INSTITUTIONAL AND INFRASTRUCTURAL RESOURCES - SAMPLE CHAPTERS
MECHANISMS TO CREATE AND SUPPORT CONVENTIONS, TREATIES, AND OTHER RESPONSES
J. Craig Barker
University of Reading, UK
Keywords: International law, treaties, conventions, customary international law, sovereignty, Austinian handicap, rule of recognition, law-habit, reciprocity, pacta sunt servanda, opinio juris sive necessitatis
2. The Historical Development of International Law
3. The Binding Nature of International Law
4. The Enforcement of International Law
5. Mechanisms to Create and Support Conventions and Treaties
6. Mechanisms to Create and Support Other Responses—Customary International Law
4. The Enforcement of International Law
The lessons of the two world wars, which blighted the earlier part of this century, were undoubtedly hard lessons to learn. As the Second World War reached its climax, statesmen in the leading allied nations sought to devise an international system which would maintain international peace and security. This was to be done principally through the development of a collective security system for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace. To that end, one of the fundamental principles declared in Article 2(4) of the UN Charter was that all member states should refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.
Having sought to prohibit the individual use of force by states in this way, the drafters of the Charter put in place a system of collective enforcement that was designed to ensure that states did not need to resort to force except in extreme circumstances of self-defense. The collective enforcement system, which is provided for primarily in Chapter VII of the Charter, envisages a central role for the United Nations Security Council in the maintenance of international peace and security. It provides in Article 39 that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression. Having made this determination the Security Council can provide for measures not involving the use of force to be undertaken against a breaching state. Such measures may include the disruption of economic relations, most usually by the imposition of economic sanctions, and the severance of diplomatic relations (UN Charter, Article 41). Finally the Security Council may authorize such use of force as may be necessary in order to restore international peace and security (UN Charter, Article 42).
The principal problems of the United Nations collective security system emerged very early on in the post-World War Two era. Briefly stated, these include the problem of the veto, the problem of defining a threat to the peace, breach of the peace, or act of aggression and the lack of willingness among states to provide military personnel to be placed under the direct control of the United Nations. However, it is undoubtedly the exercise of the veto that has caused greatest damage to the whole conception of the collective security system as envisaged in the United Nations Charter. The Security Council is made up of fifteen member states of the United Nations including the five permanent members (USA, UK, Russia, China, and France). These permanent members are required to concur on all votes of the Security Council except purely procedural matters. Hence, by not concurring in any non-procedural votes, any or all of the permanent members can veto a resolution of the Security Council. Throughout the Cold War, the exercise of the veto became almost routine. Thus, it would be fair to say, in relation to the determination of a threat to the peace, breach of the peace or act of aggression, at least, that if the United States did not veto a particular resolution, the Soviet Union (Russia) would. This led to an apparent stagnation of the collective security system for over forty years.
However, now that the Cold War has ended and the ability of the United Nations to use forcible measures against states has developed, not least as a result of the Gulf Conflict 1990–91, a more fundamental problem has arisen. That is, the extent to which forcible measures by the Security Council actually achieve what the desired end, that is, the maintenance of international peace and security. Leaving aside the difficult question about what the objectives of specific operations are, it is questionable whether any enforcement operation involving the use of force is a suitable response to the use of force by a particular state. Even where such operations are able to bring a speedy end to an actual conflict situation, as appeared to be the case in relation to the removal of Iraq from Kuwait in 1991, the end result of such actions may be as problematic as the original conflict. Thus, in relation to the continuing "punishment" of Iraq, it would seem to be the ordinary citizens of Iraq, rather than the regime itself, that are suffering the most. The experience of dealing with the situation in the former Yugoslavia makes it clear that quick fix solutions are no replacement for sustained and lengthy peace building measures.
Given that the centralized enforcement machinery of the United Nations was defeated by the use of the veto, at least during the Cold War period, the question must remain as to why states, during this period, continued to accept the binding authority of international law. Two possible answers to this question will be discussed further below. First, there may well be a number of "natural deterrents" inherent in the system of international law which operate to minimize the extent to which states seek to breach that law. Two of these "deterrents" will be considered, specifically, the so-called law-habit, and reciprocity. Secondly, as a result of the de-centralized nature of international law, it is left to individual states to enforce their own rights under international law. To a very great extent states have been capable over the years of sorting out their legal differences by a variety of legal mechanisms without resorting to armed conflict. However, the resort to force does, on occasion, occur and some consideration will be given to the right of states to resort to the use of force in the exercise of self-defense.
The first of the "natural deterrents" referred to above is commonly referred to as law-habit and flows from the earlier assertion that the binding nature of international law is to be found in the political acceptance by states that international law exists and is binding on them. The idea that states follow international law out of respect for the law has been strongly asserted by many writers. The basis of this argument stems from the belief that in areas where there is considerable co-operation between states, ranging from the exchange of diplomats to the regulation of international telecommunications, the international community perceives considerable benefit to exist in the observance of the law. International law is itself created by states. Thus, it is more likely that international law will be in accordance with the interests of the international community in general than would perhaps be the case if international law were imposed by a centralized law-making body.
