Conclusion and Entry in to Force in International Law - Essay Example

 Conclusion and entry in to force in international law Table of contents 1. Introduction 2. International law – general overview 2.1 Treaties 2.1.1 Means of expressing consent 2.1.2 Intention to produce legal effects 2.1.3 Full-powers 2.1.4 Negotiations and adoption 2.1.5 Acceptance, approval, authentication, signature and exchange 2.1.6 Ratification 2.1.7 Entry in to force 2.1.8 Depositories 2.1.9 Notification, corrections 2.1.10 Registration 2.1.11 Publication 3. Conclusion References 1. Introduction The development of international law has been made necessary under the increase of conflicts of various forms within the international community. The increase of these ‘conflicts’ led to the formulation of a series of legislative texts in order to regulate effectively all issues related either directly or indirectly with the relevant disputes. The Vienna Convention is considered to be one of the most important legal texts for the resolution of disputes internationally. The particular Convention includes a series of rights and obligations for all states around the world (applicable only to states that have ratified the Convention). One of the most common problems for the legislative texts that are established by the states internationally after the intervention of long term negotiations is the lack of appropriate framework for the enforcement of these provisions in practice. More specifically, despite the fact that Treaties and Conventions are developed around a well structured framework being sufficiently justified in practice their application in practice faces many obstacles mostly because these international agreements are not appropriately ratified by the countries which they address or there is no effective mechanism available for the application of these agreements globally. Current paper refers to the issue of entry into force in international law. In this context, all aspects of the relevant procedure will be analyzed and evaluated trying to identify the reasons that can lead (possibly) the relevant efforts (practical application of Treaties and Conventions) in failure. On the other hand, the parameters for the successful implementation of Treaties and Conventions within the international community should be also examined taking into account the fact that through the years it is very likely that these parameters will change under the influence of the social and cultural changes of the states involved and the political and economic turbulences that characterize the international community. 2. International law – general overview International law can have many forms. Most commonly international law is expressed through mutually accepted agreements (referring to all the states or some of them within the international community) like Treaties (Conventions). In accordance with Finch (2000, 59-60) ‘treaties constitute a source of international law by reason of the lack of development in international relations of agencies analogous to the law-enacting and law-determining branches in the internal constitutional structure of states’. On the other hand, it could be stated that ‘generally speaking, international law in the meaning of the term as used in modern times, did not exist during antiquity and the first part of the Middle Ages; it was born of necessity after a number of separate and independent states had successfully established themselves in propinquity one with another’ (Finch, 2000, 3). The application of international law in practice usually faces many obstacles mostly because of the lack of willingness by the states globally to apply its provisions. It should be also noticed that the role of states in the development of international law is considered to be critical. In accordance with Byers (1999, 11) ‘states have jurisdiction and full international legal personality, the combination of which gives them the competence to control their territory and to represent themselves and their nationals in international law; as a result of their full international legal personality States are also formally equal; this 'sovereign equality' entitles them all to the same general rights and subjects them all to the same general obligations, as ensured by the principle of reciprocity’. Current paper focuses on all the issues related with the application in practice of the provisions of the international law, especially on the entry into force of these provisions in states around the world. The case of Vienna Convention is used in order to show the weaknesses of international law when having to be applied in practice. 2.1 Treaties – The Vienna Convention, the Treaty on European Union Through the years the role of Treaties can be differentiated. Referring especially to the role of Treaties in the nineteenth century Brownlie (1963, 133) notices that ‘in the nineteenth century treaties terminating wars frequently contained obligations for the payment of 'indemnities' by the vanquished to the victor state; in the peace treaties following the First World War an attempt was made to link the payment of reparations with responsibility for waging aggressive war’. As already stated above, current paper will be based on Vienna Convention in order to examine the procedure of entry into force referring to the provisions of international law. In accordance with the first article of the Vienna Convention: ‘The present Convention applies to treaties between States’. At a next level, all the requirements and the terms of the application of this Convention in practice are developed in the second article of the Convention where it is stated that ‘1.For the purposes of the present Convention:(a) “treaty” means an international agreement concluded between 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 … (e) “'negotiating State”' means a State which took part in the drawing up and adoption of the text of the treaty.. (f) “'contracting State”' means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force… (g) “'party”' means a State which has consented to be bound by the treaty and for which the treaty is in force’. Another example of international agreement that has been important for the global community has been the Treaty on European Union. The particular Treaty created a Union of states (referring to all aspects of union, monetary, professional, judicial and so on) and it should be considered as one of the most important legal texts in the context of the international law. Regarding this issue, it is noticed by Konig (2000, 93) that ‘when signing the new Treaty on European Union in Maastricht, the governmental leaders of the 12 member countries of the European Communities had accomplished a significant step towards economic and political union; before taking effect the draft proposal had, however, to be ratified according to the procedures of the 12 member countries’. In accordance with the above terms, a state within the international community can opt to be excluded from the list of the countries in which Vienna Convention will be applied. If a state chooses to be bound by the above Treaty (a procedure similar with the one followed by the high percentage of Treaties internationally) then it should follow the procedure described in the text of the Treaty. It should be noticed here that the possible refusal of the states that participate in the negotiations for a Treaty to sign (ratify) its content could lead the whole effort (adoption of the Treaty) in failure. In case of the Vienna Convention the consequences of the refusal of the states to give their consent to the Treaty’s text are analyzed in article 9 where it is stated that ‘The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2.2.; the adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule’. In order for a Treaty to start producing its effects, it should be primarily ratified by all states (apart from exceptions that should be mentioned clearly in its text) in accordance with a specific procedure. In this context, all parameters of the entry into force of a Treaty should be studied separately as they all have significant importance for the fully application of the Treaty’s terms in practice. 2.1.1 Means of expressing consent As already mentioned above in articles 2 and 9 of the Vienna Convention, in order for a Treaty’s text to be accepted all states that participate in the relevant conference (or a specific percentage of them) should express their consent. Consent is usually expressed by voting positively regarding the content of the Treaty showing the willingness to be bound by the Treaty in accordance with its terms and conditions. The procedure of offering consent to the text of a Treaty can be explained using the case of Vienna Convention where it is noticed that ‘the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed’ (article 11 of Vienna Convention). The particular issue has been examined by Malanczuk (1997, 131, 132) who noticed that ‘the multiplicity of methods of expressing consent has unfortunately introduced much confusion into the law; traditionally, signature and ratification are the most frequent means of expressing consent; in some cases the diplomats negotiating a treaty are authorized to bind their states by signing the treaty; in other cases their authority is more limited, and the treaty does not become binding until it is ratified (that is, approved) by the head of state’. In accordance with the above the consent to the text of a Treaty can be expressed using specific methods; however the states involved may set additional rules regarding the provision of consent to the text of a Treaty by their representatives. 2.1.2 Intention to produce legal effects When a state offers its consent to the text of a particular Treaty, it can be assumed that this state declares its willingness for this Treaty to produce fully its legal effects. In many cases, although a state approves a Treaty (as this approval is expressed in different stages of the relevant procedure, see article 2 of the Treaty) it can makes a statement that is called ‘reservation’ which shows its intention to ask for the modification of a particular article of the Treaty. The specific issue is noticed in the article 2 of the Vienna Convention (used indicative as explained before) where it is mentioned that ‘(d) “'reservation”' means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’. On the other hand, Oberg (2005) supported that the legal effects of international agreements can be divided into three major categories: ‘the first is substantive effects; these include binding, authorizing and (dis)empowering effects; the second category is causative effects, whereby determinations of fact or of law bring substantive effects into existence; the third category is modal effects – how and when the substantive effects come into existence (e.g. immediate or deferred, retroactive or non-retroactive, reversible or irreversible effect)’ (Oberg, 2005, 879). All these effects may have different forms in accordance with a series of parameters. In the literature the ‘character’ of these effects has been explained using a specific criterion: whether these effects are intrinsic or whether they are intrinsic. The former ‘are based on the special treaty powers of the United Nations Security Council and General Assembly’ (Oberg, 2005, 879) while the latter ‘are directly based on general international law, in particular on the rules of formation of customary international law’ (Oberg, 2005, 879). The identification of other types of legal effects when referring to an international agreement is possible. It depends each time on the priorities set by the parties involved, the needs of the international community (regarding a particular issue) and the prospects for the effectiveness of a specific international agreement around the world. 