Treaty

The 1786 Moroccan-American Treaty of Peace and Friendship, sealed by Sultan Mohammed III.

A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states,^[1] but can include international organizations, individuals, business entities, and other legal persons.^[2][3] A treaty may also be known as an international agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. However, only documents that are legally binding on the parties are considered treaties under international law.^[4] Treaties vary on the basis of obligations (the extent to which states are bound to the rules), precision (the extent to which the rules are unambiguous), and delegation (the extent to which third parties have authority to interpret, apply and make rules).^[1][5]

Treaties are among the earliest manifestations of international relations, with the first known example being a border agreement between the Sumerian city-states of Lagash and Umma around 3100 BC.^[6] International agreements were used in some form by most major civilizations, growing in both sophistication and number during the early modern era.^[7] The early 19th century saw developments in diplomacy, foreign policy, and international law reflected by the widespread use of treaties. The 1969 Vienna Convention on the Law of Treaties codified these practices, setting forth guidelines and rules for creating, amending, interpreting, and terminating treaties and for resolving disputes and alleged breaches.^[8][9]

Treaties are roughly analogous to contracts in that they establish the rights and binding obligations of the parties.^[10][11] They vary significantly in form, substance, and complexity and govern a wide variety of matters, such as security, trade, environment, and human rights. Treaties may be bilateral (between two countries) or multilateral (involving more than two countries). They may also be used to establish international institutions, such as the International Criminal Court and the United Nations, for which they often provide a governing framework. Treaties serve as primary sources of international law and have codified or established most international legal principles since the early 20th century.^[12]

Notwithstanding the Law of Treaties and customary international law, treaties are not required to follow any standard form.^[12] Nevertheless, all valid treaties must comply with the legal principle of pacta sunt servanda (Latin: "agreements must be kept"), under which parties are committed to perform their duties and honor their agreements in good faith. A treaty may also be invalidated, and thus rendered unenforceable, if it violates a preemptory norm (jus cogens), such as permitting a war of aggression or crimes against humanity.^[13]

Modern usage and form[edit | edit source]

The signing of the Geneva Conventions in 1949. A country’s signature, through plenipotentiaries with "full power" to conclude a treaty, is often sufficient to manifest an intention to be bound by the treaty.

A treaty is an official, express written agreement that states use to legally bind themselves.^[14] It is also the objective outcome of a ceremonial occasion that acknowledges the parties and their defined relationships. There is no prerequisite of academic accreditation or cross-professional contextual knowledge required to publish a treaty.

However, since the late 19th century, most treaties have followed a fairly consistent format. A treaty typically begins with a preamble describing the "High Contracting Parties" and their shared objectives in executing the treaty, as well as summarizing any underlying events (such as the aftermath of a war in the case of a peace treaty). Modern preambles are sometimes structured as a single very long sentence formatted into multiple paragraphs for readability, in which each of the paragraphs begins with a gerund (desiring, recognizing, having, etc.).

The High Contracting Parties—referred to as either the official title of the head of state (but not including the personal name), e.g. His Majesty The King of X or His Excellency The President of Y, or alternatively in the form of " Government of Z"—are enumerated, along with the full names and titles of their Plenipotentiary representatives; a boilerplate clause describes how each party's representatives have communicated (or exchanged) their "full powers" (i.e., the official documents appointing them to act on behalf of their respective high contracting party) and found them in good or proper form. However, under the Vienna Convention on the Law of Treaties if the representative is the head of state, head of government or minister of foreign affairs, no special document is needed, as holding such high office is sufficient.

The end of the preamble and the start of the actual agreement is often signaled by the words "have agreed as follows".

After the preamble comes numbered articles, which contain the substance of the parties' actual agreement. Each article heading usually encompasses a paragraph. A long treaty may further group articles under chapter headings.

Modern treaties, regardless of subject matter, usually contain articles governing where the final authentic copies of the treaty will be deposited and how any subsequent disputes as to their interpretation will be peacefully resolved.

The end of a treaty, the eschatocol (or closing protocol), is often signaled by language such as "in witness whereof" or "in faith whereof", followed by the words "DONE at", then the site(s) of the treaty's execution and the date(s) of its execution. The date is typically written in its most formal, non-numerical form; for example, the Charter of the United Nations reads "DONE at the city of San Francisco the twenty-sixth day of June, one thousand nine hundred and forty-five". If applicable, a treaty will note that it is executed in multiple copies in different languages, with a stipulation that the versions in different languages are equally authentic.

