ABSTRACT

This research work aims to explore the conclusion of Treaties under international law.

The study has five research objectives which include the following; (1) To understand the main sources and types of international laws and treaties. (2) To examine how treaties are negotiated. (3) To shed light on how treaties are signed. (4) To analyze the ratification and entry into force of treaties. (5)

To make policy recommendations.  The main research question includes; how are treaties concluded in international law?

The specific research questions include; (1) what are the main sources and types of international laws and treaties? (2) How are treaties negotiated? (3) How are treaties signed? (4) How are treaties ratified? (5) What policy recommendations can be made? Finally, the conclusion was made, and then recommendations.

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Study

When talking about the conclusion of treaties, treaties can be defined as the expression of the concordant will of two or more subjects of international law with a view to producing legal effects subject to international law. First of all the expression of consensual or consensus.

However, international law does not require that the wills be simultaneous. The history of international law examines the evolution and development of public international law in both states practise and conceptual understanding.

Modern international law developed out of Renaissance Europe and is strongly entwined with the development of western political organizations at that time. The development of European notions of sovereignty and nation-states would necessitate the development of methods for interstate relations and standards of behaviour, and these would lay the foundations of what would become international law.

However, while the origins of the modern system of international law can be traced back 400 years, the development of the concepts and practices that would underpin that system can be traced back to ancient historical politics and relationships thousands of years old.

Important concepts are derived from the practice between Greek city-states and the Roman law concept of iusgentium (which regulated contacts between Roman citizens and non-Roman people). These principles were not universal, however.

In East Asia, political theory was based not on the equality of states, but rather the cosmological supremacy of the Emperor of China. Basic concepts of international law such as treaties can be traced back thousands of years.

Early examples of treaties include around 2100 BC an agreement between the rulers of the city-states of Lagash and Umma in Mesopotamia, inscribed on a stone block, setting a prescribed boundary between their two states. Around 1000 BC, an agreement was signed between Ramses II of Egypt and the king of the Hittites establishing “eternal peace and brotherhood” between their two nations: dealing with respect for each other’s territory and establishing a form of defensive alliance.

The ancient  Greeks before Alexander the Great formed many small states that constantly Basic concepts of international law such as treaties can be traced back thousands of years. Early examples of treaties include around 2100 BC an agreement between the rulers of the city-states of Lagash and Umma in Mesopotamia, inscribed on a stone block, setting a prescribed boundary between their two states.

  Around 1000 BC, an agreement was signed between Ramses II of Egypt and the king of the Hittites establishing “eternal peace and brotherhood” between their two nations: dealing with respect for each other’s territory and establishing a form of defensive alliance.

The ancient Greeks before Alexander the Great formed many small states that constantly interacted. In peace and in war, an inter-state culture evolved that prescribed certain rules for how these states would interact. These rules did not apply to interactions with non-Greek states, but among themselves, the Greek inter-state community resembled in some respects the modern international community.

The Roman Empire did not develop international law, as it acted without regard to any external rules in its dealings with those territories that were not already part of the empire. The Romans did, however, form municipal laws governing the interactions between private Roman citizens and foreigners.

These laws, called the jus gentium (as opposed to the jus civile governing interactions between citizens) codified some ideas of basic fairness, and attributed some rules to an objective, independent “natural law.” These jus gentium ideas of fairness and natural law have survived and are reflected in modern international law.

Early Islamic law’s principles concerning military conduct and the treatment of prisoners of war under the early Caliphate are considered precursors to international humanitarian law. The many requirements on how prisoners of war should be treated included, for example, providing shelter, food and clothing, respecting their cultures, and preventing any acts of execution, rape or revenge. Some of these principles were not codified in Western international law until modern times. Islamic law under the early Caliphate institutionalize humanitarian limitations on military conduct, including attempts to limit the severity of war, guidelines for ceasing hostilities, distinguishing between civilians and combatants, preventing unnecessary destruction, and caring for the sick and wound. he Great formed many small states that constantly interacted. In peace and in war, an inter-state culture evolved that prescribed certain rules for how these states would interact. These rules did not apply to interactions with non-Greek states, but among themselves the Greek inter-state community resembled in some respects the modern international law[1].

After the fall of the Roman Empire and the collapse of the Holy Roman Empire into independent cities, principalities, kingdoms and nations, for the first time there was a real need for rules of conduct between a large international community. Without an empire or a dominant religious leadership to moderate and direct international dealings, most of Europe looked to Justinian’s code of law from the Roman Empire, and the canon law of the Catholic Church for inspiration.

