Treaty

A compact made between two or more independent nations with a view to the public Welfare.
A treaty is an agreement in written form between nation-states (or international agencies, such as the
United Nations, that have been giventreatymaking capacity by the states that created them) that is intended to establish a relationship governed
by International
Law. It may becontained in a single instrument or in two or more related instruments such as an exch
ange of diplomatic notes. Various terms have beenused for such an agreement, including treaty, conv
ention, protocol, declaration, charter, Covenant, pact, act, statute, exchange of notes,agreement, mo
dus vivendi ("manner of living" or practical compromise), and understanding. The particular designatio
n does not affect theagreement's legal character.
Though a treaty may take many forms, an international agreement customarily includes four or five ba
sic elements. The first is the preamble,which gives the names of the parties, a statement of the gener
al aims of the treaty, and a statement naming the plenipotentiaries (thepersons invested with the pow
er to negotiate) who negotiated the agreement and verifying that they have the power to make the tre
aty. Thesubstance of the treaty is contained in articles that describe what the parties have agreed upo
n; these articles are followed by an articleproviding for ratification and the time and place for the exch
ange of ratifications. At the end of the document is a clause that states "inwitness whereof the respect
ive plenipotentiaries have affixed their names and seals" and a place for signatures and dates. Someti
mesadditional articles are appended to the treaty and signed by the plenipotentiaries along with a decl
aration stating that the articles have thesame force as those contained in the body of the agreement.A
rticle II, Section 2, Clause 2, of the U.S. Constitution gives the president thepower to negotiate and rat
ify treaties, but he must obtain the advice and consent of the Senate (in practice solicited only after ne
gotiation);
Twothirds of the senators present must concur. Article I, Section 10, of the Constitution forbids the stat
es to enter into a "treaty, alliance, orconfederation," although they may enter into an "agreement or co
mpact" with other states, domestic or foreign, but only with the consent ofCongress.
The U.S. Supreme Court, in Missouri v. Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L. Ed. 641 (1920), es
tablished that U.S. treaties aresuperior to state law. Acts of Congress, however, are equivalent to a tre
aty. Thus, if a treaty and a law of Congress are inconsistent, the onelater in time prevails. The Court h
as never found a treaty to be unconstitutional, and few treaties have been challenged. In general,
the Court views a dispute over a treaty as a Political Question outside its jurisdiction.
Traditionally, international law required treaties to be ratified in the same form by all parties. Conseque
ntly, reservations or amendmentsproposed by one party had to be accepted by all. Because of the lar
ge number of participating states, this unanimity rule has proved difficultto enforce in modern multilate
ral treaties sponsored by international agencies for the purpose of creating legal regimes or codifying
rules ofinternational law. Where agreement exists on the essential elements of a treaty, international l
aw increasingly is allowing reservations as tominor points not unanimously accepted. Treaties for whic
h ratification is specified come into effect upon the exchange of ratificationsbetween the parties or upo
n deposit of the ratifications with a designated party or international agency, such as the Secretariat of
the UnitedNations.

A treaty may be terminated in accordance with specifications in the treaty or by consent of the parties.
War between the parties does notinvariably terminate treaties, as some treaties are made to regulate t
he conduct of hostilities and treatment of prisoners. Other treaties maybe suspended for the duration
of the hostilities and then resumed. An unjustified, unilateral abrogation of a treaty may give rise to po
ssibleinternational claims for any injury suffered by the other parties.
Treaties are usually interpreted according to the ordinary sense of their words in context and the appa
rent purposes to be achieved. If themeaning of the language is unclear or there is doubt that it expres
ses the intention of the parties, the work product of the negotiation processmay be consulted as well a
s other extrinsic evidence.

