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c) Authentication and signature of the text
When a document has been agreed it is either initialled, signed, or signed ad referendum by the negotiating representatives. Initialling normally signifies merely the establishment of an authentic text, and further action is required to signify the consent of the states to be bound. Signature ad referendum requires confirmation by the state concerned to constitute full signature. If the treaty is 'subject to ratification', signature is of limited significance. In other cases, whether the signature of the properly accredited delegate makes the treaty binding on his state or not depends on the intention as shown by the terms of the treaty, e.g. with regard to its entry into force; as agreed during the negotiations, or as otherwise indicated, e.g. by the terms of the relevant full powers. Multilateral treaties may in most instances be signed with reservations if these are not excluded by the terms of the treaty or incompatible with its object and purpose.
(d) Ratification
Where ratification is stipulated (or understood) a treaty is referred to the governments of the negotiating parties for confirmation. Ratification in the international law sense is an executive act: whether or not this is effected before the national legislature gives it approval or legislates to implement the treaty being a matter of domestic law and practice. A state is under no legal obligation to ratify a treaty agreed by its own delegate, but its choice of action is limited to acceptance or complete rejection though in exceptional cases, ratification may be made with reservations, these being usually of a procedural rather than substantive nature. It cannot normally ask to reopen negotiations with a view to introducing amendments. Ratification is not retroactive to the date of the signature of the treaty (unless special provision is made to this effect). The constitution of the USA provides that the ratification of all international treaties must be approved by a two-thirds majority of the Senate.
(e) Acceptance
In some instances provision may be made for the 'acceptance' of treaties as an alternative to ratification, accession or adherence. The practice is a new one, intended to meet constitutional difficulties of certain states; it mainly relates to United Nations Conventions, some of which contain an acceptance formula clause. Acceptance is effected by the deposit of an instrument of acceptance.
(f) Accession or adherence
Provision may be made in treaties (normally multilateral) for subsequent accession or adherence (occasionally adhesion) by states which did not originally sign the treaty. The two terms are generally considered to be synonymous, but it is sometimes held that 'accession' is used to apply to the whole treaty, and 'adherence' to only part of it. Accession or adherence can take place only with the consent of all signatories of the treaty, and where it is considered to be acceptable a permissive clause to this effect is usually included in the treaty.
(g) Exchange or deposit of ratifications
The signature of an instrument of ratification on behalf of a state has in itself little significance in international law; it is only the exchange of instruments of ratification that gives them effect - or, as is usual in the case of multilateral conventions, their being deposited with the depository. (The depository may be a government or the secretariat of an organisation.) The exchange or deposit of ratification is usually effected and recorded by means of a procès-verbale. Instruments of ratification are signed by the Head of State, by the head of government or by the Minister for Foreign Affairs, depending on the importance of the issue.
(h) Registration and publication
Article 102 of the United Nations Charter stipulates that all treaties and international agreements entered into by member states shall be registered with the Secretariat and published by them. Failure to do so (on either part) does not invalidate the treaty; but it has the consequence that the treaty may not be invoked before the International Court of Justice or any other organ of the United Nations.
Treaties can normally be divided into three parts:
1. The preamble, somewhat formal in style, setting out the names of the parties to the agreement, the names of the plenipotentiaries and the object of the agreement, e.g.
The Republic of X and the Kingdom of Y
Desiring to facilitate....................
Having in mind …………
Having resolved to conclude a Treaty of............................
and have appointed as their Plenipotentiaries for this purpose:
The Republic of X: The Hon. A.B.C.
The Kingdom of Y: His Excellency D.E.F.
Who, having communicated their respective full powers, found in good and due form, have agreed as follows .….
2. The terms or substance of the agreement, known as the substantive clauses.
3. The administrative clauses or final clauses (sometimes known as the clauses protocolaires) which include provision for some or all of the following:
The date or method of entry into force of the treaty
The duration and method of termination of the treaty
Definition of terms
The method of settlement of any dispute
Reservations
Accession to the treaty by other states
Amendment or review
The languages of the treaty which are to be authoritative
Ratification, and deposit of instruments of ratification
Registration with the United Nations
and invariably:
Date and place of signature
Signature (and sometimes seal) of plenipotentiaries.
A treaty is essentially a contract between states, and its validity may theoretically be challenged by one or more of the parties concerned on various grounds, which are specified in Articles 48-53 of the Vienna Convention on the Law of Treaties. These are:
Error relating to a fact or situation which was assumed by the state concerned to exist at thetime when the treaty was concluded and which formed an essential basis of its consent to be bound by the treaty (except if that state contributed by its own conduct to the error or if the circumstances were such as to put the state on notice of a possible error).
Fraud, i.e. when a state has been induced to conclude a treaty by the fraudulent conduct of another negotiating state.
Corruption of a representative of a state.
Coercion of a representative of a state.
