Akshat.

Tiwary – D 238
Advocate Madhulika Mundra & Prof Poorva Dighe

JITENDRA CHAHUAN
COLLEGE OF LAW
Study of Treaty as a source of
International Law
 Serial
Table of Contents Page No.
No.
1 Acknowledgement 2

2 Introduction 3

3 Sources of International Law 4

4 Treaties 5

5 Reservations, Declarations, and Derogations 8

6 Conclusion 9

7 Bibliography 10

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Acknowledgement

To complete any assignment successfully, a student requires a lot of guidance and

constructive feedback and I am very grateful that I have received it all along the way. Special
thanks to Advocate Madhulika Mundra for giving me this opportunity to do this assignment
and always being supportive and helping out with the queries.

I would also like to place on record my gratitude to Prof. Poorva Dighe for always taking an
extra step to provide me with information and conducting webinars which has helped me
during the assignment. I would also like to thank everyone who has helped in smallest of
ways, despite of their busy schedule.

Thank you,

Akshat. Tiwary (D-238)

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Introduction

Traditionally, international law is made by sovereign states and deals with matters such as
diplomatic relations, military issues and state territory. The focus of international law on
relations among states has proved to be both a source of strength and of weakness. The
control exercised by states over the making and development of international law contributes
to its effectiveness. States are unlikely to develop legal norms unless they are in harmony
with their national interests and unless they plan to abide by them.

On the other hand, control by states over international law means that useful or necessary
changes will be delayed or obstructed if they conflict with the interests of states. For
example, the efforts to control global climate change is one such issue that has affected all
countries and has been discussed a lot, but the countries that matter the most, the major
polluters, are those that are most reluctant to cooperate effectively. Yet, without their consent,
there can be no real progress.

Treaties, also known as pact, agreement, covenant, charter, protocol, memorandum of

understanding and exchange of letters, notes, between States – or sometimes between States
and international organizations – are one of the main sources of law.

Treaties may be either bilateral or multilateral, and deal with a wide range of matters. There
are multilateral law- making treaties that codify certain fields like the Law of Diplomatic
Relations or the Law of the Sea. These large multilateral treaties usually engage the attention
of those who deal with the development of international law.

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Sources of International Law

The statute of the International Court of Justice identifies certain categories as the basis for
deciding international disputes. Article 38 of the statute of the International Court of
Justice identifies the sources of international law and states that:

1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:

2. international conventions, whether general or particular, establishing rules

expressly recognized by the contesting states;

3. international custom, as evidence of a general practice accepted as law;

4. the general principles of law recognized by civilized nations;

5. subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.

Hence, the sources of international law may be summarised as international treaties and
conventions, international customary law, the general principles of natural law as recognized
by nations, and judicial decisions and teachings of authority.

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Treaties

Article 2 of the Vienna Convention on the Law of Treaties outlines the role of international
treaties and conventions as a source of international law, '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.

Treaties may be of two kinds—

1. Law-making Treaties: These are multilateral treaties and mainly intend to have
universal or general relevance.

2. Treaty-Contracts: These treaties apply only between two or small number of states.
They are mainly bilateral treaties.

Treaties are generally considered as persuasive law that confers obligations on parties to it.
Technically, a treaty is not a source of law as much as it is a source of obligation under law.
Treaties are binding only on States which are parties to it and the choice of whether or not to
become party to a treaty is entirely on the individual state – there is no obligation to become a
party to a treaty. A treaty is binding on those States which have become parties to it is based
on a rule of customary international law – pacta sunt servanda – which requires all States to
honour their treaties. It is this very principle that demands obedience to treaties ratified by
nations and essentially forms the indispensable foundation of a just system governing
sovereign nations as equals.

Treaties are consent-based in the sense that states voluntarily agree to be bound by the terms
of a certain treaty. A state is only governed by a treaty if it has ratified it, though there are
exceptions to this. The means of expressing consent is dealt with in Article 11 of the
aforementioned Vienna Convention, which states 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’.

Both contractual as well as obligations in the form of law have authority and nations agree to
be bound by them. Hence, both bilateral and multilateral treaties essentially affect countries
that are party to it in the same way—they are persuasive and binding in nature. All treaties
are contractual as between their parties, but there is no doubt that these treaties also have an
effect on the general law. In practice, it has been through the adoption of numerous treaties
on different areas of international law such as war, terrorism, and diplomacy and treaty-
making that international law has undergone its most important changes in the years since
1945.

Multilateral treaties conferring legal obligations that a multiplicity of nations agree to be

legally bound by confer the authority of international law upon the treaty in effect whereas,
bilateral treaties or such treaties as those that have a narrower scope of application generally
bear closer resemblance to contracts conferring contractual obligations on nations rather than

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international law as we speak of it; although in reality, they bind the behaviour of nations in
nearly the same way.

In theory, where a treaty provision codifies a rule of customary law, the source of law is the
original practice and opinio juris – the treaty provision is merely evidence. However, the fact
that writing down a rule which was previously unwritten changes that rule is overlooked.
From the moment a rule is written, it is the written provision to which everyone will refer and
the debates about the extent of the rule will largely revolve around the interpretation of the
text rather than an analysis of the underlying practice. Moreover, even where a treaty
provision is not intended to be codificatory but rather is an innovation designed to change the
rule, it can become part of customary law if it is accepted in practice.

There are treaties which have been successful as they have been ratified by most states and
have brought stability to the areas of international law regulated by them. The best example is
the Vienna Convention on Diplomatic Relations, which commands almost universal
participation and acceptance.