The signatures of the parties' representatives follow at the very end. When the text of a treaty is later reprinted, such as in a collection of treaties currently in effect, an editor will often append the dates on which the respective parties ratified the treaty and on which it came into effect for each party.

Bilateral and multilateral treaties[edit | edit source]

Bilateral treaties are concluded between two states or entities.^[15] It is possible for a bilateral treaty to have more than two parties; for example, each of the bilateral treaties between Switzerland and the European Union (EU) has seventeen parties: The parties are divided into two groups, the Swiss ("on the one part") and the EU and its member states ("on the other part"). The treaty establishes rights and obligations between the Swiss and the EU and the member states severally—it does not establish any rights and obligations amongst the EU and its member states.^{[citation needed]}

A multilateral treaty is concluded among several countries, establishing rights and obligations between each party and every other party.^[15] Multilateral treaties may be regional or may involve states across the world.^[16] Treaties of "mutual guarantee" are international compacts, e.g., the Treaty of Locarno which guarantees each signatory against attack from another.^[15]

Role of the United Nations[edit | edit source]

The United Nations has extensive power to convene states to enact large-scale multilateral treaties and has experience doing so.^[17] Also, under the United Nations Charter, which is itself a treaty, treaties must be registered with the UN to be invoked before it, or enforced in its judiciary organ, the International Court of Justice. This was done to prevent the practice of secret treaties, which proliferated in the 19th and 20th centuries and often precipitated or exacerbated conflict. Article 103 of the Charter also states that its members' obligations under the Charter outweigh any competing obligations under other treaties.

After their adoption, treaties, as well as their amendments, must follow the official legal procedures of the United Nations, as applied by the Office of Legal Affairs, including signature, ratification and entry into force.

In function and effectiveness, the UN has been compared to the United States federal government under the Articles of Confederation.^[18]

Adding and amending treaty obligations[edit | edit source]

Reservations[edit | edit source]

Reservations are essentially caveats to a state's acceptance of a treaty. Reservations are unilateral statements purporting to exclude or to modify the legal obligation and its effects on the reserving state.^[19] These must be included at the time of signing or ratification, i.e., "a party cannot add a reservation after it has already joined a treaty". Article 19 of the Vienna Convention on the law of Treaties in 1969.

Originally, international law was unaccepting of treaty reservations, rejecting them unless all parties to the treaty accepted the same reservations. However, in the interest of encouraging the largest number of states to join treaties, a more permissive rule regarding reservations has emerged. While some treaties still expressly forbid any reservations, they are now generally permitted to the extent that they are not inconsistent with the goals and purposes of the treaty.

When a state limits its treaty obligations through reservations, other states party to that treaty have the option to accept those reservations, object to them, or object and oppose them. If the state accepts them (or fails to act at all), both the reserving state and the accepting state are relieved of the reserved legal obligation as concerns their legal obligations to each other (accepting the reservation does not change the accepting state's legal obligations as concerns other parties to the treaty). If the state opposes, the parts of the treaty affected by the reservation drop out completely and no longer create any legal obligations on the reserving and accepting state, again only as concerns each other. Finally, if the state objects and opposes, there are no legal obligations under that treaty between those two state parties whatsoever. The objecting and opposing state essentially refuses to acknowledge the reserving state is a party to the treaty at all.^[20]

Amendments[edit | edit source]

There are three ways an existing treaty can be amended. First, a formal amendment requires State parties to the treaty to go through the ratification process all over again. The re-negotiation of treaty provisions can be long and protracted, and often some parties to the original treaty will not become parties to the amended treaty. When determining the legal obligations of states, one party to the original treaty and one party to the amended treaty, the states will only be bound by the terms they both agreed upon. Treaties can also be amended informally by the treaty executive council when the changes are only procedural, technical change in customary international law can also amend a treaty, where state behavior evinces a new interpretation of the legal obligations under the treaty. Minor corrections to a treaty may be adopted by a procès-verbal; but a procès-verbal is generally reserved for changes to rectify obvious errors in the text adopted, i.e., where the text adopted does not correctly reflect the intention of the parties adopting it.

