c) The designation of treaties
As it appears from the definition of Article 2 (1)(a) of the Vienna
Convention, the legally binding nature of a treaty is not affected by its
particular designation. In order to be legally binding, the parties must
have had the intention to be bound legally and not "only" through a
political commitment.
Nevertheless, the designation of a particular agreement indicates the
political importance the parties attach to it, though it cannot be
considered as conclusive evidence.
With regard to bilateral agreements, the term "Treaty" suggests that the agreement so designated is considered to be of great importance. Friendship treaties, although outdated in many cases today, are an example thereof. The nowadays most utilized designation seems to be "Agreement". It is utilized so often that it is impossible to conclude from there which political value it has for the parties. The term "memorandum of agreement" is widespread, too.
With regard to multilateral agreements, the terms "Charter" or, here again, "Treaty" are chosen in general for the most important conventions as it is the case for
- the Charter of the United Nations of 1945,
- the
Charter of the Organization of American States (1948),
- the
Charter of the Organization of African Unity (1963)
or
- the
European Charter for Regional or Minority Languages (1992).
In spite of its solemn title, the
Charter of Fundamental Rights of the
European Union, which has been proclaimed in Nice on 7 March 2000 is not a legally binding instrument, although it is designed to become the common reference of fundamental values on which the members of the European Union intend to develop their further integration.
As to the designation of a text as "Treaty", here are some examples:
- the North Atlantic Treaty (the
NATO-Treaty) of 1948,
- The
Treaty on the Non-Proliferation of nuclear Weapons (NPT - 1968) and
- the
Treaty on the European Union of 1992 (as amended by the
Treaty of Amsterdam of 1997).
In most cases, multilateral treaties are called "Conventions". This is the most general designation which is also used by Article 38 of the
Statute of the International Court of Justice. They are often concluded under the auspices of an international organization such as
- the Convention for the Protection of Human Rights and
Fundamental Freedoms of 1950 (so-called
European Human Rights Convention concluded
under the auspices of the
Council of Europe),
- the
United Nations Convention on the Law of the Sea (1982)
- the
Universal Copyright Convention as revised at Paris on
24 July 1971 (concluded under the auspices of the
United Nations Educational, Scientific and Cultural Organization
-
UNESCO)
As in the case of bilateral treaties, the very general term "Agreement" is also frequently used for multilateral conventions. It has been used in the following examples:
- the
European Agreement on continued Payment of Scholarships for Students studying abroad of 1969,
- the
Agreement on a Comprehensive Political Settlement of the Cambodia Conflict (1991) or
- the
North American Free Trade Agreement (1992).
The designation "Protocol" is usually used for legally binding agreements which are additional or complementary to main agreements or which have a supporting role.
As additional agreements they are added to the original treaties as it is
the case with the
Protocols Additional to the Geneva Conventions of 12
August 1949
As complementary agreement, they are in general already foreseen in the original convention. This technique is frequently used in environmental treaties where the protocols set out detailed provisions on the basis of an more general article in a framework agreement as it is the case of the
Cartagena Protocol on Biosafety to the Convention on Biological Diversity which has been adopted in 1999 on the basis of Article 19 (3) of the convention dating from 1992 (the Protocol has not entered ino force, yet).
Finally, As supporting agreements, they help to implement the main agreement as in the case of the Optional Protocol to the
International Covenant on Civil and Political Rights of 1966, through which access to an intergovernmental body has been given to individuals.
In the present context, it is worthwhile mentionning that on this website we have also encountered the terms
- "Statute" (
Statute of the International Court of Justice,
Rome Statute of the International Criminal Court of 1998)
and
- "Covenant" (
International Covenant on Civil and Political Rights,
International Covenant on Economic, Social and Cultural Rights)