However, such partial success cannot disguise the fact that law-making by multilateral
treaties suffers from serious shortcomings. The process is both cumbersome and protracted.
For example, the making of the Law of the Sea Convention, which was initiated in 1973 with
the United Nations Conference on the Law of the Sea, took until 1994, to complete its entry
into force for 60 states.

The making of a multilateral law-making treaty involves several stages. The first is
deliberation by an expert body such as the International Law Commission, followed by the
acceptance of a draft treaty by a political body, such as the General Assembly of the United
Nations.

Then, there is usually a state Conference at which the text of the draft treaty is finalized.
Eventually, the treaty will be ratified by individual countries leading to its entry into force.
Even after entering into force, a treaty only binds those states that have given explicit consent
to be bound. Withholding of such consent by a single powerful state, such as the United
States, can seriously undermine the effectiveness of the treaty. There are many examples for
such a situation; the Law of the Sea Convention, the Comprehensive Nuclear Test Ban Treaty
or the Rome Statute for an International Criminal Court.

Bilateral treaties also sometimes serve as an instrument of law making. In fact, certain areas
of international law are primarily regulated through a series of bilateral treaties. Prime
examples of bilateral treaties are extradition treaties, air transport agreements and bilateral
investment treaties. However, it is obvious that this method is neither efficient nor elegant.
To create a network of bilateral treaties on a single topic, among all 188 members of the
United Nations, UN would require over more than 15,000 of such treaties, with each of these
treaties being negotiated separately amongst the individual states. Although often similar,
these treaties are likely to display variation and consequently, do not create uniformity and
equality of treatment.

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The phenomenon of international law, as the body of legal rules, norms, and standards that
apply between sovereign states and other entities that are legally recognized as international
actors, is a testament to the fact that the sovereign states and other international actors are
interconnected and the action of one state has an effect on all the states. The sheer
interdependence and reliance on which nations are built and thrive provide the basis for the
sustenance of international law.

However, this body of law is very vital and dynamic as it continues to adapt and cater to the
needs of society as the society progresses through a series of cultural and moral evolutions.

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Reservations, Declarations, and Derogations

The purpose of a treaty is to encourage countries to be signatories to it and increase its

universality of application so as to hold countries to the same standard of justice. However,
the process of drafting an international treaty is cumbersome and drawn out owing to the
number of states that are involved in the process and the resultant multiplicity of viewpoints.
The process of drafting a treaty includes stark disagreements and debates upon every aspect
of the agreement. In order to increase the number of signatories and ratifications of a treaty,
and hence global order, international law allows a system of picking and choosing for nations
wherein they may limit application of certain provisions of the agreement under
consideration. This is done through reservations, declarations and derogations. Reservations
are defined by the Vienna Convention as:

‘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.’

Only specified reservations are permitted and they cannot undermine the object and purpose
of the Treaty.

Declarations, unlike reservations, do not affect legal obligations, but are often made when a
State expresses its consent to be bound by a specific treaty. The State uses the declaration to
explain or clarify its understanding of particular aspects of the treaty text.  

Derogations allow for a system where countries can make space for certain situations and
exigent circumstances whereupon the effect of the provisions of a treaty may be suspended or
otherwise derogated. For instance, in a situation of war or internal conflict, the right to
assemble peacefully may be suspended. However, some basic human rights cannot be
derogated from under any circumstances, notably the prohibition on torture, inhumane and
degrading treatment. This ensures basic protection of rights. 

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Conclusion

The cornerstone of international law is the consent of states. This consent emerges from a
process of communication, when consent is given explicitly to a rule of international law; it is
a treaty and when such consent is more implicit, is customary international law. These two
types of norms: treaties and customary law, continue to be the most important sources of
international law.

The fact that a large number of States agreeing upon a treaty provision is in itself an
important piece of State practice, because if the party states subsequently apply the treaty
provision – especially with those States which are not parties to the treaty – then it can
quickly become part of customary international law.

Over the years, new areas of international law emerged, which do not fit the traditional
pattern of a legal system concerned solely with relations among sovereign states. These new
areas include human rights, which deals with the treatment of individuals and groups,
international criminal law and international economic law that seek to regulate the activities
of private participants in the international marketplace and also the way states deal with them.

Unlike the more traditional areas of international law, these new fields are not primarily
concerned with balancing state interests. They deal with the rights and duties of individuals,
groups and companies. Many of the interests involved transcend state boundaries. Some of
them concern the entire global community. However, the legal techniques for tackling these
international issues have remained largely unchanged and these legal tools are still controlled
by states, usually conditional upon their consent and are often used to further their specific
interests. 

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Bibliography

1. Malcolm Shaw, International Law BRITANNICA, 

https://www.britannica.com/topic/international-law

2. Statute of The International Court of Justice, International Court of Justice

3. Vienna Convention Treaties, OAS, https://www.oas.org/legal/english/docs/Vienna

conventionTreaties.html.

4. Marlon Konchellah, Customs and Treaties Of International Law, Legal Mind,

http://mkonchellah.blogspot.com/2011/03/customs-and-treaties-as-source-of.html.

5. The Sources of International Law, Law Teacher

https://www.lawteacher.net/free-law-essays/international-law/the-sources-of-
international-law.php.

6. Sources of International Law,Diakonia,

https://www.diakonia.se/en/IHL/The-Law/International-Law1/Sources-of-IL/.

7. North Sea Continental Shelf Cases, International Court of Justice,

https://www.icj-cij.org/files/case-related/51/051-19690220-JUD-01-00-EN.pdf

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