Multilateral Treaties vs Customary International Law - Essay Example

Multilateral treaties vs. customary international law Introduction The present paper is the analysis and evaluation of the ment that 'multilateral treaties are more effective vehicles for the international law than the custom'. In connection with this, it will be necessary to look at both treaty and customary law, and conclude whether treaty appears to be more effective means of regulating international relations. For the aims of the present paper, it should be noted, that modern international law appears to be both treaty and customary, and both treaty and custom norms effectively work for the resolution of the international disputes and regulating international relations. In my reviewing the literary sources, when getting prepared for the analysis on the subject, I have come to the conclusion that the twentieth century itself has displayed enormous progress in the international law, and though treaties at present seem to take the leading place in the instruments and sources of the international law, it finally appears that both custom and treaty are effective, they interrelate, and moreover, treaties appear to be the means of creating new customs in international law. It is yet under question, which of the two sources of the international law is more effective at present, and is it possible that the multilateral treaty becomes more important and reliable for the world community, than the legal custom, according to which this community is accustomed to live Through the literary sources reviewed, I may assume, that customary and treaty law can't act separately, and are more the means of mutual support, depending on the situation; I may also suggest that both custom and multilateral treaties appear to be the effective vehicles of regulating the international relations in the sphere if law and legislation. Though, in the light of the close interrelation between the custom and the treaty it is at times difficult to decide, which of them appears to work more effectively. Thus, the deep analysis of the present situation is to be performed as follows. Treaties or custom - what is a more effective vehicle of regulating international law First of all, it should be noted, that sometimes we point out the universal international consensus on certain issues, as the use of forces between the States or the areas of criminal justice. Can it be stated, that these are the examples of the custom-working international legal system I might accept that these are the examples of the Customary International Law application, shown through the conduct, which the nations display independently from the treaty-based agreements and keep to this conduct as if based on the law or some oral treaty.1 However, it is also important to note, that 'Customary international law is a conceptual structure, which is represented as an assumed or constructed consensus under which those States, that dissent from a precise obligation that may be defined nevertheless agree to be bound because of the supposed collectively representative nature of the decision'.2 Does this mean that custom has broader action in relation to the participating and non-participating parties, and can we thus conclude that ultimately the custom carries greater force than any multilateral treaty It should be remembered, that international law, which as a system appeared a few centuries ago, and has later become general international law, was initially based on the custom, and not on the treaty. The notions of treaty law have become applicable only later with the processes of globalization and the need to solve these global issues by imposing certain obligatory norms on the States - participants of the treaty-making process. Multilateral treaties thus have become the effective instrument of guaranteeing the fulfillment of the obligations by all participating States. Simultaneously, it should not be forgotten, that multilateral treaties are the means of creating norms for only those States, which become the participants of the particular treaty; these treaties are also not spread for the general legal norms, and touch only narrow areas of the international legislation. Thus, and according to Ruggie (1992),3 'the treaty binds only the contracting parties, thus conventional international law is not general but particular law'. As follows, it is the first limitation of the multilateral treaties - they are not universal as the customary law is, and it is possible to conclude that in this relation multilateral treaty is not as efficient as the custom is. Multilateral treaties as a notion have appeared as a kind of innovation in the international law. In reality, the UN International Law Commission has admitted, that a multilateral treaty becomes a working norm, when the leading Powers of the world participate in this treaty;4 but the question of effectiveness and efficiency here related only to the connection between the multilateral treaty and the creation of the universal legal norms. As for the efficiency of the multilateral treaty as it is, its central role and the central meaning of efficiency is in the fact that it is binding on all the parties and thus creates no conditions for the neglecting of the signed norms. The efficiency of the multilateral treaties should probably be viewed through the prism of the most effective and crucial of them, which ultimately have become the turning points of the world history. Let's for example, take the Briand-Kellog Pact of 19285 - the Pact which served as a prohibition of the recourse to the war. This pact was the instrument of abrogating the state right to wage the war. This norm has existed in the international law for many years, and the Pact, which in fact appeared to be one of the most important multilateral treaties in the international law, has actually become the new norm and has changed the international custom6. This is one of the examples of the fact that multilateral treaties can change the customs and the norms, which exist in the international law, but this is not yet the proof of the fact that multilateral treaties work more effectively than the custom does. I should even assume that the custom norms, which had existed before the noted pact has been adopted, worked equally efficiently, and thus it is not possible to conclude that multilateral treaties are more efficient vehicles in regulating international law. The efficiency of the multilateral treaties comes into the issue, when one speaks about the adoption of these treaties by each participating state separately. What is meant here is that any multilateral treaty requires a special procedure of it adoption by each ruling body of the state which signed the agreement. 'It is the case for many states that such international agreements will not give rise to legal consequences within the state until a parliamentary approval has been gained. In other states such international commitments by the executive will be incorporated domestically if consistent with a Constitution: again a process with democratic credentials of a (limited) kind. Clearly the international convention manifests in its origins a process that has some connection with representative democracy, albeit of an indirect and highly diverse kind.'7 What efficiency can be talked here about, if the process of ratification sometimes takes too long period of time, during which the international agreement may even lose its relevance or may be amended. Thus, in this instance, the custom appears to be more efficient vehicle, for it can be applied to any case immediately, while not a single multilateral treaty will be applied to the resolution of the disputes if it not ratified by any particular participating State. Actually, it is difficult enough to distinguish between the effectiveness of the custom and the treaty norm separately, as they often create a convergence. Custom and treaty are the two main sources of the international law, it also often appears that international multilateral treaty grows into the international custom, and these two notions co-exist and are applied in the particular situations depending on the conditions. 