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Treaty

Treaty

A treaty is a binding agreement under international law concluded by subjects of international law, namely states and international organizations. Treaties can be called by many names: treaties, international agreements, protocols, covenants, conventions, exchanges of letters, exchanges of notes, etc.; however all of these are equally treaties, and the rules are the same regardless of what the treaty is called. Treaties can be loosely compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held legally liable for that breach. The central principle of treaty law is expressed in the maxim pacta sunt servanda--"pacts must be respected."

Vienna Convention

The 1969 Vienna Convention on the Law of Treaties is the authoritative treaty on the international law of treaties, establishing the procedures by which treaties are adopted, interpreted, and invalidated. It is considered mostly a codification of already existing and binding customary law on treaties, and so aside from some necessary gap-filling and clarification, it is not viewed as a change in existing international law. This means that unlike most treaties, the Vienna Convention could arguably be binding to even non-parties. There is a Vienna Convention on the Law of Treaties between States, and on the Law of Treaties between States and International Organizations or between International Organizations. Most states have ratified these treaties. The Vienna Convention on Succession of States with Respect to Treaties has comparatively few parties. Many states reject its provisions as not adequately reflecting the customary international law on the subject.

Consequences of terminology

One significant part of treaty making is that signing a treaty implies recognition that the other side is a sovereign state and that the agreement being considered is enforceable under international law. Hence, nations can be very careful about terming an agreement to be a treaty. For example, within the United States agreements between states are compacts and agreements between states and the federal government or between agencies of the government are memoranda of understanding. Conversely, perhaps the most significant thing about the Anglo-Irish Treaty was that it was explicitly a treaty and hence implied British recognition of Irish sovereignty. Another situation can occur when one party wishes to create an obligation under international law, but the other party does not. Such as the case with the Sino-British Joint Declaration signed between the United Kingdom and the People's Republic of China in 1984. The wording for the document was very carefully designed to make it possible to interpret it either as a treaty or as a communique. Similar factors have been at work with respect to discussions between North Korea and the United States over security guarantees and nuclear proliferation. The terminology can also be confusing because a treaty may and usually is named something other than a treaty, such as a convention, protocol, or simply agreement. Conversely some legal documents such as the Treaty of Waitangi are internationally considered to be documents under domestic law.

Bilateral and multilateral treaties

A multilateral treaty has several parties, and establishes rights and obligations between each party and every other party. Multilateral treaties are often, but not always, open to any state; others are regional. Bilateral treaties by contrast are negotiated between a limited number of states, most commonly only two, establishing legal rights and obligations between those two states only. It is possible however for a bilateral treaty to have more than two parties; consider for instance the bilateral treaties between Switzerland and the European Union (EU) following the Swiss rejection of the European Economic Area agreement. Each of these treaties has seventeen parties. These however are still bilateral, not multilateral, treaties. 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.

Reservations

Reservations are essentially caveats to a state's acceptance of a treaty. These can be qualifications or denials of specific obligations, or the insistence upon particular interpretations of treaty language. These must be included at the time of signing or ratification--a party cannot add a reservation after it has already joined a treaty. Some treaties expressly forbid all reservations or just specific ones. Treaties may also expressly authorize certain reservations. Otherwise, reservations may be permitted to the extent that they are not inconsistent with the goal and purpose of the treaty. Though the allowance of reservations means that not all parties to a treaty will be bound under the same precise obligations, states will often nevertheless consent to reservations to gain as many parties to the treaty as possible for the sake of a general goal. If a reservation is considered unacceptable, the reserving party may be excluded from the treaty, or the reservation may be considered severable from the party's ratification, meaning that the reservation is ignored but the party is still bound under the treaty.

Execution and implementation

Treaties may be seen as 'self-executing', in that merely becoming a party puts the treaty and all of its obligations in action. Other treaties may be non-self-executing and require 'implementing legislation'--a change in the domestic law of a state party that will direct or enable it to fulfill treaty obligations. An example of a treaty requiring such legislation would be one mandating local prosecution by a party for particular crimes. The division between the two is often not clear and is often politicized in disagreements within a government over a treaty, as a non-self-executing treaty cannot be acted upon without the proper change in domestic law. If a treaty requires implementing legislation, a state may be in default of its obligations by the failure of its legislature to pass the necessary domestic laws.

Interpretation

The language of treaties, like that of any law or contract, must be interpreted when the wording does not seem clear or it is not immediately apparent how it should be applied in a perhaps unforeseen circumstance. The Vienna Convention states that treaties are to be interpreted “in good faith” according to the “ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose.” International legal experts also often invoke the 'principle of maximum effectiveness,' which interprets treaty language as having the fullest force and effect possible to establish obligations between the parties. No one party to a treaty can impose its particular interpretation of the treaty upon the other parties. Consent may be implied, however, if the other parties fail to explicitly disavow that initially unilateral interpretation, particularly if that state has acted upon its view of the treaty without complaint. Consent by all parties to the treaty to a particular interpretation has the legal effect of adding an additional clause to the treaty--this is commonly called an 'authentic interpretation.' International tribunals and arbitors are often called upon to resolve substantial disputes over treaty interpretations. To establish the meaning in context, these judicial bodies may review the preparatory work from the negotiation and drafting of the treaty as well as the final, signed treaty itself.

Invalidation

Articles 46-53 of the Vienna Convention 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 below), 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.

Ultra vires treaties

A party's consent to a treaty is invalid if it was given by an agent or body without power to do so under that state's domestic law. 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. Consent is also invalid if it is given by a representative who ignored restrictions he is subject to by his sovereign during the negotiations, if the other parties to the treaty were notified of those restrictions prior to his signing.

Misunderstanding, fraud, corruption, coercion

A state'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.

Peremptory norms

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 genocide, slavery, torture, and piracy, meaning that no state can legally assume an obligation to commit or permit such acts.

Ending treaty obligations

Withdrawal

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. Many treaties expressly forbid withdrawal. Other treaties are silent on the issue, and so if a state attempts withdrawal through its own unilateral denunciation of the treaty, a determination must be made regarding whether permitting withdrawal is contrary to the original intent of the parties or to the nature of the treaty. Human rights treaties, for example, are generally interpreted to exclude the possibility of withdrawal, because of the importance and permanence of the obligations. Withdrawal by a party may also be permitted if all other parties under the treaty consent. 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 of course terminates the treaty. When a state withdraws from a multi-lateral treaty, that treaty will still otherwise remain in force between the other parties, unless, of course, otherwise should or could be interpreted as agreed upon between the remaining states parties to the treaty.

Suspension and termination

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. A treaty breach does not automatically suspend or terminate treaty relations, however. The issue must be presented to an international tribunal or arbitror (usually specified in the treaty itself) to legally establish that a sufficiently serious breach has in fact occurred. Otherwise, a party that prematurely and perhaps wrongfully suspends or terminates its own obligations due to an alleged breach itself runs the risk of being held liable for breach. Additionally, parties may choose to overlook treaty breaches while still maintaining their own obligations towards the party in 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 terminate if a defined event occurs if the treaty is meant to exist only under certain conditions or in the absence thereof. 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 it was 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.

Treaties and indigenous peoples

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 appreciate the implications of what they were signing. In some rare cases, such as with Ethiopia and Qing Dynasty China, the 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 a power from overstepping their agreement or by playing different powers against each other. In other cases, such as New Zealand and Canada, 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, but the treaties being discussed are internationally considered to be part of the nation's domestic law, and to have little international standing.