Jus Cogens
That body of peremptory principles or norms from which no derogation is permitted; those n
orms recognized by the international communityas a whole as being fundamental to the mai
ntenance of an international legal order.
Elementary rules that concern the safeguarding of peace and notably those that prohibit rec
ourse to force or the threat of force. Norms of ahumanitarian nature are included, such as pr
ohibitions against Genocide, Slavery, and RACIAL DISCRIMINATION.
Jus cogens may, therefore, operate to invalidate a treaty or agreement between states to the
extent of the inconsistency with any suchprinciples or norms.
What are General Principles of International Law?
When there is no provision in an international treaty or statute nor any recognized customary
principle of international law available for application in an international dispute, the general
principles of law can be used to fill the gap.
A most common way of resolving disputes under the rule of law is by reference to, and application
of, the language of applicable multilateral or bilateral treaties or statutes, or some other writing
which provides evidence of the relationship and past positions of the parties to a dispute. Another
method is by reference to custom, the practice of nations in a particular area (customary
international law) and principles of law derived from such. But what happens when there is no
such guiding authority for the benefit of those involved in resolving the dispute? Such gaps are
inevitable in any legal system, including the international one, because treaties (contracts),
statutes, and rules derived from custom cannot be designed to cover all situations which give rise
to disputes. International law provides an answer to that question for the resolution of
international disputes: general principles of law may used to fill the void or gap. These may be
referred to, as one authority did, as nonconsensual sources of international law.
In the municipal law systems of countries with a common law tradition, judges very often look to
the decisions from outside sources to fill in the gaps of the law to be applied in the resolution of
a particular case. As an example, state courts in the United States very often cite the decisions of
other state courts in the course of an opinion in a case, where a needed legal rule of the deciding
state is absent or unclear. As a corollary, some justices of the Supreme Court of the United States
have recently adopted the practice of using the decisions of courts of other countries and
international courts for their persuasive value in clarifying unclear rules to be applied in a case.
In civil law countries, as Professor Mark Janis of the University of Connecticut Law School notes in
his An Introduction to International Law:

[L]awyers and judges in the civil law tradition are familiar with the problem of lacunae, gaps in the
law, a concept based on the premise that only formal legislative institutions are empowered to
make legal rules.
Thus, judges in civil law countries need statutory authority to fill in the gaps of the legislatively
created legal rules. Must the civil law judge merely look at the statutes or decisions of courts in
foreign jurisdictions for a fill in the gaps principle, or must the judge find explicit statutory
authority for such practice, i.e. to find explicit authorization permitting courts to fill the legislative
vacuum?
Fortunately for the international judge or the domestic judge faced with applying international law
in a particular cause, the answer can be found in Article 38(1) of the Statute of the International
Court of Justice. This provision specifically authorizes in listing the sources of law to be applied by
the Court, treaties, customs and the general principles of law recognized by civilized nations.
Professor Janis comments on this provision:
The basic notion is that a general principle of international law is some proposition of law so
fundamental that it will be found in virtually every legal system. When treaties and customary
international law fail to offer a needed international rule, a search may be launched in comparative
law to discover if national legal systems use a common legal principle. If such a common legal
principle is found, then it is presumed that a comparable principle should be attributed to fill the
gap in international law.
An example cited among others by Professor Janis is the International Court of Justice decision in
1949 in the Corfu Channel case, which addressed the question of Albanian civil liability for the
mining of the Corfu Channel and subsequent damage to two British naval vessels that resulted
from striking mines. In discussing whether the United Kingdom could establish the knowledge and
responsibility of Albania for the laying of the mines, the Courts opinion stated:
[T[he fact of this exclusive territorial control exercised by a State within its frontiers has a bearing
upon the methods of proof available to establish the knowledge of that State as to such events. By
reason of this exclusive control, the other State, the victim of a breach of international law, is
often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be
allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect
evidence is admitted in all systems of law, and its use is recognized by international decisions. It
must be regarded as of special weight when it is based on a series of facts linked together and
leading logically to a single conclusion. (Emphasis added)
The existence of a body of legal principles and rules that are common to all, or almost all legal
systems, is supported by some observations made by a British barrister, C. Wilfred Jenks, in his
book The Common Law of Mankind, published under the auspices of the London Institute of World
Affairs in 1958. In a section of the book titled Extent of the Influence of the Common and the Civil
Law, Jenks observes that virtually all of the legal systems of the world, including those in Latin
America, Islamic countries, African countries, countries within the former Soviet block, India,
China, and Japan have been profoundly influenced in the course of their development by either the
civil law or the common law. The result is that many principles of law are common to these legal
systems. One only has to examine, for example, the law of contracts or torts or the criminal law
relating to murder in these legal systems to understand the truth of this assertion. Thus the
common law and the civil law, which by themselves share common principles of law, provide the
basic framework that many general principles of law can be derived and used to fill the gap when
there is no general principle of international law available for application in the resolution of a
particular case.

International law and municipal law

In principle, international law operates only at the international level and not within
domestic legal systemsa perspective consistent with positivism, which recognizes
international law and municipal law as distinct and independent systems.
Conversely, advocates of natural law maintain that municipal and international law
form a single legal system, an approach sometimes referred to as monism. Such a
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system, according to monists, may arise either out of a unified ethical approach
emphasizing universal human rights or out of a formalistic, hierarchical approach
positing the existence of one fundamental norm underpinning both international law
and municipal law.