This article is written by Khushi Bansal of 5th Semester of University Institute of Legal Studies, Panjab University, Chandigarh, an intern under Legal Vidhiya
Abstract:
The following article provides details about international law, specifically the standards, treaties, and conventions of international law. The introduction mainly deals with the sources of international law. Then, there comes the concept of international standards, which tells that the international standards are an important source of international law followed by the procedure to form an international standard. The content of international treaties includes the basic information, how treaties are formed, invalidation of treaties, and termination of treaties. Moving on to the topic of international conventions, the major focus is centered on the difference between treaties, and conventions as the two are believed to be synonymous and used interchangeably. The article ends with a conclusion that explains how standards, treaties and conventions have created favorable and balanced circumstances on an international level.
Keywords:
International Standards, Treaties, Conventions, International organizations, Ratification, Consent, Signatories, Agreement, Subject matter, State representatives
Introduction:
“Insofar as international law is observed, it provides us with stability and order and with a means of predicting the behavior of those with whom we have reciprocal legal obligations.”[1]
These words by James William Fulbright, an American politician, academician, and senator are quite satisfactory to create a visual imagery of why studying international law becomes compelling to get hold of international affairs. It is generally believed that international relations hit only the elite class but this is merely a false notion. If we examine the ground-level situation, we can easily observe that every person is affected by the varying international relations, irrespective of class or other such factors. International relations are largely governed by international customs, standards, treaties, conventions, global conferences, summits, judicial precedents, and the list goes on. This is where international law comes into the picture. All these constitute the sources of international law.
Article 38 of the Statute of the International Court of Justice lists the following four sources of international law:
- International conventions or treaties establishing rules expressly recognized by the contesting states
- International customary law, as evidence of a general practice accepted by law
- The general principles of law recognized by civilized nations
- 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
Hope this introduction is sufficient enough to move forward and have some discussion of the three major terms in the title, i.e. standards, treaties, and conventions of international law.
Standards of international law:
International standards refer to the documents developed by the consensus of experts belonging to various countries and international organizations. They include rules, guidelines, processes, or characteristics permitting the users to achieve the same outcome again and again. They are generally approved and published by a globally recognized body like the International Organization for Standardization, often abbreviated as ISO. It is the largest global developer of international standards. By providing common standards between the nations, it also facilitates world trade on a huge scale.[2] In addition, international standards also promote transparency in production and information along with the quality and reliability of the goods. Some other well-known international standards organizations are International Telecommunication Union (ITU), International Standards on Auditing (ISA), International Electrochemical Commission (IEC), and so forth.
International standards are counted among the major sources of international law since they hold a great significant place in the governance of international affairs. The official website of the International Organization for Standardization (ISO) defines standards as the distilled wisdom of people with expertise in their subject matter and who know the needs of the organizations they represent. [3] Numerous international organizations for standardization deal with international standards relating to their specific matters. For instance, ISO’s food safety management standards are meant to help the prevention of food from being contaminated and the IT security standards are meant to help in keeping the sensitive information secure.
The International Organization for Standardization (ISO) follows a six-stage procedure for the development of international standards. These six stages include:
- Proposal Stage
This is the initial stage where the industry associations or consumer groups request to develop an international standard. Following the request, the relevant ISO committee associated with that subject matter determines if a new standard is necessary to develop.
2. Preparatory Stage
The second stage is the preparation of a working draft of the new standard. A working group is set up to prepare the aforementioned draft. When the draft is ready and is deemed to be a satisfactory one, the parent committee of that working group exercises the authority to decide the next stage.
3. Committee Stage
Not being a mandatory stage and an optional one, it is at the discretion of the parent committee whether this stage is to be included in the process. In this stage, the parent committee has to review and comment on the draft prepared in the previous stage. After the consensus of the parent committee on the technical content of the draft, it moves to the next stage, i.e. Enquiry stage.
4. Enquiry Stage
The draft standard at this stage is known as a Draft International Standard, shortly called DIS. If it is approved at this stage by the ISO members without any technical changes, it is published as a standard. In case the ISO members reject the DIS, it moves to the approval stage.
5. Approval Stage
The draft standard, in this stage, is submitted as a Final Draft International Standard (FDIS) and the ISO members now vote to approve the new standard.
6. Publication Stage
If the new standard is approved by ISO members in the approval stage, the FDIS is published as an official international standard.[4]
It is worth mentioning here that a standard needs to receive an affirmative vote from at least two-thirds of participating ISO members. However, it shall not receive negative votes from more than one-fourth of participating ISO members[5]. When these international standards are finally published, they are accepted worldwide.
