Unratified Treaties as a Source of International Law

 

States and people have been entering into formal relationships long before the birth of civilization itself. Over time, these acts or relationships which are practiced from generation to generation, start to form traditions and customs, which today are considered as a source of international law. Article 38 of the Statute of International Court of Justice is the generally accepted classification of the sources of international law. They are:

  • International conventions, whether general or particular;
  • International customs, as evidence of a general practice accepted as law;
  • The general principles of law as recognized by civilized states; and
  • Subject to the provisions of Article 59, judicial decisions and the teachings of highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. [1]

Customs and traditions are certain rules of behavior which directs the lives of people by prescribing what is permitted and not. These are maintained due to social pressure and can be deduced from the practices of states, hence are not necessarily codified. They are constantly evolving and are considered as an authentic expression of the needs and values of a community at any given point of time.
In international law, unlike domestic law, there are no separation of powers and there exists no single body that is able to create laws which are internationally binding, nor a proper system of courts with compulsory jurisdiction. Consequently, international law can only be established with the consent of the states and ought to be self-enforced. International treaties and conventions are agreements signed between States and are the first and foremost source of international law. These are considered superior to customs as express consent of the states are a pre-requisite. They can be drawn parallel to what legislations are in domestic law, as the international court primarily relies on treaty laws to reach a conclusion. The Vienna Convention on the Law of Treaties defines a treaty “as an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two related instruments and whatever its particular designation.” [2]

Treaties may be bilateral or multilateral and is usually only binding on the parties to the agreement. They have three essential features – a) to codify law, b) to crystalize law, and c) to create law. Towards this objective, in modern international law, treaties have to go through the processes of Signature and Ratification. By signature, the respective countries reveal their intention to be party to the treaty and will do no act so as to obstruct the objectives of the treaty, and by ratification, the states have accepted to be bound by the treaty. A treaty that has been signed, but not yet ratified by the states is termed as an unratified treaty. Michael Reisman attempts to explain the position of unratified treaties as a source of international law though an example – a businessman pulls out his card which states his name and his credentials as B.A. Oxford (Failed). He attempts to draw a similar parallel with the treatment of unratified treaties by counsel who are eager to cite such examples not just as authorities but also binding when the pre-requisites of their completion is what grants these documents their legality.[3]
Unratified treaties in essence are unperfected international legal acts because the due process of ratification has not been completed and thus it still isn’t binding on the signatories and hence cannot have a binding legal effect on the country in question. However, the decisions of Permanent Court of International Justice and the International Court of Justice have shown that unratified agreements, unilateral statements and unratified treaties create legally binding obligations even though, at the base of it, they are unperfected international legal acts.

In the Eastern Greenland case, where a verbal declaration was made regarding the sovereignty of Greenland, the Permanent Court of International Justice found it to be an unconditional and a definitive promise.[4] Another example is the Libya-Tunisia maritime border dispute. The dispute arose from incompatible fishing claims from the two colonial powers. The term Modus Vivendi found relevance in this case. Its definition was reiterated by the ICJ to imply two elements, primarily that it is provisional till a solution to the problem is found and second that it is non-prejudicial to both parties. It is at its core, an unperfected legal act.[5] The court acknowledged the binding nature of this sort of agreement, but stated that the lack of any binding authority between the two countries in dispute and the lack of any objection to the principle at hand was reason enough for them to apply this principle of modus vivendi to resolve the dispute entirely.[6] Hence, it is increasingly evident that unperfected legal acts are being granted the recognition of legal value as per international law, and are being used by international courts to adjudicate disputes.

Signatures & Ratification

When one attempts to revisit the business man example with a broader perspective, it in a way allows for the accommodation of unperfected legal acts as documents of authority. If you trace the progress of an unratified treaty, more often than not, the inception of the treaty lies in the collective sentiment of the countries as a ripple effect of the political global scenario, which is then reflected on the decisions and treaties proposed and put forth on the international forum.  In this case, if the businessman were to be a nominee to a prestigious award like a Nobel Prize or a Pulitzer Award, he would in essence mark his card as “Nobel Prize (Nominated)” and, truthfully speaking, even the nominations for such awards are highly prestigious and are given consideration. Thinking similarly, the ICJ in Qatar v. Bahrain stated that unperfected legal acts “may constitute an accurate expression of the understanding of the parties at the time of the signature.”[7] This, makes unratified treaties and other unperfected legal acts worth the attention.