2.1.3 Full-powers The issue of ‘Full Powers’ is stated clearly in Vienna Convention, article 2. In the specific article it is noticed that ‘(c) “'full powers”' means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty; (article 2 of the Convention)’. The particular issue is explained more analytically in the article 7 of the Convention where it is noticed that ‘1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers..’ (article 7 of the Convention). In other words, in order for a state to be appropriately represented in the negotiations for a Treaty, its representatives should have ‘full power’ in order to represent it (or else they should meet specific criteria that they give them the right to be present in the negotiations for the account of the particular state). It should be noticed that the text of the Treaty may refer to exceptions on the above rule or set specific criteria that they should be met by the states’ representatives. The paragraph 2 of the article 7 of the Convention is an indicative example of this case. 2.1.4 Negotiations and adoption As stated above, in order for an international agreement (Treaty) to be applied in practice it is necessary that the states participating in the relevant negotiations to follow the guidelines provided in the Treaty’s text. The same assumption can be made regarding the adoption of the Treaty. More specifically, both the development of the negotiations and the adoption of the Treaty will be regulated by the provisions incorporated within the Treaty’s text. Additional (supplementary) rules could be applied in case that the states that participate in the negotiations have established specific rules regarding the progress of the negotiations and the approval/ ratification of the Treaty’s text. The above rules should be applied in all stages of the negotiations related with the adoption and the application of the text of a particular Treaty. 2.1.5 Acceptance, approval, authentication, signature and exchange The development of the negotiations related with a specific Treaty is depended (as explained above) by the application of the terms stated in the Treaty’s text regarding the application of the specific Treaty in practice. Using as an example the Vienna Convention we could notice that in article 2 of this Convention it is noticed that ‘… (b) “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty’ (article 2 of Vienna Convention). The stages at which the above effects will take place depend on the text of each Treaty and the willingness of the high percentage of the participants – who can ask for the differentiation of part of the procedure suggested in the Treaty’s text. 2.1.6 Ratification In accordance with the official website of the Foreign and Commonwealth Office (UK, 2008) ratification ‘follows signature and signifies the consent of a State to be bound by the treaty; it consists of the deposit of an instrument of Ratification with the other other State (bilateral), or the Depositary (multilateral); any process of obtaining parliamentary approval for ratification is not ratification, though often mistakenly referred to as such’. Ratification also will follow the rules included in the Treaty involved unless other rules have been established by the states involved. In this context, each state should follow the rules including in the Treaty’s text modified in order to meet also the requirements set by the state regarding the specific stage of the whole procedure. It should be noticed that the rules of the state can have only ‘subordinate’ value; they cannot eliminate the Treaty’s rules. 2.1.7 Entry in to force Generally, the procedure followed for the entry into force in international law is different from the one followed for the entry into force in national laws. Regarding this issue, it is noticed by Finch (2000, 59-60) that ‘in a legislative body laws are usually enacted by a majority vote of the members, or by a number of votes less than the entire membership; unanimity is never required; but till now there has been no such thing in the international community as rule by the majority; states are bound only by such international conventions or other acts as they choose to agree to by signature and ratification or by other recognized methods of signifying acceptance; thus the general practice of international conferences requires unanimous agreement for the adoption of an international act intended to bind all the members’. The application in practice of the provisions of a Treaty may face obstacles especially when this Treaty is opposed with the practices followed by states regarding the regulation of specific disputes. In this context, it is noticed by Spiro (2003, p. 2006) that ‘ international law shows evidence of constitutionalization, at least in the broadest terms of imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights; where international law was formerly blind to the treatment of individuals as such by states, it increasingly constrains the terms of state action; given the shared premises of the international and domestic regimes, this development cabins the threat of a constitutionally unconstrained treaty power’. Because of the above reasons, it is necessary that all states that participate in the negotiations on a specific Treaty to take in advance all necessary measures in their national law in order to ensure the alignment of this law with the principles of international law as stated in the particular Treaty. 