Role of the United Nations

The United Nations Charter states that 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 proliferation of secret treaties that occurred in the 19th and 20th century. The Charter also states that its members' obligations under it outweigh any competing obligations under other treaties. In function and effectiveness the UN has been compared to the pre-Constitutional United States Federal government by some, giving a comparison between modern treaty law and the historical Articles of Confederation.

United States law

In US law, the term "treaty" is used in a more restricted sense than in international law. US law distinguishes what it calls treaties from congressional-executive agreements and sole executive agreements. All three classes are equally treaties under international law; they are distinct only from the perspective of internal US law. The distinctions are primarily concerning their method of ratification (by the 2/3rds of the Senate, by normal legislative process, or by the President alone) and their relationship to US domestic law. Article II, Section 2 of the United States Constitution grants power to the President to make treaties with the "advice and consent" of two thirds of the Senate. This is different from normal legislation which requires approval by simple majorities in both the Senate and the House of Representatives. However, throughout U.S. history, the President has also made "international agreements" through congressional-executive agreements (CEAs) that are ratified with only a majority from both houses of Congress, or sole executive agreements made by the President alone. Though the constitution does not expressly provide for any alternative procedure and although some noted constitutional scholars, such as Laurence Tribe, believe that CEAs are unconstitutional, the Supreme Court has considered these agreements to be valid, and that any disagreements are a political question for the executive and legislative branches to work out amongst themselves. In addition, U.S. law distinguishes between self-executing treaties, which do not require additional legislative action, and non-self-executing treaties which do require the enactment of new laws. These distinctions of procedure and terminology do not affect the binding status of such agreements under international law. Nevertheless, they do have major implications under U.S. domestic law. In Missouri v. Holland, the Supreme Court ruled that the power to make treaties under the U.S. Constitution is a power separate from the enumerated powers of the federal government, and hence the federal government can use treaties to legislate in areas which would otherwise fall within the exclusive competence of the states. By contrast, a congressional-executive agreement can only cover matters which the Constitution explicitly places within the powers of Congress and the President, while an executive agreement can only cover matters within the President's authority or matters in which Congress has delegated authority to the President. While the ratification process for treaties is different from the process for CEA's, which venue is more advantageous for passage depends on the relevant circumstances. In general, arms control agreements are ratified by the treaty mechanism because it is simpler to go through one house of congress than two. At the same time, trade agreements are generally voted on as a CEA because the two-thirds requirement makes it possible for agricultural interests to veto any tariff reduction in the Senate. The United States takes a different view concerning the relationship between international and domestic law than many other nations, particularly in Europe. Unlike nations which view international agreements as always superseding national law, the American view is that international agreements become part of the body of U.S. federal law. As a result, Congress can modify or repeal treaties by subsequent legislative action, even if this amounts to a violation of the treaty under international law. The most recent changes will be enforced by U.S. courts entirely independently of whether the international community still considers the old treaty obligations binding upon the U.S. Additionally, an international agreement that is inconsistent with the U.S. Constitution is void under domestic U.S. law, the same as any other federal law in conflict with the Constitution, and the Supreme Court could rule a treaty provision to be unconstitutional and void under domestic law, although it has never done so. The constitutional constraints are stronger in the case of CEA and executive agreements, which cannot override the laws of state governments. The Supreme Court has also ruled in Goldwater v. Carter, 444 U.S. 996 (1979) that the President has the power to unilaterally abrogate a treaty without the consent of Congress or the Senate. The case in question involved President Jimmy Carter's termination of a defense treaty with the Republic of China on Taiwan. The U.S. is not a party to the Vienna Convention. However, the State Department has nonetheless taken the position that it is still binding, in that the Convention represents established customary law. The U.S. habitually includes in treaty negotiations the reservation that it will assume no obligations that are in violation of the U.S. Constitution. However, the Vienna Convention provides that states are not excused from their treaty obligations on the grounds that they violate the state's constitution, unless the violation is manifestly obvious at the time of contracting the treaty. So for instance, if the US Supreme Court found that a treaty violated the US constitution, it would no longer be binding on the US under US law; but it would still be binding on the US under international law, unless its unconstitutionality was manifestly obvious to the other states at the time the treaty was contracted. It has also been argued by the foreign governments (especially European) and by international human rights advocates that many of these US reservations are both so vague and broad as to be invalid (what is in violation of the US constitution? anything that the US judiciary claims is), and also are invalid as being in violation of the Vienna Convention provisions referenced earlier.

International law

International law, is the body of law that "regulates the activities of entities possessing international personality". Traditionally, that meant the conduct and relationships of states. However, it is now well established that international law also concerns the structure and conduct of international organizations, and, to a degree, that of multinational corporations and individuals. As Rosalyn Higgins put it, international law is a normative system "harnessed to the achievement of common values - values that speak to us all, whether we are rich or poor, black or white, of any religion or none, or come from countries that are industrialised or developing". The necessity for international law arises from the need to ensure a process that regulates competing demands and establishes the framework for predictable and agreed community behaviour. The term "public international law" is occasionally used as a synonym to distinguish international law from "private international law". The latter regulates the relations between persons or entities in different states and is in fact not international law at all (a better term which has been suggested for private international law is "conflict of laws").

The scope of international law

International law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. The law is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rights, the treatment of aliens, the rights of refugees, international crimes, nationality problems and human rights generally. It further includes the important functions of the maintenance of international peace and security, arms control, the pacific settlement of disputes and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners. International law is also used to govern issues relating to the global environment, the global commons such as international waters and outer space, global communications, and world trade. Whilst municipal law is hierarchical or vertical, with the legislature enacting binding legislation, international law is horizontal, with all states being sovereign and theoretically equal. Because of this, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, most states enter into legal commitments to other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, "international law cannot exist in isolation from the political factors operating in the sphere of international relations". Where there are breaches of the law, international law has no established compulsory judicial system for the settlement of disputes or coercive penal system. That is not to say that there are no judicial or quasi-judicial tribunals in international law. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter. Traditionally, states were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g. NAFTA Chapter 11 actions) have been inclusive of corporations, and even individuals.

Fundamental conflicts over international law

The 17th, 18th and 19th centuries saw the growth of the concept of a "nation-state", which comprised nations controlled by a centralized system of government. The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the beginning of the 20th century, relations between nation-states were dictated by Treaty, unenforceable agreements to behave in a certain way towards another state. Many people now view the nation-state as the primary unit of international affairs. States may choose to voluntarily enter into commitments under international law, but they will often follow their own counsel when it comes to interpretation of their commitments. As the 20th century progressed, a number of violent armed conflicts, including WWI and WWII, exposed the weaknesses of a voluntary system of international treaties. In an attempt to create a stronger system of laws to prevent future conflicts, a vehicle for the application of international law was found in the creation of the United Nations, an international law making body, and new international criminal laws were applied at the Nuremberg trials. Over the past fifty years, more and more international laws and law making bodies have been created. Many people feel that these modern developments endanger nation states by taking power away from state governments and ceeding it to international bodies such as the U.N. and the World Bank. Some scholars and political leaders have recently argued that international law has evolved to a point where it exists separately from the mere consent of states. There is a growing trend toward judging a state's domestic actions in light of international law and standards (see world government for trends and movements leading in this direction). A number of states, notably including the United States vehemently oppose this interpretation, maintaining that sovereignty is the only true international "law" and that states have free reign over their own affairs. Similarly, a number of scholars now discern a legislative and judicial process to international law that parallels such processes within domestic law. Opponents to this point of view maintain that states only commit to international law with express consent and have the right to make their own interpretations of its meaning; and that international courts only function with the consent of states. Because international law is a new area of law its development is uncertain and its relevance and propriety is hotly disputed.

