International law governs relations between states, in matters such as the drawing of boundaries between states, the laws of war, laws governing international trade, and laws regulating the global environment. As well, international law governs relations between states and individuals. It does this by holding states accountable to the international community for the extent to which they recognise and protect human rights within their borders.
Much international law is created in the various institutions of the UN, which currently has 193 member states. Australia became a member of the UN when it was founded in 1945 and the Australian statesman, Dr H E Evatt, played a significant role in its establishment. Regional organisations such as the European Community and the Association of South East Asian Nations (ASEAN) also contribute to making international law.
Today, most international law takes the form of treaties (also known as covenants, conventions, agreements, pacts and protocols), which are binding agreements between national governments. Statements and resolutions made by international organisations like the United Nations, and customary modes of behaviour by states, also contribute to the formation of international law.
A treaty is defined 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.’
Article 2, Vienna Convention on the Law of Treaties 1969
Human rights in international law
In international law, human rights are recognised in three principal ways:
- international treaties, covenants and conventions (also known as ‘treaty law’);
- customary international law; and
- resolutions of the United Nations General Assembly.
International treaties , covenants and conventions
In the area of human rights, ‘express agreements’, which include treaties, conventions, covenants, instruments, pacts and protocols, are the most significant source of international law.
The term ‘convention’ is frequently employed for agreements to which a large number of countries are parties. ‘Protocol’ usually refers to an agreement that amends or supplements an existing convention or agreement.
The law of treaties concerns obligations that result from express agreements. The basic principle of treaty law is that agreements are binding upon the parties to them and must be performed by them in good faith. Similar to a contract, an international treaty imposes binding obligations on states that are parties to it. The parties accept responsibilities towards each other through mutual obligations and as with a contract, one treaty party can call other parties to account for their actions. Treaties can be bilateral (between two countries) or multilateral (between more than two countries).
Becoming a party to a treaty is a legal process that involves a series of steps. A state usually signs an international treaty and later ratifies it. A state will accede to a treaty it did not sign.
In Australia, treaties can only be entered into with the approval of the Federal Executive Council. In theory, at least, there is no need for parliamentary approval before Australia becomes bound by an international treaty: see The treaty-making process in Australia.
The process of making a treaty
In concluding a multilateral treaty, states generally follow these procedures:
The outcome of negotiations is generally the adoption of the text of the treaty in an international forum. Once adopted, the treaty becomes ‘open for signature’.
By signing a treaty, a state indicates its intention to become a ‘party’ to the treaty. Whilst signature often constitutes the first step in becoming a party, it does not mean that the state is bound by the terms of the treaty.
Ratification and accession
Ratification and accession are formal procedures by which a state indicates that it intends to be bound by a treaty. Once adopted, the treaty remains open for signature for a specified period of time. This time generally allows for ratification by the number of states that are necessary for the treaty to ‘enter into force’. Ratification is completed by a formal exchange or deposit of the treaty with the Secretary-General of the United Nations in New York. Accession is the process by which a state becomes party to a treaty it did not sign, and is only used in multilateral agreements. Accession may occur before or after a treaty has entered into force, but is usually used when the agreement has been previously signed by other states. These procedures generally occur when necessary domestic legislation or executive action is complete.