Treaties of international law:
According to Article 2(1)(a) of the Vienna Convention on the Law of Treaties (1969), the term “treaty” means an international agreement concluded between the 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. This is the most widely accepted definition of treaties. Article 38 of the ICJ Statute does not expressly mention the term “treaties”, but the article provides for the “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states”. This implies that in case an existing treaty provision exists between the parties to the dispute, then the treaty provision must be applied, if relevant. Treaties are the primary sources of international law, which bind the nations in a responsibility to fulfill their obligation(s) as per the terms of the treaty. In layman’s language, a “treaty” can also be defined as a negotiable instrument that settles the subject matter in dispute between two or more countries.
The Vienna Convention on the Law of Treaties of 1969, also known as the “treaty on treaties” is the principal source of the law of treaties as it lays down the fundamental principles related to treaties. As a result of two-protracted sessions of the 110-nation conference and of the 15 years of preparatory work by the United Nations’ International Law Commission, it is the first key component in codifying international law as per Article 13 of the United Nations Charter. [6] Once a nation becomes a signatory to the treaty, it is required to formulate its rules and policies following the terms of the treaty. However, if a country has not signed a treaty, it has no legal obligation to abide by its norms. The maxim “pacta sunt servanda” as incorporated under Article 26 of the Vienna Convention binds all signatories to the treaty and provides that the treaties shall be followed bona fide by the signatories. This means that all signatories to the Vienna Convention are also bound, by extension, to the other treaties they become signatories to. The exception to this general principle of international law was laid down in the famous North Sea Continental Shelf Cases[7] where the International Court of Justice held that certain treaties have a fundamentally norm-creating character. This simply means that treaties define such conduct, often of human rights, binding the States intentionally. It is noteworthy here that due to the tussle between Congress and the executive branch of the United States of America over the authority to validate a withdrawal from the treaties, it is not a signatory to the Vienna Convention.[8]
There is no specific procedure to be followed for the creation of a treaty. But most of the treaties usually follow a similar structure that begins with the preamble providing the background object of the treaty and the parties to it. A treaty then mentions the subject matter, i.e. what the parties agreed upon. A statement of the period may or may not be included, depending upon the time period of the existence of the treaty but the details like the time period of the existence of the treaty, reservations, and amendment procedures must be clearly laid down in the treaty itself. In the end, there is a final clause incorporating the ratification and signatures of the parties along with the date and venue of ratification. But there are certain points to be considered while the formation of a treaty, which are as follows[9]:
- Adoption of the text-
Unconditional consent of all the parties to the treaty is essential for the adoption of the text of the treaty. If the treaty is being adopted at an international conference, it shall be passed by a two-thirds majority of the States present and voting, unless agreed upon otherwise[10].
- Authentication of the text-
As per the procedures laid down in the treaty itself, the text of the treaty shall be established to be authentic. In case of failure to follow the prescribed procedure, signatures or initials of the State representatives participating in the formation of the treaty may be sufficient to deem the authenticity of the text of the treaty.[11]
- Means of expression of consent-
The consent may be expressed through signature, exchange of instruments required for the treaty, ratification, acceptance, approval, or accession, or by any other means as agreed upon.[12]
- Consent expressed by signature-
The representative’s signature implies the full consent of the state to enter into the treaty, provided that the treaty expressly mentions that the signature by the State representative shall be sufficient to be declared as a party, or the negotiating States have mutually consented to the signature be sufficient.[13]
- Consent by exchange of instruments required by the treaty-
If the participating States agree that the exchange of instruments required for the treaty shall be equivalent to the expression of the consent to enter into the treaty, then it shall be deemed to be the consent of the States.[14]
- Consent by ratification, approval and acceptance-
It shall be an acceptable way of obtaining consent to the treaty, if the negotiating States opine that the ratification shall be equivalent to the consent, or the treaty provides for ratification. The same condition is also applicable to the consent expressed by approval or by acceptance.[15]
- Consent expressed by accession-
If the treaty provides for obtaining consent or the negotiating states agree upon accession, then consent to the treaty shall be obtained.[16] It is important to mention here the difference between ratification and accession. Ratification occurs until the minimum number of signatories agrees to give force to the treaty. But accession means when all the parties sign the treaty after the minimum number is achieved.[17]
- Formulation of reservations-
A State may formulate a reservation in the treaty unless it is prohibited by the treaty itself, or if permitted shall violate the object and intent of the treaty.[18]
Invalidation of a treaty simply means making a treaty void and unenforceable. Part V of the Vienna Convention on the Law of Treaties (1969) explicitly deals with the invalidity of treaties. Articles 46-53 set out the procedure for invalidating a treaty. There are several reasons as to why there is a need to invalidate the treaty. The top cause of the invalidation of a treaty is that they might be riddled with problems ever since the time of formation. The two grounds on which a treaty may be invalidated are the content of the treaty and the mode of obtaining consent. Notably, invalidation is different from withdrawal and termination. Invalidation means invalidation of the consent from the beginning, whereas withdrawal and termination include the future alteration in consent to be a signatory.[19]
- Article 46 of the Vienna Convention talks about the provisions of internal law regarding competence to conclude the treaties, i.e. the willingness of a State to invalidate the treaty on the ground that it conflicts with its internal law.
