18.3: Making International Law

International laws in the positivist era are created in one of two ways—treaty law and customary law. Treaty law involves a formal process by which sovereign states negotiate written agreements that are legally binding upon all states which enter into them and the treaty process involves distinct stages. In the drafting stage, diplomats engage in debate that results in a draft document. The document is not a binding treaty until it has been ratified by a specified number of states. Ratification represents the second stage of the treaty process. Each state, based upon its domestic laws, determines whether or not to ratify the proposed treaty. After ratification, the state submits its instrument of ratification as evidence of its commitment to the principles enshrined in the document. It is not, however, until the third stage of the process, entry into force, that the document becomes a binding treaty. Entry into force occurs when a prescribed number of nation-states submit their instruments of ratification. For a bilateral treaty, an agreement between two states, entry into force occurs when both states ratify. For a universal treaty, the ratification threshold may be sixty states, 100 states, or any other number of states, depending on the treaty requirements agreed upon at the drafting stage. Treaties provide explicit restrictions on state behaviour. Since international treaties infringe upon the sovereignty and freedom of states, it is logical to assume that governments only endorse treaties that entail more benefit than cost. The challenge, therefore, for international lawyers and diplomats is to arrive at treaty language that is acceptable to the largest number of nation-states while sacrificing as little as possible of the purposes of the treaty.

Customary international law is different from treaty law in that custom emerges over time from the uniform behaviour of states. Custom, a recognized norm of behaviour, remains unwritten but may be transformed into treaty law if a formal document is negotiated and ratified. Unlike treaty law, which is consensual in that it is only applicable to those states which have expressly accepted it, customary law is considered binding on all countries, with or without their explicit endorsement. Until the 20^th century, most international law was in the form of custom. Since 1900, however, a more systematic process has tipped the scale in favour of treaty law. While treaty law and customary law are distinct in form, some treaties have been deemed to be customary international law. The Hague (1899, 1907) and Geneva Conventions (1949) are examples of treaties that are considered to be custom. As a result, Hague and Geneva laws are binding on all states, including those, which have ratified neither. Even though there are other, secondary and tertiary, sources of international law, treaty and custom represent the two primary sources of international law in the modern era. ^[3]