Introduction to International Law

International law is made up of the entirety of the legal principles and norms which govern the international community (States and international organisations). Initially, International Law dealt only with the obligations between States but has since evolved, progressively making room for the growing participation of international organisations, groups, persons and issues, such as the environment. In some cases, especially where the European Convention on Human Rights is concerned, individuals are not only beneficiaries of the aforementioned law, but can also lodge a complaint against the State that infringes upon their rights. International Law has a number of sources: treaties, customary law, general principles of law, precedents and doctrine.

Principles of State sovereignty and non-intervention:

Each State is sovereign over its territory and freely decides its own laws and its path to development. As a matter of principle, no State should intervene in the internal affairs of another State.

However, four limitations prevail:

Treaties and Conventions: States may commit themselves voluntarily to respect certain obligations through the adoption of the treaties or international agreements. These are texts outlining a number of obligations that the States have ratified, and whose implementation may entail more limiting legal mechanisms.

Jus Cogens: The international community considers certain principles universal. These are the peremptory norms of Jus Cogens which forbid slavery, genocide, piracy, apartheid or war, as well as treaties which would interfere with fundamental Human Rights. According to article 53 of the 1969 Vienna Convention on the Law of Treaties (VCLT hereinafter), a peremptory norm of International Law is a norm that has been accepted and recognised by the international community as a norm for which no derogation is allowed, and which can only be modified by the adoption of a new norm of International Law endowed with the same normative characteristic. Peremptory norms have a particular the conviction that no breach is permissible for a norm of International Law (Opinio Juris). A variation of the norm of Jus Cogens renders the treaty void and involves the responsibility of the State. Such norms may place limitations on a State’s contractual freedoms. The adoption of a treaty can also be hampered if it violates a peremptory norm of International Law.

Declarations: Within the context of the United Nations General Assembly or international conferences, States may adopt norms through declarations that recognise certain principles. Such declarations have moral significance but are not legally binding.

International Customary Law: Certain norms and obligations are derived from international customary law (ICL hereinafter). ICL has two sources of origin: the habitual practice of States and Opinio Juris (or legal opinions), by which States are convinced that such behaviour constitutes a legal obligation. There is therefore a material element which, in practice, is associated with the State (the practice of an international organisation can also evolve into normative customs). This practice must be ongoing, recurrent and general. The second element is psychological: it is the conviction that practice mirrors a corresponding obligation. Custom emerges when one or more States, through repeated acts, acknowledge(s) a right or a norm by its regular and protracted occurrence. Thus, the States in question are obliged to respect this norm, even in the absence of a reference in writing. Furthermore, some articles from certain conventions acquire the value of a customary norm or even lead to the establishment of customary law, thus codifying it into a body of written rules.

Making a Treaty or a Convention:

A treaty or a convention bears similarities to a contract between two or more States. In principle, a treaty binds only the States that have ratified it.

The conclusion of a treaty is carried out in four stages:

Negotiation
Negotiations may come under different forms. While negotiations for bilateral treaties are straightforward and take the form of written correspondence, multilateral treaties are drawn up during an international conference with States negotiating directly or through an international organisation. These negotiations usually end with the adoption of the text of the treaty (preamble, legal provisions, annexes...)

Signature (Article 12, VCLT)
During the adoption phase, the signature shows that a treaty has been approved. In multilateral treaties, the text is adopted within the framework of an international conference, upon being signed by the State representatives. The State signs the agreement through its diplomats or a member of its government to show its approval of the principle. The signature is not legally binding except in the case when it is stipulated by the treaty (article 12 para. 1 VCLT). From then on, the State is morally obliged to abstain from any act that would defeat the object and purpose of the treaty (article 18 VCLT). In practice, only a full signature (or a signature ad referendum) of a treaty obliges the State to apply the convention. In other cases, the signature of a representative will require further ratification.

Ratification, acceptance, approval and accession (article 14 VCLT)
States give their consent to be bound by a treaty most commonly by exchanging instruments of ratification. Most countries will set up an internal procedure to ratify the agreement. Certain governments have to submit the convention to their highest institution, such as parliament, for approval. Once the treaty has been internally approved, the government can ratify the convention, which by so doing it commits itself to observe and put into practice.
In the instance of its absence during the negotiations, a State may bind itself to a treaty through accession, rather than through ratification, acceptance and approval.

Entry into Force (Article 24 VCLT)
In the case of a bilateral treaty, this will enter into force upon the exchange of instruments of ratification. A multilateral treaty enters into force after a certain number of ratifications or upon a date set by the treaty. After a treaty has entered into force, it becomes binding upon the States that have ratified it. In some instances, the treaty grants additional time (usually 1 to 3 months) after ratification to enable the State to apply the convention. The State bears full responsibility for the violation of a treaty, as per the latin dictum “pacta sunt servanda”.

Nota bene: the expression used by a State to show its commitment to the treaty may vary according to the treaty. In some cases, the procedure is stipulated by the treaty. In other cases, it is the 1969 Vienna Convention on the Law of Treaties that defines the procedure which must be followed for the completion and entry into force of a treaty.

Reservations (Articles 19 to 23 VCLT)
States can give their “reservations” upon signing or ratifying a treaty. Reservations are unilateral statements whose aim is to exclude or modify the bearing of a legal provision. The State may, for example, commit itself to respect the convention with the exception of certain articles, which it may deem in conflict with its internal law. The reservations can only be made within the context of a multilateral treaty. The reservation is made in writing and notified to the other contracting States. There are three limitations in affecting reservations: the treaty may exclude reservations; it may also prohibit certain types of reservation; the reservation must not be incompatible with the goals and purposes of the treaty.
The aim of the reservation is to exclude or modify parts of the treaty by the author of the reservation of the “reserving State” (article 21 para 1a VCLT). The other negotiating States may demonstrate their approval of a reservation if 12 months lapse without them formulating an objection to it. The acquiescence of the other States enables the reserving State to proceed with the conclusion of the treaty. Conversely, should another State object to the reservation, it becomes the “objecting State”.

Interpretive Declaration
An interpretive declaration is a unilateral statement which clarifies the meaning or the scope of a legal provision of the treaty. An interpretive declaration can be made at any time, unlike reservation which can only be made upon signing or ratifying a treaty. In practice, States frequently make interpretive declarations which are akin to a “hidden reservation”.

Further readings

The Swiss Federal Department of Foreign Affairs publishes a useful ABC of Human Rights available online.