2.1.8 Depositories When referring to Treaty, depository has a specific explanation meaning ‘usually one State, an international organization, or its chief administrative office so designated in a multilateral treaty; the depository performs in an impartial manner various functions with regard to the treaty; responsibilities include receiving signatures and instruments of ratification and communicating comprehensive and up-to-date information on the status of the treaty (e.g. list of parties)’ (Foreign and Commonwealth Office, UK, 2008). In accordance with the text of the Convention on the Rights of the Child (2008) ‘after a treaty has been concluded, the written instruments which provide formal evidence of a State’s consent to be bound are placed in the custody of a depository; the depository must accept all notifications and documents related to the treaty, examine whether all formal requirements are met, deposit them, register the treaty and notify all relevant acts to the parties concerned’. The context of depositories could be better understood if referring to the Vienna Convention which includes specific provisions (articles 77-79) in order to explain the role and the characteristics of depositories. 2.1.9 Notification, corrections Notification involves to the right of all the states participated in the negotiations on a Treaty to be informed within a short time on any change related with the Treaty’s text or the procedure followed. We can indicatively refer to the right of notification under the EC Treaty which states in article 88(3) that ‘the Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid; if it considers that any such plan is not compatible with the common market having regard to Article 87, it shall without delay initiate the procedure provided for in paragraph 2; the Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision’ (Czech Republic, Office for the Protection of Competition, 2008). If appropriately be notified the state involved can submit any corrections related with the text of the Treaty. 2.1.10 Registration Registration is necessary in order for the states that participate in the negotiations and the approval of a Treaty to have the right to claim the existence of this Treaty (in terms of their binding from this Treaty as well before the international organizations. The particular issue has been examined in practice and it is stated that ‘according to Article 102 of the Charter of the United Nations no party to an international agreement which has not been registered it with the Secretariat of the United Nations may invoke that agreement before any organ of the United Nations and in particular not before the International Court of Justice’ (International Law of Treaties, 2008). The rest terms of registration should follow the same rules as the ones stated above regarding the approval and the ratification of a Treaty. 2.1.11 Publication The publication of the Treaty is made usually through the international organization which has started the initiatives for its entry into force. In this context, the procedure followed is depended on the rules applied by the relevant international body regarding the specific issue; the relevant rules included in the text of Treaty should be also taken into account. 3. Conclusion Because the social and cultural characteristics of population around the world tend to change so has to do the provisions of international law. The specific issue has been examined by Reisman (2002, 779) who came to the conclusion that ‘one of the features of the international social process is, on the one hand, its extraordinary complexity and rapid change, characteristics that underline, wherever they manifest themselves, a constant need for law; on the other hand, a complementary feature is the rather primitive level of articulation and development of the institutions and practices for making and changing law and terminating legal arrangements that have become obsolete’. In any case, the importance of international law for the development of states around the world is significant. For this reason, it is noticed by Byers (1999, 6) that ‘a legal system such as the international legal system does more than simply create expectations and promote stability; it also fulfils the essentially social function of transforming applications of power into legal obligation, of turning 'is' into 'ought' or, within the context of customary international law, of transforming State practice into customary rules’. It is for this reason that states around the world should try to promote the principles of international law by following strictly its rules as they are stated through the international agreements that are appropriately approved and ratified by a high percentage of states within the international community. On the other hand, it has been proved that Treaties are the most significant tool in order to fight inequalities and other negative social and political phenomena around the world. For this reason it is quite important that their terms are strictly followed (after the approval and the ratification procedures are finished) by all countries internationally. The specific issue was highlighted by Wheaton, who noticed in 1846 that: ‘While in every civil society or state there is always a legislative power which establishes, by express declaration, the civil law of that state, and a judicial power, which interprets that law, and applies it to individual cases, in the great society of nations there is no legislative power, and consequently there are no express laws, except those which result from the conventions which states may make with one another’ (Wheaton, 1846 in Finch, 2000, 59-60). Furthermore, states around the world are not always positive towards the possible implementation of a Treaty within the international community (at least in cases where their interests are not promoted). The particular issue