Protocols[edit | edit source]

In international law and international relations, a protocol is generally a treaty or international agreement that supplements a previous treaty or international agreement. A protocol can amend the previous treaty or add additional provisions. Parties to the earlier agreement are not required to adopt the protocol, and this is sometimes made explicit, especially where many parties to the first agreement do not support the protocol.

A notable example is the United Nations Framework Convention on Climate Change (UNFCCC), which established a general framework for the development of binding greenhouse gas emission limits, followed by the Kyoto Protocol contained the specific provisions and regulations later agreed upon.

Execution and implementation[edit | edit source]

The International Court of Justice is often called upon to aid in the interpretation or implementation of treaties.

The Genocide Convention is generally considered non-self-executing, requiring state parties to pass domestic legislation to criminalize genocide and enable prosecution.^[21] For example, states like Canada and Germany have enacted laws aligning with the Convention, mandating local courts to try genocide cases.^[22] Failure to implement such laws can place a state in default of its obligations, though enforcement relies on international pressure or ICJ rulings.^[21]

Interpretation of the Convention’s terms, particularly “intent” and “in whole or in part,” often requires clarification by international bodies like the ICJ, which has adjudicated cases such as Bosnia v. Serbia (2007).^[23] The Vienna Convention on the Law of Treaties guides interpretation, emphasizing “good faith” and the treaty’s purpose, though disputes persist over applying the genocide definition in complex conflicts.^[24] International tribunals, including the ICC and ad hoc courts for Rwanda and Yugoslavia, have applied the Convention, establishing precedents like the Srebrenica massacre as genocide.^[22]

Enforcement remains a challenge, as the Convention lacks a dedicated mechanism, relying on state cooperation or UN action.^[25] The ICJ can issue binding rulings, but compliance varies, as seen in recent cases like South Africa v. Israel (2024), where allegations were disputed without a genocide finding.^[26] States may resist intervention, citing sovereignty, limiting the Convention’s practical impact.^[25]

Interpretation[edit | edit source]

The language of treaties, like that of any law or contract, must be interpreted when the wording is unclear or its application to unforeseen circumstances is uncertain.^[27] The Vienna Convention on the Law of Treaties, in Article 31, mandates that treaties be interpreted “in good faith” based on the “ordinary meaning” of their terms, considered in the context of the treaty’s object and purpose.^[24] International legal experts often invoke the ‘principle of maximum effectiveness,’ which seeks to give treaty provisions the fullest force possible to uphold obligations between parties, as applied in cases like the Genocide Convention’s definition of intent.^[28]

No single party to a treaty can unilaterally impose its interpretation on others.^[27] However, consent to an interpretation may be implied if other parties fail to explicitly reject a state’s unilateral interpretation, especially if that state acts on its view without objection, as seen in historical disputes over the Genocide Convention’s scope.^[29] When all parties agree to a particular interpretation, it effectively adds a new clause to the treaty, known as an ‘authentic interpretation,’ a process used to clarify terms like “in whole or in part” in the Genocide Convention.^[28]

International tribunals, such as the International Court of Justice (ICJ), frequently resolve disputes over treaty interpretations, including those involving the Genocide Convention.^[23] To determine meaning, these bodies may examine preparatory work from treaty negotiations, drafting records, and the final signed text, as in the ICJ’s analysis of the Genocide Convention in Bosnia v. Serbia (2007).^[30]

Consequences of Terminology[edit | edit source]

The act of signing a treaty implies recognition of the other party as a sovereign state and acknowledges the agreement’s enforceability under international law, a principle relevant to the Genocide Convention’s ratification by 153 states.^[27] Nations are cautious about designating an agreement as a treaty due to this implication, as seen in the careful drafting of the Genocide Convention to secure broad state participation.^[21] For example, in the United States, agreements between states are termed compacts, and those between states and the federal government or among agencies are memoranda of understanding, avoiding the international legal weight of treaties.^[31]

Disparities in intent can complicate treaty-making, as when one party seeks binding international obligations while the other does not, a dynamic evident in negotiations like those between North Korea and the United States over nuclear proliferation, where treaty status was contentious.^[32] The term “treaty” varies by jurisdiction; in the United States, it denotes an international agreement ratified under domestic law, a process that delayed the Genocide Convention’s U.S. ratification until 1988 due to sovereignty concerns.^[30]

