 reformed some of the operations of the European Union. The Kyoto Protocol of 1997 mandated the reduction of greenhouse gas emissions. Take a few minutes to review the list of treaties that is provided in the Module 4 Readings. As you will see, they have a history that stretches all the way from the 13th century B.C. to an extradition agreement signed in 2009.

How Treaties Are Formed

The United States (U.S.) Constitution, Article II, Section 2, Clause 2, expressly states that the President "shall have the power; by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." Additionally, under Article I, Section 10, Clause 1, Congress asserts that "no state shall enter into any treaty, alliance or confederate." This is to ensure consistency and centralization of the U.S.'s relationships with other nation-states. In the U.S., a treaty is what is called a self-executing act, meaning that it does not require a legislative process to become law. However, in other common law territories, this is not the case and each treaty will not take effect until legislative enactment is complete (Janis, 1988). Often, the treaty-making process begins when there is an issue that requires negotiation between two nations and no standing law can bring about an effective agreement. Previously, the treaty-making process was performed in secret as many believed that conducting it in public would lead to posturing and reluctance to compromise. The political rewards of being directly

associated with successfully concluding a major treaty; however, mean that most diplomacy is currently conducted in the glare of the media. Sometimes parties attach reservations to multilateral treaties. Reservations limit the obligations directly imposed on a national government by way of attaching significant reservations to those treaties. However, "[u]nder traditional international law, a state that attaches an impermissible reservation cannot become a party to the treaty unless all other parties agree to the reservation" (Kirgis, 2003, Para. 3). A current example is the Tobacco Control Convention promoted by the World Health Organization. The convention aims to limit the methods by which tobacco companies can globally advertise their products and expressly places a prohibition clause on reservations. The U.S. is not in agreement with this clause, both because it believes it limits its First Amendment rights to commercial speech and because ratifying the treaty would likely result in constitutional challenges within U.S. courts (Kirgis, 2003). (It is easy in this respect, perhaps, to see the close interplay between commercial interests and political decision making.) As Kirgis writes, "International law does not require the United States (or any country) to ratify the Tobacco Control Convention or any other treaty, whether or not the treaty contains a clause prohibiting reservations. Nor does international law attempt to regulate the motives a government might have for wishing to attach reservations or for declining to become a party to a treaty" (Kirgis, 2003, Para. 7). In short, for treaties to remain an effective instrument of diplomacy between nations, it is important that they not supersede the authority of international law. Each state is thus allowed to remain a sovereign nation-state with the freedom to contract and draft treaties as they see fit to best serve their interests.

Treaties are very useful tools for providing nation-states with the flexibility to arrive at agreements without limiting their ability to remain fluid in their operations. At all levels of society, whether individual, business, government, or national, relationships matter. Treaties, pacts, and agreements serve to set forth promises and obligations between parties to help them reach a clear understanding of what is expected of the other and build a mutually beneficial relationship.

Black's Law Dictionary (7th ed.). (1999). West Group: St. Paul, MN. Central Intelligence Agency (2010). The World Fact Book. (n.d.). Retrieved December 20, 2010, from https://www.cia.gov/library/publications/the-worldfactbook/fields/2100.html Janis, M. W. (1988). An introduction to international law. Little, Brown & Company (Canada) Limited. Infowars.com (Nov. 23, 2010). N. Korea attack on south kills two, sets homes ablaze . Retrieved December 20, 2010, from http://www.infowars.com/n-korea-attack-onsouth-kills-two-sets-homes-ablaze/ Kirgis, F. L. (May 2003). ASIL Insights: Reservations to treaties and United States practice. Retrieved December 20, 2010, from http://www.asil.org/insigh105.cfm

Rourke, J. T., & Boyer, M. A. (1996). International politics on the world stage (Brief Edition). Times Mirror Company: Dubuque, IA. US Const., Article I, Section 10, clause 1 US Const., Article II, Section 2, clause 2