The Sphere of International Agreements - Research Paper Example

Introduction and Overview: the sphere of international agreements 1 International agreements provide a significant method for cooperation between diverse political, social, legal and economic systems among the international community. The modern international agreement has improved the effectiveness of international law, providing for a measure of uniformity thereby facilitating recognition and enforcement in private international law. As a result, multi-lateral and bi-lateral agreements have contributed to a shift in international relations from autonomous regulations to a more multilateral co-operation between diverse states1. It therefore follows that modern international agreements are currently necessary for regional and international integrations. By virtue of these international agreements, it is possible to ensure joint action for the purpose of achieving common goals, such as the fight against organized crime, extradition of criminals, the preservation of the environment, economic developments, protection of human rights, and scientific cooperation. Prior to the First World War, the law of international agreements were primarily negotiated and concluded by reliance on the monarchical tradition and power structure. At that time, the King or Prince; as the head of state, acted as a representative of the state and all the other participants were simply delegates2. However, this tradition was gradually abolished by the emergence of parliamentary and democratic systems. The period between two World Wars represented a turning point in international agreements as there was an increasing need for the prompt conclusion of more treaties. During this period, the procedure for negotiating and concluding international agreements was simplified. Instead of requiring direct participation by the head of state, ministers and heads of government were entirely acceptable. Additionally, new developments at that time would facilitate the prompt formation of an international treaty and/or agreement. Firstly, a group of experts in the league for governments submitted new codification process for governments as a means of codifying the law relating to treaties. However, this attempt failed, primarily because it was rejected by some governments. Secondly, the league lobbied for the requirement that all member states register relevant treaties or international agreements with the league secretariat as a means of ensuring its publication3. Other and significant developments in international law would follow during the twentieth century in the period after the Second World War. Limited to member states of the international community only, the focus shifted to politics and state’s power in the confidence and responsibilities of organized human societies4. Moreover, those developments also dealt with the fact that earlier international agreements were typically formed by virtue of bilateral relations between few autonomous states. It was therefore essential that these relations expanded to facilitate multi-lateral agreements which would provide for the clarification of international rules by including them in written binding agreements. This expansion helped to increase the cooperation and coordination between states5. International agreements were one of the most significant developments in international law during the twentieth century. In order to facilitate the major expansion of multi-lateral agreements among the international community, it was essential to create new forms of international agreements that were formal binding agreements, and provable by informal evidence. For instance, minutes of meetings could provide evidence of verbal agreements between international bodies, thereby simplifying the process by which formal binding agreements were formed6. Pursuant to these new developments in the twentieth century, the United Nations implemented the Vienna Convention as the codification of the law of treaties in 1969. This Vienna Convention 1969 in fortifying the strength of international agreements as some member states looked upon the Convention as a primary reference on international agreements7. Since then, states and international organizations began to enter into an increasing number of agreements, a number of which were formal and legally binding, and others were non-binding agreements8. The creation of such forms of international agreements both binding and non-binding were criticized by many scholars who perceived these agreements as weak, complex and misleading between the international communities. Moreover, the creation of non-binding agreements during the twentieth century was a matter of concern and has been discussed by many scholars, such as Karl Stupp9, and Wengler.10 Stupp and Wengler have studied and evaluated the importance of international agreements several times over the past years. 1.2 Before going further it is important to note that this research is an exploratory study of the legally binding nature of international agreements after the year 1969. This research will begin by offering a working definition of the terms “international agreements” and “treaties” in the context of the Vienna Convention on the law of treaties 1969. This will necessitate an evaluation of the various and relevant elements defined under the 1969 Vienna Convention. This will include an examination of the definition and use of both legal forms; binding and non-binding agreements. Taking this approach, the term “international agreements” within its narrowest context, are formal international instruments recording and constituting an international agreement between two or more parties.” According to Judge Basdevant, the term “treaty” refers to an instrument and not an agreement11. By virtue of this definition, the term treaty may also be applied to any binding international agreement. However, the difficulty with defining the term is not critical nowadays. Nevertheless, a working definition will have consequences for the binding nature of international agreements12. In order to demonstrate the consequences for applying a working definition of the terms “treaty” and “international agreements” this research will explore the different types of international agreements that are either listed or can be concluded under the Vienna Convention 1969. References will also me made to other informal types used by international bodies in the recent years. This research will also focus on the legal aspects of both forms of international agreements; binding and non-binding