An Introduction to International Law
Many of the ideas discussed during MUN debates are
founded on the multiple treaties, customs and principles that make up
international law. A basic understanding of the main types of international
law, how it is drafted, adopted and enforced, is therefore helpful.
There are generally considered to be three main sources of international
law:
International Treaties;
International Custom; and
General Principles of Law accepted by Civilised Nations.
International Treaties -
Treaties are agreements between States committing each signatory to a set of certain actions or forms of behaviour. The UN itself was set-up under the provisions of an international treaty, the Charter of the United Nations.
Many treaties are bilateral agreements between two States. For example, under their Bilateral Agreement on the Prohibition of Attacks against Installations and Facilities, India and Pakistan have agreed not to attack each other’s nuclear installations or facilities.
Others are multilateral - often adopted at a meeting of an Intergovernmental Organisation (IGO) such as the UN. For example, in 1950 the European Council adopted the European Convention on Human Rights. Such agreements are often referred to as international conventions or covenants, although the name is of less importance than the content of the treaty. United Nations bodies have adopted a huge range of international treaties. Prominent examples include the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the UN General Assembly in 1948 and the International Covenant on Civil and Political Rights adopted in 1966.
IGOs can also make agreements called declarations, such as the Universal Declaration on Human Rights. Declarations differ from conventions in that they are not legally binding. Nevertheless, they can establish a widely recognised standard. In some cases declarations are adopted because a convention proved too controversial to pass. In 2004, the UN General Assembly reached deadlock discussing a proposed ‘International Convention against the Reproductive Cloning of Human Beings’, but there were sufficient votes to pass the UN Declaration on Human Cloning a year later in 2005.
The drafting, adoption and entry into force of a UN convention follows a set route.
Firstly, the UN General Assembly passes a resolution to establish a working group to conduct relevant research and study to produce a draft convention.
Secondly, the draft is considered by the UN General Assembly, which must pass it with a two-thirds majority.
Thirdly, States must sign the treaty (give agreement to its principles), and ratify it (agree to be legally bound by its measures). For the new convention to become legally binding for an individual State, that State must both sign and formally ratify the convention. The gap between signing and ratifying the treaty may be several years and in some cases a ratification is never achieved. For example, the UN Convention on the Rights of the Child adopted by the General Assembly in 1989 has yet to be ratified by either the US or Somalia. States that have signed and ratified a treaty are often referred to as the ‘state parties to a treaty’ or simply the ‘state parties’.
Finally, the treaty will enter into force. Some treaties will specify a specific date for entry into force, while others will detail conditions that have to be met before this can take place. Often these conditions will include ratification by a certain number of states.
Once in force, a State party to a treaty must alter its domestic law to ensure compatibility with its provisions. However, States may choose not to apply certain elements of a treaty through a derogation or reservation.
Derogations allow a state party to suspend certain parts of an international treaty, particularly during times of national emergency. For example, in November 2001, the UK Home Secretary declared a ‘state of emergency’ to allow derogation from certain elements of the European Convention on Human Rights so that international terrorist suspects could be pursued and detained.
Reservations allow the opting out of certain provisions of a treaty and may be made by a State when ratifying a treaty. For example, a number of Arab States maintain reservations regarding the UN Convention on the Rights of the Child due to incompatibility with Islamic Shariah law. Reservations are not allowed if they are contrary to the object and principles of the treaty. For instance, a State cannot make a reservation to the UN Convention Against Torture that allows them to torture under certain circumstances.
Additions or amendments may be made to a treaty through the drafting of a protocol. One prominent example is the Kyoto Protocol to the UN Convention on Climate Change. Protocols are drafted, adopted, signed and ratified in exactly the same way as other conventions.
All resolutions passed by the Security Council also possess the standing of international law and their provisions must be implemented under the provisions of the UN Charter, an international treaty.
International Custom -
International law can also be established through custom. These are near universal principles of behaviour that are recognised by the majority of states. Under the custom known as pacta sunt servanta, for example, it is convention for a state to be bound by the provisions of treaties they are party to.
General Principles of Law accepted by Civilised Nations -
General Principles of Law are principles recognised by the majority of legal systems. For example, the rule of res judicata, that a case that has been through the full legal process of trial and appeals cannot be reopened, is widely accepted in many states.