For a state to be part of a treaty, it has to express their intention to be bound. In traditional international law, consent could be sufficiently expressed through the state’s signature to the treaty.[8] However, further action in the form of ratification is necessary under modern international law. The institution of ratification provides a time-frame for the state to legislate according to the terms of the proposed treaty. The Vienna Conventions itself lays down that once party to a treaty, then so long as anything isn’t done by the country to frustrate the object, the treaty’s legally binding nature only begins to exist post the ratification of the document.[9] Due to this, countries would approach international-level disputes with the opinion that their conduct could be used against them regarding the treaty even before the ratification. When a state signs a treaty, they express their intention to be bound to it and hence, they are already bound not to violate or to defeat the purpose of its objects till the time they express their intent to no longer be a party to it. The Bush administration “un-signed” the 1998 Rome Statute to establish an International Criminal Court. By doing so, USA was no longer bound by any obligations and could now undermine the treaty even though the ratification of the same had not occurred.

The separation of signature and ratification finds it origins due to today’s political geography which requires the executive to obtain the approval of the legislature before concluding the treaty. For a monist state, the treaty comes into effect the instant the document is signed, and it will be binding on the state, however, due to the separation of power doctrine, most domestic legal systems today have their power split between the executive, legislature and the judiciary. The signing of treaties for countries like India, for example, would be done by the president and is an executive action, thus any obligation placed would be due to the unilateral executive action. As a result, in modern international law, ratification is also necessary for the country to be bound by the treaty.

Countries today have several reasons for not immediately ratifying treaties that they are signatories to. In democratic countries, the treaty will not be ratified if they are unable to get the approval at the domestic level (the House of Parliament not allowing a treaty to pass in India), or if there exists excess delay in Parliament.

Sometimes states would take a political stance and sign the treaty in order to remain relevant in discussions and to show support towards the issues that have gained popularity at the time.[10] India never ratified the Kyoto Protocol, not because it was ignorant of the growing environmental degradation, but in order to keep up with the nuclear advancement of the neighbors and the already existing nuclear powers in the world. Another reason could be a sudden policy change at the domestic level because of which, the immediate ratification of the treaty is hindered. The country may genuinely wish to ratify the treaty and implement the objects of the treaty, but is unable to.

Legal Effects of Unratified Treaties

The separation of signature and ratification have contributed to upholding the sovereignty of the state and respects their domestic policies. In traditional international law, the lack of ratification can be traced back to the period of the Monarchs, when power was consolidated with one individual. With the ideas of liberty and equality being brought to the spotlight by the French Revolution, the power of governance was given to the people, who elected their leaders.
As the International Courts have increasingly started using unratified treaties to adjudicate disputes, they have started getting recognition as authoritative instruments and have been attributed legal value.

Several claims have been made with respect to the legal effect of unratified treaties. For example, until the Supreme Court verdict in Roper v. Simmons was passed, the use of death penalty for anyone who had committed a grave offence was allowed, even if he hadn’t attained the age of majority. [11] This went against Article 37(a) of the Convention on the Rights of the Child which explicitly prohibited the same.  Another example concerns the Comprehensive Nuclear Test Ban Treaty. Despite the treaty lacking a majority in the senate, the Clinton Administration maintained that the United States still had an obligation under the treaty to avoid firing nuclear weapons by virtue of its earlier signature.[12] Another example is with respect to the First Additional Protocol to the Geneva Conventions – even though the Reagan Administration denied the treaty, the Carter Administration’s signature continues to bind the United States to certain obligations, such as limitations on the use of weaponry.[13]

In the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, a treaty was signed (but not ratified) regarding the sovereignty of the peninsula. The court relied explicitly on the unratified treaty and held that they constitute the accurate expression and understanding of the parties at the time of signature.[14] The court then goes onto some of the reasons when and why unratified treaties are being considered in international law –

