This article has been written by Ms. Diprava Ghosh a 2 year LLM student of Adamas University.
ABSTRACT :
They uphold the nations’ diplomatic ties and stability. Therefore, they are the most crucial components to ensuring global collaboration, harmony, and safety. Treaties are recognized as the primary source of international law in part because of this. This essay examines how important treaties are in establishing and forming international law. Treaties are essential tools for creating standards, guidelines, and values that direct international relations since they are official agreements between sovereign governments. The negotiation, acceptance, and implementation of treaties have a considerable impact on the international
legal environment and play a crucial role in the establishment and evolution of customary international law. An analysis of the procedures for resolving disputes and enforcing treaties offers insights into how practical treaties are at guaranteeing compliance. The study goes beyond the static character of treaties to take into account the ways in which opinion juris and state practice over time contribute to the development of customary international law derived from treaty provisions.
KEYWORDS : Role of Treaties, Definition, Shape, International Court of Justice, International Law, United Nation
INTRODUCTION : Article 38(1) of the International Court of Justice acknowledged the four primary sources of international law as customs, treaties and conventions, basic legal principles, and judicial precedents and teachings. The principal source for determining international law is admissible treaties. Treaties are intended to bind governments to one another in terms of their trans boundary obligations. This aids in the development of cordial ties as well as the definition of authorities, legal guidelines, and the establishment of international organizations. Since the beginning of time, governments have governed themselves through treaties; but, in the past, a simple oral oath taken during a ceremony, in which the parties swore to bind themselves to one another in the name of God, would have sufficed. Legal obligations bind the parties to written treaties today. The Vienna Convention on the Law of Treaties, which came into effect on January 27, 1980, is the main body of law governing treaty law. The United Nations International Law Commission enacted this document to establish guidelines for the implementation of treaties. The vast majority of UN members have ratified this convention as parties. Since the beginning of time, treaties have been a part of the global community. Various kings, princes, and states have used them to create amicable agreements. Treaties are one of the key sources of international law, according to Article 38 of the ICJ statute. Treaties are regarded as a formal and direct source of international law, which governs international relations and national behaviour. The nature of the treaty device, which specifies the rights and obligations of the parties forming part of the treaties, governs the majority of behaviour between states.
Definition of Treaties : A legally binding agreement, contract, or other written document that creates obligations between two or more subjects of international law (usually states and international organizations) is called a treaty. The Vienna Convention on the Law of Treaties (1969) governs treaties between states; the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations (1986) governs treaties between states and international organizations. Mainly a treaty is referred to as “any international agreement in written form concluded between two or more States or other subjects of international law and governed by international law.” Treaties are frequently classified by the number of signatory countries.
Concept of Treaties: In common parlance, a treaty is a written agreement between parties to identify and abide by a set of rules, which may or may not be stated. They might also be known as charters, pacts, agreements, etc. The definition of a treaty does not include declarations or political statements. Numerous principles have been used to classify treaties. They have been categorized according to their purposes as political treaties (such as alliances and disarmament treaties), constitutional and administrative treaties (such as the constitution of the World Health Organization, which is in charge of establishing the organization and managing its affairs), commercial treaties (trade and fishery agreements), criminal treaties (which specify specific international crimes and may call for the extradition of the offender), treaties that codify international law, and treaties that ensure civil justice. A nation not party to the treaty is not required to abide by its rules. But as the International Court of Justice (ICJ) noted in the North Continental Shelf Cases, certain treaties have the potential to influence international behaviour and customs and have a “fundamentally norm-creating character. “The Latin dictum “pacta sunt servanda,” which states that all parties to a treaty must abide by it in good faith and that it is binding on them, is covered in Article 26 of the Vienna Convention on the Law of Treaties. This is the cornerstone of all international agreements. “Reservations” are a means of gaining entry into a treaty by committing to its fundamental terms. They allow a signatory to avoid fulfilling all of the treaty’s requirements. Reservations, however, are only permitted in situations where they do not conflict with the treaty’s goals. A treaty should only be interpreted authentically, keeping in mind its goals and objectives at all times. “Travaux preparatories” and other additional methods of interpretation may be employed if the text is ambiguous. Using a broader-purpose approach is one such way to interpret a treaty. On the other hand, when interpreting a treaty that is the constitution of an international organization, a purpose-oriented approach is used.
