“Justice without might is helpless, might without justice is tyrannical”

Pascal, Pensées

"Every treaty in force is binding upon the parties to it and must be performed by them in good faith." 

Article 26, Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties (or VCLT) is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969.  The Convention entered into force on 27 January 1980. The Vienna Convention on the Law of Treaties  has been ratified by 111 states as of November 2010.

Although the scope is limited to only to treaties concluded between states, it does not cover agreements between states and international organizations or between international organizations themselves, though if any of its rules are independently binding on such organizations, they remain so.  It does apply, however, to treaties between states within an intergovernmental organization.

The inherent principles of international treaty law as embodied in the Vienna Convention on the Law of Treaties of 1969 have been in force since 27 January 1980 and it has been ratified by more than 100 countries.

Article 38 of the Statute of the International Court of Justice, considered by some as the "Bible of the Poor" of those who seek quick answers despite of the complexity of international relations, constitutes nevertheless a good starting point for the understanding of the sources of international law. According to this article, international law finds its origin in the following three sources:

      - international conventions of general or particular nature;

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

      - the general principles of law recognized by civilized nations.

Most international law experts would rush to add the "unilateral acts" to these three sources of law and to declare that Article 38 of the Statute has omitted to mention these unilateral acts for which the United Nations' International Law Commission (ILC) has elaborated Guiding Principles in 2006. Contrary to this opinion, other international lawyers would maintain that these unilateral acts constitute specific expressions of the will of States leading eventually to agreements which are then governed by the rules applicable to international conventions.

The philosophy of natural law is the basis of international law. The International Court of Justice itself holds the belief that whatever the legal argumentation of the judge, his or her decisions have to be just and in that sense must correspond to justice and equity. (Article 38 (2) of the Statute of the International Court of Justice).

The term “treaty” being defined for the purposes of the Convention 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”.  Nation states are sovereign and independent and there is an equality of all states.  Much international law is done in the context of the law of contracts (between Nation States).  The law of treaties is not civil law.  There are measures taken on the basis of Chapter VII of the Charter of the United Nations. Although they are foreseen in an international treaty - in particular by Article 25 of the Charter - these measures deserve to be highlighted because of the legal obligations they impose to the whole world, their political significance and the remarkable development they have undergone since the Gulf War of 1991. The measures taken by the Security Council and which are expressly based on Chapter VII of the Charter encompass not only military as well as economic sanctions against certain Nation States.

"This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

The Constitution of the United States of America

The United States of America signed the  Vienna Convention on the Law of Treaties on 24 Apr 1970.  This treaty was entered into force on 27 January 1980, in accordance with article 84(1). 

The "supremacy clause" is the most important guarantor of national union. It assures that the Constitution and federal laws and treaties take precedence over state law and binds all judges to adhere to that principle in their courts.

Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state. (Note that the word "shall" is used, which makes it a necessity, a compulsion.) However, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance thereof" in the actual text of the Supremacy Clause itself.

"It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process. The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action."

Justice Arthur Goldberg

US Supreme Court Justice

Source: Kennedy v. Mendoza-Martinez, 1963

ICERD International Convention on the Elimination of All Forms of Racial Discrimination

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

CEDAW Convention on the Elimination of All Forms of Discrimination against Women

CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

CRC Convention on the Rights of the Child

ICRMW International Convention on the Protection of the Rights of All Migrant Workers

ICRPD Convention on the Rights of Persons with Disabilities

International Convention for the Protection of All Persons from Enforced Disappearance(This treaty has not yet entered into force)

Fourteenth Amendment to the U.S. Constitution, which states:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

 No nation state shall, even in time of emergency threatening the life of the nation, derogate from  guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not to be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation.

All nation states who are parties to the human rights treaties must as part of their obligation to ensure the enjoyment of these rights to all persons within their jurisdiction and to adopt measures to secure an effective remedy for violations, shall take special precautions in time of public emergency to ensure that neither official nor semi-official groups engage in a practice of arbitrary and extra-judicial killings or involuntary disappearances, that persons in detention are protected against torture and other forms of cruel, inhuman or degrading treatment or punishment, and that no persons are convicted or punished under laws or decrees with retroactive effect.

The ordinary courts shall maintain their jurisdiction, even in a time of public emergency, to adjudicate any complaint that a non-derogable right has been violated.

There are norms of general international law which are accepted and recognized by the international community of States as a whole.  Thus a peremptory norm is one from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

In regards to criminal cases under international law, these provisions  can concern the prohibition of genocide, war crimes, crimes against humanity and the crime of aggression.  These are criminal violations of human rights.

When certain international norms have been breached,  criminals can be brought before the International Criminal Court.  

Article 29(2) of the Universal Declaration of Human Rights sets out the ultimate purpose of law:  In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."

(Article 31 (1)

Vienna Convention on the Law of Treaties

As to the designation of a text as "Treaty", here are some examples:

      - the North Atlantic Treaty (the NATO-Treaty) of 1948,  Treaty on the Non-Proliferation of nuclear Weapons 

Treaty on the European Union of 1992 (as amended by the  Treaty of Nice of 2001).

In most cases, multilateral treaties are called "Conventions". This is the most general designation which is also used by Article 38 of the Statute of the International Court of Justice. They are often concluded under the auspices of an international organization such as

      - the Convention for the Protection of Human Rights and

        Fundamental Freedoms of 1950 (so-called

        European Human Rights Convention concluded

        under the auspices of the Council of Europe),

      - the United Nations Convention on the Law of the Sea (1982) or the

      - the Universal Copyright Convention as revised at Paris on   24 July 1971 (concluded under the auspices of the

        United Nations Educational, Scientific and Cultural Organization   -UNESCO) 

As in the case of bilateral treaties, the very general term "Agreement" is also frequently used for multilateral conventions. It has been used in the following examples:

      - the European Agreement on continued Payment of Scholarships

        for Students Studying Abroad of 1969,

      - the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies

      North American Free Trade Agreement (1992).

The designation "Protocol" is usually used for legally binding agreements which are additional or complementary to main agreements or which have a supporting role.

As additional agreements they are added to the original treaties as it is the case with the Protocols Additional to the Geneva Conventions of 12 August 1949.