has been examined by Roth (2000, 2) ‘close study of the practice and legal pronouncements of states and international bodies suggests that collective legal recognition of governments is not nearly so simple a matter; effective control within states is frequently contested, and factions with little or no actual control have, on many occasions, been widely treated as the sole representative of the state's legal personality’. Another issue that should be highlighted is the fact that a Treaty cannot establish rules that delete personal rights as they have been recognized and protected around the world. Regarding this issue, it is noticed by Spiro (2003, p. 2005) that ‘where accession to an international treaty regime poses a plain downward departure from internal interpretations of individual rights, the United States has rejected or qualified its participation; a consensus continues to hold that treaties cannot result in the diminishment of constitutional rights; where international treaty regimes have posed a direct potential conflict, there has been little debate as to the need to condition participation accordingly’. In accordance with the above, the role of a state in promoting international agreements is significant (the level of significance is higher in accordance with the position of the state within the international community, in terms of its economy and its population). The specific issue was highlighted by Roth (2000, 2) who noticed that ‘according to the traditional interpretation of the sovereign equality framework, once a state is recognized as a member of the international community, any questioning of the legitimacy of the apparatus that effectively governs that state constitutes undue intervention in internal affairs; under most circumstances, a government that maintains the "habitual obedience," of the bulk of the populace is automatically acknowledged to possess the legal capacity to assert rights, incur obligations and authorize acts on behalf of the state’. However, in order for a Treaty to promote the development of states around the world it should be carefully designed incorporating provisions that refer to specific problems around the world. The reference to the problems faced by a specific region cannot be rejected; however Treaties should rather refer to issues that interest the vast majority of states internationally. In practice, the full acceptance of a Treaty by the international community can face severe delays. In the case of Vienna Convention (which was primarily entered into force on January of 1980) it has been found that ‘it took more than 10 years for 35 states to ratify the instrument or to accede to it; although its entry into force may hasten ratification and accession somewhat in other states, it will probably be a very long time before a large majority of states are parties to the Convention’ (Vierdag, 1982, 779). The above assumptions can be also valid for other Treaties that are attempted to be applied on the international community. References Baratta, R. (2000) Should invalid reservations to human rights treaties be disregarded? European Journal of International Law, 11(2): 413-425 Brownlie, I., Brookfield, F. (1992) Treaties and Indigenous Peoples. Oxford: Clarendon Press Brownlie, I. (1995) Basic Documents in International Law. Oxford: Oxford University Press Brownlie, I. (1963) International Law and the Use of Force by States. Oxford: Clarendon Press Byers, M. (1999) Custom, Power, and the Power of Rules: International Relations and Customary International Law. Cambridge: Cambridge University Press Czech Republic (2008) Office for the Protection of Competition, available at http://www.compet.cz/en/state-aid/notification-procedural-rules/ Convention on the Rights of the Child (2008), available at http://www.unicef.org/crc/files/Definitions.pdf Finch, G. (2000) The Sources of Modern International Law. Buffalo, NY: William S. Hein Foreign and Commonwealth Office, UK (2008) available at http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1007029396068 International Law of Treaties (2008) available at http://www.walter.gehr.net/depositary.html Malanczuk, P. (1997) Akehurst's Modern Introduction to International Law. London: Routledge Oberg, M. (2005) The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ. European Journal of International Law, 16(5): 879-906 Reisman, W. (2002) Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions. Vanderbilt Journal of Transnational Law, 35(3): 729-742 Roth, B. (2000) Governmental Illegitimacy in International Law. Oxford: Oxford University Press Spiro, P. (2003) Treaties, International Law and Constitutional Rights. Stanford Law Review, 55(5): 1999-2020 Vierdag, E. (1982) The Law Governing Treaty Relations Between Parties to the Vienna Convention on the Law of Treaties and States Not Party to the Convention. American Journal of International Law, 76(4): 779-781 Websites Vienna Convention on the Law of Treaties (1969, entered into force 1980) http://www.legislationline.org/legislation.php?tid=105&lid=4633&less=false [1] http://www.un.org/law/ [2] Another issue that should be highlighted is the fact that a Treaty cannot establish rules that delete personal rights as they have been recognized and protected around the world. Regarding this issue, it is noticed by Spiro (2003, p. 2005) that ‘where accession to an international treaty regime poses a plain downward departure from internal interpretations of individual rights, the United States has rejected or qualified its participation; a consensus continues to hold that treaties cannot result in the diminishment of constitutional rights; where international treaty regimes have posed a direct potential conflict, there has been little debate as to the need to condition participation accordingly’. Read More