Enforcement[edit | edit source]

While the Vienna Convention on the Law of Treaties provides a general framework for resolving treaty disputes, many treaties, including the Genocide Convention, specify alternative mechanisms for addressing breaches.^[24][33] The Genocide Convention, under Article IX, allows disputes to be referred to the International Court of Justice (ICJ), as seen in cases like Bosnia v. Serbia (2007) and South Africa v. Israel (2024).^[23][26]

Other treaties may establish specialized panels or courts, such as the European Court of Justice for EU agreements or the World Trade Organization’s Dispute Settlement Understanding, though the Genocide Convention relies primarily on the ICJ and national courts.^[22]Enforcement actions under the Convention, such as ICJ rulings or International Criminal Court prosecutions, may lead to reparations or individual convictions, but state compliance varies, limiting effectiveness.^[25]

Ending treaty obligations[edit | edit source]

Withdrawal[edit | edit source]

Treaties are not necessarily permanently binding upon the signatory parties. As obligations in international law are traditionally viewed as arising only from the consent of states, many treaties expressly allow a state to withdraw as long as it follows certain procedures of notification. For example, the Single Convention on Narcotic Drugs provides that the treaty will terminate if, as a result of denunciations, the number of parties falls below 40. Many treaties expressly forbid withdrawal. Article 56 of the Vienna Convention on the Law of Treaties provides that where a treaty is silent over whether or not it can be denounced there is a rebuttable presumption that it cannot be unilaterally denounced unless:

• it can be shown that the parties intended to admit the possibility, or
• a right of withdrawal can be inferred from the terms of the treaty.

The possibility of withdrawal depends on the terms of the treaty and its travaux preparatory. It has, for example, been held that it is not possible to withdraw from the International Covenant on Civil and Political Rights. When North Korea declared its intention to do this the Secretary-General of the United Nations, acting as registrar, said that original signatories of the ICCPR had not overlooked the possibility of explicitly providing for withdrawal, but rather had deliberately intended not to provide for it. Consequently, withdrawal was not possible.^[34]

In practice, because of sovereignty, any state can purport to withdraw from any treaty at any time and cease to abide by its terms. The question of whether this is lawful can be regarded as the success or failure to anticipate community acquiescence or enforcement, that is, how other states will react; for instance, another state might impose sanctions or go to war over a treaty violation.

If a state party's withdrawal is successful, its obligations under that treaty are considered terminated, and withdrawal by one party from a bilateral treaty terminates the treaty. When a state withdraws from a multilateral treaty, that treaty will still otherwise remain in force among the other parties, unless it otherwise should or could be interpreted as agreed upon between the remaining states parties to the treaty.^{[citation needed]}

Suspension and termination[edit | edit source]

If a party has materially violated or breached its treaty obligations, the other parties may invoke this breach as grounds for temporarily suspending their obligations to that party under the treaty. A material breach may also be invoked as grounds for permanently terminating the treaty itself.^[35]

A treaty breach does not automatically suspend or terminate treaty relations, however. It depends on how the other parties regard the breach and how they resolve to respond to it. Sometimes treaties will provide for the seriousness of a breach to be determined by a tribunal or other independent arbiter.^[36] An advantage of such an arbiter is that it prevents a party from prematurely and perhaps wrongfully suspending or terminating its own obligations due to another's an alleged material breach.

Treaties sometimes include provisions for self-termination, meaning that the treaty is automatically terminated if certain defined conditions are met. Some treaties are intended by the parties to be only temporarily binding and are set to expire on a given date. Other treaties may self-terminate if the treaty is meant to exist only under certain conditions.^[37]

A party may claim that a treaty should be terminated, even absent an express provision, if there has been a fundamental change in circumstances. Such a change is sufficient if unforeseen, if it undermined the "essential basis" of consent by a party if it radically transforms the extent of obligations between the parties, and if the obligations are still to be performed. A party cannot base this claim on change brought about by its own breach of the treaty. This claim also cannot be used to invalidate treaties that established or redrew political boundaries.^[37]

Cartels[edit | edit source]

Cartels (“Cartells”, “Cartelle” or “Kartell-Konventionen” in other languages) were a special kind of treaty within the international law of the 17th to 19th centuries.^{[38][39][40][41]} Their purpose was to regulate specific activities of common interest among contracting states that otherwise remained rivals in other areas. They were typically implemented on an administrative level. Similar to the ‘’cartels’’ for duels and tournaments, these intergovernmental accords represented fairness agreements or gentlemen’s agreements between states.