Sources of International Law

See main article: Sources of international law. International law has three primary sources: international treaties, custom, and general principles of law (cf. Art. 38 of the Statute of the International Court of Justice). International treaty law is comprised of obligations states expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC). Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derogations. Legal principles common to major legal systems may also be invoked to supplement international law when necessary.

Interpretation of International Law

Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the courts to decide what the law means. In international law as a whole, there are no courts which have the authority to do this. It is generally the responsibility of states to interpret the law for themselves. Unsurprisingly, this means that there is rarely agreement in cases of dispute. The Vienna Convention on the Law of Treaties writes on the topic of interpretation that: : "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (article 31(1)) This is actually a compromise between three different theories of interpretation:
- The textual approach is a restrictive interpretation which bases itself on the "ordinary meaning" of the text, the actual text has considerable weight.
- A subjective approach considers the idea behind the treaty, treaties "in their context", what the writers intended when they wrote the text.
- A third approach bases itself on interpretation "in the light of its object and purpose", i.e. the interpretation that best suits the goal of the treaty, also called "effective interpretation". These are general rules of interpretation; specific rules might exist in specific areas of international law.

Enforcement by states

Apart from a state's natural inclination to uphold certain norms, the force of international law has always come from the pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it is almost always purely through diplomacy and the consequences upon an offending state's reputation. Though violations may be common in fact, states try to avoid the appearance of having disregarded international obligations. States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for an injury, though this is a complicated area of law where international law intersects with domestic law. States have the right to employ force in self-defense against an offending state that has used force to attack its territory or political independence. States may also use force in collective self-defense, where force is used against another state. The state that force is used against must authorize the participation of third-states in its self-defense. This right is recognized in the United Nations Charter.

Enforcement by international bodies

See main article: International legal system. Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate. The General Assembly cannot make binding resolutions, but under the "Uniting for Peace" resolution (GA/RES/0377) it declared it could authorize the use of force if there had been Breaches of the Peace or Acts of Aggression, provided that the Security Council due to a negative vote of a permement member failed to act. It could call for other collective measures (such as economic sanctions) given a situation constituted the milder "threat to the Peace". The legal significance of such a resolution is unclear, as the General Assembly cannot issue binding resolutions. They can also be raised in the Security Council. The Security Council can pass resolutions under Chapter VI of the UN Charter to recommend "Pacific Resolution of Disputes." Such resolutions are not binding under international law, though they usually are expressive of the council's convictions. In rare cases, the Security Council can pass resolutions under Chapter VII of the UN Charter related to "threats to Peace, Breaches of the Peace and Acts of Aggression," and these are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations. It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council's broad powers under Article 24(2), which states that "in discharging these duties (exercise of primary responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the United Nations". The mandatory nature of such resolutions was upheld by the International Court of Justice in its advisory opinion on Namibia. The binding nature of such resolutions can be deduced from an interpretation of their language and intent. States can also, upon mutual consent, submit disputes for arbitration by the International Court of Justice (ICJ), located in The Hague, Netherlands. The judgments given by the Court in these cases are binding, although it possesses no means to enforce its rulings. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Some of the advisory cases brought before the court have been controversial with respect to the courts competence and jurisdiction. Often enormously complicated matters, ICJ cases (of which there have been less than 150 since the court was created from the Permanent Court of International Justice in 1945) can stretch on for years and generally involve thousands of pages of pleadings, evidence, and the world's leading specialist public international lawyers. As of 2005, there are twelve cases pending at the ICJ. Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states. Though states (or increasingly, international organizations) are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee.

History

Through the ages a code developed for the relations and conduct between nations. Even when nations were at war, envoys were often considered immune to violence. The first formal attempts in this direction, which over time have developed into the current international law, stem from the era of the Renaissance in Europe. In the Middle Ages it had been considered the obligation of the Church to mediate in international disputes. During the Council of Constance (1414) Pawel Wlodkowic, rector of Jagiellonian University (Kraków, Poland), theologian, lawyer and diplomat, presented the theory that all, including pagan, nations have right to self-govern and to live in peace and possess their land. In the 16th and 17th centuries the Church gradually lost its direct influence in international affairs, as Catholic and Protestant powers emerged and struggled for dominance and survival. At the beginning of the 17th century, several generalizations could be made about the political situation: # Self-governing, autonomous states existed. # Almost all of them were governed by monarchs. ##The Peace of Westphalia is often cited as being the birth of the modern nation-states, establishing states as sovereigns answering to no-one within its own borders. # Land, wealth, and trading rights were often the topics of wars between states. Some people assert that international law developed to deal with the new states arising, others claim that the lack of influence of the Pope and the Catholic church gave rise to the need for new generally-accepted codes in Europe. The Dominican professor of theology Francisco de Vitoria (in Latin Franciscus de Victoria) at the University of Salamanca lectured on the rights of the natives. He did so while Spain was at the height of its power, after the violent Spanish conquest of Peru in 1536. Charles V, Holy Roman Emperor, protested against the friar, but in 1542 new laws put the natives under protection of the Spanish crown. Vitoria is generally recognized as the founder of modern international law. (See also School of Salamanca.) The French monk Emeric Cruce (1590–1648) came up with the idea of having representatives of all countries meeting in one place to discuss their conflicts so as to avoid war and create more peace. He suggested this in his The New Cyneas (1623), choosing Venice to be the selected city for all of the representatives to meet, and suggested that the Pope should preside over the meeting. Of course, during the Thirty Years' War (1618–1648), this was not acceptable to the Protestant nations. He also said that armies should be abolished and called for a world court. Though his call to abolish armies was not taken seriously, Emeric Cruce does deserve his place in history through his foresight that international organizations are crucial to solve international disputes. Hugo Grotius (or Huig de Groot) (1583-1645) was a Dutch humanist and jurist considered central to the development of international law. He became a lawyer when he was 15 years old and got sentenced to life in prison after going against Maurice of Nassau, son of William of Orange in a trial, but he escaped and fled to Paris. In France, he developed his ideas on international law with his Mare Liberum (Latin for "Free seas"), in which he challenged the claims and attempts of England, Spain, and Portugal to rule portions of the oceans and seas. He gained new international fame in 1625 with his book De Jure Belli ac Pacis (The Law of War and Peace), as it became the first definitive text on international law in Europe. It was published only two years after The New Cyneas. Much of Grotius's content drew from the Bible and from classical history (just war theory of Augustine of Hippo). In his work he did not condemn war as only a political tool, considering cases in which war is appropriate. He further developed the just war theory. A just war fits certain criteria: # It can be to repel an invasion. # It can be to punish an insult to God. # There has to be a just cause (one of the two mentioned above). # It has to be declared by the proper authorities. # It must possess moral intention. # It must have a chance of success. # It must abstain from brutal practices. # Its end result must be proportional to the means used. The statesmen of the time believed no nation could escape war, so they prepared for it. King Henry IV's Chief Minister, the Duke of Sully, proposed the founding of an alliance of the European nations that was to meet to arbitrate issues and wage war not between themselves but collectively on the Ottoman Turks, and he called it the Grand Design, but was never established. After World War I, the nations of the world decided to form an international body. U.S. President Woodrow Wilson came up with the idea of a "League of Nations". However, due to political wrangling in the U.S. Congress, the United States did not join the League of Nations, which was one of the causes of its demise. When World War II broke out, the League of Nations was finished. Yet at the same time, the United Nations was being formed. On January 1, 1942, US President Franklin D. Roosevelt issued the "Declaration by United Nations" on behalf of 26 nations who had pledged to fight against the Axis powers. Even before the end of the war, representatives of 50 nations met in San Francisco to draw up the charter for an international body to replace the League of Nations. On October 24, 1945, the United Nations officially came into existence, setting a basis for much international law to follow.

