Understanding The Unlawfulness Of Covenants And Protocols

A covenant, in its most general sense, is a solemn promise to engage in or refrain from a specified action. It is an agreement like a contract, with the covenantor making a promise to the covenantee. In the context of international law, a covenant is a type of treaty or international legal instrument that binds states that choose to accept its obligations. Treaties, conventions, and covenants are legally indistinguishable, and all are international legal instruments that bind states that voluntarily accept their obligations.

A protocol, on the other hand, is an additional legal instrument that complements and adds to an existing treaty. It can address something in the original treaty, a new or emerging concern, or add a procedure for the operation and enforcement of the treaty. Protocols are 'optional', meaning they are not automatically binding on states that have ratified the original treaty.

Both covenants and protocols can be modified or terminated under certain circumstances. For instance, a covenant can be terminated if its original purpose is lost, while a protocol can be amended through a formal process of proposal, approval, and acceptance by the states parties.

In the context of international law, the process of a covenant or protocol becoming 'unlawful' would likely refer to its modification, termination, or withdrawal from by the states parties. This process can vary depending on the specific provisions within the covenant or protocol and the international laws governing such agreements.

Covenants are agreements like contracts, with a seal attached

A covenant is a written promise or pledge between two or more parties. It is a type of contract, but it is not treated the same way as a contract nor is it built on the same premise. A covenant is a spiritual agreement, a perpetual promise that is sealed rather than signed. While a contract is an agreement that can be broken, a covenant remains intact even if one of the parties breaches it.

Covenants are often included in contracts, and when this happens, they become part of the agreement. Covenants are usually associated with real property contracts, protecting people's right to enjoy their property without disruption. They define a relationship by setting rules for engagement.

Covenants are either affirmative or negative. An affirmative covenant is when a party pledges to do something, while a negative covenant is when a party refrains from doing something.

Covenants are also either dependent and concurrent, or mutual and independent. Dependent agreements rely on a prior performance condition. Mutual covenants are performed by all parties at the same time.

In finance, covenant agreements relate to financial contracts, such as loan documents that outline borrower limits. They are also known as restrictive covenants or restrictive agreements and are often used in real estate and commercial land use situations. For example, a covenant agreement may prevent the buyer of a commercial property from soliciting employees from the previous business.

Covenants are legally binding clauses, and if breached, will trigger compensatory or other legal action.

Covenants can be affirmative (requiring an action) or negative (requiring refraining from an action)

A covenant is a promise, agreement, or contract between two parties. Covenants can be affirmative (also known as positive) or negative.

Affirmative covenants require a party to perform a specific action. For example, in the context of a loan contract, affirmative covenants may require the borrower to maintain adequate levels of insurance, furnish audited financial statements to the lender, comply with applicable laws, and maintain proper accounting books and credit ratings. In the context of property law, affirmative covenants may require property owners to actively perform a specific activity, such as keeping the lawn tidy or paying homeowner's association dues for the upkeep of the surrounding area.

Negative covenants, on the other hand, require a party to refrain from performing a specific action. For instance, negative covenants in loan contracts may restrict a company from issuing dividends to its shareholders, paying management fees to related parties, or taking on additional debt. In property law, negative covenants typically impose restrictions on how land may be used, such as prohibiting the construction of tall buildings near an airport or restricting the height of fences or shrubs at street corners.

Both types of covenants are legally binding and are enforceable in a court of law. Violation of a covenant, often referred to as a breach of covenant, can result in compensatory or other legal action, such as outright default or financial penalties.

Protocols are additional legal instruments that complement a treaty

Protocols are additional legal instruments that serve as amendments or supplements to treaties, focusing on specific details or adjustments. They are used to create, modify, or interpret international legal obligations, just like treaties, but they are supplementary in nature.

A protocol is generally an addition or amendment to an existing treaty, and it can clarify, supplement, or modify the terms of the treaty it is associated with. They are often used to address specific issues or make technical changes that do not warrant the negotiation of a completely new treaty. Protocols are more specific and target particular aspects of a treaty, providing a mechanism for states to agree on detailed provisions without altering the fundamental nature of the original agreement.