In the United States, cartels governed humanitarian actions typically carried out by cartel ships were dispatched for missions, such as to carry communications or prisoners between belligerents.^[42]

From the European history, a broader range of purposes is known. These ‘cartels’ often reflected the cohesion of authoritarian ruling classes against their own unruly citizens. Generally, the European governments concluded - while curbing their mutual rivalries partially - cooperation agreements, which should apply generally or only in case of war:^[43]

• Deserters, escaped serfs and criminals were to be mutually extradited.
• Prisoners of war should be handed out according to rank in different exchange ratios.
• The maintenance of postal and commercial traffic including the entry and exit of couriers should be guaranteed in the fields of communication and transport.
• ‘Customs cartels' (“Zollkartelle”) and 'coin cartels' (“Münzkartelle”) were 'regulatory' agreements between Continental-European states in the 19th century.
• Against smugglers and counterfeiters, a joint action approach was adopted by the governments contracting on international trade treaties. The latter often contained the relevant ‘cartel’ regulations in their annexes.

The measures against criminals and unruly citizens were to be conducted regardless of the nationality and origin of the relevant persons. If necessary, national borders could be crossed by police forces of the respective neighboring country for capture and arrest. In the course of the 19th century, the term ‘cartel’ (or 'Cartell') gradually disappeared for intergovernmental agreements under international law. Instead, the term "convention" was used.

Invalid treaties[edit | edit source]

An otherwise valid and agreed upon treaty may be rejected as a binding international agreement on several grounds. For example, the serial Japan–Korea treaties of 1905, 1907 and 1910 were protested;^[44] and they were confirmed as "already null and void" in the 1965 Treaty on Basic Relations between Japan and the Republic of Korea.^[45]

Ultra vires treaties[edit | edit source]

According to the preamble in The Law of Treaties, treaties are a source of international law. If an act or lack thereof is condemned under international law, the act will not assume international legality even if approved by internal law.^[46] This means that in case of a conflict with domestic law, international law will always prevail.^[47]

A party's consent to a treaty is invalid if it had been given by an agent or body without power to do so under that state's domestic laws. States are reluctant to inquire into the internal affairs and processes of other states, and so a "manifest violation" is required such that it would be "objectively evident to any State dealing with the matter". A strong presumption exists internationally that a head of state has acted within his proper authority. It seems that no treaty has ever actually been invalidated on this provision.^{[citation needed]}

Consent is also invalid if it was given by a representative acting outside their restricted powers during the negotiations, if the other parties to the treaty were notified of those restrictions prior to his or her signing.^{[citation needed]}

Misunderstanding, fraud, corruption, coercion[edit | edit source]

Articles 46–53 of the Vienna Convention on the Law of Treaties set out the only ways that treaties can be invalidated—considered unenforceable and void under international law. A treaty will be invalidated due to either the circumstances by which a state party joined the treaty or due to the content of the treaty itself. Invalidation is separate from withdrawal, suspension, or termination (addressed above), which all involve an alteration in the consent of the parties of a previously valid treaty rather than the invalidation of that consent in the first place.

A governmental leader's consent may be invalidated if there was an erroneous understanding of a fact or situation at the time of conclusion, which formed the "essential basis" of the state's consent. Consent will not be invalidated if the misunderstanding was due to the state's own conduct, or if the truth should have been evident.

Consent will also be invalidated if it was induced by the fraudulent conduct of another party, or by the direct or indirect "corruption" of its representative by another party to the treaty. Coercion of either a representative or the state itself through the threat or use of force, if used to obtain the consent of that state to a treaty, will invalidate that consent.