Branches of International Law

- International Criminal Law
- The Law pertaining to Use of Force
- International Humanitarian Law
- Law of the Sea
- Diplomatic Law
- Consular Law
- Law of State Responsibility
- International Environmental Law

Notes and references

#Higgins R, Problems and process : international law and how we use it (Oxford : Clarendon Press, 1994) at 16. #Greig, D. W., International Law, 2nd edn (Butterworths: London, 1976)

International organizations

:For the political science journal, see: International Organization An international organization (also called intergovernmental organization) is an organization of international scope or character. There are two main types of international organizations:
- international intergovernmental organizations, whose members are sovereign states or other intergovernmental organizations (like European Union in the WTO).
- and non-governmental organizations (NGOs), which are private organizations. Generally and correctly used, the term international organization is used to mean international governmental organizations only. It is in this sense that the term is used in the remainder of this article. Legally speaking, an international organization must be established by a treaty providing it with legal recognition. International organizations so established are subjects of international law, capable of entering into agreements among themselves or with states. Thus international organizations in a legal sense are distinguished from mere groupings of states, such as the G-8 and the G-77, neither of which have been founded by treaty, though in non-legal contexts these are sometimes referred to as international organizations as well. International organizations must also be distinguished from treaties; while all international organizations are founded on a treaty, many treaties (e.g., the North American Free Trade Agreement (NAFTA)) do not establish an international organization and rely purely on the parties for their administration. International organizations can be categorised in two main ways: by their membership, and by their function. International organizations differ in who their members are and in who is permitted to join them. Membership of some organizations (global organizations) is open to all the nations of the world. This category includes the United Nations and its specialized agencies and the World Trade Organization. Some specialized agencies predate all other types. In the nineteenth century, France was the fons et origo of many of them. By this it is meant that much of the driving force to form such bodies (such as those which maintain the SI (metric system)) came from the French, and that their headquarters is in France, often in Paris. Under the Third Republic, the International Exposition of 1878 in that city held a great number of meetings of such international organizations - as opposed to the preceding regimes. The motivation was that to keep France a republic and not slip back into either a monarchist or Bonapartist regime, the republicans would underscore their inheritance of the crusading nature of the French Revolution against feudal cultural remnants within France, which had been generalized to the rest of feudal Europe, eventually to the world. Some conclude from this example that internationalism often has national origins, at the difference of globalism. Other organizations are only open to members from a particular region or continent of the world, like European Union, African Union, ASEAN and so on. Finally, some organizations base their membership on other criteria: cultural or historical links (the Commonwealth of Nations, La Francophonie, the Community of Portuguese Language Countries), level of economic development or type of economy (Organisation for Economic Co-operation and Development (OECD), Organization of Petroleum-Exporting Countries (OPEC)), or religion (Organization of the Islamic Conference). Were it to come about, the ultimate international organization would be a Federal World Government. The Union of International Associations provides information on international organizations.

Examples of global organizations

- United Nations, its specialized agencies, and associated organizations
- International Hydrographic Organization
- World Trade Organization
- Universal Postal Union

Examples of regional organizations

Universal Postal Union Europe:
- European Union (EU)
- Council of Europe
- European Free Trade Association
- European Space Agency
- European Patent Organisation Asia:
- Asian Cooperation Dialogue (ACD)
- Association of Southeast Asian Nations (ASEAN)
- South Asian Association for Regional Cooperation (SAARC)
- Gulf Cooperation Council Eurasia:
- Commonwealth of Independent States (CIS)
- Shanghai Cooperation Organization (SCO)
- Eurasian Economic Community
- Central Asian Cooperation Organization
- GUAM Africa:
- African Union
- Conseil de l'Entente
- Economic Community of West African States (ECOWAS)
- Southern African Development Community (SADC)
- Intergovernmental Authority on Development (IGAD)
- Arab Maghreb Union Western Hemisphere:
- Organization of American States (OAS)
- South American Community of Nations
- Mercosur
- Andean Community
- Caribbean Community (CARICOM)
- Organisation of Eastern Caribbean States (OECS)
- Central American Parliament
- Rio Group
- NAFTA Trans-atlantic:
- North Atlantic Treaty Organisation (NATO)
- Organization for Security and Co-operation in Europe (OSCE) Pacific:
- Asia-Pacific Economic Cooperation (APEC)
- Pacific Islands Forum
- Secretariat of the Pacific Community

Organizations formed on miscellaneous membership criteria

- Organisation for Economic Co-operation and Development (OECD)
- Organization of Petroleum-Exporting Countries (OPEC)
- Commonwealth of Nations
- La Francophonie
- Comunidade dos países de língua portuguesa (CPLP)
- Organization of Ibero-American States (OEI)
- Unión Latina
- Non-Aligned Movement
- Arab League
- Organization of the Islamic Conference
- Sister Cities International

Financial international organizations

- Bank for International Settlements
- International Monetary Fund (IMF)
- World Bank Group

Contracts

A contract is any legally-enforceable promise or set of promises made between parties. In the civil law, contracts are considered to be part of the general law of obligations. This article describes the law relating to contracts in common law jurisdictions.

Comparison of contract and tort law

The law of obligations has traditionally been divided into contractual obligations, which are voluntarily undertaken and owed to a specific person or persons, and obligations in tort which are based on the wrongful infliction of harm to certain protected interests, primarily imposed by the law, and typically owed to a wider class of persons. Recently it has been accepted that there is a third category, restitutionary obligations, based on the unjust enrichment of the defendant at the plaintiff’s expense. Contractual liability, reflecting the constitutive function of contract, is generally for failing to make things better (by not rendering the expected performance), liability in tort is generally for action (as opposed to omission) making things worse, and liability in restitution is for unjustly taking or retaining the benefit of the plaintiff’s money or work [Beatson (1998) Anson’s Law of Contract, 27th ed. (Oxford: OUP), pg. 21].

Scope of common law contract law

Basic common law contract law addresses four sets of issues: #When and how is a contract formed? #When may a party escape obligations of a contract (such as a contract formed under duress or because of a misrepresentation)? #What is the meaning and effect to be given to the terms of a contract? #What is the remedy to be given for breach of a contract? Contract formation: There must be an agreement which consists of an offer and acceptance, consideration (see also consideration under English law) and contractual intention for a simple contract to exist: i.e. it is not a deed - otherwise no consideration is needed. Subject to the sine qua non of Contract Formation, other ingredients that make up a contract include: :
- Form - In some cases, certain formalities (that is, writing) must be observed. :
- Capacity - The parties must be legally capable of entering into a contract. :
- Consent - The agreement must have been entered into freely. Consent may be vitiated by duress or undue influence. :
- Legality - The purpose of the agreement must not be illegal or contrary to public policy. A contract which possesses all of the above ingredients is said to be valid. The absence of an essential element will render the contract either void, voidable or unenforceable In some situations, a collateral contract may exist. Meaning and effect of contract terms: Many contract disputes involve a disagreement between the parties about what terms in the contract require each party to do or refrain from doing. Hence, many rules of contract law pertain to interpretation of terms of a contract that are vague or ambiguous. The parol evidence rule limits what things can be taken into account when trying to interpret a contract. Privity: In general, only parties to a contract may sue for the breach of a contract.