agreements. This will be approached by first analyzing the effects of the Vienna Convention, and its parallel convention 1986 on treaties made by international organization. This analysis will take into account the flexibility of the Vienna Convention, and explore how it affects the domestic laws of different states. It will therefore be necessary to consider legal issues such as the intention of the parties to create legally binding relations, and to sign enforceable agreement. Likewise it will be necessary to analyze the requirements for concluding and executing legally binding agreements. Cumulatively, the objective of this research study is to explore and explain on the effect of non-binding agreements on international relations and why some international bodies prefer utilizing non-binding agreements. It will be argued and submitted that preferences largely depend on the surrounding circumstances of a specific agreement. In this regard, it will also be necessary to evaluate and list the different such types of non-binding agreements, what distinguishes them from normal binding treaties. Tied to these issues are issues such as whether or not they are considered soft law, and what the possible legal consequences of those types of international agreements are. In general, formal treaties will require some formalities to create a legally binding agreement. For instance, modifications or alterations of the domestic laws of any state forming part of a treaty13 and the ratification of the agreement will be subject to some formalities. These kinds of formalities partly explain why some states and international bodies might typically opt for non-binding agreements. This aspect of state choice in the area of international agreement has been extensively researched and studied by international law scholars such as Hillgenberg14 and Guzman15. Relying on these scholars, this research will present the different perspectives of the role of soft law in the international agreements and its effects on the international law. Finally, this research will evaluate and explore the importance of such treaties. It will be argued that many areas in the international law recently have adopted the idea of treaties in both binding and non-binding forms as a means of facilitating the development and establishment of inter-state cooperation. Substantiating this argument, this research will analyze the state’s practice on the law of treaties as opposed to its precedents. The states considered will be the United Kingdom, the United States of America and the United Arab Emirates. Further research will delve into the effects of such treaties on the regional organizations and unions such as, the GCC, EU and the NATO. This part of the research is calculated to demonstrate how such agreements played a significant contributory role in recent international environmental law16. To this end, any new environmental problem is responded to by the negotiation and conclusion of a new agreement is negotiated, such as movement of hazardous wastes and climate change17. Even though, the effectiveness of these agreements remain an open question and their comparative benefits versus soft law instruments are inadequately understood18. Moreover, this research will explore the effect of international agreements in international law areas such as, Arms control and Human rights. Ultimately, the goals and objectives of this research is to explore in greater detail, the extent to which international agreements promotes harmony by overcoming political, economic, legal and social divergences among nations for the cooperative regulation of mutual interests. 1.3 Globalization has become phenomenon with far-reaching consequences for the social, political and economic relations among states. The world is becoming more and more interdependent as a result of globalization. Regional cooperation has become a reality in the twenty-first century. As the world becomes increasingly interdependent, regional integration is becoming more and more frequent. Examples of regional cooperation/integration include bi-lateral and multi-lateral trade agreements such as the GCC (Gulf Co-operation Corporation), NAFTA (the North American Free Trade Association) and the EU (European Union). These are just a few of the many regional arrangements currently proliferating across the globe. Although international agreements are increasing with global interdependence, they have implications for states and decision-makers around the world. Through an exploration of states’ responses to main international agreements, it follows that these agreements may affect both national laws and state sovereignty. These are the natural consequences of an increasingly interdependent world as evidenced by international agreements in practice through regional organizations such as the European Union and the North Atlantic Treaty Organization. Recognition of state sovereignty is a basic principle of the current international law and respect for concepts of sovereignty is fundamental to an effective global system of international relations. Despite the fact that recognition and respect for concepts of state sovereignty drive the success of the international system and are basic premises of the functions of global governance, these important concepts are compromised by a variety of forces. State sovereignty is firmly established as a guiding principle in international relations, basic concepts of state sovereignty are responsible for the current structure of the international order. Therefore, do international agreements help or hinder questions of sovereignty? This important question, and many more, will be discussed with reference to an analysis of the roles that international agreements play in a modern, interdependent society, with examples drawn from the cooperation of the European Union. Therefore, are international agreements a positive or negative force? The European Union; Established in the wake of the Second World War, is a supranational multilateral organization which generates an estimated 30% of the world’s total Gross Domestic Product.19 In addition to being an economic powerhouse, the European Union represents near total European cooperation in the political, judicial, social and economic spheres. It represents multilateralism and the evolution of a Western diplomatic organization at its very best.20 A supranational body composed of constituent member states; the states of the EU are found largely on the European continent. Democracy, negotiation, and collective decision-making through multilateralism