- Article 48 permits the invalidation on the grounds of the presence of errors in a treaty, i.e. in case the treaty has an error that considerably affects the treaty provisions and comes in conflict with the main object of the treaty.
- The treaties may be invalidated if the consent has been obtained by the fraudulent conduct of the parties (Article 49) or by corruption of a State representative (Article 50) or by coercion of a State representative (Article 51) or by coercion of a State by the threat or use of force (Article 52).
- Article 53 states that a treaty can be invalidated if it conflicts with jus cogens, meaning “peremptory norm of general international law” such as piracy, genocide, torture, and apartheid.
A treaty can be terminated either by withdrawal or by suspension and termination. The treaties have the provision of withdrawal. In case the number of signatories drops below the prescribed one due to withdrawal, a treaty is then terminated. Certain treaties do not allow for withdrawal owing to their nature. Article 56[20] deals with the withdrawal of treaties without a termination/denunciation/withdrawal clause. It was because of this reason that North Korea was not permitted to withdraw from the International Covenant on Civil and Political Rights when it expressed its intention to withdraw. Termination of a treaty is also possible by suspension and termination. It includes:
- Implied by the conclusion of a later treaty-
On account of drafting a new or later treaty with the same subject matter as its previous one, the old treaty is deemed to be suspended upon the conclusion and ratification of the new treaty[21]
- As a consequence of its breach-
In the case of a bilateral treaty, if one of the parties breaches the provisions of the treaty, then the other party has the discretion to bring that treaty to an end. If the treaty is a multilateral treaty, then breach by one of the parties permits the other parties to terminate/suspend such treaty, wholly or partly by unanimous consent.[22]
- Impossibility of performance-
In situations where carrying out the provisions becomes impossible for some reason; the treaty can be terminated. If the impossibility is for a certain period of time only, then the termination may be done for that time period only[23].
- Fundamental change of circumstances-
This is quite similar to the force majeure clauses. The provisions of the treaty can be terminated as a result of unforeseen and uncontrolled events, provided that the changes are fundamental.[24]
- Rift of diplomatic or consular relations-
Disturbance or severance in diplomatic or consular relations by themselves cannot result in suspension or termination of a treaty unless the treaty itself provides for such a clause.[25]
- Emergence of new jus cogens-
Any treaty in violation of the new jus cogens shall deem to be terminated.[26]
Conventions of International Law:
An amateur might opine that the words “treaties” and “conventions” are synonymous and are generally used interchangeably. However, the two terms are quite closely related but there exists a minute difference between the two. A convention is a special type of treaty or agreement between many countries. The principal basis for differentiating the two is the aim for which they are formed. Treaties are usually meant to solve issues between the parties, whereas conventions aim at resolving global issues like environmental issues. Several nations begin discussions on a global issue and reach a consensus regarding steps and actions on which they all agree. This gets concluded as a convention. Some examples of famous conventions include the Vienna Convention, the Geneva Convention, the Chicago Convention, the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Convention on wetlands and many others. Thus, international conventions refer to the treaties signed between two or more countries, which act as an international agreement.[27]
A convention is the step that takes place before the formation of a treaty. In fact, many times it happens that the terms of a treaty are inspired by an international convention. In the simplest way, the meaning of convention can be remembered by its parent word ‘convene’ implying that convention is something when people convene, that is come together to decide and agree upon a specific issue before publishing it as a legally binding treaty. The objective of a convention before a treaty is to meet and conduct a discussion on an issue before signing a treaty.[28] There arises a question of whether a convention is binding or it is merely a step before treaty. Answering the aforementioned question, the U.S. Supreme Court held in the case of Medellin vs. Texas, 552 U.S. 491 (2008) that even if the United States agrees to be bound by an international convention by signing it, the convention is still not a binding law unless it is self-executing, or Congress passes a legislation making that convention of binding nature.[29]
Since international conventions are a result of participation and explicit consent, they pertain to the body of hard law. Thus, conventions can be described as international agreements on a global issue, where the representatives of many countries come together, participate in the discussion and agree upon a common thing resulting in the formation of an international convention.
