Treaties and Customs as a Source of International Law
Anomitra Debnath[1]
“No
man is an island.”
(John
Donne)
The global interconnectedness of the 21st
century is far more than a stone’s throw away from when man and his habitus was
truly an island—at the beginning of time as we remember it. The phenomenon of
international law, as the body of legal rules, norms, and standards that apply
between sovereign states and other entities that are legally recognized as
international actors[2],
is a testament to this very fact. The sheer interdependence and reliance on
which nations are built and thrive provide the basis for the sustenance of
international law. However, this body of law is hardly a static entity. To the
contrary, it is very much vital and dynamic in that it continues to adapt and
cater to the needs of society as we progress through a series of cultural and
moral evolutions. Needless to say, the sources of creation of international
laws must necessarily keep pace with the aforementioned societal evolutions.
Herein, it becomes pertinent to dissect and discuss the relevant sources and
their gravity in governance.
Sources of International Law
Although, there is no formal literature that explicitly
lists the sources of international law per se, the statute of the International
Court of Justice does identify certain categories as the basis for deciding
international disputes. It is to this extent that Article 38 of the statute of
the International Court of Justice[3]
identifies the sources of international law and states that,
1. The Court, whose function is to decide
in accordance with international law such disputes as are submitted to it,
shall apply:
a. international
conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international
custom, as evidence of a general practice accepted as law;
c. the
general principles of law recognized by civilized nations;
d. subject
to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
Hence, the sources of international law may be summarised
as international treaties and conventions, international customary law, the
general principles of natural law as recognized by nations, and judicial
decisions and teachings of authority.
Hierarchy of Sources
The hierarchy of preference of sources may be simplified to
say that the primary sources of international law are international treaties
and conventions and international customary law, supplemented by the principles
of natural law and auxiliary judicial decisions and teachings of authority.
However, this is further supplemented by other principles such as that specific
rules take precedence over general rules; and that recent decisions supersede
old ones. Nevertheless, it is generally accepted that international treaties
and conventions as well as customary law are of prime importance and gravity in
the formulation of international law. Furthermore, these are the two pertinent
sources within the scope of discussion hereinafter.
International Treaties and Conventions
According to Article 2 of the Vienna Convention on the Law
of Treaties which outlines the role of international treaties and conventions
as a source of international law, 'treaty' means an international agreement
concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation.[4]
Basis of Treaties
Treaties are generally considered as persuasive law that
confers obligations on parties to it. However, the question of whether a treaty
is ipso facto law or merely a legal obligation is a distinct debate altogether.
Regardless, neither perspective takes away from the fact that treaties are
based on the time-tested and enduring principle of ‘pactasuntservanda’ or ‘agreements
must be kept’.It is this very principle that demands obedience to treaties
ratified by nations and essentially forms the indispensable foundation of a
just system governing sovereign nations as equals. Nature
of Treaties
The question of whether a treaty is law or a set of
contractual obligations amongst sovereign nations leads us to the dichotomy in
the nature of treaties. Thus, treaties may be of two kinds—
1. Law-making
Treaties: These are multilateral treaties and mainly intend to have universal
or general relevance.
2. Treaty-Contracts:
These treaties apply only between two or small number of states. They are
mainly bilateral treaties.[5]
Inspite of the existence of this classification, there is
not much effectual distinction made by the difference in nature of treaties.
Both contractual as well as obligations in the form of law have authority and
nations agree to be bound by them. Hence, both bilateral and multilateral
treaties essentially affect countries that are party to it in the same way—they
are persuasive and binding in nature.
For the sake of clarity, it may be said that multilateral
treaties conferring legal obligations that a multiplicity of nations agree to
be legally bound by confer the authority of international law upon the treaty
in effect whereas, bilateral treaties or such treaties as those that have a
narrower scope of application generally bear closer resemblance to contracts
conferring contractual obligations on nations rather than international law as
we speak of it; although in reality, they bind the behaviour of nations in
nearly the same way.
Mechanisms governing Treaties
The Vienna Convention on the Law of Treaties is the
principal instrument detailing the mechanisms that govern treaties. Thus,
treaties too are subject to certain rules that decide their application and
authority.
Firstly, treaties are consent-based inthe sense that states
voluntarily agree to be bound by the terms of a certain treaty; that is, they
consent to a treaty. A state is only governed by a treaty if it has ratified
it, though there are exceptions to this. For example,delimitation of
territorial boundaries is applicable on all states who must respect it, i.e. it
is ‘ergo omnes' or ‘against the whole world’.The means of
expressing consent is dealt with in Article 11 of the aforementioned Vienna
Convention, which states that ‘the consent of a State to be bound by a treaty
may be expressed by signature, exchange of instruments constituting a treaty,
ratification, acceptance, approval or accession, or by any other means if so
agreed’.[6]
Reservations, Declarations, and Derogations
The purpose of a treaty is to encourage countries to be
signatories to it and increase its universality of application so as to hold
countries to the same standard of justice. However, the process of drafting an
international treaty is cumbersome and drawn out owing to the number of states
that are involved in the process and the resultant multiplicity of viewpoints.