Role of Treaties in International Law : International law is based on treaties. They uphold the nations’ diplomatic ties and stability. Therefore, they are the most crucial components to ensuring global collaboration, harmony, and safety. Treaties are recognized as the primary source of international law in part because of this. The Vienna Convention on the Law of Treaties’ preamble highlights the importance of treaties in maintaining international order and recognizes them as a continuum. Treaties date as far back as human memory allows. Ramesses II, the King of Egypt, and the Hittite rulers forged what is arguably one of the earliest known treaties. The oldest treaty with a complete text preserved is the one between the Kings of Elba and Ashur. According to legend, it was finished in the third century BC. Several sovereigns existed in the past, and there was no such thing as a state. Treaties were then made not only between states but also between various ranks of officials or other authorities. During that period, the binding force was a vow to God. The process of concluding treaties progressively became more sophisticated and streamlined over time. Unlike in the past, when treaties were made orally, they are now written. Treaties pertaining to alliances and peace became prevalent and were able to be enacted with the legal authority of statutes, such as the Statum in favorum principium. Treaties gained prominence as states began to settle around the world. Treaties have become increasingly important since the establishment of international organizations. The Law of Treaties then came into being, permanently establishing treaties as a source of international law.
Role of shaping in International Law : In the language of international law, “shaping” refers to the dynamic and ever-changing process by which different factors impact the creation, interpretation, and advancement of international legal norms and principles. In order to reflect how flexible international law is to changing conditions and the variety of parties involved, shaping plays a critical role. The following are important facets of shaping’s function in international law:
Establishment of Legal Norms:
- Treaties and Agreements: The drafting and ratification of treaties as well as other international agreements greatly influence the development of legal norms. Treaties set precise guidelines and norms that direct state conduct in a number of domains, including trade, disarmament, environmental preservation, and human rights.
- Customary International Law: States’ ongoing, regular practices (state practice) and their conviction that these practices are mandated by law (opinio juris) shape this body of law. Consistent behaviour has the potential to develop into customary international law over time, influencing legal standards.
Judicial Interpretation and Precedent :
The rulings of international courts and tribunals influence jurisprudence and subsequent cases by forming legal doctrines. Legal advice can be obtained from international legal organizations such as the International Court of Justice.
Diplomacy and state practice :
- Innovative State Actions: States that take the lead in this area may help to create new standards or reframe those that already exist. International law develops as a result of states taking innovative legal, diplomatic, or policy actions.
- Multilateral diplomacy: Through discussions, reaching consensus, and drafting resolutions and declarations, states’ diplomatic efforts in international organizations and forums help to shape legal norms.
Declarations and Soft Law:
- Non-binding Instruments: Soft law tools that help shape international law include declarations, resolutions, and guidelines. Although they are not legally binding, they can shape state policy and aid in the formation of societal norms.
- Emerging Principles: Before emerging principles are incorporated into treaties or customary international law, they can be tested in soft law, which can act as a bridge to the creation of legally binding standards.
Global Governance and Human Rights:
- Evolution of Human Rights: The ongoing development of human rights standards is indicative of how international law is shaped. Treaties that have shaped the legal framework for individual protection include the Universal Declaration of Human Rights and its follow-up human rights conventions.
- Global Governance Initiatives: By promoting collaboration and creating standards that cut across national boundaries, a number of global governance initiatives—which tackle problems like climate change, sustainable development, and global health—help to shape international law.
Flexibility and Creativity:
- Amendments and Modifications: States’ ability to amend or modify treaties demonstrates the adaptability of international law and enables the updating of legal provisions to address new issues.
- Innovative Legal Instruments: The development of new legal frameworks or mechanisms, like environmental accords or international criminal courts, illustrates how international law has been creatively shaped to address modern challenges.
CONCLUSION :The main international agreement that establishes the fundamentals of all other treaties is the Vienna Convention on the Law of Treaties. The main principle that directs it and imposes duties on all treaty signatories is pacta sunt servanda. The foundation for the creation, ratification, modification, and termination of treaties is provided by this convention, which is crucial because treaties are the main source of international law. Treaties’ transformative power in creating legal frameworks, settling disputes, and promoting international cooperation is reflected in their role in defining and shaping international law. Treaties are dynamic instruments that are always evolving to meet new challenges. They have a significant role in shaping international legal norms and the ongoing evolution of the legal system, as well as in influencing state behaviour in the global arena. In establishing and forming international law, treaties play a crucial, complex, and ever-changing role. Treaties are now essential tools that have a major impact on the international legal system because of their varied functions, historical development, and influence on global norms.
Reference:
- This article is published on June 23, 2020
- This article is published on June 7, 2021
https://lawbhoomi.com/law-of-treaties-in-international-law/
- This article is published on September 2012
DOI:10.1007/978-3-642-19291-3_1
In book: Vienna Convention on the Law of Treaties (pp.1-6)
- This article is published on
https://www.britannica.com/topic/treaty