Validity of contracts

For a contract to be valid, it must meet the following criteria:
- Mutual agreement - (see main article offer and acceptance): There must be an express or implied agreement. The essential requirement is that there be evidence that the parties had each from an objective perspective engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement. (Notice that the objective mainifestation requirement means that one need not actually have assented so long as a reasonable person would believe that assent had been granted.) For a contract based on offer and acceptance to be enforced, the terms must be capable of determination in a way that it is clear that the parties assent was given to the same terms. The terms, like the manifestation of assent itself, are determined objectively.
- Consideration: There must be consideration (see also consideration under English law) given by all the parties, meaning that every party is conferring a benefit on the other party or himself sustaining a recognizable detriment, such as a reduction of the party's alternative courses of action where the party would otherwise be free to act with respect to the subject matter without any limitation.
- Competent, Adult (Sui Juris) Parties: Both parties must have the capacity to understand the terms of the contract they are entering into, and the consequences of the promises they make. For example, animals, minor children, and mentally disabled individuals do not have the capacity to form a contract, and any contracts with them will be considered void or voidable. Although corporations are technically legal fictions, they are considered persons under the law, and thus fit to engage in contracts. :For adults, most jurisdictions have statutes declaring that the capacity of parties to a contract is presumed, so that one resisting enforcement of a contract on grounds that a party lacked the capacity to be bound bears the burden of persuasion on the issue of capacity.
- Proper Subject Matter: The contract must have a lawful purpose. A contract to commit murder in exchange for money will not be enforced by the courts. It is void ab initio, meaning "from the beginning."
- Mutual Right to Remedy: Both parties must have an equal right to remedy upon breach of the terms by the other party
- Mutual Obligation to Perform: Both Parties must have some obligation to fulfill to the other. This can be distinct from consideration, which may be an initial inducement into the contract.

Written contracts

Contrary to common wisdom, an informal exchange of promises can still be binding and legally as valid as a written contract. A spoken contract is often called an "oral contract", not a "verbal contract." Any contract that uses words, spoken or written, is a verbal contract. Thus, all oral contracts and written contracts are verbal contracts. This is in contrast to a "non-verbal, non-oral contract," also known as "a contract implied by the acts of the parties." Courts in the United States have generally ruled that if the parties have a meeting of the minds (i.e., the same intent), consideration is paid or given by the parties, and they act as though there was a formal, written and signed contract, then a contract exists. However, most jurisdictions require a signed writing for certain kinds of contracts (like real estate transactions). In the United States, a law setting out such requirements is typically called the Statute of Frauds; the name originates from an English statute that was for "the prevention of frauds." The point of the Statute of Frauds is to prevent false allegations of the existence of contracts that were never made, by requiring formal (i.e. written) evidence of the contract. Contracts that do not meet the requirements of Statute of Frauds legislation are unenforceable, but not void. However, a party unjustly enriched by an unenforceable contract may be subject to restitution for unjust enrichment. Statutes of Frauds are typically codified in state statutes covering specific types of contracts, such as contracts for the sale of real estate. In Australia, for contracts subject to legislation equivalent to the Statute of Frauds, there is no requirement for the entire contract to be in writing, although there must be a note or memorandum evidencing the contract, which may come into existence after the contract has been formed. The note or memorandum must be signed in some way, and a series of documents may be used in place of a single note or memorandum. It must contain all material terms of the contract, the subject matter and the parties to the contract. In England and Wales, the Statute of Frauds is still in force, but only for guarantees, which must be evidenced in writing, although the agreement may be made orally. Certain other kinds of contract (such as for the sale of land) must be in writing or they are void. Furthermore, the existence of a written contract does not necessarily ensure its enforceability or validity. A contract can be deemed unenforceable if it requires a party to undertake an illegal act, if it was signed under duress or while intoxicated, if the disparity in knowledge between the parties is extreme and the weaker party was given onerous terms, etc. For example, in Massachusetts a contract is not enforceable if it is executed on a Sunday. If the terms of a contract subject to Statute of Frauds legislation are to be varied, the variations must be noted in writing as well. However, the contract may be discharged orally. If a contract is in a written form, then generally, you are bound by its terms regardless of whether you have read it or not (L'Estrange v. F Graucob Ltd [1934] 2 KB 394). However, this is tempered by the exception that if the terms of the contract are misrepresented, then the plaintiff is unable to rely on the terms of the contract; in addition, the document must be contractual in nature (Curtis v. Chemical Cleaning and Dyeing Co [1951] 1 KB 805). Furthermore, if a party wishes to use a document as the basis of a contract, reasonable notice of its terms must be given to the other party prior to their entry into the contract (see Balmain New Ferry Company Ltd v. Robertson (1906) 4 CLR 379). This includes such things as tickets issued at parking stations.

Void, voidable and unenforceable contracts

In general, there are three classifications of contracts that are not binding:
- Void: If a contract is held to be void, the contract has never come into existence. For example, a contract is void if it is based on an illegal purpose or contrary to public policy; the classic example is a contract with a hit man. Such a contract will not be recognized by a court, and cannot be enforced by either party.
- Voidable: A contract is voidable if one of the parties has the option to terminate the contract. Contracts with minor are examples of voidable contracts.
- Unenforceable: If a contract is unenforceable, neither party may enforce the other's obligations. For example, in the United States, a contract is unenforceable if it violates the Statute of frauds. An example of the above is an oral contract for the sale of a motorcycle for US$5,000 (because in the USA any contract for the sale of goods over US$500 must be in writing to be enforceable).

Uncertainty and incompleteness

If the terms of the contract are uncertain or incomplete, the parties cannot have reached an agreement in the eyes of the law. An agreement to agree does not constitute a contract, and an inability to agree on key issues, which may include such things as price, may cause the entire contract to fail. However, a court will attempt to give effect to commercial contracts where possible, by construing a reasonable construction of the contract (see Hillas v. Arcos Ltd (1932) 147 LT 503). Courts may also look to external standards, which are either mentioned explicitly in the contract (Whitlock v. Brew (1968) 118 CLR 445) or implied by common practice in a certain field (Three Rivers Trading Co., Ltd. v. Gwinear & District Farmers, Ltd. (1967), 111 Sol. J. 831). In addition, the court may also imply a term; if price is excluded, the court may imply a reasonable price, with the exception of land, and second-hand goods, which are unique.

Severence of unenforceable clauses

If there are uncertain or incomplete clauses in the contract, and all options in resolving its true meaning have failed, it may be possible to sever and void just those affected clauses. The test of whether a clause is severable is an objective test - whether a reasonable person would see the contract standing even without the clauses.

Spy contracts

In the U.S., one unusual type of unenforceable contract is a personal employment contract to work as a spy or secret agent. This is because the very secrecy of the contract is a condition of the contract (in order to maintain plausible deniability). If the spy subsequently sues the government on the contract over issues like salary or benefits, then the spy has breached the contract by revealing its existence. It is thus unenforceable on that ground, as well as the public policy of maintaining national security (since a disgruntled agent might try to reveal all the government's secrets during his lawsuit).