The process of drafting a treaty includes stark disagreements and debates upon
every aspect of the agreement. In order to increase the number of signatories
and ratifications of a treaty, and hence global order, international law allows
a system of picking and choosing for nations wherein they may limit application
of certain provisions of the agreement under consideration. This is done
through reservations, declarations and derogations.[7]
Reservationsare defined by
the Vienna Convention
as:
‘A unilateral statement, however phrased or named, made by
a State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that State.’[8]
Only specified reservations are permitted and they cannot
undermine the object and purpose of the Treaty.
Declarations, unlike
reservations, do not affect legal obligations, but are often made when a State
expresses its consent to be bound by a specific treaty. The State uses the
declaration to explain or clarify its understanding of particular aspects of
the treaty text.
Derogations allow for a
system where countries can make space for certain situations and exigent
circumstances whereupon the effect of the provisions of a treaty may be
suspended or otherwise derogated. For instance, in a situation of war or
internal conflict, the right to assemble peacefully may be suspended. However,
some basic human rights cannot be derogated from under any circumstances,
notably the prohibition on torture, inhumane and degrading treatment. This
ensures basic protection of rights.
International Customary Laws
The statute of International Court of Justice refers to
“international custom, as evidence of a general practice accepted as law,” as
another formal source of international law. However, any general practice is
not termed as customary law and certain essential criteria is present which
must be satisfied in order for a custom to attain recognition as international
customary law.
Criteria
For a custom to be authoritative as law,
it must fulfil two essential conditions.
1. State practice
The actual practice of states includes multifarious
elements such as duration, consistency, repetition, and generality of a
particular kind of behaviour by states. For any custom to become law, it is
essential that continuous or established usage be established for a significant
time period. This requirement is termed as ‘usus’.
Notably, however, in the North Sea Continental Shelf cases in 1969[9]
,the ICJ expressly accepted the possibility that a wide spread and
representative practice could generate a rule of customary international law
even without the passage of any considerable period of time. This is referred
to as instant customary law.
2. Acceptance of legal nature of practice
This is also referred to as ‘opinio juris’ and is rooted in the principle that for a custom to
be accepted as law, it is not merely enough that a practice has long and
established usage. Such usage must also possess, in addition, the recognition
of the practice as legal and not merely a matter of policy by states. As was
pointed out in the North Sea Continental
Shelf Cases[10],
‘Not only must the acts concerned amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of
law requiring it.’
Effect
Once a custom becomes international law, all states must
comply with it irrespective of whether they have explicitly consented to it or
not. The only exception that may be made is if a certain state has objected to
the custom or usage from its very inception. Evidence of such objection must
then be demonstrated and this evidence must be of sufficiently weighty nature.
Thus, states are obliged to behave in accordance with international customary
law; there is no choice to comply as in the case of treaties or conventions.
This may be observed to be the primary advantage of customary law over treaty
law.
Conclusion
[1] B.A.LLB.(Hons.), 1st Year, Hidayatullah National Law
University, Atal Nagar, Raipur.
[2] Malcolm Shaw,International Law,BRITANNICA,(23 June,
2019, 5:15 PM), https://www.britannica.com/topic/international-law.
[3] Statute Of The International Court of Justice, INTERNATIONAL
COURT OF JUSTICE, ( 23 June, 2019, 4:34
PM),https://www.icj-cij.org/en/statute.
[4] Vienna Convention Treaties, OAS, (23 June, 2019, 3:40 PM),
https://www.oas.org/legal/english/docs/Vienna conventionTreaties.html.
[5] Marlon Konchellah, Customs and Treaties Of International Law, LEGAL MIND,
(23 June, 2019, 2:20 PM),
http://mkonchellah.blogspot.com/2011/03/customs-and-treaties-as-source-of.html.
[6] The Sources of International
Law, LAW TEACHER,
(23 June, 2019, 10:00 AM),
https://www.lawteacher.net/free-law-essays/international-law/the-sources-of-international-law.php.
[7] Sources of International Law,DIAKONIA, (23 June,2019, 1:00
PM), https://www.diakonia.se/en/IHL/TheLaw/International-Law1/Sources-of-IL/.
[8] Vienna Convention Treaties, OAS, (23 June, 2019, 3:40 PM),
https://www.oas.org/legal/english/docs/Vienna conventionTreaties.html.
[9] North Sea Continental Shelf Cases, INTERNATIONAL COURT OF JUSTICE,
(21 June, 2019, 3:44 PM),
https://www.icj-cij.org/files/case-related/51/051-19690220-JUD-01-00-EN.pdf
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