Understanding the Convention and Treaty

The international convention or treaty is a written agreement between two or more international persons, intended to create mutual rights and obligations under public international law.

Characteristics

From this definition, the following points are clear:

1. A convention or treaty is an agreement that expresses the convergence of the will of its signatories on a certain matter, thus it has a contractual nature aimed at establishing a legal relationship between the contracting parties. Therefore, the following international documents do not fall under the definition of international conventions or treaties:
   • Memorandum: A diplomatic document summarizing specific facts raised between two states or between a state and an international organization.
   • Proposal: A document that includes a proposition or offer from one state to another.
   • Verbal Note: An unsigned document that summarizes discussions regarding a specific incident or similar matters.
   • Process Verbal: An official record of the minutes of a conference or its proceedings and the unofficial results reached by the meeting representatives.
   • Modus Vivendi: A temporary agreement intended to be replaced later with a more precise and clear agreement. This is concluded when the two states do not wish to immediately commit to permanent and absolute obligations, aiming to address urgent temporary difficulties.
   • Exchange of Notes: An informal method that states use to cooperate in finding mutual understanding or acknowledging certain obligations they owe.
   • Unilateral Declarations: Statements issued by a state explaining its position on a particular issue.
2. A convention or treaty is a written agreement. Therefore, oral agreements, particularly what is known as gentlemen’s agreements, are not considered treaties in the exact sense of the term, although the Vienna Convention on the Law of Treaties of 1969 does not deny the potential legal value of such oral agreements. An example of gentlemen’s agreements is the oral agreement made in 1945 regarding the allocation of non-permanent seats on the UN Security Council among different geographical states. This was amended by another oral agreement in 1964 after the number of these non-permanent seats increased from six to ten following the amendment of the charter that came into effect on August 31, 1965.

If the agreement between two or more international persons is written, it is considered an international agreement regardless of the form it is written in or the number of documents it includes, irrespective of the name it is given. It may be called a treaty, agreement, accord, charter, covenant, pact, constitution, convention, or other names as agreed upon by the parties. For example, the Treaty on Treaties of 1969 is referred to as the “Vienna Convention on the Law of Treaties.”

In the field of international agreements, the term protocol can refer to a summary of the meeting minutes that led to the signing of the treaty, an annex to the agreement, or refer to the agreement itself, such as the trade protocol between the Syrian Arab Republic and the Hashemite Kingdom of Jordan.

3. An international agreement occurs between two or more international persons, meaning it can be between states, between a state and an international organization, or between international organizations. While the Vienna Convention of 1969 (of which the Syrian Arab Republic is a party) regulates treaties between states, another convention drafted by the International Law Commission and adopted in March 1986 governs treaties involving international organizations. The two treaties are fundamentally similar while taking into account the specificity of the international organization as a legal person, unlike states, which are considered, by extension, natural persons in international relations. The Vienna Convention of 1969 is termed the “Treaty on Treaties” because it serves as the foundation on which the second treaty is based.

On this basis, treaties concluded between the Vatican and a Catholic state, known as Papal Agreements (Concordats), are treaties in the true sense of the word, just like any treaty made by the Pope, as the head of the Vatican State, with any other state, after the Lateran Treaty of 1929 recognized him with both temporal and religious status, thus repealing the Law of Guarantees that restricted his powers to religious matters.

Also, the agreements signed between member states of the British Commonwealth are considered true treaties, after this association became a bond of fully independent and sovereign countries linked by various cultural and business ties, in addition to being former colonies of the British Crown.

Furthermore, agreements made between a state like Syria and the United Nations or any of its specialized agencies, or between Syria and the Arab League or any of its specialized organizations, are also regarded as treaties. Similarly, treaties between the United Nations and the Arab League, or the latter and any specialized Arab organizations like the Arab Postal Union, or between the Arab League and another regional organization such as the Organization of African Unity are considered true treaties. Conversely, agreements made with tribes or among them, royal marriage contracts, or contracts made between a state and a natural or legal foreign person, such as oil exploration agreements between the Syrian Arab Republic and Becton or Marathon, are not international treaties governed by public international law, as one of the parties—namely the company—is not an international person.

4. A treaty is an agreement that establishes mutual rights and obligations between the connected parties, governed by public international law. For instance, a loan agreement between a state and a government monetary institution of another state is not considered a treaty if it specifies that it is subject to the domestic law of the lending state; instead, it is an international contract governed categorically by private international law when there is uncertainty about which law should apply.