  1. The content and object of the treaty ought to be clear and unambiguous so as to deal with the dispute when and if it arises between the parties. The unratified treaty can be used to understand the intention of the parties at the moment of signature and help settle the dispute.
  2. The unratified treaty can be considered in the instance where it is supplemented by another treaty that is ratified. The new treaty gives legal effect to the unratified treaty even though the pre-requisites have not been met.
  3. The international court prefers to maintain the status quo of things. With respect to this, if an unratified treaty helps maintain things the way they are, rather than create something new, the court has the discretion to consider the same.
  4. Unratified treaties can be considered to be legally valid if the ratification occurs due to external factors. The respective state party has to explain the reasons for failure towards ratification. In this case, Qatar contends that they were unable to ratify the treaty due to the outbreak of World War 1.[15]

In another case of Kasikili/Sedudu Island, the ICJ held that Article 31 of the Vienna Convention on the Law of Treaties on treaty interpretations reflected customary international law and hence it was applicable even though both parties to the treaty were not parties to the VCLT.[16]  Even though a treaty is unratified, the accepted norm is that courts may use them as long as they do not contradict the domestic laws of the country.

Conclusion

It is accepted that modern international law imposes obligations on the state the instant the signature is put on the treaty and the state is obliged to abstain from performing acts that go against the object and purpose of the treaty. This is based off Article 18 of the Vienna VCLT, which states that a state that signs a treaty is obliged to refrain from acts which would defeat the object and purpose of the treaty until it shall have made its intention clear not to become a party to the treaty. [17] Moreover, the representative of a state in the international stage holds office under the executive branch of the government. By signing the treaty, the delegate takes the initial step by expressing the intent of the state to be bound by the treaty. However, the delegate has to return to his state and pave the way to make necessary changes as required in the state’s domestic legal system, if any are going against the objects of the treaty. Moreover, if the treaty is held applicable after the signature, this unilateral executive decision creates a clear infringement on the respective state’s sovereignty.  Despite this, the unratified treaties and other unperfected legal acts serve a purpose as they help influence the behavior of the state. Taking all these factors into consideration and all the instances that have cropped up globally of situations where it has been regarded as international law, I am of the opinion that the safest presumption to make is that the binding nature and the possibility of legal imposition of an unratified treaty is not beyond the purview of the international arena. It is a reality that countries today, instead of protesting are becoming increasingly aware of and are assessing their considerations and steps more carefully. This helps in the achievement of a global framework of welfare and harmony.

 

 

BIBLIOGRAPHY

Cases

  1. Eastern Greenland Case, 1933 P.C.I.J. (Ser. A/B) No. 53 (Apr. 5)
  2. Concerning the Continental Shelf (Tunisia/Libya Arab Jamahiriya), 1982 I.C.J. (Feb. 24)
  3. Maritime Delimitation & Territorial Questions between Qatar & Bahrain (Qatar v. Bahrain), 2001 I.C.J. (Mar. 16)
  4. Botswana v. Namibia [1999] ICJ Rep. 1045

Treaties

  1. Vienna Convention on the Law of Treaties

Articles

  1. Curtis A. Bradley, Unratified Treaties, Domestic Politics and the US Constitution, HIJL 48(2) 2007
  2. Bill Gertz, Albright Says U.S Bound by Nuke Pact, WASH. TIMES, Nov. 2, 1999
  3. Reisman, W. Michael, Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions (2002) FSSP 1011

Citations

[1] Article 38, Statute of the International Court of Justice

[2] Vienna Convention on the Law of Treaties, 1155 UNTS 311 (May 23, 1969), art. 2

[3] Reisman, W. Michael, Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions (2002) FSSP 1011

[4] 1933 P.C.I.J. (Ser. A/B) No. 53 (Apr. 5)

[5] Concerning the Continental Shelf (Tunisia/Libya Arab Jamahiriya), 1982 I.C.J. 18 (Feb. 24)

[6] Ibid

[7] Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), 2001 I.C.J. (Mar. 16)

[8] VCLT, Art. 11

[9] Vienna Convention on the Law of Treaties, 1969, art. 18(a

[10] Curtis A. Bradley, Unratified Treaties, Domestic Politics and the US Constitution, HIJL 48 (2) 2007

[11] 543 U.S. 551 (2005)

[12] Bill Gertz, Albright Says U.S Bound By Nuke Pact, WASH. TIMES, Nov. 2, 1999

[13] Ibid.

[14] Supra at 7.

[15] Ibid.

[16] Botswana v. Namibia, [1999] ICJ Rep. 1045

[17] Article 18, VCLT

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