Chapter II: Concept
Under general international law, an agreement is a consensual bond, express or tacit, between two or more subjects of international law, designed to produce legal effects and governed by international law. The word ‘treaty’ is reserved for written instruments; the word ‘agreement’ is broader, encompassing non-written bonds. First, an agreement is a ‘consensual bond’. In other words, it is based on a meeting of minds, that is, on the will of each party to bind itself to some agreed content. There is no agreement, but mere dissent, if the negotiating parties disagree on all points. Their wills must converge in at least one sector; in this sector, there will be an agreement. The reasons for seeking regulation may be very different for each party, and sometimes even opposing. The crucial point, from the legal point of view, is that there is an intention to make a commitment, whatever the political motives for doing so. Only the consent is a legal matter; the reason for consent remains in the realm of policy. The ways of agreeing to some rights and obligations can differ according to the type of agreement. In the case of a bilateral agreement, notably if it is unwritten, the scheme will often be one of offer and acceptance. This is true for agreements concluded by acts and deeds, such as a surrender in the law of armed conflicts, for example by hoisting a white flag.
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