Page 149 - Law of Peace, Volume ,

Pam 27-161-1

CHAPTER 8
INTERNATIONAL AGREEMENTS

Section I. GENERAL
8-1. Introduction. As noted in chapter 1, formal agree- which may themselves acquire legal personality so as to be
ments between states, or between states and international able to enter into treaties. The 1957 Treaty of Rome, which
orgainzations such as the United Nations, have become created the European Economic Community,is a special
the major source of international jurisprudence. Custom- kind of constitutive agreement establishing a confederation
ary law has tended to be too slow and uncertain a process, binding European states to abide by common rules and re-
often falling behind the needs and expectations of the in- quirements in order to further the objectives of the Treaty. 4
ternational community. Technological developments Similarly, the 1950 European Convention for the Protection
have become so rapid that frequently only express agree- of Human Rights and Fundamental Freedoms requires its
ments between states are capable of introducing change signatoriesto accept the decisions of the European Court on
into international law. Moreover, the ~ig~cance Human Rights in cases over which it has jurisdiction. 5
of
customary international law has also been weakened by b. Agreements are generally classified as either bilateral
the Soviet belief that an international agreement is the or multilateral, depending on the nurnber of parties to the
principal means of expressing assent to an international agreement. Multilateral agreements are usually kept open
obligation. 1 for adherence for a protracted period. It is, therefore,
8-2. International Agreements Defined. a. General. In- possible for a state that was not in existence at the time the
ternational agreements are undertakings between states, agreement was negotiated to announce its assent several
or between states and international organizations, which years later.
give rise to legal rights and duties. Although the law ap- c. International agreements, be they bilateral or
plicable to such agreements has a number of similarities to multilateral, are generally given different titles depending
contract law, the purpose and effect of international agree- on the subject matter or the formality with which they
ments are somewhat different than those of commercial were executed. These titles, however, are not used iden-
contracts between private parties. Thus, if a state con- tically in all cases. Thus, it is the substance of each agree-
cludes an agreement, not with another state or interna-
ment which is important and not its descriptive title. 6
tional organization but with a foreign commercial en-
terprise, the agreement is not looked upon as an interna- (1) The term treaty, perhaps the most common
tional agreement and is not subject to "treaty law." 2 Not- word in international contractual parlance, is used in a
withstanding this fact, such an agreement may indirectly broad sense to mean any international agreement, or in a
produce legal consequences on the international plane if, restricted sense to mean a particularly formal type of inter-
national agreement. 7
for example, the state of which the private foreign com-
(2) The term protocol refers to supplementary agree-
mercial enterprise is a national intercedes on the latter's ments. *
behalf. 3 As noted in chapter 1, international agreements
affect international law in a variety of ways. They may (3) A concordat is an agreement by a State with the
cod@ existing customary law, m m or abridge existing Holy See; 9 however, agreements between the Vatican
customary law, or create new international law norms. and other states need not be called concordats.
Agreements cover a wide range of subjects. Some, such as (4) A process verbal is an official record of a meeting
the conventions on the laws of war or use of the seas, are or conference. 10
"law-making treaties" and create standards of substantive (5) A memoire or aide memoire is a diplomatic note
law binding on states (perhaps including even nonsignato- summarizing the diplomat's understanding of a conven-
ries).Others are basically contractual agreements between
states-such as military alliances and trade pact-with 4. 298 U.N.T.S. 11.
many of the elements of a private contract. Some are es- 5. See I. Brownlie, Basic Documents on Human Rights 339 (1971).
sentially conveyances of real property--such as boundary 6. Kelsen, Principles of International Law 318 (1952). Myers,
agreements and leases or cessions of territory. Finally, Names and Scope of Treaties, 51 Am. J. lnr'l L. 574 (1957).
7. "Treaty" has a special meaning under United States municipal
some, such as the United Nations Charter, are constitu- law. Article II, section 2, of the U.S. Constitution delegates the power to
tive agreements creating new international legal entities the President ". . . by and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds of the Senators present concur,"
1. Waldwk, General Course on Public International Luw, [I9621 2 and Article VI, paragraph 2, provides that ". .. all Treaties made, or
Renreil des Cours 1, 50. See chap. 1, supra. which shall be made, under the authority of the United States, shall be
2. Customary and cdikd rules of public international law which the supreme Law of the Land."
apply specifically to the formulations, interpretation, modif~cation, and 8. I. Oppenhkim, International Luw 878 (8th ed., Lauterpacht
termination of international agreements. 1955).
Law
3. For a discussion of these legal consequences, see chap. 7,State 9. 1. Hyde, I~nter~tio~l 25-26 (1 945).
Responsibility, supra. lo. I. Oppenheim, supra, note 8 at 878.