International treaty

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Example of an international treaty: the Brest-Litovsk Peace Treaty (1918)

A contract within the meaning of international law is an "express or implied agreement of will between two or more subjects of international law , through which rights and obligations under international law are established". It presupposes - analogous to the contract in private law - the ability of the partners to act, in the sense of international law i.e. at least a limited international legal capacity of the legal subjects involved. This generally corresponds to the concept of a state , which is why one speaks of contracting states for the contracting parties, but there are also other types of international law subjects.

In addition to customary international law and general legal principles, international treaty law constitutes "today the most important legal source of international law (see Art. 38 lit. a ICJ statute)". The legal scholar Anne Peters explained in 2006: "Because there is no central legislator in international law, the international treaties, especially the multilateral treaties ('world order treaties'), function as ' laws ' of the international community."

The term international treaty is also used.

Contract negotiations and signing

International treaties are usually first negotiated by diplomats in constant contact with their governments . If there is agreement on the wording of the contract, they are initialed by the negotiators and then z. B. signed by members of the government or other duly authorized persons. In the case of bilateral contracts, the contracting parties are named alternately in the original ( alternat ).

Come into effect

When an international treaty comes into force depends on the individual circumstances. Domestic requirements are irrelevant under international law (unless the treaty stipulates otherwise), so that the consent of the nationally competent bodies is not important under international law.

As a rule, an international treaty must be ratified before it can enter into force. A ratification is the legally binding declaration of the conclusion of an international agreement by the contracting parties, whereby this is done by the bodies responsible under international law that represent the state externally (these are usually the heads of state , heads of government or foreign ministers ), or persons authorized under international law .

In most cases, the contract itself determines when it comes into force. In the case of a multilateral treaty, this often (but not always) depends on the requirement of a certain number of ratifications, after which the treaty comes into force. If there is no provision in the contract regarding the entry into force, it will only come into force once all negotiating states have given their consent.

If a state subsequently joins a contract that has already entered into force, the contract will come into force for this state on accession, unless otherwise specified in the contract itself. This accession is called an accession , and the depositing of a certificate of accession is equivalent to ratification.

Termination, Termination and Suspension

A contract expires if it is deemed to have been finally fulfilled due to the goals or time limits set out in the contract. The Vienna Convention on the Law of Treaties stipulates that states are free to terminate a contract at any time if all contracting parties agree, or to allow individual contracting parties to withdraw. Without this agreement, uniliteral can only withdraw in a few cases if the contract does not contain its own provisions.

A reason for a uniliteral withdrawal from an international treaty can be given that the state or its representatives have been forced to conclude a treaty (Art. 51–52 WVK). While this provision cannot be restricted, clauses can be agreed for the other reasons in the individual contract, in which it is expressly regulated that the contract remains in force without being observed. These reasons are: error in the content of the contract if the signatory has not been adequately authorized by the state, fraud, bribery, significant breach of contract by other contracting parties, as well as fundamental change in circumstances (Art. 46-50, 60, 62 WVK).

When war breaks out, multilateral treaties between the belligerents are suspended.

International contract law

The Vienna Convention on the Law of Treaties ( Vienna Convention on the Law of Treaties , VCLT) of 23 May 1969 wrote one hand, the existing law on contracts established and expanded only slightly. Nevertheless, the USA has not ratified this convention, which came into force on January 27, 1980, but it feels bound by it insofar as it is only a formulation of pre-existing law.

National procedures

Germany

Art. 32 of the Basic Law regulates the foreign relations of the Federal Republic of Germany . It reads as follows:

(1) The federation is responsible for maintaining relations with foreign states .

(2) Before the conclusion of a contract that affects the special circumstances of a country , the country must be heard in good time.

(3) Insofar as the states are responsible for legislation , they can, with the consent of the federal government, conclude contracts with foreign states.

It is disputed to what extent the states should have competencies to conclude international agreements. This dispute gains legal relevance when it comes to the implementation of international treaties within Germany. Although the federal government can conclude contracts for the whole of Germany, implementation is the responsibility of the federal states in accordance with Article 30 of the Basic Law, unless otherwise provided. If a federal state refuses to implement it, there may be a breach of contract and sanctions under international law that affect the entire state.