Bilateral v. unilateral contracts

Contracts may be bilateral or unilateral. The more common of the two, a bilateral contract, is an agreement in which each of the parties to the contract makes a promise or promises to the other party. For example, in a contract for the sale of a home, the buyer promises to pay the seller $200,000 in exchange for the seller's promise to deliver title to the property. In a unilateral contract, only one party to the contract makes a promise. A typical example is the reward contract: A promises to pay a reward to B if B finds A's dog. B is not obliged to find A's dog, but A is obliged to pay the reward to B if B finds the dog. In this example, the finding of the dog is a condition precedent to A's obligation to pay. An offer of a unilateral contract may often be made to many people (or 'to the world') by means of an advertisement. In that situation, acceptance will only occur on satisfaction of the condition (such as the finding of the offeror's dog). If the condition is something that only one party can perform, both the offeror and offeree are protected — the offeror is protected because he will only ever be contractually obliged to one of the many offerees; and the offeree is protected, because if she does perform the condition, the offeror will be contractually obliged to pay her. In unilateral contracts, the requirement that acceptance be communicated to the offeror is waived. The offeree accepts by performing the condition, and the offeree's performance is also treated as the price, or consideration, for the offeror's promise. The most common type of unilateral contract is the insurance contract. The insurance company promises to pay the insured a stated amount of money on the happening of an event if the insured pays premiums; note that the insured does not make any promise to pay the premiums. Courts generally favor bilateral contracts. The general rule in the United States is: "In case of doubt, an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses." Restatement (Second) of Contracts § 32 (1981) (emphasis added). Here the law attempts to provide some protection from the risk of revocation in a unilateral contract to the offeree. Note that if the offer specifically requests performance rather than a promise, a unilateral contract will exist. See option contracts for more information on protection given to the offeree in a unilateral contract.

Express and implied contracts

A contract can be either an express contract or an implied contract. An express contract is one in which the terms are expressed verbally, either orally or in writing. An implied contract is one in which some of the terms are not expressed in words.

Implied in fact or implied in law

An implied contract can either be implied in fact or implied in law. A contract which is implied in fact is one in which the circumstances imply that parties have reached an agreement even though they have not done so expressly. For example, by going to a doctor for a physical, a patient agrees that he will pay a fair price for the service. If he refuses to pay after being examined, he has breached a contract implied in fact.

Quasi-contract

A contract which is implied in law is also called a quasi-contract, because it is not in fact a contract; rather, it is a means for the courts to remedy situations in which one party would be unjustly enriched were he or she not required to compensate the other. For example, an unconscious patient treated by a doctor at the scene of an accident has not agreed (either expressly or by implication) to pay the doctor for emergency services, but the patient would be unjustly enriched by the doctor's services were the patient not required to compensate the doctor.

Incorporation of terms

Course of dealing

If two parties have regularly conducted business on certain terms, it may be reasonable to presume that in future dealings where there is no contract, the parties wish to incorporate the terms of the previous contracts. However, if a party wishes to incorporate terms by course of dealing, the original document must have been contractual in nature, and delivery receipts may not fit this description. In Australia, there is a further requirement that the document was procured after formation.

Express and implied terms

Different types of statements

Whether a statement is a term of a contract is important because only if a promise is a term of the contract can a party sue for the breach of the contract. Statements can be split into the following types:
- Puff (sales talk): If no reasonable person hearing this statement would take it seriously, it is a puff, and no action in contract is available if the statement proves to be wrong.
- Representation: A representation is a statement of fact made to induce another person to enter into a contract and which does induce them to enter into a contract, but it is one that the maker of the statement does not guarantee its truth. If the statement proves to be incorrect, it cannot be enforced, as it is not a term of the contract, but it may prove to be a misrepresentation, whereupon other remedies are available.
- Term: A term is similar to a representation, but the truth of the statement is guaranteed by the person who made the statement. The test is an objective test. Factors that a court may take into account in determining the nature of a statement include:
- Timing: If the contract was concluded soon after the statement was made, this is a strong indication that the statement induced the person to enter into the contract.
- Content of statement: It is necessary to consider what was said in the given context, which has nothing to do with the importance of a statement.
- Knowledge and expertise: In Oscar Chess Ltd v. Williams [1957] 1 WLR 370, a person selling a car to a second-hand car dealer stated that it was a 1948 Morris, when in fact it was a 1939 model car. It was held that the statement did not become a term because a reasonable person in the position of the car dealer would not have thought that an inexperienced person would have guaranteed the truth of the statement.

Terms implied in fact

The Privy Council proposed a five stage test in BP Refinery Western Port v. Shire of Hastings: # Reasonableness and equitableness: The implied term must be reasonable and equitable. # Business efficacy: The implied term must be necessary for the business efficacy of the contract. For instance, if the term simply causes the contract to operate better, that does not fit this criterion. # Obviousness: The term is so obvious that it goes without saying. Furthermore, there must be one and only one thing that would be implied by the parties. For example, in Codelfa Construction Pty Ltd v. State Rail Authority of New South Wales (1982) 149 CLR 337, a term regarding the inability of construction company to work three shifts a day could not be implied because it was unclear what form it would have taken. # Clear expression: The term must be capable of clear expression. No specific technical knowledge should be required. # Consistency: The implied term may not contradict an express term. In Australia, the High Court has ruled that the test in BP Refinery applies only to formal contracts, while the test in Byrne and Frew v. Australian Airlines Ltd (1995) 185 CLR 410 shall apply to informal contracts:
- Necessity: The term must be necessary to ensure reasonable or effective operation of a contract of the nature before the court.
- Consistency: The implied term may not contradict an express term (same as for formal contracts).
- Clear expression: The term must be capable of clear expression (same as for formal contracts).
- Obvious: McHugh and Gummow JJ have stated that it must also be obvious.

Terms implied in law

These are terms that have been implied into standardised relationships. The other difference between this and terms implied in fact is that the test is one of necessity (Liverpool City Council v. Irwin [1976] 2 WLR 562); a necessary term is one where the contract is rendered worthless or nugatory if it is without it.

Terms implied by custom or trade

You are generally bound by the custom of the industry that you are in. To imply a term due to custom or trade, you must prove the existence of the custom, which must be notorious, certain, legal and reasonable (Con-stan Industries of Australia Pty Ltd v. Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226). See also Frigaliment Importing Co., Ltd., v. B.N.S. International Sales Corp., 190 F. Supp. 116 (S.D.N.Y. 1960) (plaintiff failed to prove what he meant by "chicken") and U.C.C. § 1-205.

Agreements to negotiate

It is common for lengthy negotiations to be written into a heads of agreement document that includes a clause to the effect that the rest of the agreement is to be negotiated. Although these cases may appear to fall into the category of agreement to agree, courts nowadays (at least in Australia) will imply an obligation to negotiate in good faith provided that certain conditions are satisfied (Coal Cliff Collieries Pty Ltd v. Sijehama Pty Ltd (1991) 24 NSWLR 1):
- Negotiations were well-advanced and the large proportion of terms have been worked out; and
- There exists some mechanism to resolve disputes if the negotiations broke down. The test of whether one has acted in good faith is a subjective one; the cases suggest honesty, and possibly also reasonably.

"Subject to" contracts

If a contract specifies "subject to contract", it may fall into one of three categories (Masters v. Cameron (1954) 91 CLR 353): # The parties are immediately bound to the bargain, but they intend to restate the deal in a formalised contract that will not have a different effect; or # The parties have completely agreed to the terms, but have made the execution of some terms in the contract conditional on the creation of a formalised contract; or # It is merely an agreement to agree, and the deal will not be concluded until the formalised contract has been drawn up. If a contract specifies "subject to finance", it imposes obligations on the purchaser (Meehan v. Jones (1982) 149 CLR 571):
- The purchaser must seek finance; and
- When offers of finance arrive, the purchaser must make a decision as to whether the offers of finance are suitable. Once again, there is an element of good faith involved. This may also refer to contingent conditions, which come under two categories: condition precedent and condition subsequent. Conditions precedent are conditions that have to be complied with before performance of a contract. With conditions subsequent, parties have to perform until the condition is not met. Failure of a condition does not void the contract, it is just regarded as voidable.

