... Таємниця успіху у тому, щоб бути готовим скористатися зі слушної нагоди, коли вона настане (Б. Шоу) ...

Головне меню

Науково-практична Інтернет-конференція 23.02.2017 - СЕКЦІЯ №2
The international treaty, thanks to the huge variety of its object, represents a method, which has continuously evolved, that establishes the relationship of cooperation between states, thus ensuring the states’ economical, political and social progress. At the same time, international treaties contribute to world peace, help to combat international crimes, ensure the inviolability of borders and territorial integrity of states, the respect for human rights, the mutual assistance of states in civil, family and criminal matters and guarantee the consolidation of the 10 fundamental principles of public international law.
An international treaty is considered to be valid if it wholly or in part does not violate the fundamental principles or mandatory norms of international law. This idea has its roots in the Vienna Convention on the Law of Treaties (1969), as the Article 53 states that: «A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law». Only valid international treaties can produce legal effects for the parties (which in this regard can acquire legal rights and duties, that were aimed to be achieved by involving the will of the parties).
In any case, the conditions of validity represent a matter of great importance because the very security and stability of international relations depend largely on ensuring the binding nature of treaties.
If speaking about the change of a government, the general rule states that the change of the persons that act on behalf of a state does not affect the commitments made on behalf of the state and the obligations that a state has as written in a treaty. The validity of a treaty, in general, is not affected by the internal situation of the state. However, the effects produced by the commitments made by the states’ authorities whose legitimacy was contested represents an academic interest. In order to conclude an international treaty at least two subjects of public international law are needed. One of the main criteria is the recognition of the subject by the other one, and if speaking about states – the Vienna Convention on the Law of Treaties states, in Article 6, that Every State possesses capacity to conclude treaties. Thus, if a state recognizes another state and it’s government as well, even if established in an illegal way, the parties can conclude a bilateral international treaty. In this regard, the examples set by the Russian Federation are more than suggestive, as it has some international treaties concluded with such unrecognized entities by the international community as Abkhazia and South Ossetia (so-called Republics in the Caucasus, which claim their independence from Georgia). Such treaties are: Treaty between the Russian Federation and the Republic of Abkhazia on Alliance and Strategic Partnership (24th of November 2014), Agreement between the Republic of Abkhazia and the Russian Federation on cooperation and mutual assistance in customs matters (16th of October 2010) [1], Treaty between the Russian Federation and the Republic of South Ossetia on alliance and integration (18th of March 2015) [2] and so on.
Theoretically speaking, even in the case of a multilateral treaty, if one of the parties that participate at the negotiations is an unrecognized state by any other state involved in the same negotiations, the last one can still agree on concluding the treaty, with the state that it does not recognize being involved, if the existence of the treaty benefits all the parties involved. 
In the case of unrecognized governments, in the international practice treaties are considered to be mandatory when concluded by a government that has an effective power, even if that government was invested in unconstitutional ways and even if it was not recognized by third countries. In this regard it is mandatory to mention that the validity of the armistice conventions signed between the Arab states and the Government of Israel has not been disputed, although Israel is not recognized by Arab states.
In terms of participation in multilateral treaties, it is admitted nowadays that the participation of an unrecognized government to a treaty is possible and it does not mean its recognition by other states-parties to the Treaty. The Moscow Treaty regarding the interdiction of nuclear testing (concluded in 1963), stipulated in its special provisions, that any State may become Party to this Treaty and with the help of the treaty depositaries, the German Democratic Republic could become a party to the treaty before it has even been recognized by the United States.
The Government-in-Exile can be defined as a political group which claims to be a country's legitimate government, but is unable to exercise legal power and instead resides in a foreign country [3].
The first treaty in modern history which was concluded by a government in exile is probably the Final Act of the Congress of Vienna which on 9 June 1815, during Napoleon’s reign of the 100 days, was signed on behalf of France by the representative of King Louis XVIII who had fled to Ghent but continued to be recognized as the legitimate ruler of France [4].
Another example worth mentioning, is the case of the Czechoslovak Government in Exile, which had its origin in an Agreement concluded in 1939 by a Czechoslovak Minister in Paris and the French Government, in order to establish a czechoslovak army in France. The Agreement was concluded on behalf of a provisional government which was not yet established, but which was based in London and was officially recognized in 1940. This government was the one which signed the United Nations Declaration in 1942, the Final Act of the United Nations Agriculture and Food Conference in 1943 and so on.
Authorities in exile not recognized as governments have been allowed to enter into agreements only in their own name [5] or on behalf of their movement, but not on behalf of the States which they purported to represent. This is well illustrated by the case of the Provisional Czechoslovak Government, in London, which concluded several agreements prior to its full recognition [6]. However, it was not allowed to conclude those agreements in the name of the Czechoslovak Republic. The situation changed only once it was placed in the same legal basis as other Allied Governments-in-exile, e.g when it was accorded full recognition (as the Government of Czechoslovakia in exile). In this regard, and if reffering to the british recognition in particular, the British Foreign Secretary, Mr. Eden, wrote on 18 July 1941: «His Majesty’s Government also accept that agreements concluded in future with your Government shall be negotiated in the name of the Czecho-slovak Republic». Therefore, the recognition of an authority in exile as a government affects both: the form and the substance of the treaties that it is competent to conclude.
As a general rule, only an authority in exile that is recognized as a government can validly sign, ratify or accede to a multilateral inter-State treaty.
 
References:
1. URL: http://presidentofabkhazia.org/doc/mezhdunarodnye-dogovory.php Web site was accessed on the 6th of February 2016.
2. URL: http://kremlin.ru/supplement/4819 Web site was accessed on the 6th of February 2016.
3. «Princeton University WordNet». Wordnetweb.princeton.edu. Retrieved 2012-09-20.
4. Recognition of Governments in International Law: With Particular Reference to Governments in Exile, Stefan Talmon, Published to Oxford Scholarship Online, 2010, Print Publication date 2001.
5. e.g The Agreement of 3 september 1918 between the British Government and the Czechoslovak National Council, and the Modus Vivendi between the USA and the CFLN on the Reciprocal Aid in French North and West Africa of 25 September 1943. While the Preamble of the Final Act of the United Nations Conference on Food and Agriculture, adopted on 3 June 1943, referred to the Governments of the various States participating at the Conference, it spoke only of «the French Representative».
6. e.g the Military Agreement Regarding the Reconstruction of the Czechoslovak Army in France. {jcomments lock}
 
 

-
English French German Polish Romanian Russian Ukrainian
2020
Грудень
ПнВтСрЧтПтСбНД
 123456
78910111213
14151617181920
21222324252627
28293031   
Національний розвиток держави і права повинен ґрунтуватися, у першу чергу, на:
 
На Вашу думку чи забезпечують реалізацію принципу верховенства права законодавчі реформи 2020 року?
 
Система Orphus
Повну відповідальність за зміст опублікованих тез доповідей несуть автори, рецензенти та структурні підрозділи вищих навчальних закладів та наукових установ, які рекомендували їх до друку.

Лічильники і логотипи

Актуальна Юриспруденція