This article is written by Mrinalini Menon of 1st Year of DES Navalmal Firodia Law College, Pune, an intern under Legal Vidhiya
ABSTRACT
International treaties and conventions are pivotal instruments of diplomacy and cooperation among nations. This abstract introduces the concept of these agreements and their vital role in fostering collaboration on a global scale. These treaties encompass a wide array of subjects, including human rights, environmental sustainability, disarmament, trade, health, and more. Their scope reflects the diverse challenges and opportunities that nations face in an interconnected world. International treaties and conventions are established to create legally binding commitments among participating nations. By setting standards, regulations, and cooperation frameworks, they aim to address common concerns and facilitate coordinated action. Foundational human rights treaties, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, promote principles of equality, dignity, and freedom for all individuals worldwide. Global environmental challenges are addressed through agreements like the Paris Agreement, where countries commit to mitigating climate change by reducing greenhouse gas emissions and pursuing sustainable development. Treaties like the Geneva Conventions and the Chemical Weapons Convention contribute to international peace and security by establishing rules for the treatment of war victims and prohibiting the use of certain weapons. Trade agreements, exemplified by the World Trade Organization and regional free trade pacts, foster economic growth by reducing trade barriers and promoting fair and transparent trade practices. In summary, international treaties and conventions form the backbone of global governance, enabling nations to cooperate, negotiate, and address shared challenges in a structured and legally binding manner. Their significance extends across numerous sectors, reflecting the collective efforts of countries to create.
Keywords: International treaties, conventions, commitments, global governance, agreements, international peace.
INTRODUCTION
A treaty is a legally binding agreement that creates rights and obligations between international legal persons who are recognized as having treaty making capacity. For example, the League of Nations Covenant, the Vienna Conventions, the UN Charter and the ICJ Statutes are all international treaties while the Vienna Convention applies only to written treaties. It is important to be noted that there are no formal requirements before a treaty can exist. It is not much of relevance that how the treaty is formulated and what name was given to it by the parties as ling as it is intending to be legally binding by creating rights and duties. A treaty may arise from the deliberations of an international conference or informal negotiations, an exchange of notes or an exchange of letters or any other means the parties choose.
An international treaty is a sort of an agreement between two nations or countries. These treaties are legally and officially binding. The nations have to abide by the rules and regulations mentioned in the agreement between them. A treaty is not just limited to nations but also extends to organizations and business entities and other working bodies. The term “Treaty” has been clearly defined in Article 2 of the Vienna Convention on the Law of Treaties, 1969. According to that a treaty is defined as “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 it’s particular designation.”
A convention is a concept that is in a few ways similar to a treaty. It covers a wide range of topics. It is basically any view, ideology or rule that a number or group of countries agree on together and decide to abide by the rules of the same.
INTERNATIONAL LAW
When we divide the term “international” etymologically then it can be separated into two words ‘inter’ and ‘national’ which conclusively means that international is something that exists between two nations or countries. The word ‘International law’ was used for the first time in the year 1789 by Jeremy Bentham[1]. He was a famous English philosopher, social reformer and jurist who has been regarded as the founder of modern utilitarianism. Prior to this International Law was named as “Law of Nations”. Public International law regulates relationship and the conduct of the states with other entities and each other.
Though there is a universally used definition of International Law but it is not a fixed one. There are many other definitions provided by famous jurists. Some of which are as follows:
- Oppenheim is a German Jurist who wrote a book in the year 1905 wherein he provided his definition of what the term international law is. He defined it as “International law is the name for the body of customary and treaty rules which are considered legally binding by the civilized states in their intercourse with each other”. Though he considered this definition as complete and though it was adequate for that particular time being there were many loopholes and confusions about the adequacy of the definition given by Oppenheim. The first ambiguity was whether it was adequate or not and it clearly was not because of many reasons. Firstly, because it considered only states as the subjects of international law. But as of the present time we all know that states are not the only subjects of international law. Other entities like the International Organizations are also a part of it. Individuals are also considered as a part of the international law and one of the finest examples of this is the Convention on Settlement of Investment Disputes between States and Nations of Other States 1965[2]. Another criticism being that treaties and conventions are the only things that have been considered as the sources as per the definition. However, Article 38 of the Statute of ICJ states that general principles recognised by the civilised nations is also an important source along with other subsidiary sources which have been clearly ignored in the definition.
- J. Brierly defined International Law as the body of rules and principles of action which are binding upon civilized states in their relations with one another. In these definitions also the same drawbacks were repeated as the one with the definition of Oppenheim.
- Charles G. Fenwick defined international law as a body of general principles which are binding upon the members of international community in their mutual relations. This definition unlike the earlier ones mentions ‘members of international community’ rather than just states which is an advancement in itself.
- Whiteman’s definition[3] is the one which is widely considered or accepted as a complete definition. He defines international law as the standard code of conduct at a given time for states and other entities subject thereto. In this particular definition the phrase ‘entities subject thereto’ includes or may include international organizations, individuals and non- state entities.