The so-called Berlin solution , the view taken by the federal government and the state of Berlin , gives the federal government extensive closing and transformation competence. The southern German solution, on the other hand, supported by Baden-Württemberg , Bavaria , Hesse and North Rhine-Westphalia , only affirms the federal government's contractual competence for the material matters assigned to the federal government. The North German solution as a mediating view of Bremen , Hamburg , Lower Saxony and Schleswig-Holstein grants the federal government extensive rights to conclude international agreements, but the implementation of the agreement into domestic law is the sole responsibility of the states. A compromise was finally reached with the Lindau Agreement of 1957. According to this, the federal government has the competence to conclude international treaties also in the area of ​​the legislative competence of the states. However, the federal government is obliged to obtain the approval of the states before concluding the contract. This ensures the implementation of the treaty by the federal states.

In a series of international agreements exist Federal State clauses , the conflicts between federal and constituent states should avoid.

Multi-phase process

The Federal President represents the Federal Republic of Germany under international law ( Article 59, Paragraph 1, Sentence 1 of the Basic Law). However, the initiation and negotiations of international treaties are the sole responsibility of the Federal Government , which determines the political goals and content of the treaty. Thus, the Federal President must first grant the Federal Chancellor or the Federal Foreign Minister as negotiator of the Federal Republic of Germany power of attorney to represent Germany under international law.

From Article 7, Paragraph 2 of the Vienna Convention on the Law of Treaties (VVRK) it follows that the heads of state, heads of government and foreign ministers are to be regarded as authorized to represent. The negotiators of the subjects of international law negotiate the text of the treaty. The contract text is then initialed by the negotiators; Sometimes, because of the political importance of a treaty, it is initialed and then signed by other state organs . This signature or the one with the initials ( paraphs ) of the authorized dealers confirms that the signed text is authentic and final, i.e. corresponds to the negotiated text and can no longer be unilaterally changed.

In the domestic approval procedure in accordance with Article 59, Paragraph 2, Clause 1 of the Basic Law, the Bundesrat and the German Bundestag pass a federal law in the form of a treaty law (or “Approval Act”) (if necessary with the participation of) . The declaration of consent under international law, with which the contractual provisions become binding, takes place through ratification by the Federal President. Afterwards, the ratifications of the contracting states are exchanged or deposited with an international depositary .

In contrast to the conclusion of a treaty under international law, the termination of such a treaty is not covered by Article 59 (2) sentence 1 of the Basic Law. Since the establishment of the Federal Republic of Germany, it has been a common practice for the government to terminate international treaties without the involvement of the Bundestag.

Single-phase process

The single-phase contract conclusion procedure, which, like the multi-phase one, is based on the constitution, is characterized by the fact that no domestic procedure is necessary. The contract becomes effective immediately upon signature by the contracting parties.

Trivia

The contract with the highest geographical binding effect is the Vienna Convention for the Protection of the Ozone Layer of March 22, 1985 with 197 signatory states.

See also

literature

  • Anthony Aust: Modern Treaty Law and Practice , 2nd ed., Cambridge University Press, Cambridge 2007, ISBN 978-0-521-67806-3 .
  • F. John Harper (ed.): Treaties and Alliances of the World , 8th ed., John Harper, London 2007, ISBN 978-0-9551144-4-1 .
  • Matthias Niedobitek: The law of cross-border contracts , Mohr Siebeck, Tübingen 2001, ISBN 3-16-147447-3 .

Web links

Individual evidence

  1. ↑ Quoted from Daniel Thürer , Völkerrecht , 3rd edition, Schulthess, Zurich 2007, ISBN 978-3-7255-5483-6 , p. 90.
  2. ↑ a b Quoted from Anne Peters , Völkerrecht - Allgemeine Teil. 2nd edition, Schulthess, Zurich / Basel / Geneva 2009, p. 139.
  3. ^ Vienna Convention on the Law of Treaties, version dated April 23, 2017 in the Legal Information System of the Republic of Austria
  4. ^ Michael Schweitzer , Staatsrecht III. Constitutional law, international law, European law , 10th edition 2010, Rn. 148 f.
  5. ↑ Schweitzer, Staatsrecht III , Rn. 176 .
  6. ↑ Schweitzer, Staatsrecht III , Rn. 152-156 .
  7. ↑ BVerfGE 68, 1, 83 ff .; 90, 286, 358: obiter dictum of the Federal Constitutional Court on the termination of international treaties - missile deployment ruling .