International trade was the real catalyst for the development of objective rules of behavior between states. Without a code of conduct, there was little to guarantee trade or protect the merchants of one state from the actions of another. Economic self-interest drove the evolution of common international trade rules, and most importantly the rules and customs of maritime law.

As international trade, exploration and warfare became more involved and complex, the need for common international customs and practices became even more important. The Hanseatic League of the more than 150 entities in what is now Germany, Scandinavia, and the Baltic states developed many useful international customs, which facilitated trade and communication among other things. The Italian city-states developed diplomatic rules, as they began sending ambassadors to foreign capitals. Treaties agreements between governments intended to be binding—became a useful tool to protect commerce. The horrors of the Thirty Years’ War, meanwhile, created an outcry for rules of combat that would protect civilian communities.

International practices, customs, rules and treaties proliferated to the point of complexity. Several scholars sought to compile them all into organized treatises. The most important of these was Hugo Grotius, whose treatise De Jure Belli Ac PacisLibriTres is considered the starting point for modern international law. Before Hugo Grotius, most European thinkers treated law as something independent of mankind, with its own existence. Some laws were invented by men, but ultimately they reflected the essential natural law. Grotius was no different, except in one important respect: Unlike the earlier thinkers, who believed that the natural law was imposed by a deity, Grotius believed that the natural law came from an essential universal reason, common to all men.

This rationalist perspective enabled Grotius to posit several rational principles underlying law. Law was not imposed from above, but rather derived from principles. Foundation principles included the axioms that promises must be kept, and that harming another requires restitution. These two principles have served as the basis for much of subsequent international law. Apart from natural-law principles, Grotius also dealt with international custom, or voluntary law[2]

Grotius emphasized the importance of actual practices, customs and treaties—what “is” done—as opposed to normative rules of what “ought to be” done. This positivist approach to international law strengthened over time. As nations became the predominant form of state in Europe, and their man-made laws became more important than religious doctrines and philosophies, the law of what “is” similarly became more important than the law of what “ought to be The Westphalian treaties of 1648 were a turning point in establishing the principle of state sovereignty as a cornerstone of the international order. However the first attempts at formulating autonomous theories of international law occurred before this, in Spain, in the 16th century. Most prominent among the early theorizers were the Roman Catholic theologians Francisco de Vitoria and Francisco Suárez. Suárez is especially notable in this regard in that he distinguished between ius inter gentes and ius intra gentes which he derived from iusgentium (the rights of peoples). Ius inter gentes corresponds to modern international law. In 1625, Hugo Grotius followed with the first systematic treatise on international law, de iure belli ac pacis, which dealt with the laws of war and peace. One important aspect of Grotius’s treatment of international law is that he no longer bases it exclusively upon natural law, but also accepts that states among themselves can also create binding rules of law (iusvoluntarium).

Still, in the 17th and 18th centuries, the idea of natural law as a basis for international law remained influential, and were further expressed in the works of Samuel von Pufendorf and Christian Wolff. Yet, in the second half of the 18th century, a shift occurs towards positivism in international law. In addition, the idea of international law as a means for maintaining international peace is challenged due to the increasing tensions between the European great powers (France, Prussia, Great-Britain, Russia and Austria). This tension between legal norms and political imperatives is well reflected in the century’s most important treatise on international law, Emer de Vattel s Du Droit des Gens (1758). At the end of the century, Immanuel Kant believes that international law as a law that can justify war does not serve the purpose of peace anymore, and therefore argues in Perpetual Peace (ZumEwigenFrieden, 1795) and the Metaphysics of Morals (Metaphysik der Sitten, 1797) for creating a new kind of international law[3].