Coercion of a state by the threat or use of force.
Jus cogens: i.e. treaties conflicting with a peremptory norm of general international law. A 'peremptory norm' in this context is one accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
No general rule can be given to cover the case where a treaty which is signed in good faith proves to be incompatible with the terms of an earlier treaty - a situation capable of arising as between a bilateral agreement and a multilateral agreement possibly through the oversight of an archivist. So far as the provisions of the United Nations Charter are concerned, article 103 stipulates that obligations under the Charter shall have precedence over all others in the event of conflict.
A treaty may legitimately come to an end by the agreement of the parties concerned; at the expiry of the time limit provided in the treaty, or by parties making use of a termination clause provided in the treaty. In the absence of any of these provisions it may (in practice though doubtfully in law) be unilaterally abrogated or denounced if the party concerned considers that the political consequences (if any) of so doing would be less onerous than the maintenance of the provisions of the treaty. Varying degrees of legitimacy can be claimed for such unilateral action in the event of:
(a) fundamental change having taken place in the circumstances which existed at the time the treaty was drawn up;
(b) the extinction of the other contracting party as a state (in a bilateral treaty) in such a way that the successor state does not inherit rights or obligations under this treaty;
(c) the outbreak of war;
(d) the denunciation of a multilateral treaty by such a number of the parties as to render the treaty inoperative;
(e) material breach of the treaty by another party to it.
POLITICAL ASYLUM AND THE EXTRADITION
OF CRIMINALS
The traditional interpretation of international law relating to political asylees has generally ceased to be applicable in recent years mainly because it has been politically embarrassing to establish new and separate norms for economic asylees. Nevertheless it is relevant to note that there are two categories of political asylum: territorial asylum (i.e. granted by a state to an alien in its territory) and extra-territorial or diplomatic asylum (i.e. in the premises of a diplomatic mission or other such premises entitled to inviolability). Instances of the former are many, and groups of 'political refugees' are to be found in most states; but because they are living in a different country they are no great embarrassment to their own government.
A different situation arises in instances of diplomatic asylum, when the political offender is able to live protected and unmolested in his own country and in the midst of his fellow-countrymen whom he is presumably attempting to turn against their government.
As a general principle, a state has the right to grant asylum to aliens within its own territory ('territorial asylum'), and the onus is on the state wishing to extradite them to show why they should be given up. If on the other hand a state has given refuge in one of its missions to a national of the state in which it is situated ('extra-territorial asylum') it is up to the head of that mission, or his government, to justify the action.
Special provision relating to, inter alia, extradition has been made in respect of crimes against internationally protected persons in the United Nations Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 14 December 1973 (the New York Convention).
The inviolability of the premises of a diplomatic mission has traditionally rendered them liable to be sought as a place of refuge. The question of the existence and validity of this right of asylum from political persecution (it is not normally applicable in ordinary criminal cases) remains dormant for long periods, only to be the subject of acrimonious discussion from time to time. In Europe the practice is nearly extinct. It is a situation that can, in the end, be resolved only by negotiation, if only because the Vienna Convention on Diplomatic Relations, whilst ensuring the inviolability of the premises of a diplomatic mission (and thus of those within it) makes no provision for the departure under safe conduct of any person not covered by the Convention. In other regions, local usage sanctions its continuation even though diplomatic asylum is not recognised as existing in terms of Customary International Law. The Latin American practice may be summarised on the basis of the Convention on Diplomatic Asylum drawn up by the Tenth Inter-American Conference held in Caracas in 1954, as follows:
1. Every state has the right to grant asylum, and to determine for itself the nature of the offence or the motives for the persecution of the person seeking asylum.
2. In the context of the granting of asylum, a legation includes not only the seat of a regular diplomatic mission and the residence of the head of mission, but also any other premises provided by the mission for the asylees when their number exceeds the normal capacity of the buildings.
3. Asylum may not be granted except in urgent cases and for the period of time strictly necessary for the asylee to depart from the country with the guarantees granted by the government of the territorial state.
4. Urgent cases are understood to be those, among others, in which the individual is being sought by persons or mobs over whom the authorities have lost control, or by the authorities themselves, and is in danger of being deprived of his life or liberty because of political persecution and cannot, without risk, ensure his safety in any other way. It shall rest with the state granting asylum to deter
mine the degree of urgency of the case.
5. It is not lawful to grant asylum to persons who, at the time of requesting it, are under indictment or on trial for common offences or have been convicted by competent regular courts and have not served the respective sentence, nor to deserters from land, sea, and air forces, save when the acts giving rise to the request for asylum are clearly of a political nature.
6. Immediately asylum is granted the fact must be reported to the Minister for Foreign Affairs of the state of the person who has secured asylum, or to the local administrative authorities if the act occurred outside the capital.
