Unratified Treaties A Source Of International Law? – Analysis

By Srinivas Raman

International law like other legal regimes is governed by certain sources from which it derives its laws and powers. One such important source is treaties or treaty law which is also enshrined under Article 38 of the ICJ statute.

Treaties are a relatively modern source of international law which has come into existence due to the establishment of international organizations and institutions. The Law of the treaties in International law has been codified in the Vienna Convention on the Law of Treaties, 1969 (VCLT). Article 2 (1)(a) of the VCLT defines 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 or more related instruments and whatever its particular designation.”[1]

Article 2(1)(b) defines ratification as “the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty”[2]

This article attempts to examine the legal validity of unratified treaties as a source of international law. As a general rule States which do not sign and ratify a treaty are not bound by its terms. It was held in the North Sea Continental Shelf cases[3] that parties that do not sign and ratify the particular treaty in question are not bound by its terms and West Germany was held to not have an obligation under an unratified treaty.[4]

However, this general rule does mean that unratified treaties do not have any force as a source of international law. When treaties reflect customary international law, non- parties are bound not by the treaty provisions by because such treaties or the provisions contained in them reflect a codified form of customary international law. Non- parties may also come to accept that provisions in a particular treaty can generate customary law, depending on the nature of the agreement, the number of parties to the treaty and other relevant factors..[5]

Customary international law does not require ratification or formal acceptance by States in order to become binding. This is especially true for customary laws concerning human rights, environmental protection and other similar issues which are fundamentally of universal importance.

Over the years, several customary laws of such nature have been formally codified into the form of various treaties such as the Universal Declaration of Human Rights, Kyoto Protocol, Convention on Biological Diversity, Convention on International Trade in Endangered Species of Wild Fauna and Flora, etc. However, codification into treaties does not remove the customary nature of such laws which continue to have their independent strength even after codification into treaties.

In the landmark case of Filártiga v. Peña-Irala[6]; which dealt with torture, the federal court of the United States punished non- American citizens for tortious acts committed outside the territorial jurisdiction that were in violation of public international law. The federal court held that torture was an act in violation of international statutes such as the U.N. Charter, UDHR, and other customary international law. The case was maintained under the Alien Tort Statute of the U.S.A which grants district courts original jurisdiction to hear tort claims brought by an alien that have been “committed in violation of customary international law”.

The Court observed that “the torturer has become- like the pirate and slave trader before him- hostis humani generis, an enemy of all mankind”. This case is important in the present context because even though U.S.A has not ratified the U.N. Convention against Torture, it still had the power through self-executing rights to enforce certain quintessential principles enshrined in the Convention as these principles were in the nature of fundamental human rights and had acquired the status of customary international law.

In India, the landmark case of Vishakha v. State of Rajasthan[7] also highlights how an unratified treaty can be used as a source of international law by the domestic courts. The Supreme Court adopted the rules enshrined in The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) which India had not ratified at that point of time. The Court derived its power from Article 253 of the Constitution of India (which deals with legislation giving effect to international agreements) and the Directive Principles of State Policy to enforce certain provisions of CEDAW in domestic law despite the fact that India had not ratified CEDAW. This case shows how the judiciary through self- executing rights has been able to interpret the provisions of international treaties and provisions of municipal law in order to arrive at a harmonious interpretation which in effect gives force to provisions of treaties which have not yet been ratified.

On the other hand, treaties which have not been ratified by States are not binding on them if they do not reflect customary international law or State practice. The Moon Treaty, 1979[8] for instance is considered a failed treaty since it lacks ratification by States which engage in self- launched manned space exploration. This essentially means that the treaty has no practical significance and cannot be enforced on non- parties. The provisions of this treaty have also not acquired the status of customary international law; nor have they been widely accepted by State practice. Hence, in the practical scenario as an unratified treaty it is toothless.

Therefore it is submitted that unratified treaties are suo motu not valid sources of international law unless they derive supplementary strength from other sources of international law such as customary laws in which case the treaties will have effect even in the absence of ratification because they primarily draw strength from customary international law. In absence of alternate sources of international law however, unratified treaties cannot be considered valid sources as they do not fall within any of the sources of international law enshrined in Article 38.

[1] Art. 2(1)(a), Vienna Convention on Law of Treaties, 1969
[2] Art. 2(1)(b), Vienna Convention on Law of Treaties,1969
[3] ICJ Reports, 1969, pp. 3, 25
[4] Malcolm N. Shaw, International Law, 6th Ed. , p. 95
[5] Ibid
[6] Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir.1980)
[7] Vishaka and others v. State of Rajasthan and others, (1997) 6 SCC 241
[8] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979