Classification of International Agreements

International agreements or treaties are classified based on their form, subject matter, and parties involved. A treaty can be formal, following established procedures for negotiation, signature, ratification, and deposit, or simple, where some of these procedures may be bypassed, such as merely signing and exchanging documents after negotiation. In terms of subject matter, treaties can be contract-based, such as cultural or military agreements between Syria and Algeria, or law-making treaties, which organize substantive matters of interest to more than two states, such as the Charter of the United Nations of 1945 and the Vienna Convention on the Law of Treaties of 1969. These law-making treaties can be open, meaning all states may ratify or accede to them, or closed, meaning only a limited number of states may participate. Regarding the parties involved, they can be bilateral (between two states) or multilateral (involving more than two).

Conclusion of Agreements and Their Entry into Force

For a treaty to be validly concluded, it must be with the consent of its signatories, representatives must not exceed their designated authority, it should not conflict with a peremptory norm of public international law, and it must be properly ratified by the parties involved.

1. The treaty must be concluded with the consent of its signatories. This requires that the parties to the treaty are competent to contract and that their consent is valid and free from any defects, which means:
   • The parties must either be fully sovereign independent states or recognized international organizations endowed with international legal personality.
   • For states with limited sovereignty, such as those under contractual protection like Liechtenstein, their competence to contract is determined by the legal document establishing the protection. As for federated states, they typically do not have international legal personality, as their personality is subsumed under that of the federated state itself. However, there are exceptions; for instance, under a constitutional amendment in the early 1940s of the Soviet Union, the republics within the union were granted the right to exchange diplomatic representation and enter treaties independently of the federative state. Similarly, the U.S. Constitution allows border states certain conditions to enter into treaties with neighboring states regarding boundary delineations. Ultimately, this matters depend on the federal constitution, which may grant states international competence to contract or deny it.
2. The treaty must be concluded within the authority granted to the representatives of the party they represent. Any exceedance of authority by these representatives could lead to the treaty’s invalidation unless the responsible authority from the relevant party approves such exceedance per the principle known as “subsequent ratification as good as prior agency.” States or international organizations provide their negotiating representatives with a document called “full powers.” No representative can express their state’s or organization’s consent without such documentation—exceptions apply to certain high officials, such as the head of state, prime minister, or foreign minister, regarding treaty processes, as well as accredited representatives in affirming the validity of a treaty text or its ratification in their country, conference, or organization. A state cannot insist that its expression of acceptance of an obligation under a treaty was made contrary to a provision in its domestic laws relating to treaty-making competence as a basis for invalidating its consent. This is unless there is a clear violation of a foundational rule of domestic law, especially the state constitution.
3. The treaty must also not conflict with a peremptory norm of international law, which are generally applicable norms that cannot be violated and can only be changed by a later norm of the same nature. Thus, a treaty that permits piracy, targets aggression, seeks genocide, undermines human rights, or infringes on the right of peoples to self-determination is not valid.

Procedurally, concluding a treaty involves several stages beginning with negotiation requiring the signatures of the negotiating states, and it does not become effective until it is ratified according to constitutional processes by the concerned parties. The traditional procedures for concluding treaties necessitate a careful second review where the state or international organization expresses final approval regarding adherence to the treaty. When a state or international organization becomes a party to the treaty, it expresses consent either through ratification, acceptance, approval, or accession (in the case of open treaties), or through the exchange of instruments of ratification. In all cases, discretionary actions take place according to procedures outlined by constitutional law of each state after the treaty project has fulfilled the necessary form, whether through traditional or simplified procedures.

The Vienna Convention on the Law of Treaties used the aforementioned terms to define the phrases that may be used by constitutions and foundational rules of states to describe the process by which a state consents to a treaty obligation at the international level. At the domestic level, this is left to the constitution of each state and the foundational rules of the international organization. In the U.S., the president concludes treaties that the country enters into with the Senate’s approval and consultation only; a treaty must be presented to the House of Commons in Britain if it imposes a financial burden or modifies British law. In France, the constitution distinguishes between treaties the president concludes without needing to consult any other authority and treaties that require National Assembly ratification, a similar case exists in the Syrian Arab Republic. Article 104 of the permanent constitution stipulates that the president concludes international treaties and agreements and can revoke them according to constitutional provisions, while section 5 of article 71 states that the People’s Assembly is responsible for approving treaties and international agreements concerning sovereign rights, agreements granting privileges to foreign companies or entities, treaties that impose non-budgeted expenses on the state treasury, or those conflicting with prevailing laws or requiring new legislation for implementation. The reconciliation of these two provisions means that the president concludes treaties that Syria is involved in, but first, he requires the People’s Assembly approval concerning the treaties mentioned in section 5 of article 71, or the president arranges the treaty by issuing a legislative decree subject to the People’s Assembly’s endorsement.