Contrary to peremptory norms[edit | edit source]

A treaty is null and void if it is in violation of a peremptory norm. These norms, unlike other principles of customary law, are recognized as permitting no violations and so cannot be altered through treaty obligations. These are limited to such universally accepted prohibitions as those against the aggressive use of force, genocide and other crimes against humanity, piracy, hostilities directed at civilian population, racial discrimination and apartheid, slavery and torture,^[48] meaning that no state can legally assume an obligation to commit or permit such acts.^[49]

Treaties under domestic national law[edit | edit source]

Australia[edit | edit source]

The constitution of Australia allows the executive government to enter into treaties, but the practice is for treaties to be tabled in both houses of parliament at least 15 days before signing. Treaties are considered a source of Australian law but sometimes require an act of parliament to be passed depending on their nature. Treaties are administered and maintained by the Department of Foreign Affairs and Trade, which advised that the "general position under Australian law is that treaties which Australia has joined, apart from those terminating a state of war, are not directly and automatically incorporated into Australian law. Signature and ratification do not, of themselves, make treaties operate domestically. In the absence of legislation, treaties cannot impose obligations on individuals nor create rights in domestic law. Nevertheless, international law, including treaty law, is a legitimate and important influence on the development of the common law and may be used in the interpretation of statutes."^[50] Treaties can be implemented by executive action, and often, existing laws are sufficient to ensure a treaty is honored.

Australian treaties generally fall under the following categories: extradition, postal agreements and money orders, trade and international conventions.

Brazil[edit | edit source]

The federal constitution of Brazil states that the power to enter into treaties is vested in the president of Brazil and that such treaties must be approved by the Congress of Brazil (Articles 84, Clause VIII, and 49, Clause I). In practice, that has been interpreted as meaning that the executive branch is free to negotiate and sign a treaty but that its ratification by the president requires the prior approval of Congress. Additionally, the Supreme Federal Court has ruled that after ratification and entry into force, a treaty must be incorporated into domestic law by means of a presidential decree published in the federal register for it to be valid in Brazil and applicable by the Brazilian authorities.

The court has established that treaties are subject to constitutional review and enjoy the same hierarchical position as ordinary legislation (leis ordinárias, or "ordinary laws", in Portuguese). A more recent ruling by the Supreme Court of Brazil in 2008 has altered that somewhat by stating that treaties containing human rights provisions enjoy a status above that of ordinary legislation, subject to only the constitution itself. Additionally, the 45th Amendment to the constitution makes human rights treaties approved by Congress by a special procedure enjoy the same hierarchical position as a constitutional amendment. The hierarchical position of treaties in relation to domestic legislation is of relevance to the discussion on whether and how the latter can abrogate the former and vice versa.

The constitution does not have an equivalent to the supremacy clause in United States Constitution, which is of interest to the discussion on the relation between treaties and legislation of the states of Brazil.

India[edit | edit source]

In India, subjects are divided into three lists: union, state and concurrent. In the normal legislation process, the subjects on the union list must be legislated by the Parliament of India. For subjects on the state list, only the respective state legislature can legislate. For subjects on the concurrent list, both governments can make laws. However, to implement international treaties, Parliament can legislate on any subject and even override the general division of subject lists.

United States[edit | edit source]

In the United States, the term "treaty" has a different, more restricted legal sense than in international law. US law distinguishes what it calls "treaties" from "executive agreements", which are either "congressional-executive agreements" or "sole executive agreements". The classes are all equally treaties under international law; they are distinct only in internal US law.^{[citation needed]}

The distinctions are primarily concerning their method of approval. Treaties require advice and consent by two-thirds of the Senators present, but sole executive agreements may be executed by the President acting alone. Some treaties grant the President the authority to fill in the gaps with executive agreements, rather than additional treaties or protocols. Finally, congressional-executive agreements require majority approval by both the House and the Senate before or after the treaty is signed by the President.^{[citation needed]}

Currently, international agreements are ten times more likely to be executed by executive agreement. Despite the relative ease of executive agreements, the President still often chooses to pursue the formal treaty process over an executive agreement to gain congressional support on matters that require the Congress to pass implementing legislation or appropriate funds as well as for agreements that impose long-term, complex legal obligations on the US. For example, the deal by the United States, Iran, and other countries is not a treaty.^{[citation needed]}

See the article on the Bricker Amendment for the history of the relationship between treaty powers and Constitutional provisions.