are all inherent attributes of the modern EU. As a multinational organization, the EU represents various national interests within an overarching political framework. The EU is an international organization, which operates on the basis of negotiation between member states and relies on international agreements and collective decision-making to achieve its ends. Members are joined together and bound by treaties signifying their participation within the larger EU political framework. The political decisions of member-states are thus constrained by their allegiance and signatory status to overarching EU treaties.21 Today, membership in the EU is actively comprised of nearly all countries on the European continent and one country flanked by both Europe and Middle Asia (Turkey). Although there were initially only five members of the precursor to the EU; Belgium, France, Italy, Luxembourg, Netherlands and West Germany, there are now 27 countries in the EU and countries currently seeking membership in the EU include parts of the former Federal State of Yugoslavia as well as Turkey. Although it has not always been the case, modern-day Europe is characterized by a unifying democratic political culture. While the concept of democracy originated on its shores, the philosophy of democratic governance was challenged in 20th century Europe by authoritarian political movements, including fascism expressed by Nazi Germany and Mussolini’s Italy, as well as communism as exemplified in Eastern Europe during the period of the Cold War. International agreements tie the member states together and represent the inherent democratic nature of the EU. With Allied victory in the Second World War and the collapse of the Soviet Union, democracy is now a universal trend amongst European states. In fact, liberal democracy, best expressed by the states of Western Europe with deeply entrenched democratic traditions, is quickly becoming the standard for the continent. Democratic norms and rules have subsequently been established through a pan-European legal framework, which exists through non-binding and binding legal agreements between member states. The following treaties will explore important legal agreements in the recent history of the EU and chart their significances.22 Firstly, the Treaty of Rome, signed in March of 1957, established the European Economic Community (EEC) and proposed a common European economic market throughout the EEC. Historically, this was perhaps the most important precursor to the cooperative regulation of Europe today. Recent treaties and protocols, including the Treaty of Amsterdam, the Treaty of Nice, and the failed EU Constitution all adhered to the precedent set more than 40 years ago in Rome. Despite some controversies, democracy remains alive and well within the EU political framework. In fact, the recent failure to implement a Constitution for Europe affirmed the democratic underpinnings of the Union and proved that debate and collective decision making are inherent components of the working EU.23 Secondly, the Maastricht Treaty (1993) established the European Union, which replaced the EEC, and paved the way for further economic, social and political cooperation within Europe. This cooperation was strengthened through the implementation of three institutional pillars: the European Communities, Common Foreign and Security Policy (CFSP), and police and judicial cooperation in criminal matters as well as the acceptance of a single currency, the Euro. In addition to the three pillars, the acceptance of the Euro as an official currency of members of the so-called “Eurozone” strengthened economic bonds between member states. Following negotiations in the Dutch city of Maastricht, the Treaty of Amsterdam (1999) represented a further evolution of collective decision making amongst EU members.24 Described as a “confederated state”, the EU represents an evolution of the European democratic tradition. Europe is the cradle of modern democracy and modern European states have successfully maintained a democratic tradition for centuries25. Despite claims that legislation enacted in Brussels bypasses the rights of individual states, the opposite is true. All states within the union participate in its decision making processes.26 The EU is arguably the world’s most successful attempt at regional cooperation. The dictum of the EU is “unity in diversity” and collective bargaining, negotiation and a plurality of opinion are attributes of today’s EU. The EU represents democracy at work and recent treaties and protocols oblige all members to abide by common standards in the political and social realms which affirm a common standard among the states of Europe. In fact “by agreeing to pursue that interest within an organization as constraining as the European Union, the member-states have recognized the ultimate superiority of multilateral, as opposed to unilateral, decision making and action in a variety of policy arenas”. Accordingly, multilateralism, democracy, and collective decision making are at the heart of today’s EU. Globalization has smoothed the way for economic, legal, social and political cooperation across borders and international agreements facilitate common purposes. The EU is an example of an effectibe global multilateral organization, which represents an exciting new wave of regional cooperation arrangements. Each member state is bound by international agreements to facilitate common interests and goals. Established to promote the interdependence of its members, the analysis of the EU demonstrates that regional integration facilitates multilateralism and coordinated action on a variety of fronts. As growing multilateral organizations with increasing influence on the international stage, the EU has established itself as a key geopolitical actor in the post-Cold War and post-9/11 world. Through the establishment of mutual security guarantees following 9/11 through international agreements, the EU has demonstrated that consensus and collective conglomeration are both active and effective in the international system. Safety and security can be promoted through international agreements, which bind members to a common purpose and common goals. 