Conclusion:
To wrap it all up, international law serves as a tool for promoting peace and encouraging mutual cooperation for development among the nations along with preventing conflicts with the help of treaties, standards, and conventions. These three serve as the major sources of international law. Standards are the norms that are accepted worldwide. Treaties and conventions are international agreements that decide a certain issue and lays down certain rules regarding the subject matter of the document. International standards, conventions, and treaties ensure the harmonious balance of diplomatic relations among the nations. Since there is a uniform system, the countries feel united. With the coming of the concept of standards, treaties and, conventions, it has become quite easier to deal with international affairs and resolve disputes if still they arise. Therefore, keeping all these favorable consequences in mind, it is highly advised that all the States must continue this mutual cooperation and uniformity.
[1] Insofar as international law is observed, it provides us…, quotetab, available at https://www.quotetab.com/quote/by-j-william-fulbright/insofar-as-international-law-is-observed-it-provides-us-with-stability-and-order, last seen on 01/08/2023
[2] International standards and their benefits, GenomSys, available at https://genomsys.com/internation-standard-and-its-benefits/, last seen on 02/08/2023 and
International Standard, IEC, available at https://www.iec.ch/publications/international-standards, last seen on 02/08/2023
[3] Standards, ISO, available at https://www.iso.org/standards.html, last seen on 04/08/2023
[4] ISO (International Organization for Standardization), TechTarget, available at https://www.techtarget.com/searchdatacenter/definition/ISO, last seen on 04/08/2023
[5] Ibid.
[6] Safashameem, Treaties as a source of International Law, LegalServicesIndia, available at https://legalserviceindia.com/legal/article-8677-treaties-as-a-source-of-international-law.html, last seen on 06/08/2023
[7] North Sea Continental Shelf, Germany vs. Denmark, Order, [1968] ICJ Rep 9.
[8] Mehak Jain, Concept of Treaties in international Law, ipleaders, available at https://blog.ipleaders.in/concept-treaties-international-law/, last seen on 07/08/2023 and
Shubham Shukla, Law of Treaties in International Law, LawBhoomi, available https://lawbhoomi.com/law-of-treaties-in-international-law/, last seen on 07/08/2023
[9] Mehak Jain, Concept of Treaties in international Law, ipleaders, available at https://blog.ipleaders.in/concept-treaties-international-law/#Formation_of_a_treaty, last seen on 07/08/2023 and
Shubham Shukla, Law of Treaties in International Law, LawBhoomi, available at https://lawbhoomi.com/law-of-treaties-in-international-law/#Formation_of_a_treaty, last seen on 07/08/2023
[10] Article 9, Vienna Convention on the Law of Treaties, 1969
[11] Article 10, Vienna Convention on the Law of Treaties, 1969
[12] Article 11, Vienna Convention on the Law of Treaties, 1969
[13] Article 12, Vienna Convention on the Law of Treaties, 1969
[14] Article 13, Vienna Convention on the Law of Treaties, 1969
[15] Article 14, Vienna Convention on the Law of Treaties, 1969
[16] Article 15, Vienna Convention on the Law of Treaties, 1969
[17] Shubham Shukla, Law of Treaties in International Law, LawBhoomi, available at https://lawbhoomi.com/law-of-treaties-in-international-law/#Formation_of_a_treaty, last seen on 07/08/2023
[18] Article 19, Vienna Convention on the Law of Treaties, 1969
[19] Mehak Jain, Concept of Treaties in international Law, ipleaders, available at https://blog.ipleaders.in/concept-treaties-international-law/, last seen on 07/08/2023 and
Shubham Shukla, Law of Treaties in International Law, LawBhoomi, available https://lawbhoomi.com/law-of-treaties-in-international-law/, last seen on 07/08/2023
[20] Of the Vienna Convention on the Law of Treaties, 1969
[21] Article 59, Vienna Convention on the Law of Treaties, 1969
[22] Article 60, Vienna Convention on the Law of Treaties, 1969
[23] Article 61, Vienna Convention on the Law of Treaties, 1969
[24] Article 62, Vienna Convention on the Law of Treaties, 1969
[25] Article 63, Vienna Convention on the Law of Treaties, 1969
[26] Article 64, Vienna Convention on the Law of Treaties, 1969
[27] Kakoli Nath, Difference between Treaty and Convention, FinologyBlog, available https://blog.finology.in/Legal-news/difference-between-treaty-convention, last seen on 08/08/2023
[28] Difference between Treaty, Protocol and Convention, DifferenceBetween, available https://www.differencebetween.info/difference-between-treaty-protocol-and-convention, last seen on 08/08/2023
[29] International Conventions, Legal Information Institute, available https://www.law.cornell.edu/wex/international_conventions, last seen on 08/08/2023