The adoption of a protocol typically follows the procedural rules of the treaty it complements, and the ratification process may be simpler, depending on the extent of the changes introduced. Protocols are considered secondary law as they derive their legal force from the underlying treaty. Their primary role is to adapt or enhance the treaty in response to new developments or challenges.

The flexibility of protocols allows for selective participation, meaning states can agree to additional commitments without affecting their status within the main treaty. This adaptability ensures that international law can address evolving global challenges while respecting the diverse interests of the international community.

Protocols are optional and not automatically binding on states

Protocols are not automatically binding on states. They are "optional" because they are not automatically binding on the states that have ratified the original treaty. It is up to each state to decide whether or not it wants to be bound by an optional protocol. If a state wishes to be bound by a protocol, it must ratify it.

An optional protocol is a legal instrument related to an existing treaty that addresses issues that the parent treaty does not cover or does not cover sufficiently. It is usually, although not always, open to ratification or accession only by states that are parties to the parent treaty.

Optional protocols can be used to expand upon the obligations in the original treaty, or address new and emerging concerns which the treaty does not cover. For example, the Optional Protocol to the Convention on the Rights of Persons with Disabilities introduces two procedures to strengthen the implementation of the Convention: an individual communications procedure and an inquiry procedure.

The individual communications procedure permits individuals and groups of individuals in a state party to the Optional Protocol to complain to the Committee on the Rights of Persons with Disabilities that the State has breached one of its obligations under the Convention. That complaint is known as a "communication." The Committee will then examine the complaint, formulate its views and recommendations, and send them to the State in question.

The inquiry procedure allows the Committee to address systematic and widespread violations of the rights of persons with disabilities. After examining the findings of the inquiry, the Committee must transmit those findings and its own comments to the State, which then has six months to submit its observations to the Committee.

A state ratifying the Optional Protocol may "opt out" of the inquiry procedure. In other words, at the time of signing, a state may declare that it does not recognize the competence of the Committee to undertake inquiries. However, even if a state "opts out" of the inquiry procedure, all states parties to the Optional Protocol must accept the individual communications procedure.

Protocols can be ratified or acceded to by states

International human rights treaties and agreements such as the Convention on the Rights of the Child are developed through a process of negotiation among United Nations Member States. Individual states then decide for themselves whether to be legally bound by the treaty. There are two ways for a state to become a party: by signature and ratification or by accession.

In ratifying or acceding to the Convention or an Optional Protocol, a state accepts the obligation to respect, protect, and fulfil the rights as outlined – including adopting or changing laws and policies that are needed to implement the provisions of the agreement. The Optional Protocols to the Convention are considered independently of the Convention and must be ratified or acceded to separately, but the process is the same. States do not need to be a party to the Convention in order to ratify or accede to one or both of the Optional Protocols.

Signature constitutes a preliminary endorsement of the Convention or Protocol. Signing the instrument does not create a binding legal obligation but demonstrates the state's intent to examine the treaty domestically and consider ratifying it. While signing does not commit a state to ratification, it does oblige the state to refrain from acts that would defeat or undermine the treaty's objective and purpose.

Ratification or accession signifies an agreement to be legally bound by the terms of the Convention. Though accession has the same legal effect as ratification, the procedures differ. In the case of ratification, the state first signs and then ratifies the treaty. The procedure for accession has only one step – it is not preceded by an act of signature.

The formal procedures for ratification or accession vary according to the national legislative requirements of the state. Prior to ratification or accession, a country normally reviews the treaty to determine whether national laws are consistent with its provisions and to consider the most appropriate means of promoting compliance with the treaty.

Most commonly, countries that are promoting a Convention sign shortly after it has been adopted. They then ratify the treaty when all of their domestically required legal procedures have been fulfilled. Other states may begin with the domestic approval process and accede to the treaty once their domestic procedures have been completed, without signing the treaty first.

Frequently asked questions