The U.S. Supreme Court ruled in the Head Money Cases (1884) that "treaties" do not have a privileged position over Acts of Congress and can be repealed or modified by legislative action just like any other regular law. The Court's decision in Reid v. Covert (1957) held that treaty provisions that conflict with the U.S. Constitution are null and void under U.S. law.^[51]

Treaties and indigenous peoples[edit | edit source]

A treaty delegation of the Mdewakanton and Wahpekute indigenous tribes to Washington, D.C. (1858).

Treaties formed an important part of European colonization and, in many parts of the world, Europeans attempted to legitimize their sovereignty by signing treaties with indigenous peoples. In most cases, these treaties were in extremely disadvantageous terms to the native people, who often did not comprehend the implications of what they were signing.^{[citation needed]}

In some rare cases, such as with Ethiopia and the Qing dynasty, local governments were able to use the treaties to at least mitigate the impact of European colonization. This involved learning the intricacies of European diplomatic customs and then using the treaties to prevent power from overstepping their agreement or by playing different powers against each other.^{[citation needed]}

In other cases, such as New Zealand with the Māori and Canada with its First Nations people, treaties allowed native peoples to maintain a minimum amount of autonomy. Such treaties between colonizers and indigenous peoples are an important part of political discourse in the late 20th and early 21st century, the treaties being discussed have international standing as has been stated in a treaty study by the UN.^[52][53]

Australia[edit | edit source]

In the case of Indigenous Australians, no treaty was ever entered into with the Indigenous peoples entitling the Europeans to land ownership, mostly adopting the doctrine of terra nullius (with the exception of South Australia). This concept was later overturned by Mabo v Queensland, which established the concept of native title in Australia well after colonization was already a fait accompli.

Victoria[edit | edit source]

On 10 December 2019,^[54] the Victorian First Peoples' Assembly met for the first time in the Upper House of the Parliament of Victoria in Melbourne. The main aim of the Assembly is to work out the rules by which individual treaties would be negotiated between the Victorian Government and individual Aboriginal Victorian peoples. It will also establish an independent Treaty Authority, which will oversee the negotiations between the Aboriginal groups and the Victorian Government and ensure fairness.^[55]

United States[edit | edit source]

Prior to 1871, the government of the United States regularly entered into treaties with Native Americans but the Indian Appropriations Act of 3 March 1871 had a ride attached that effectively ended the President's treaty-making by providing that no Indian nation or tribe shall be acknowledged as an independent nation, tribe, or power with whom the United States may contract by treaty.^[56] The federal government continued to provide similar contractual relations with the Indian tribes after 1871 by agreements, statutes, and executive orders.^[57]

Canada[edit | edit source]

Colonization in Canada saw a number of treaties signed between European settlers and Indigenous First Nations peoples. Historic Canadian treaties tend to fall into three broad categories: commercial, alliance, and territorial. Commercial treaties first emerged in the 17th century and were agreements made between the European fur trading companies and the local First Nations. The Hudson's Bay Company, a British trading company located in what is now Northern Ontario, signed numerous commercial treaties during this period. Alliance treaties, commonly referred to as "treaties of peace, friendship and alliance" emerged in the late 17th to early 18th century.^[58] Finally, territorial treaties dictating land rights were signed between 1760 and 1923.^[59] The Royal Proclamation of 1763 accelerated the treaty-making process and provided the Crown with access to large amounts of land occupied by the First Nations.^[60] The Crown and 364 First Nations signed 70 treaties that are recognized by the Government of Canada and represent over 600,000 First Nation individuals.^[60] The treaties are as follows:

• Treaties of Peace and Neutrality (1701–1760)^[61]
• Peace and Friendship Treaties (1725–1779)^[61]
• Upper Canada Land Surrenders and the Williams Treaties (1764-1862/1923)^[62]
• Robinson Treaties and Douglas Treaties (1850–1854)^[63]
• The Numbered Treaties (1871–1921)^[64][60]

Treaty perceptions[edit | edit source]