1.4 There are various different definitions and descriptions applicable to international agreements that are used by the international community. However, the need for a specific definition for the term “international agreement” has drawn the attention of many international scholars whose arguments obviate the importance of such a term and its effect on the international relations27. It is therefore important to commence with a detailed consideration of the definitions and terminology offered by international scholars before the implementation of the Vienna Convention 1969. Fawcett attempted a primary definition which will assist with sorting out different kinds of agreements in order to ascertain which one is of direct relevance to international law. He defined the term “international agreements” as agreements between parties belonging to different countries28. However, he argued that such definition is only a rough classification of the term “international agreement”, and that such terminology cannot be achieved without knowing the type of that particular agreement. Consequently, a question arises as to whether the definition of international agreements is found in the form of the agreement itself or by reference to the parties concluding the agreement. Moreover, Fawcett argued such questions by looking at the draft articles that formed the Report of the law of treaties29. The draft articles, which are relevant to this research, provide as follows: “Article 1” Essential requirements of a treaty Treaties are agreement between states, including organizations of states, intended to create legal rights and obligations of the parties. “Article 2” Form and designation of a treaty Agreements, as defined in article 1, constitute treaties regardless of their form and designation. Fawcett argued that the purpose of articles 1 and 2 (cited above) is to limit treaties to agreements between states only. However Fawcett went further to article 1030 and expressed the view that this article appears to be stating that only agreements between states or organizations of states are treaties. At the very least, one party is required to be a state. Moreover, whether the parties have the capacity to conclude a treaty will be a question resolved by the application of international law31. Fawcett also argued that the term treaty has never been satisfactorily defined in state practice. However, Article 102 of the Charter of the United Nations, recognized and favoured more specific usage of the terms “treaty” rather than use of the term “international agreements”. It appears that the term treaty represents a more formal instrument of international law, and may be a stronger term than “international agreement” in its legal and binding structure32. Fawcett connected article 102 with the drafted articles 1 and 2 claiming that they were largely influenced article 102. However, Fawcett went on to state that the word “treaty” in the context of the drafted articles 1 and 2, must have a wider meaning which can accommodate the conclusion of other forms of international agreements33. In addition to article 102 of the United Nations charter, it is also possible that article 18 of the Covenant of the League of Nations34 influenced the draft articles 1 and 2. Both Articles 102 of the United Nations Charter and Article 18 of the Covenant of the League of Nations were conceived at a time where is considered to be a period of enormous achievements of both international organizations35. Both organizations attempted to offer an unambiguous definition of the term “Treaty” or “International agreements” during the last century. It might be more reasonable to consider the use of term “international agreements” by the Charter rather than the use of the term “international engagement” employed by the League. The reason for such a position is influenced by the view expressed in the Rapporteur of Committee IV/2 on the law of treaties which reflected that the term “engagement” may fall outside the strict meaning of the term “agreement”36. In other words, it can be effectively argued that not every international agreement under article 18 of the League is the same as international agreements expressed under article 102 of the Charter. Besides, upon a closer examination of the terminology of article 18, it is arguable that the use of the term “treaty” and “international engagement” emphasizes the idea that a treaty is a more formal instrument of international law that imposes upon the parties binding obligations37. Additionally, the term “engagement” and “agreements” do not have equal legal consequences. The act is, an international agreement is more limited in its legal implications than engagement acts. Therefore, a significant question the distinction between “treaty” and “international agreement” at that time arises. Another point of view by Brandon which argued that a treaty itself is a type of international agreement38 will therefore require closer examination. It can be inferred from the complexity of the term “treaty” that it might be employed in two different senses. It is an international instrument which records the agreement between parties chosen by parties for a reason attributable to domestic laws. It is also a term referencing different types of international instruments which record the agreement between the parties with different names according to its contexts39. Consequently, the expression “law of treaties” appears to encapsulate the second sense of the term treaty, which includes many types of international agreements. McNair in his book Law of Treaties presented a list of such international agreements40. The recent emergence of the Vienna Convention on the Law of Treaties41 increased the uncertainty of international agreements, and lent more weight to the specificity and certainty of its regulations with respect to the law of treaties42. The Vienna Convention however, contradicts the view that the term “treaty” or “international agreement” and all other different names listed by international scholars and found by state practice, will have no effect on its legal nature43. As a result, some of the names characterizing those agreements may assume that it confers upon the parties greater legal obligations than other agreements. Be that as it may, name distinctions will not automatically imply that one instrument has more legal and formal weight than the other. It will merely signify that one type is more or less formal than others44. A number of scholars had adopted this idea. Schwarzenberger had a similar view arguing that different names of instruments such as “convention”, “treaty or “agreement” all mean the same and are governed by the same rule of law45. Gamboa likewise expressed the view that, “The international juridical effect of a treaty is not dependent on the name given”46. It therefore follows that specific state practices plays a dominant role in determining the legal value of different types of international instruments. Nevertheless, state practices do not provide significant guidance for the use of such instruments47. 