TREATIES
Treaties are nothing but agreements between subjects of international law. It includes any agreement between the states and organizations or between two organizations also[4]. An agreement between two people or individuals is termed as a ‘contract’ whereas in the same condition or scenario if we replace the individuals with states, nations or international organizations then the term ‘contract’ will automatically change into ‘treaty’.
ESSENTIAL ELEMENGTS OF A TREATY
An agreement can only be considered as a treaty when it fulfils certain criteria or essential elements. The essential elements of a treaty are as follows:
- Parties: For any contract, agreement or treaty to form it is very necessary for that to happen between a minimum of two parties. The number of parties can vary from case to case, it can be two or more.
- Agreement: For a treaty to be formed it is necessary that there be an agreement between the two entities. Without an agreement there would be no treaty formation.
- Free Consent: Another essential for a treaty formation is free consent. The consent of both the parties should be free and the consent is deemed to be free when it is not affected by coercion, force, use of undue influence, fraud. The rule that frees consent is necessary is clearly mentioned in Article 52 of the Vienna Convention on Law of Treaties. Article 52 of the Vienna Convention on Law of Treaties clearly states that a treaty is void if the conclusion has been procured by the coercion, threat of use of force, or use of force, fraud etc. in violation of principles of the international law embodied in the UN Charter. One of the famous cases with regard to the free consent as an essential is the Fisheries Jurisdiction Case (1973)[5] between Iceland and UK. In that case it was held that consent for a treaty must be free, if there is coercion involved then the treaty would be considered or categorized as void.
- Written: These treaties should be mandatorily in written form. Any oral agreement etc. so formed will not be considered as a valid treaty.
- Signified and Ratified: The agreement should be signified and ratified for it to be considered as a treaty. It must be signed by the authorized representative of the state and thereafter ratified. To ratify basically means to provide the approval and the ratification or approval is usually done by the head of state or head of government.
TYPES OF TREATIES
On the basis of number of states treaties are basically divided into two categories
- Multilateral treaties are those which are a kind of agreement between two or more countries or nations or parties. This is usually done after a certain procedure which includes discussions, conferences and meetings at an international level. There can be any number of parties but it should be more than two.
- Bilateral treaties are those treaties which include only two states as parties. The word ‘Bi’ in bilateral itself makes it very clear about in the inclusion of only two bodies.
On the basis of nature of treaties, it can be divided into two parts
- Law making treaties are those that directly lay down rules of international law. They are direct sources of International Law. They play the same role In International law as the legislation does in the municipal law.
- Treaty contracts are not the direct sources of international law and are binding only upon the states that are parties to the treaties. They only lay down the obligations and rights between states and parties. They may however form the rules of the customary international law.
CONVENTION
As it is already very clear that international law is an uncodified law which basically means that it is not stored or written in a particular book or body. It is just a set of rules and regulations followed by the nations, states and international organizations. According to Article 38 of the Statute of The International Court of Justice (ICJ) states that international conventions is also a source of international law along with many other various sources. Just like custom was the major source of law in the past years, the international convention is one of the most important sources in the modern era. In the present scenario the custom that was earlier followed religiously by nations, states and international organizations is being converted into conventions which is termed as ‘International Convention’[6]. Conventions are usually divided into two types which are general and particular conventions. General conventions are usually made for the entire nation of the world and are open to all states, nations, individuals or international organizations. Examples of general conventions include Geneva protocol 1925, Geneva Convention 1920 and conventions regarding the environmental problems like the Kyoto Protocol. Particular conventions on the other hand are only limited to two parties. Which means that particular conventions are usually those agreements that are signed particularly by and between two parties, states, nations, countries or international organizations. The laws under the particular conventions are applicable only to the two states or countries that are signing.
CONCLUSION
In the end, they contribute to the development of a more stable, connected, and peaceful world by defending fundamental human rights, addressing pressing problems like pandemics and climate change, facilitating economic cooperation and fair-trade practices, ensuring accountability through compliance mechanisms, fostering diplomatic relations and multilateral cooperation, and encouraging cultural and scientific exchange.
These laws and regulations not only keep nations and people binding together but also maintains peace on a global level by providing more diplomatic and civil ways of dispute resolution. It also ensures the well being of all nations and states.
[1] International Law, Brittanica, https://www.britannica.com/topic/international-law, last seen on 18/08/2023
[2] ICSID, Wikipedia, https://en.wikipedia.org/wiki/International_Centre_for_Settlement_of_Investment_Disputes, last seen on 18/08/2023
[3] International Law: Definitions, Nature And Basis, https://www.legalserviceindia.com/legal/article-2167-international-law-definitions-nature-and-basis.html#:~:text=Whiteman%3A,and%20other%20entities%20subject%20thereto, last seen on 18/08/2023
[4]Treaty, Wikipedia, https://en.wikipedia.org/wiki/Treaty , last seen on 18/08/2023
[5]Fisheries Jurisdiction Case, Infor MEA, Fisheries Jurisdiction Case, United Kingdom of Great Britain and Northern Ireland v. Iceland, last seen on 18/08/2023
[6]Treaties And Conventions As A Source Of International Law, Legal Services India, https://www.legalserviceindia.com/legal/article-9108-treaties-and-conventions-as-a-source-of-international-law.html , last seen on 18/08/2023