'The difficulties that arise from the coexistence of convention law and customary international law include the problem of the peremptory norm 'trumping' any convention-based agreement, as noted above. Another set of problems arises when the specific content of a customary obligation is held to coexist with a convention on the same issue: what might be called the problem of 'double-dipping.'8 However, based on the all above-said we are here closer to the conclusion, that still the custom appears to be more efficient than the multilateral treaty. This may also be proved through the following case. The case was about the Geneva Convention on the Continental Shelf 1958, and it was related to the question whether it was possible to apply the principle of equidistance to Germany, which at that time had not yet ratified the Convention, which in fact was the brightest example of the multilateral treaty. The dispute took place around the Article 6 of the noted Convention, and we read the following there: 'Where the same continental shelf is adjacent to the territories of two adjacent states, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each state is measured.'9 In this particular case, it is easy to see that the norm of equidistance, related to in the article cited, is in fact the customary norm, which is applied when any of the states facing similar issues has not ratified the multilateral treaty on this very issue. It means that multilateral treaty is an effective vehicle of regulating the international law only for those states, which have ratified this or that agreement, and otherwise it is namely the custom which works for the resolution of the disputes, which arise between the States. Thus, the effectiveness of multilateral treaties is in many instances limited. These limitations make custom work more effectively. Despite the fact, that the Article discussed makes agreements more important and obligatory for the states when they have the need of delineating their borders connected with the continental shelf, it still refers to the customary norm of equidistance as the reliable means of resolving the argumentative situations between the states, either they are parties or non-parties of the present multilateral treaty. Speaking about the effectiveness of the multilateral treaties, we are coming to the point, when it become evident, that such treaties and their interpretation are mostly based on the customary law. Moreover, it appears that multilateral treaties themselves can produce the new customary norms, and thus the interrelation between the treaty and the custom becomes even closer. In the article by Baxter (1965),10 we read the case of the Kiel Canal, when the Court for the sake of proper interpretation of the multilateral treaty, has addressed to the other similar outside treaties, which in reality has become the means of creating the new customary norm, on the basis of which other similar treaties would be interpreted in future. as we see, it is another example of the fact, that multilateral treaties separately don't work as effectively as one wants them to. They either work in close interrelation with the customary norms, or refer to such norms when the disputes cannot be resolved by the multilateral treaties only. It is the fact, that multilateral treaties have become the basic instrument of resolving international disputes and regulating the international law, but their effectiveness is not as high as it seemed before. 'Multilateral treaties are more effective than bilateral treaties in codifying the international law; in negotiating multilateral treaties its parties often try to address the subject matter of the treaties as comprehensively as possible; but States negotiating these agreements often have different or conflicting interests, so the final multilateral document may not fully reflect the views and positions of all the States which negotiated it'.11 I have cited this work here for the following purpose: it is difficult to argue that of the two sources of international law - treaties and custom, the treaties often appear to be the source of the customary norms. On the other hand, and as it has been already stated, the international law has started as the customary law, and the custom worked effectively for all the countries involved into the international law. The efficiency of the multilateral treaty has come into force only with the necessity to bind the obligations on the parties; however, there is still no guarantee that the participating States will follow the norms of the multilateral treaty signed and will adopt it. In the present conditions of globalization it is not only difficult to judge, whether the custom or the treaty is the more efficient vehicle for regulating the international law. Multilateral treaties have actually become not the vehicle of regulation, but the means of codifying the already existing customary norms, according to which the world community used to live for centuries. 'This codification has been done mainly through treaties because they are a relatively simple, clear and quick way of crystallizing existing international rules and developing new ones.'12 Thus, the custom appears to be more effective means of regulating international law, with the treaties serving as the means of writing down the already known norms and customs, and making them binding on all the participating States. Conclusion We have herewith come with the following conclusions. First of all, it has become the matter of extreme difficulty to decide, which of the two main sources of the international law - either custom or multilateral treaty - works more efficiently as the vehicle of regulating international law. It often appears that these two sources closely co-exist, moreover, they frequently interrelate and influence each other, and thus it is always impossible neither to separate them, nor to decide, which of them is more efficient in its action and influence. On the other hand, it is also evident that multilateral treaties as the means of regulating international law carry certain limitations, which decrease their force and prevents them from acting more efficiently. One of the serious limitations is the need for the agreement of all parties, which is almost impossible to gain, and thus it often appears that for certain states the norms of the signed multilateral agreement come into contradiction with the already existing internal law or agreements; in addition, the procedure of adopting international agreements at the internal level through parliaments and other executive bodies sometimes meets opposition and becomes too long, during which time the relevance of the multilateral treaty may be decreased. The effectiveness of the multilateral treaty comes into force only through its binding character, though even this feature cannot guarantee the fulfillment of the norms by all parties. Looking at the international law through the prism of the modern globalization needs and strivings, it becomes evident, that the custom, being the starting point of the international law as whole, remains more efficient vehicle of regulating the international relations, with multilateral treaties serving as the means of codifying these customary norms. The custom remains the basis for resolving the disputes arising from various multilateral treaties, and is referred to when a new treaty is signed. The custom is still the ground on which international law exists. Bibliography Baxter, 'Multilateral Treaties as Evidence of Customary International Law', 1965, BYIL, Vol. 41, 275-285 Cassesse, International Law, (2nd ed., 2005) North Sea Continental Shelf Cases, (ICJ Reports, 1969) Ruggie, 'Multilateralism: The Anatomy of the Institution', 1992, International Organization, Vol. 46, No.3, 344-349 Twining, Globalization and Legal Theory, (London, 2000) P. S. The amount of words is 2524. 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