1.5 Historically, conventions, transactions, pacts, concordats, donations and many other different types of international instruments were used before the First World War. Following which these widely used terms were abolished by developments in politics, law and culture affected by the increasing number of international organizations in the international community48. However many forms are currently used and negotiated by different states and international organizations in an attempt to conclude and establish an accord between the parties, which is suitable for all of them in the sense of recognizing and enforcing legal obligations and benefits. Nevertheless, it is possible that the name used to describe an international instrument may not have implications with respect to its obligations. Likewise, the name used to describe the international instrument may not accurately reflect nature of the instrument and its intended use. In this regard, a number of attempts have been made by international scholars in the field of treaties to create some guidance for the use of such names. There are also a number of arguments by many scholars that name attached to an instrument does not necessarily have any legal significance49. The types of instruments that will be examined in this research will not have any significance for its formal or less formal format. Moreover, it will be argued that the names attached to and the forms of such international instrument do not reflect their legal nature. It will be acknowledged however that, article 102 of the United Nation Charter lists the different types of treaties and international agreements, and further divides the instrument into two distinct categorizes. Article 102 provides that:“Every treaty and every international agreement entered into by any member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the secretariat and published by it”. Accordingly “treaties” and “agreements” are classified depending on the instrument. In this regard treaties are concluded by the highest authority of a state, and agreements are for the ordinary intergovernmental business50. Therefore the manner in which the instrument is executed and the parties to the instrument will determine the legal nature of the undertaking rather than the name assigned to the instrument. There is merit to the argument that the term “Treaty” may be considered the highest and more formal type of international instrument. However, the use of the term itself may create some difficulty, because it is often known as the general term applicable to any international agreement51. Furthermore, many scholars had argued that the use of such forms may be the more formal type of international instrument. For example, McNair argued that the term “treaty” is usually used for the more serious and formal agreement. However he also argued that such use of the term “treaty” will be less applicable to international instruments because many other names and forms are created by the international political evolution52. In addition O’Connell agreed with the view expressed by McNair. O’Connell offers that the use of the “Treaty” instrument as a formal document traditionally includes a preamble, body and final clauses which is executed under seal and signed by the parties. O’Connell goes on to state that as a result of the increasing number of international instruments, the form “Treaty” is reserved for instruments of high significance, which usually requires ratification53 and typically makes provision for dispute resolutions under the instrument. Be that as it may, the use of such forms of international instruments had been in decline in the last century because of the complexity associated with its formal nature, the rapid changes in governmental policies and the states’ preferences for quicker and less complicated forms of instruments54. The other type of international instrument, which is more frequently used in multi-lateral rather than bi-lateral agreement, is the Convention, although a more formal document. One of the differences between the Convention and the “Treaty”, is that “Conventions” typically deal with specific aspects of a general policy between the parties. In other words the Convention is not used to create rights but rather to characterize or develop a specific shared interest between the relevant parties55. Moreover, the Convention is typically used for agreements that directly involve international organizations in the implementation stage these agreements or undertakings56. Furthermore, O’Connell noted that “A Convention is a record of agreement on matters of importance but not of high policy”57. Less formal type of international instrument and widely used by the international community is “Agreements”. Regardless, the complication associated with this form of instrument is that the term “agreement” is all inclusive and could be used for all types of treaties58. This form of international instrument which can be executed by representatives of the state rather than heads of state was defined by many scholars as less formal than “Treaties” and “Conventions”59. In addition, “Agreements” usually relate to cooperation and technical support, and is used for different types of intergovernmental contracts are are usually informal because of its non-binding nature60. A large number of different forms are still used by the international community. For instance, “Protocols”, described as an addition or a supplement to a main instrument. Another variable is the “Memorandum of Understandings” which is defined as a method used to clarify or alter a main instrument. It can also be used as a preparation in advance of signing a legally binding instrument or commercial contract between states or its bodies61. The definitions of any international instrument may have little to offer in regards to it legal structure. Although The 1969 Vienna Convention represents a major development in treaty law, it fails to provide for the significance of the name or form of the instrument62. Many of the drafters of the Convention pointed out the difficulties that would be involved if the forms of instrument had been defined individually63. This research will examine those arguments in submitting that the content of the agreement, the manner in which it is executed, and the parties’ intention have far more significance for the legal nature of the bi-lateral or multi-lateral agreement, than the name assigned to it. Read More