There is evidence that "although both Indigenous and European Nations engaged in treaty-making before contact with each other, the traditions, beliefs, and worldviews that defined concepts such as “treaties" were extremely different".^[65] The Indigenous understanding of treaties is based on traditional culture and values. Maintaining healthy and equitable relationships with other nations, as well as the environment, is paramount.^[66] Gdoo-naaganinaa, a historic treaty between the Nishnaabeg nation and the Haudenosaunee Confederacy is an example of how First Nations approach treaties. Under Gdoo-naaganinaa, also referred-to in English as Our Dish, the neighbouring nations acknowledged that while they were separate nations they shared the same ecosystem or Dish. It was agreed that the nations would respectably share the land, not interfering with the other nation's sovereignty while also not monopolizing environmental resources. First Nations agreements, such as the Gdoo-naaganigaa, are considered "living treaties"’ that must be upheld continually and renewed over time.^[67] European settlers in Canada had a different perception of treaties. Treaties were not a living, equitable agreement but rather a legal contract over which the future creation of Canadian law would later rely on. As time passed, the settlers did not think it necessary to abide by all treaty agreements. A review of historic treaties reveals that the European settler understanding is the dominant view portrayed in Canadian treaties.^[65]

Treaties today[edit | edit source]

Canada today recognizes 25 additional treaties called Modern Treaties. These treaties represent the relationships between 97 Indigenous groups which includes over 89,000 people.^[60] The treaties have been instrumental in strengthening Indigenous stronghold in Canada by providing the following (as organized by the Government of Canada) :

• Indigenous ownership over 600,000 km² of land (almost the size of Manitoba)
• capital transfers of over $3.2 billion
• protection of traditional ways of life
• access to resource development opportunities
• participation in land and resources management decisions
• certainty with respect to land rights in round 40% of Canada's land mass
• associated self-government rights and political recognition^[60]

See also[edit | edit source]

• Bilateral treaty
• Multilateral treaty
• Peace treaty
• Treaty of Friendship
• Foedus
• Jus tractatuum
• List of intergovernmental organizations
• List of treaties
• Manrent (feudal Scottish Clan treaty)
• Supranational union
• Treaty ratification
• Vienna Convention on the Law of Treaties

Notes[edit | edit source]

References[edit | edit source]

• Branch, Government of Canada; Indigenous and Northern Affairs Canada; Communications (2008-11-03). "Treaties and agreements". www.rcaanc-cirnac.gc.ca. Retrieved 2021-02-05.
• Korean Mission to the Conference on the Limitation of Armament, Washington, D.C., 1921–1922. (1922). Korea's Appeal to the Conference on Limitation of Armament. Washington: U.S. Government Printing Office. OCLC 12923609
• Miller, James Rodger (2009-01-01). Compact, Contract, Covenant: Aboriginal Treaty-making in Canada. University of Toronto Press. ISBN 978-0-8020-9741-5
• Nicolson, Harold. (1936). Diplomacy, 1st ed. Oxford: Oxford University Press. OCLC 502863836
• Seah, Daniel. "Problems Concerning the International Law-Making Practice of ASEAN: A Reply to Chen Zhida" Asian Journal of International Law (2015)
• Shaw, Malcolm Nathan. (1977). International Law, 1st ed. Sevenoaks, Kent: Hodder and Stoughton. OCLC 637940121
• Simpson, Leanne (2008). "Looking after Gdoo-naaganinaa: Precolonial Nishnaabeg Diplomatic and Treaty Relationships". Wíčazo Ša Review. 23 (2): 29–42. doi:10.1353/wic.0.0001. ISSN 1533-7901
• Timothy L. Meyer, "From Contract to Legislation: The Logic of Modern International Lawmaking" 14 Chicago Journal of International Law 559 (2014), available at From Contract to Legislation: The Logic of Modern International Lawmaking.

External links[edit | edit source]

Wikisource has original text related to this article:

Treaties

Look up treaty in Wiktionary, the free dictionary.

• Treaties and Selected other International Instruments – Resources
• United Nations Treaty Collection
• Procedural history and related documents on The Guide to Practice on Reservations to Treaties in the Historic Archives of the United Nations Audiovisual Library of International Law
• Procedural history and related documents on the Articles on the Effects of Armed Conflicts on Treaties in the Historic Archives of the United Nations Audiovisual Library of International Law
• ISEA International Energy Treaties
• Treaties from UCB Libraries GovPubs
• Resource Guide on Treaties from the American Society of International Law
• Treaty Affairs at the United States Department of State
• Treaties Office at the European Union
• Peace Palace Library – Research Guide