Statutory law applicable to contracts

The rules by which many contracts are governed are provided in specialized statutes that deal with particular subjects. Most countries, for example, have statutes which deal directly with sale of goods, lease transactions and trade practices. For example, most American states have adopted Article 2 of the Uniform Commercial Code, which regulates contracts for the sale of goods. There are also many acts around the world which deal with specific types of transactions and businesses. For example, the states of California and New York in the U.S. have statutes that govern the provision of services to customers by health studios, and the UK has the Sale of Goods Act 1979 which governs the contracts between sellers and buyers.

Remedies

Damages

Typically, the remedy for breach of contract is an award of money damages. Courts usually adopt one of three ways of calculating the value of damages. The most common is to assess the sum which would restore the injured party to the economic position that he or she expected from performance of the promise or promises (known as an "expectation measure" or "benefit-of-the-bargain" measure of damages). When it is either not possible or desirable to award damages measured in that way, a court may award money damages designed to restore the injured party to the economic position that he or she had occupied at the time the contract was entered (known as the "reliance measure"), or designed to prevent the breaching party from being unjustly enriched ("restitution").

Specific perfomance

There may be circumstances in which it would be unjust to permit the defaulting party simply to buy out the injured party with damages. For example where an art collector purchases a rare painting and the vendor refuses to deliver, the collector's damages would be equal to the sum paid. The court may make an order of what is called "specific performance", requiring that the contract be performed. In some circumstances a court will order a party to perform his or her promise (an order of "specific performance") or issue an order, known as an "injunction," that a party refrain from doing something that would breach the contract. Both an order for specific performance and an injunction are discretionary remedies, originating for the most part in equity. Neither is available as of right and in most jurisdictions and most circumstances a court will not normally order specific performance.

Procedure

In the United States, in order to obtain damages for breach of contract or to obtain specific performance, the injured party may file a civil (non-criminal) lawsuit, usually in a state court, or petition a private arbitrator to decide the contract issues presented. Many contracts provide that all contract disputes must be arbitrated by the parties to the contract, rather than litigated in courts. By law, some contracts, including most securities brokerage contracts, must be arbitrated; other contracts are referred by courts as a matter of local law or policy. Arbitrated judgements are generally enforced and appealed in the same manner as ordinary court judgements; a majority of states have adopted the [http://www.law.cornell.edu/uniform/vol7.html#arbit Uniform Arbitration Act] to facilitate the enforcement of arbitrated judgements. In England and Wales, a contract may be enforced by use of a claim, or in urgent cases by applying for an interim injunction to prevent a breach.

Theoretical considerations

Contract theory is the body of legal theory that addresses normative and conceptual questions in contract law. One of the most important questions asked in contract theory is why contracts are enforced. One prominent answer to this question focuses on the economic benefits of enforcing bargains. Another approach, associated with Charles Fried, maintains that the purpose of contract law is to enforce promises. This theory is developed in Fried's book, Contract as Promise. Other approaches to contract theory are found in the writings of legal realists and critical legal studies theorists.

External links

- [http://www.4lawschool.com/contracts/contracts.htm Contracts Case Summaries]
- [http://www.law.cornell.edu/topics/contracts.html Cornell Law School] contracts: an overview
- [http://www.jus.uio.no/lm/eu.contract.principles.part1.1995/ Principles of European Contract Law]
- [http://moodle.ed.uiuc.edu/wiked/index.php/Behavioral_contracting Behavioral Contracting in the Classroom]
- Category:Legal documents ja:契約 simple:Contract

Brocard

A Brocard is a juridical principle usually expressed in Latin (and often derived from juridical works of the past), traditionally used to concisely express a wider legal concept or rule. The name comes from the Latinized name of Burchard (died 1025), bishop of Worms, Germany, who compiled 20 volumes of Regulae Ecclesiasticae ("Ecclesiatical Rules") including a collection of maxims. For example, the sentence Inadimplenti non est adimplendum ("One has no need to respect his obligation if the counter-party has not respected his own."), is used in civil law to briefly indicate a principle (adopted in some systems) referred to as the synallagmatic contract [http://www.jusbelli.com/Bouvier/bouvier1856_sw.html].

Examples

;Ignorantia legis non excusat : "Ignorance of the law is no excuse." Not knowing that one's actions are forbidden by the law is not a defense. ;In claris non fit interpretatio : When a rule is clearly intelligible, there is no need of proposing an (usually extensive) interpretation. ; Iuri nemet curia : The judge knows the law (technically, there is no need to "explain the law" or the legal system to a judge/justice in any given petition). ; Nullum crimen, nulla poena sine praevia lege poenali : There can be neither crime nor punishment unless there is a penal law first. ;Pacta sunt servanda : Contracts are the law or Contracts establish obligations (between those who sign them). ; Quod non est in registro, non est in Mundo : What is not reported in the (related, referring) registry, has no legal relevance. Used when a formal act (usually a recording or a transcription) is required in order to give consistence, content or efficacy to a right. ; Res inter alios vel iudicata, aliis nec nocet nec prodocet : What has been agreed/decided between people (a specific group) can neither benefit nor harm a third party (meaning: two or more people cannot agree amongst each other to establish an obligation for a third party who was not involved in the negotiation; furthermore, any benefit that may be established will have to be accepted by the third party before it can be implemented). ; Sententia quae in rem iudicatam transit, pro veritate habetur : When a definitive sentence is declared, it is considered to be the truth. In the case of a sentence in rem iudicatam (that finally consents to consider completed a judgement), its content will then be the only legally relevant consideration of a fact. ; Solve et repete : Respect your obligation first, then you can ask for reimbursement. Used in those situations in which one of the two (or more) parties needs to complete his obligation before being allowed to ask for the opposite obligation to be respected by his counter party. Usually this principle is used in fields and subjects in which a certain general steadiness or uniformity of the system has been considered a relevant value by the legislator. The case is typical of service contracts with repeated obligations (like with gas, water, electricity providers and similars), in which irregularities on one side cannot be balanced if not in a regular situation (i.e., of payments) on the other side. The customer, for example, might be asked to pay regularly the new bill, before contesting the previous one in which he found irregular calculations, and asking for a balancement with newer bills; he thus cannot by himself self-determine a discount in the next payment. ; Ubi lex voluit, dixit : When the law wanted to regulate the matter in further detail, it did regulate the matter (in the interpretation of a law, an extensive interpretation might perhaps go beyond the intention of the legislator, thus we must limit at what is in the text of the law). Category:Legal terms Category:Legal history Category:Latin phrases

Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties (VCLT), adopted on May 22 1969, codified the pre-existing international customary law on treaties, with some necessary gap-filling and clarifications. The Convention entered into force on January 27, 1980. The draft has been elaborated by the International Law Commission (ILC) of the United Nations (UN) which adopted the final draft in 1966. This draft had been submitted by the General Assembly to the Vienna Conference on the Law of Treaties which adopted in 1969 the Convention. 101 states have ratified the VCLT. However, even those that have not may still recognize it as binding upon them in as much as it is a restatement of already existing law. The United States is among these. The European Patent Office, which has not ratified the convention, also recognises it as a source of interpretation of law.

