Why do nations negotiate and

how do they make treaties?

Presentation of Boldizsár Nagy

on the law of treaties

 In place of a motto

„On April 9, 1997, John R. Bolton, • Vienna Convention on the

a former Assistant Secretary of Law of Treaties, 1969,
State for International preamble
Organization Affairs in the Bush
Administration [and US
ambassador to the UN in 2006 „Considering the fundamental
– BN], testified before the role of treaties in the
House International Relations history of international
Committee. In his written relations, ....
statement he asserted,
»Treaties are 'law' only for U.S. Recalling the determination of
domestic purposes. In their the peoples of the United
international operation, treaties Nations to establish
are simply 'political,' and not conditions under which
legally binding«.„ justice and respect for the
From: „Treaties as Binding International obligations arising from
Obligation” treaties can be
By Frederic L. Kirgis: ASIL Insights May
1997 maintained,....
http://www.asil.org/insights/insight9.htm
 Overview of the issues

- The role of treaties in the international community

- Piece of paper or sacrosanct pactum – are treaties really binding?
Why?
- The treaty making process
- Who negotiates?
- What happens in the corridors
- Is a text ever ready?
- „Expressing consent to be bound” - ways of becoming party to a
treaty
- Making room for the national interest: reservations, objections
- Freedom re-gained: the termination of treaties
 Where to find, how many,?
Where to find:
– United Nations Treaty Series (http://untreaty.un.org/ )
– International Legal Materials (http://www.asil.org/resources/ilm.html )
– „Multilateral Projects” of the Fletcher School (
http://fletcher.tufts.edu/multilaterals.html )
– ASIL sources:
• Resource Guide: http://www.asil.org/resource/treaty1.htm#Section2
• Treaty collection links (
http://www.eisil.org/index.php?sid=297648529&cat=705&t=sub_pages
)

Special collections, e.g.:

www.ecolex.org
United Kingdom: Treaty Series. Annual. London : H.M.S.O., 1892-
Numbers:
• UNTS ≈ 42.000
• Hungary ≈ 3.000
 Definition

1969 Vienna Convention on the Law of Treaties

Article 2 = Use of terms
1. For the purposes of the present Convention:
• “treaty” means 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;

Paul Reuter:
„A Treaty is an expression of the concurring wills, attributable to two or
more subjects of international law, and intended to have legal
effects under rules of international law”

Introduction to the Law of Treaties,

1989, p. 22
 The role of treaties in the international community

„Contract” „Law making” Conveyance Charters

Deal on Transfer of Int’l org.

identical territory
or constitutional codificatory
different
purposes
 Explanations why treaties (and international law) are binding

Normativist-
Theories based neopozitivist
Sociological
on state will Natural law school politological
(Hans Kelsen) approaches

Functionalism Thomas Franck’s

legitimacy pull

Symbolic Adherence to
Determinacy Coherence
validation „secondary norms”
 The conclusion of a treaty and ancillary steps
Exploratory talks

Full powers / entitlement

Domestic (political and
legal empowering)

Negotiations

Initialling

Entry into force Signing

(international)

Ratification, approval, acceptance

Registration with the
Secretary General of the
United Nations Transformation into domestic law
 Negotiation – key elements

Goals of negotiations

Genuine Disguised Communication itself

Extension Win time

Redistribution Gather information
Innovation Create „black sheep”
Normalisation Impact 3rd states

Techniques applied

Package deals Square bracketing „Consensus”

 Negotiation – key elements

• The role of the language

• The weight of the personalities (chairperson, president of the

conference)

• The significance of the informal entities (open-ended working

groups, „friends of the president” group)

• Rules of procedure - frequently the key to substantive victory

• Time factor and the „definitive text”

 Expressing consent to be bound by a treaty

Vienna Convention, Article 11

Means of expressing consent to be bound by a treaty

The consent of a State to be bound by a treaty may be expressed by

• signature,
• exchange of instruments constituting a treaty,
• ratification, acceptance, approval

• or accession,

• or by any other means if so agreed.

 Reservation - objection

“'reservation”' means a unilateral statement, however phrased or named, made

by a State, when signing, ratifying, accepting, approving or acceding to a
treaty, whereby it purports to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that State (VC § 2 d)

Article 21
Legal effects of reservations and of objections to reservations
(a) modifies for the reserving State in its relations with that other party the
provisions of the treaty to which the reservation relates to the extent of the
reservation; and
(b) modifies those provisions to the same extent for that other party in its
relations with the reserving State.
...
3. When a State objecting to a reservation has not opposed the entry into force
of the treaty between itself and the reserving State, the provisions to which
the reservation relates do not apply as between the two States to the extent
of the reservation
 Overview of reservations and objections to them
(Assume Russia requires permit for transit of foreign navy in her territorial waters, when
Law of the Sea Convention permits „innocent passage”)

Russia original+reservation = permit required Venezuela:

reservation accepts

Tr
ea
ty
No mi
nu aty
treaty s l tre
igina
between Or Original
Russia treaty
and
ru
UK le
on
t ran
sit

UK Original US:
Exclusionary Treaty objection
objection
 Overview of treaty termination

On the basis of the On the basis of a rule

parties` will of int. law

event denun consent new breach fundam impossibility wa succes-

ciation of parties treaty (material) ental- -physical r sion
or change - legal (jus
of cogens)
withdrawal circums
tances
Performing?
 Recommended readings

Books:
• Arnold D. McNair [Lord Mc Nair]: The Law of treaties, Oxford, 1961

• Paul Reuter: Introduction to the Law of Treaties, London, Kegan, 1995

• Ian Sinclair [Sir]: The Vienna Convention on the Law of Treaties 2nd ed. Manchster
university press, 1984

• Jan Klabbers: The Concept of Treaty in international Law, The Hague, Kluwer,
1996

• National Treaty Law and Practice (series of the American Siciety of Int’l Law, edited
by Monroe Leigh and Merritt R Blakeslee)

1995: France, Germany, India, Switzerland, Thailand, UK,

1999: (Leigh, Blekeslee and - Benjamin Ederington eds) – Austria, Chile,

Colombia, Japan, The Netherlands, United States,

2003: (The same eds.): Canada, Egypt, Israel, Mexico, Russia, South Africa

• Anthony Aust: Modern Traety Law and Practice, Cambridge, CUP, 2000

• Rüdiger Wolfrum – Volker Röben (eds.) Developments of international Law in

Treaty Making, Springer, Berlin-Heidelberg, 2005
 Recommended readings

Recent Articles

Kal Raustiala: Form and Substance in International Agreements

American Journal of International Law vol. 99 (2005) No 3, 581-614
p.

Andrew T. Guzman: The Design of International Agreements

European Journal of International Law vol. 16 (2005) No 4, 579 –
612. p.
 Thanks!
Boldizsár Nagy
Eötvös Loránd University and Central European University
Budapest

nagyboldi@ajk.elte.hu

www.nagyboldizsar.hu