Diplomacy: Theory and Practice, 5th ed. – Online updating pages
Chapter 5: Packaging Agreements
p. 69, Box 5.1 What is a treaty?: I must confess to a serious and mortifying mistake here. In the course of revising this chapter I have realised that treaties (unlike ‘political commitments’, agreements expressly designed with an intention to create obligations under international law) do not become treaties only when registered with the Secretariat of the UN. In fact, in order to be registered they must already have ‘entered into force’, and a great many are never registered with the UN, even though under its Charter they should be. Much to my surprise, I also discover from Anthony Aust’s excellent Modern Treaty Law and Practice, 3rd edn (Cambridge University Press, 2013) that in practice the ICJ ignores its Charter obligation to refuse to allow unregistered treaties to be invoked before it, so this incentive to UN registration falls away. I can’t think how I got this so wrong. It was probably a combination of remembering League of Nations practice, over-reliance on one source (which since seems to have disappeared), and wishful thinking.
p. 74, both languages, or more: evidence that at the beginning of the nineteenth century – against the background of its wars with revolutionary France – the British government was pushing for the use of English rather than French in at least one of its treaties with foreign states is provided in volume I of Sir Robert Adair’s highly instructive despatches from the Dardanelles and subsequently Constantinople in 1808-9, published in 1845 as The Negotiations for the Peace of the Dardanelles, in 1808-9, and now freely available here. Despite successfully negotiating an end to Britain’s undeclared war with the Ottoman Empire and then sailing through the Dardanelles to re-occupy the British Embassy in Constantinople in the face of fierce French opposition, Adair was rebuked by his government for producing the treaty in French. He had to point out that the dragoman (interpreter) of his Turkish counterpart in the negotiations had not a word of English and that it was literally more than his life was worth to advise his master to sign a document he could not read; see Adair to Canning, 6 July 1809, pp. 229-30. For background on Adair, see Box 6, p. 9 of my British Heads of Mission at Constantinople, 1583-1838, and ‘Adair, Robert, HoP.
pp. 74-5, Creating ‘equally authentic’ treaties is a costly as well as tricky business, especially for the EU, which now has 24 official languages. In 2013 it was estimated that its annual budget for translating was about Euros 300m a year. The pseudonymous article in the respected British weekly, The Economist, from which I drew this figure, also makes the case for replacing French as a working language of the UN with Spanish (‘Johnson’, see Further reading below).
p.76, annexes to agreements: Almost 90 per cent of the highly controversial, 159-page agreement on Iran’s nuclear programme (‘Joint Comprehensive Plan of Action’) signed at Vienna on 14 July 2015 consisted of annexes (see Further reading).
p. 78, ‘separate but related’ agreements: On reflection, I think I might well have exaggerated the extent to which it is politically expedient to obscure any ‘linkage’ on which an agreement is based, even though I did say that this is particularly true of a certain kind of linkage, I have been led to this conclusion by a persuasive article by Giancarlo Spagnolo (see Further reading below).
Further reading: additions and links
Aust, Anthony, Modern Treaty Law and Practice, 3rd edn (Cambridge University Press:
Europa, EU Treaties
FCO Treaty Section, UK Treaties
Ghodoosi, Farshad, ‘Binding Political Commitments’, University of Illinois Law Review, 15 October 2020
ILC, ‘Guiding principles applicable to unilateral declarations of states capable of creating legal obligations, with commentaries thereto’ (United Nations, 2006). Includes oral declarations.
Johnson, ‘Languages of diplomacy: towards a fairer distribution’, The Economist, 2 April 2013
Spagnolo, Giancarlo, ‘Issue linkage, delegation, and international policy cooperation‘, 16 March 1999
Talmon, Stefan, ‘Germany finally comes clean about the legal status of the JCPoA: no more than soft law’, GPIL – German Practice in International Law, 24 March 2020. Crystal clear on why the JCPOA is not a treaty.
United Nations Treaty Collection: Treaty Handbook, rev. ed (UN, 2012)