Defining Treaties

Hollis, Duncan B

doi:10.1093/law/9780199601813.003.0002

Chapter

1 Defining Treaties

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https://doi.org/10.1093/law/9780199601813.003.0002

Pages

10–45

Published:

July 2012

Extract

Introduction

What is a treaty? Simply put, it is an international legal agreement. But unpacking the treaty concept further—whether in terms of the nature of that agreement, its legality, or its ‘international’ character—depends on the context in which it is used. Different contexts can produce different meanings for the same term. For example, international law has a specific meaning for the ‘high seas’ that may differ from the one given by a State’s domestic law,¹ let alone in more colloquial settings.

Moreover, even within the same context, the treaty concept may be defined using different formulations. Many (if not most) definitions are constitutive; they explain what a concept ‘is’ by listing its essential elements or the processes for its creation. Thus, for purposes of international law, three essential elements comprise the ‘high seas’: (a) an area of open ocean; (b) shared by all States; (c) in which no State may exercise territorial sovereignty.² Alternatively, definitions may be differential, looking outward to explain a concept by its relationship to—and differences from—other concepts. Under this approach, international law defines the ‘high seas’ as ‘all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in internal waters of a State, or in the archipelagic waters of an archipelagic State’.³ Other definitions are functional—they give meaning by explaining what a concept does or how it works. From this perspective, the ‘high seas’ delineates an area subject to specific international legal rights (or ‘freedoms’) in the absence of sovereign authority.⁴ Unlike different contexts, these definitional approaches—constitutive, differential, and functional—do not generate alternative meanings. Rather, they express the same meaning in different ways depending on whether the definition needs to explain how to (a) identify; (b) differentiate; or (c) evaluate a concept.

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Contents

1 Defining Treaties