After World War I, an attempt was made to establish such a new international law of peace, of which the League of Nations was considered to be one of the cornerstones, but this attempt failed. The Charter of the United Nations (1945) in fact reflects the fact that the traditional notion of state sovereignty remains the key concept in the law of nations. However, as recent research has shown, ius contra bellum (the outlawry of war) has its roots in 19th legal and political discourse.]In the historiography of international law, some German authors, most notably among them Wilhelm Grewe and Karl-Heinz Ziegler, have argued that several periods can be distinguished, such as the Spanish era (1494–1648), the French era (1648-1789/1815), the English era (1789/1815-1919) and the American era since 1919. The transitions between these eras are often marked by grand peace settlements, such as the earlier mentioned treaties of Westphalia (1645–48), the treaties of Ryswick and Utrecht (1697/1714), Vienna (1814–15), Paris (1919) and San Francisco (the UN Charter, 1945) Following World War I, as after the Thirty Years’ War, there was an outcry for rules of warfare to protect civilian populations, as well as a desire to curb invasions. The League of Nations, established after the war, attempted to curb invasions by enacting a treaty agreement providing for economic and military sanctions against member states that used “external aggression” to invade or conquer other member states. An international court was established, the Permanent Court of International Justice, to arbitrate disputes between nations without resorting to war. Meanwhile, many nations signed treaties agreeing to use international arbitration rather than warfare to settle differences. International crises, however, demonstrated that nations were not yet committed to the idea of giving external authorities a say in how nations conducted their affairs. Aggression on the part of Germany, Italy and Japan went unchecked by international law, and it took a Second World War to end it.

After World War II, as after the First World War and the Thirty Years’ War, there was a strong desire to never again endure the horrors of war endured by the civilian populations. The League of Nations was re-attempted through another treaty organization, the United Nations.

The postwar era has been a highly successful one for international law. International cooperation has become far more commonplace, though of course not universal. Importantly, nearly two hundred nations are now members of the United Nations, and have voluntarily bound themselves to its charter. Even the most powerful nations have recognized the need for international cooperation and supports, and have routinely sought international agreement and consent before engaging in acts of war.

International law is, of course, only partly about the conduct of war. Most rules are civil, concerning the delivery of mail, trade, shipping, air travel, and the like. Most rules are obeyed routinely by most countries, because the rules make life easier for all concerned. The rules are rarely disputed. But some international law is extremely political and hotly debated. This includes not just the laws of warfare but also such matters as fishing rights[4].

1.2 Statement of the Research Problem

International law is classically defined as the body of law that regulates relations between states. However, since the Second World War, international law has not only been regulating relations between states but has developed to include as one of its “principle aims” the “protection of the human rights of the individual against her or his own government”[5].

The adoption of the Universal Declaration on Human Rights by the United Nations General Assembly in 1948 could be cited as the beginning of the development of human rights regimes at the global, regional and national level.

The development of human rights regimes at the global and regional levels was accompanied by the adoption of various treaties defining the normative frameworks for the promotion and protection of human rights.4 More than fifty years since the adoption of the Universal Declaration, the process of norm-setting is largely complete.

The focus should now shift to the implementation of these norms.5 Enforcement or implementation mechanisms have been established to ensure compliance with treaty norms at the global and regional levels.6This study aims to contribute towards the improved implementation of human rights norms.

In particular, the focus is on the strengthening of the African regional human rights system through an analysis of state compliance with the findings of the body mandated with the implementation of treaty norms. The African regional human rights system is based on the normative framework provided by the African Charter on Human and Peoples’ Rights (African Charter).

The African Charter was adopted by the Assembly of Heads of State and Government of the Organisation of African Unity (OAU) on 27 June 1981 and entered into force on 21 October 1986.7 In terms of the African Charter, the African Commission on Human and Peoples’ Rights (African Commission) is established to ensure compliance with the Charter’s norms.

In fulfilling its protective mandate, the African Commission has developed a well-established practice of receiving and considering individual complaints alleging violations by state parties of the African Charter.9 In finding a state party in violation of the African Charter, the Commission has further developed a practice whereby it not only lists the articles violated by a state party but also recommends remedial[6].

At the global level, the Universal Declaration inspired the adoption of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

In addition to these two principles, global human rights instruments various other specialized human rights treaties have also been adopted at the global level such as the Convention on the Elimination of All Forms of Discrimination against Women or the Convention on the Rights of the Child.

1.3 Research Questions

1.3.1 Main Research question

How are Treaties concluded in international law?

1.3.2 Specific Research question

• What are the main sources and types of international laws and treaties?
• How are treaties negotiated?
• How are treaties signed?
• How are treaties ratified?
• What policy recommendations can be made?

1.4 Research Objective

1.4.1 Main Research objective

The main research objective of this study is to explore the conclusion of Treaties under international law.

1.4.2 Specific Research objectives

The specific objective of the above topic include

1. To understand the main sources and types of international laws and treaties.
2. To examine how treaties are negotiated.
3. To shed light on how treaties are signed.
4. To analyze the ratification and entry into force of treaties.
5. To make a policy recommendations.