External links

- [http://www.un.org/law/ilc/texts/treaties.htm Vienna Convention] on United Nations web site Category:Treaties Category:1980 in law

Codification

:For linguistic codification, see codification (linguistics). In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject. Also see legal code. Contrary to popular belief, the common law has been codified in many jurisdictions in many areas; examples include the Law of General Obligations of New York State, the English Criminal Code (originally judge-made common law) and the California Civil Code. In civil law jurisdictions, codification has also occurred in many areas. The codification movement developed out of the philosophy of the Enlightenment and began in several European countries during the late 18th century (see civil code). However, it only gained significant momentum with the enactment of the French Napoleonic Code in 1804. In the United States acts of Congress (i.e., Federal statutes) are published chronologically (that is, in the order in which they become law -- often by being signed by the President) on an individual basis in official pamphlets called "slip laws," and are grouped together in official bound book form (also chronologically) as "session laws." The "session law" publication for Federal statutes is called the United States Statutes at Large. Any given act may be only one page long, or hundreds of pages, in length. An act may be classified as either a "Public Law" or a "Private Law." Because each Congressional act may contain laws on a variety of topics, many acts (or portions thereof) are also rearranged and published in a topical, subject matter codification. The official codification of Federal statutes is called the United States Code. Generally, only "Public Laws" are codified. The United States Code is divided into "titles" (based on overall topics) numbered 1 through 50. Title 18, for example, contains many of the Federal criminal statutes. Title 26 is the Internal Revenue Code. Even in code form, however, many statutes by their nature pertain to more than one topic. For example, the statute making tax evasion (see Tax avoidance/evasion) a felony pertains to both criminal law and tax law, but is found only in the Internal Revenue Code. Other statutes pertaining to taxation are found not in the Internal Revenue Code but instead in (for example) the Bankruptcy Code (i.e., Title 11 of the United States Code) or the Judiciary Code (Title 28). Further, portions of some Congressional acts (such as the provisions for the effective dates of amendments to codified laws) are not themselves codified at all. These statutes may by found by referring to the acts as published in "slip law" and "session law" form. However, commercial publications that specialize in legal materials often arrange and print the uncodified statutes with the codes to which they pertain. In the United States, the individual states (either officially or through private commercial publishers) generally follow the same three-part model for the publication of their own statutes: slip law, session law, and codification. Category:Legal codes ja:法典化

Compact

Compact as a general noun can refer to:
- a diplomatic contract or covenant among parties, sometimes known as a pact, treaty, or an interstate compact;
- a newspaper format, in Britain;
- A small, typically round case, usually containing one, two or all of the following: a mirror, pressed powder, and/or a powder puff In mathematics, it can refer to various concepts:
- Mostly commonly the term in topology deals with compact spaces and compact sets;
- In propositional and predicate calculus it can refer to the compactness theorem; and
- In order theory and domain theory, the not entirely unrelated notion of a compact element is typically used. Compact is also the name of a 1960s British soap opera. Category:Mathematical disambiguation

Sino-British Joint Declaration

The Sino-British Joint Declaration on the Question of Hong Kong ( Chinese: (Trad.) 中華人民共和國政府和大不列顛及北愛爾蘭聯合王國政府關於香港問題的聯合聲明, abbr. 中英聯合聲明 ; (Simp.) 中华人民共和国和大不列颠及北爱尔兰联合王国关于香港问题的联合声明, abbr. 中英联合声明 ; (Pinyin) Zhōng Huá Rén Mín Gòng Hé Guó hé Dà Bú Liè Diàn Jí Běi Aì Er Lán Lián Hé Wáng Guó Guān yú Xiāng Gǎng Wèn Tí de Lián Hé Shēng Míng, abbr. Zhōng Yīng Lián Hé Shēng Míng) was signed by the Prime Ministers of the People's Republic of China (PRC) and the United Kingdom (UK) governments on December 19, 1984 in Beijing. The Declaration entered into force with the exchange of instruments of ratification on May 27, 1985 and was registered by the PRC and UK governments at the United Nations on June 12, 1985. In the Joint Declaration, the PRC Government stated that it had decided to resume the exercise of sovereignty over Hong Kong (including Hong Kong Island, Kowloon, and the New Territories) with effect from July 1, 1997, and the UK Government declared that it would restore Hong Kong to the PRC with effect from July 1, 1997. The PRC Government also declared its basic policies regarding Hong Kong in the document. In accordance with the "One Country, Two Systems" Principle agreed between the UK and the PRC, the socialism system of PRC shall not be practised in the Hong Kong Special Administrative Region (HKSAR), and Hong Kong's previous capitalist system and its way of life shall remain unchanged for a period of 50 years. The Joint Declaration provides that these basic policies shall be stipulated in the Hong Kong Basic Law.

United Nations Involvement

The Joint Declaration is unlike an agreement made within a state, and the involvement of the UN creates obligations that internationalizes the status of Hong Kong. The Joint Declaration is, therefore, not a private agreement between the PRC and the UK, but an international one. International treaties are usually done between states, not within states, and are thus not registered with the UN The implication is that the UN Secretary General could offer to become involved if invited. By registering the Joint Declaration with the UN, both the PRC and UK governments acknowledged a need for a neutral third party and accepted possible participation by doing this. If not, they could have simply made it a bilateral treaty, which they did not.

Background

The background of the Sino-British Joint declaration was the expiration of the lease of the New Territories on July 1, 1997. The lease was negotiated between UK and the Guangxu Emperor of China, and was for 99 years starting from 1898. At the time, the Hong Kong Island was already ceded to UK in perpetuity under the Treaty of Nanking in 1842 after the First Opium Wars, and the Kowloon Peninsula was also ceded to UK in perpetuity under the Convention of Peking in 1860 after the Second Opium War.

Commentaries

The signing of the Joint Declaration by the Conservative Party government of Margaret Thatcher was a cause of controversy in Britain at the time: some were surprised that the right wing Prime Minister would agree to such an arrangement with the Communist government represented by Deng Xiaoping. However, some commentaries pointed out that Britain was in an extremely weak negotiating position. Hong Kong is not militarily defensible and receives most of its water and food supply from Guangdong province in mainland China. It was therefore considered economically infeasible to divide Hong Kong, with UK retaining control for Hong Kong Island and Kowloon while returning the New Territories to the PRC in 1997, if no agreements could be reached. As mortgages for property in Hong Kong were typically 15 years, without reaching an agreement to the future of Hong Kong in the early 80's, it was feared that the property market would collapse causing a collapse of the general economy in Hong Kong. Constraints in the land lease in the New Terrorities were also pressing problems at that time. In fact while negotiation concerning the future of Hong Kong started in the late 1970s, the timing of the Declaration was related to land and property factors.

Acknowledgement

According to some news report, Deng Xiaoping at one time called Margaret Thatcher to "An arrogant Bitch." (untranslated of course) during the handover talk. The reason was that Margaret Tatcher had just recent won the Falklands War and was full of pride, and some would argue, the British Colonial Mentality. She suggested to Deng Xiaoping with a deal where Hong Kong would officially go back to China, but the politics and taxes would still be governed by Britain." Deng Xiaoping was outraged, but politely pointed out that if Britain was not planning to hand back Hong Kong, he would take it back by force if necessary. The footage of Margaret Thatcher falling down from the steps in Tiananmen Square has been used numerous times in British political satire TV shows.

External links

- [http://www.info.gov.hk/trans/jd/jd2.htm Text of the Sino-British Joint Declaration]
- [http://www.hkbu.edu.hk/~pchksar/JD/jd-full1.htm Introduction to the Joint Declaration]
- [http://www.qis.net/chinalaw/joint1.htm Implementation of the Joint Declaration, ChinaLaw Web] Category:British rule in Hong Kong Category:Cold War treaties Category:History of Hong Kong Category:History of the People's Republic of China Category:History of the United Kingdom Category:Politics of Hong Kong

United Kingdom

:For other meanings of the terms "United Kingdom" and "UK" , see United Kingdom (disambiguation) and UK (disambiguation). :For an exp