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.)