International law making

Since treaties are crucial in international law-making, their formation, application and interpretation is also of great significance. The law governing this process is prescribed in the Vienna Convention on the Law of Treaties (1969). Perhaps this Convention is the crux of international law because the conduct of States in relation to international treaties indirectly reveals the ‘power’ or ‘weakness’ of international law. The power or weakness of international law in its turn will dictate the world order. When I say ‘power’ I mean legal consequences for violation of law.

Several provisions should be cited here:

Article 27:
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

Article 46:
(1) A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

Article 19:
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation, unless:
a) the reservation is prohibited by the treaty;
b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

There is no question that States are bound by treaties they enter into. The problem is how they perform their obligations in light of their interpretation of a treaty. So, performance is very much dependent on ‘interpretation’ of a treaty in the background of internal law. Also, what symbolic power does signing of a treaty have in the absence of consequent ratification by that State? For example, the US has put his signature under many many treaties, but later failed to ratify and even tried to ‘unsign’ them. Isn’t commitment or ‘consent to be bound’ expressed in the signature? What effect does the failure of ratification have on the power of international law? The US constitutional process in treaty-making is of illustrative importance.

Article 11 states:
The consent of a State to be bound by a treaty may be ex-pressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

The US signed under the Rome Statute of the International Criminal Court on December 31, 2000, expressing its intention to be bound by the treaty creating the ICC. However, very soon a letter from the Under Secretary of State for Arms Contol and International Security, John R. Bolton to Kofi Annan said:

This is to inform you… [in connection with the Rome Statute] that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature… The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.

'Consent to be bound' and at what stage it becomes effective is important in terms of the commitment of the State in performing under the treaty. Of course, the role of internal elites is also important. A state is not an abstraction, but a directive effort of its elites, elected officials. Bill Clinton’s administration signed the ICC statute, and Bush’s administration effectively ‘unsigned’ it. How the failure to ratify this statute by the US affected the significance and further development of the ICC is a subject for further lengthy discussion. This is how elites play a crucial role in the making of international law.

(As a footnote, the US signed the Vienna Convention but has not ratified it. However, as the State Department states here, the US considers many of its provisions as customary international law.)

Sources of International Law: 2

Earlier I commented here on this blog on the sources for international law. While the hierarchy is important and first we search for treaties/conventions on a relevant question, all these sources interact and collide. For example, I would like to compare the treaties with domestic contracts for a moment. Treaties are similar to regular contracts between domestic parties except that they may become binding even for those who have not expressly entered into them. Isn't that a strange concept? Isn't consent after all important in international law?

Insofar as treaties may over time turn into customary international law, they may in fact become binding on those who withheld consent to them and never signed on those treaties. As far as how certain treaties turn into customary international law, that is a complex issue that needs separate discussion. But the International Court expressed this well in the case of North Sea Continental Shelf (with respect to Article 6 of the 1958 Geneva Convention):

... [the view] clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed.

But all this is a highly political and policy-based process. Therefore, at a given time there are always those who try to assert that a given treaty never turned into customary international law because of various reasons. One reason would be that there was no proof of widespread practice of international actors abiding by the principle set out in the treaty. However, in cases applying jus cogens, norms that are not dependent on consent of parties-- genocide, war crimes, crimes against humanity-- no party really can try to win these arguments.

Also, it must be kept in mind that interpretation of treaties becomes important. Given the reservations, understandings, and declarations that states add-on to their signatures on treaties, similar to domestic contractual disputes the courts are asked to interpret the application of a treaty rule on a specific case. The court then will look not only to the other sources of international law, but also to the national courts of the disputing parties and their interpretations of that treaty... It is a very complex and live process that often does not render desirable results and subvert the very principles of the given treaty.

Study of International Law

For many people, including lawyers, international law is a nebulous concept. They really view it as something 'somewhere there' and really not applicable to their daily lives, especially because let us face it, most US lawyers do not get the opportunity or even a chance to practice international law. I am not even talking about lay people. This is also because understanding of international law begins from studying international relations and political science. International law is very policy-based and politics driven, more so than many domestic laws.

But the Internet and technological advancements have made it clear that international law affects everyone in myriads of ways on a daily basis. Beginning with your travel passports and ending with you clicking on 'I Accept' button on a website to purchase something, whether you know it or not the international law is at play. Therefore, even for those lawyers who do not really practice international law, it is crucial to know the fundamentals.

Regrettably, not all law students focus on international law while at law school. Since the Bar exam does not test on it, they do not take a basic course in it. I would really suggest that the California Bar add a subject on an essay portion-- International Law. I am planning to write a letter to them.

Most importantly, in the US the law students do not get the same exposure to international law as students in Europe. I had the fortune to lecture Russian law students from the Moscow State University. I was amazed with their comprehension of quite complex international law concepts. Moreover, as I spoke to them, they told me that they regularly visit various International Courts as part of their law school studies. Isn't that awesome? We, students in the USA, were deprived of those opportunities, because of traveling costs and closed gates. It is so much cheaper to travel to Europe from Russia. Plus, the Universities there subsidize much of these costs for students.

I believe, by virtue of our geographic distance from Europe, the center of International law making, we in the US have to work harder in getting closer to international law. It is very unfortunate. While the quality of our lawyers is really high because of intense competitiveness of the legal profession, most lawyers in the US end up generally not knowledgeable in international law issues. Moreover, they are not even interested in it.

That is a gap for our law schools and academics to fill. In the future I would love to participate in that process. For now, for the beginners in international law, here is the first class. What are the sources of international law? Where do we go to find that nebulous 'international law' on a subject?

Article 38 of the Statute of the International Court of Justice has the response (here):

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. ... 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.

This is the hierarchy of the sources for international law from the highest to lowest. How to approach each source, stay tuned for future lessons. But please, remember, international law is tangible and very live... It is perhaps the beginning of all law...