INTERNATIONAL AGREEMENTS AND TREATIES IMPOSING RIGHTS AND OBLIGATIONS ON MEMBER STATES

INTERNATIONAL AGREEMENTS AND TREATIES

IMPOSING RIGHTS AND OBLIGATIONS ON MEMBER STATES

Stes de Necker

An International Agreement or Treaty, is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. An International Treaties or Agreements may also be known as international conventions, international agreements, covenants, charters, memorandums of understandings (MOUs), protocols, pacts, accords, and constitutions for international organizations. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the rules are the same.

Agreements and Treaties can be loosely compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under international law.

A treaty is an official, express written agreement that states use to legally bind themselves. A treaty is the official document which expresses that agreement in words; and it is also the objective outcome of a ceremonial occasion which acknowledges the parties and their defined relationships.

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.

Multilateral agreements are usually open to all nations, plurilateral agreements involve a restricted number of nations, while bilateral agreements are usually arrangements between two nations.

A treaty, the typical instrument of international relations, is defined by the 1969 Vienna Convention on the Law of Treaties as an “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.

Although considered binding, international agreements may lapse on expiration, through war or denunciation, or when a fundamental change in circumstances occurs.

Treaties may be seen as 'self-executing', in that merely becoming a party puts the treaty and all of its obligations in action. Other treaties may be non-self-executing and require 'implementing legislation'—a change in the domestic law of a state party that will direct or enable it to fulfil the treaty obligations. An example of a treaty requiring such legislation would be one mandating local prosecution by a party for particular crimes. An agreement "enters into force" when the terms for entry into force as specified in the agreement are met.

The ratification of international treaties is usually accomplished by filing instruments of ratification as provided for in the treaty.

The division between the two is often not clear and is often politicized in disagreements within a government over a treaty, since a non-self-executing treaty cannot be acted on without the proper change in domestic law. If a treaty requires implementing legislation, a state may be in default of its obligations by the failure of its legislature to pass the necessary domestic laws.

One significant part of an International Agreement is that signing a agreement implies recognition that the other side is a sovereign state and that the agreement being considered is enforceable under international law. If an act or lack thereof is condemned under international law, the act will not assume international legality even if approved by internal law. This means that in case of a conflict with domestic law, international law will always prevail.

The language of treaties, like that of any law or contract, must be interpreted when the wording does not seem clear or it is not immediately apparent how it should be applied in a perhaps unforeseen circumstance.

The Vienna Convention states that treaties are to be interpreted "in good faith" according to the "ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose." International legal experts also often invoke the 'principle of maximum effectiveness,' which interprets treaty language as having the fullest force and effect possible to establish obligations between the parties.

Treaties are not necessarily permanently binding upon the signatory parties. As obligations in international law are traditionally viewed as arising only from the consent of states, many treaties expressly allow a state to withdraw as long as it follows certain procedures of notification.

For example, the Single Convention on Narcotic Drugs provides that the treaty will terminate if, as a result of denunciations, the number of parties falls below 40.

Many treaties expressly forbid withdrawal. Article 56 of the Vienna Convention on the Law of Treaties provides that where a treaty is silent over whether or not it can be denounced there is a rebuttable presumption that it cannot be unilaterally denounced unless:

(a) it can be shown that the parties intended to admit the possibility, or

(b) the right of withdrawal can be implied into the terms of the treaty.

The biggest threat of International Agreements to society is its inherent assault on democracy.

In a Constitutional State like South Africa, any law which may confer any rights and/or obligations on its citizens, must follow a very clear legal process before that law can be promulgated. From its initiation to the point of the President signing a Bill into law, is prescribed by the Constitution. This process allows for proper and sufficient consultation and transparency throughout the whole process.

In the case of entering into International Agreements or Treaties, no such consultative processes are followed, leaving the majority of the citizens in the dark as to its contents and implications.

For example, one of the main aims of the TTIP (Trans-Atlantic Partnership Agreement) is the introduction of Investor-State Dispute Settlements (ISDS), which allow companies to sue governments if those governments’ policies cause a loss of profits. In effect it means unelected transnational corporations can dictate the policies of democratically elected governments.

ISDSs are already in place in other bi-lateral trade agreements around the world and have led to such injustices as in Germany where Swedish energy company Vattenfall is suing the German government for billions of dollars over its decision to phase out nuclear power plants in the wake of the Fukushima disaster in Japan. Here we see a public health policy put into place by a democratically elected government being threatened by an energy giant because of a potential loss of profit. Nothing could be more cynically anti-democratic.

There are around 500 similar cases of businesses versus nations going on around the world at the moment and they are all taking place before ‘arbitration tribunals’ made up of corporate lawyers appointed on an ad hoc basis, which are little more than kangaroo courts with a vested interest in ruling in favour of business.

Many International Agreements signed by the South African Government, including the so-called BRICS Agreement, are little more than part of the ANC’s policy of brown-nosing the communist regimes of Russia, China and Brazil.

If BRICS was such a good deal for South Africa, the ANC Government should have had the courage to show the South African people exactly what is in this deal, instead of keeping the content of the agreement under wraps until it was signed by the President.

The major risk with respect to multilateralism derives from the fact that in an age of an uncertain globalization process and an unclear “new world order,” many International Agreements like BRICS and others, could actually exacerbate the rivalry of economic blocs and thus deepen the present economic and institutional global crisis.