The Binding Nature of International Agreements - Term Paper Example

Summary on the Binding nature of international agreements Binding: Meaning and Philosophy Binding symbolizes the minimum explanations needed to differentiate the arrangement (information) from the remaining instantaneous surroundings. A newspaper (situation), for instance, signifies a compilation of bound arrangements associated to sports, neighboring or provincial issues, amusement and so onwards. Every binding is an encapsulation of facts on some explicit presupposition or situation, and there is normally no overlap amid divisions1. Since, fact is characteristically, self- expressive, it should be anticipated that a nearer of a philosophy is that to the concluding phase the better is also its authority to control acquiesce. Reinhold differentiates in this esteem amid the “strength” of a philosophy and its “binding” influence, that is, its efficiency. A philosophy is generally convincing to the degree that it opens up the insinuations intrinsic in its principles in a logical fashion. It is then certainly capable of imposing acquiesce, but only theoretically, that is, on the provision that its ideas have before now been acknowledged. It is collectively binding; then again, to the degree that its hypotheses are of such a character that nobody can evade admitting them once they have been prepared unrestricted. The ultimate philosophy, as Reinhold envisioned it, should control concurrence exactly in this unreserved logic2. The destiny of Kant’s recently found metaphysics counts on the clarification of how experience is prepared potential in the psyche. Even though its philosophies, theorems and consequences may well be unanimously compelling, they can never become commonly binding except the underpinning itself is protected with philosophies, theorems and consequences that are generally binding3. Binding Effect of the Agreement This standard indicates that in belief, assemblies must do what they assure to perform; do what they decided to accomplish. When the procurement concurrence between X and Y has taken place and A discovers a procurer who provides in excess of Y does, he may not ‘chucks it in’ and trade with Z. Treaties are binding and consequently Y must accomplish the agreement and sell the thing against the price contracted. Here, too a caution pertains; the commitment is only valid in theory4. The binding outcome concurrence shall be for the profit of, and be fastening upon, purchasers and vendors, their successors, descendants, legal delegates and acceptable consigns. This conformity comprises of the only and whole accord between the parties hereto and no adjustment or obligation of this conformity shall be binding except signed by all groups to this concurrence. No demonstration, assurance or incentive not incorporated in this contract, shall be fastening upon any group hereto. Any assignee shall accomplish all the stipulations and state of affairs of this contract5. In conversing the binding effect of administrative contracts of household law, some latest authors by deteriorating to explain completely the preceding lessons of judicial principle, have produced the notion that the Curtiss-Wright, Belmont, and Pink cases symbolize an astounding innovation in legitimate law. The real truth is certainly, that the binding effect of these contracts was set up in a stroke of verdicts extensive antedating this new sacrilegious trinity6. Introduction and Overview: the sphere of international agreements International contracts offer a noteworthy method of collaboration between varied political, social, legal and economic arrangements among the global community. As a result of the effectiveness of international law, multilateral and bilateral contracts have donated to a move in international associations from independent directives to a more multilateral international co-operation between diverse nations7. It consequently follows that modern international contracts are currently obligatory for regional and international assimilations. Because of these international contracts, it is likely to make certain joint act for the intention of accomplishing common objectives, for example the brawl against prearranged offense, exile of scandalous, the conservation of the environment, economic progresses, defense of human rights, and scientific collaboration. Before the First World War, the law of international agreements were primarily negotiated and concluded by reliance on the monarchical tradition and power structure. 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. In place of requiring direct participation by the head of state, ministers and heads of government were entirely acceptable. 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 some governments rejected it. Secondly, the league lobbied for the necessity that all member states record related treaties or international agreements with the league secretariat as a means of ensuring its publication8. The focus shifted to politics and state’s power in the confidence and responsibilities of organized human societies9. 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 that 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 states10. International agreements were one of the most momentous expansions in global law during the twentieth century. To facilitate the major expansion of multi-lateral contracts among the international community, it was necessary to make new structures of global agreements that were official binding contracts, and demonstrable by casual proof. Pursuant to these new progresses in the twentieth century, the United Nations applied the Vienna Convention as the codification of the law of agreements in 1969. This Convention in invigorating the potency of international contracts as some member states looked upon the principle as a primary orientation on international contracts11. Since then, states and international agencies began to penetrate into an increasing number of contracts, several of them were formal and officially binding, and others were non-binding contracts. The formation of such structures of global contracts both bindings and non-bindings were condemned by many researchers who identified these contracts as feeble, intricate and confusing between the global communities. This exploratory study of 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 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. 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. Moreover, one of the objectives 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. 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. 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. 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. Moreover, this research will explore the effect of international agreements in international law areas such as, Arms control and Human rights. Globalization has become phenomenon with far-reaching consequences for the social, political and economic relations among states. Regional cooperation has become a reality in the twenty-first century. 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). Although international agreements are increasing with global interdependence, they have implications for states and decision-makers around the world. 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. The question arises whether international agreements help or hinder questions of sovereignty. This important question 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. The European Union; Established in the wake of the Second World War is a supranational multilateral organization. It represents near total European cooperation in the political, judicial, social and economic spheres, multilateralism and the evolution of a Western diplomatic organization at its very best16. As a multinational organization, the EU represents various national interests within an overarching political framework. The political decisions of member-states are thus constrained by their allegiance and signatory status to overarching EU treaties17. 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. 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 significances18. 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. 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 framework19. 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 Euro20. 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. 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 effectible global multilateral organization, which represents an exciting new wave of regional cooperation arrangements. 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. In addition to article 102 of the United Nations charter, it is also possible that article 18 of the Covenant of the League of Nations21 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 organizations22. Both organizations attempted to offer an unambiguous definition of the term “Treaty” or “International agreements” during the last century. 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. The recent emergence of the Vienna Convention on the Law of Treaties23 increased the uncertainty of international agreements, and lent more weight to the specificity and certainty of its regulations with respect to the law of treaties24. 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 nature25. The types of international 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. 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 agreement26. 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 parties27. 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”28. 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 instrument29. 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. References: 1. Chao-Duivis, M.A.B. Practical Guide to Dutch Building Contracts.Den Haag: Instituut voor Bouwrecht, 2008 2. Desouza, Kevin C., Hensgen, Tobin. Managing information in complex organizations: semiotics and signals, complexity and chaos. New York: M.E. Sharpe, 2004 3. Dunn, Gregory J, Dearborn real estate education. Georgia Real Estate: Practice & Law. Wisconsin: Dearborn Real Estate, 2002. 4. Giovanni, George Di, Harris, Henry Silton. Between Kant and Hegel: texts in the development of post-Kantian idealism. Indiana: Hackett Publishing, 2000 5. Mc Dougal, Myres Smith. Studies in world public order. Leiden: Martinus Nijhoff Publishers, 1987 Read More