7. The government of the state has the right to require that the asylee be sent out of the national territory within the shortest possible time; and the diplomatic agent of the country which has granted asylum in turn has the right to require that the asylee be permitted to leave the territory; and in both instances the necessary guarantee of safe conduct and inviolability must be provided.
8. Asylees enjoying safe conduct may not be deposited at any point in or near the national territory from which they have sought asylum.
9. While enjoying asylum, refugees shall not be allowed to perform acts contrary to the public peace.
10. If, as a consequence of a rupture of diplomatic relations, the diplomatic representative who granted asylum has to leave the territorial state, he must be allowed to leave with the asylees, or if this is not possible, he may surrender them to the diplomatic mission of a third state.
11. The fact that the government of the territorial state is not recognised by the state granting asylum does not prejudice the application of the general principles set out above; nor does their application imply recognition.
EXTRADITION
Extradition is the forcible removal of a person from one state to another to stand trial or suffer imprisonment for an alleged offence; and requests for extradition arise when a person who is accused or convicted of a criminal offence seeks refuge (or is at the time resident) in another state. Normally the alleged crime will have been committed in the state seeking extradition or aboard a ship flying its flag. Applications for extradition are made through diplomatic channels, and are reasonably straightforward where both states have agreed to specific principles in advance through the medium of an Extradition Treaty. The following principles are normally embodied in such treaties and are applied even where no treaty exists, though practice varies to a considerable extent between countries:
The Council of Europe European Convention on Extradition contains the following more specific circumstances in which extradition shall not be applicable:
(a) if the offence in respect of which it is requested is regarded by the requested party (i.e. state) as a political offence or as an offence connected with a political offence;
(b) if the requested party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion ...
These provisions are qualified to the extent that the taking or attempted taking of the life of a Head of State or a member of his family shall not be deemed to be a political offence for the purposes of the Convention.
The Council of Europe European Convention on the Suppression of Terrorism, 1977, further stipulates, inter alia, that the following offences shall not be considered as 'political' and therefore may not be claimed as a reason for avoiding extradition:
(a) an offence within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970;
(b) an offence within the scope of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971;
(c) a serious offence involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents;
(d) an offence involving kidnapping, the taking of a hostage or serious unlawful detention;
(e) an offence involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons;
(f) an attempt to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.
RECOGNITION OF STATES AND
GOVERNMENTS
STATES
The question of recognition of states arises when a state undergoes a fundamental change; it may change territorially, or disappear altogether or a new state or states may emerge as a result of cession, amalgamation, federation, secession or subdivision. There are two main schools of thought in international law concerning recognition of states: one is that recognition makes the state; the other that recognition is merely the formal acceptance of an established fact. In the practice of many states recognition of a new state is essentially a political decision; but it is generally accepted that a state must have a defined territory, a permanent population which respects the government's legitimacy and a sovereign government (which therefore has the capacity to enter into relations with other states).
GOVERNMENTS
Governments also are capable of radical and unconstitutional change, but recognition of a new government in such circumstances is usually granted provided that it is in effective control of much the greater part of the state territory and has the obedience of the mass of the population, and that its control has a reasonable prospect of permanency.
Until recently it was the policy of the British government to make a formal announcement when it had decided to 'recognise' a new government of doubtful legitimacy, but it has now desisted from this practice mainly on the grounds that 'recognition' can be mistaken for 'approval'. Its present attitude on whether or not a new regime should be treated as a government is that it is left to be inferred from the nature of its dealings with it; and in particular whether or not it is dealing with it on a normal government-to-government basis. It nevertheless accepts the obligation to certify before the ICJ or a domestic court whether or not it recognises a particular government, if asked to do so.
De facto recognition of governments enables them to exercise the normal international functions of a sovereign state with reciprocal responsibilities in international law, but usually does not enable them to conclude and formally sign bilateral treaties, establish formal diplomatic relations or issue exequaturs: these acts are considered to imply or require recognition de jure. Recognition de facts is generally accepted as an indication that recognition de jure will, if all goes well, be accorded in due time. It is often used when there is an element of doubt as to the permanency of the government so recognised. In the event of civil war, the situation may arise in which a substantial part of the territory of a state is held and administered by an administration other than that of the de jure government. Practice, in these rare circumstances, varies between countries, but it is possible for the rebel administration to be granted de facto recognition in that part of the territory that it administers.
THE EXTENT OF STATE SOVEREIGNTY
AND JURISDICTION
SOVEREIGNTY
The territorial sovereignty of a state extends over the land within the state frontier and the air space above it, but not to the upper air (outer space). In the case of maritime states, sovereignty also extends, with certain limitations, over the internal waters and the territorial sea; and the state has a measure of control over the contiguous zone, the exclusive economic zone and the continental shelf. The international regime for determining maritime legality is based on the 1958 Geneva Convention and the 1982 Law of the Sea Convention.