It may well be that in areas of international law where the sense of international community is less well-developed, the restraining qualities of law-habit are less visible. In such cases states may well perceive that "when it really hurts," their interests are better served by violating the law even if the intention is not to try to bring about a change in the law as it stands. Thus, it has been observed that while the great majority of rules of international law are generally unaffected by the weakness of its system of enforcement, there are a minority of important and generally spectacular cases where observance of the law is supplanted by considerations of the relative power of the nations concerned. In such cases considerations of power rather then of law may well determine compliance and enforcement.
The first point to note here is that no system of law, even systems of law which are based entirely upon coercion, can eliminate breach of the law altogether. The prohibition against murder, for example, is common to most, if not all, legal systems, some of which provide the ultimate sanction of the death penalty as a deterrent against the commission of the crime. Yet no legal system has entirely eliminated the commission of murder. If the above analysis were to be applied to the municipal law of, for example, the United States, where murder is a daily occurrence, one might be tempted to argue that the prohibition against murder, in many areas of the United States at least, is irrelevant and can be disregarded.
The analysis is, of course, subtler than this analogy portrays. What is of particular concern is not the spectacular violation of the law itself but the perception that the more powerful the state, the more easy it is for them simply to ignore the law when it suits them. However, this criticism has been responded to by the argument that if the suggestion is that when it costs too much to observe international law nations will violate it, the charge is no doubt true. But the implications are less devastating than might appear, since a nation’s perceptions of "when it really hurts" to observe law must take into account its interests in law and in its observance and the costs of violation. Such an assertion does not amount to a denial of the efficacy and relevance of international law; rather it is an acceptance that international law is part of a wider process. This process recognizes the existence of political, economic and other non-legal factors that must be taken into account by states when determining whether or not to comply with the law.
As an extra-legal concept, reciprocity constitutes a powerful restraining factor on the activities of states. Reciprocity is relatively unimportant in a centralized legal system in which the primary reliance of the subjects of the law is the existence of legal obligation and the rights and duties that flow there from. However, in a decentralized legal system such as the international legal system, reciprocity plays an essential role. While reciprocity may be regarded in purely negative terms as a tit-for tat process which spirals downwards so as to undermine any sense of cooperation existing between states, it is as a positive factor acting to restrain states from engaging in illegal activities that reciprocity is at its most effective. Thus, the broad social concept of reciprocity, which states apply on the basis of either short- or long-term considerations of self-interest, may be responsible for a great deal of inter-state co-operation or exchange, outside or in addition to any international legal obligations. In this context, increased interdependence of states at all levels of interaction strengthens the positive nature of reciprocity. Thus the process of globalization and the development of technology strengthen reciprocity as part of the social process.
Reciprocity has itself been incorporated into the process of international law and may be regarded as an essential principle of international law particularly insofar as international law constitutes a multitude of bilateral relationships between states. In this context, states may not have particularly close relations with all states but will be concerned about their bilateral relations with individual states. In such cases it is the protection of the relations with the closest state that will determine the nature of a particular state’s dealings with all states in respect of a particular rule. Reciprocity therefore encourages cooperation on the basis of the highest common denominator.
The clearest illustration of this legal conception of reciprocity at work is to be found in relation to the exchange of diplomatic agents. As a subsystem of international law, the law of diplomatic privileges and immunities is relatively well developed and is strongly adhered to by states on a daily basis, in spite of the lack of any overriding enforcement machinery. The primary reason for this is the inherent reciprocal basis of diplomatic relations. Reciprocity is itself a constant and effective sanction for the observance of nearly all the rules of the Vienna Convention on Diplomatic Relations 1961. Every state is both a sending and receiving state. Its own representatives abroad are in some sense always hostages. Even on minor matters of privilege and protocol their treatment may be based on reciprocity. For the most part, failure to accord privileges or immunities to diplomatic missions or to their members is immediately apparent and is likely to be met by appropriate countermeasures.
Clearly not all areas of international relations are as interdependent as are diplomatic relations between states. Nevertheless, the possibility of reciprocal action plays an important role as a non-legal factor that states will take into account in deciding whether or not to breach a particular rule of international law. Where reciprocity is recognized and accepted in the international legal process itself, the positive aspects of reciprocity appear to be increased.
4.3 The Enforcement of International Law by Individual States
International law provides generally for states to utilize self-help measures in order to enforce their rights under international law. For centuries the primary self-help mechanism was the resort to war. However, the use of force in international relations has, for the most part, been rendered illegal under international law and, accordingly, individual states can no longer legally resort to the use of force except where such force is necessary in self-defense. On the other hand, international law does recognize the right of states to engage in lawful countermeasures ranging from the breaking off of diplomatic relations to the imposition of sanctions. That such measures should not involve the use of force goes without saying.
It cannot be denied that the inherent subjectivity of such self-help measures is problematic. Thus, without the existence of a centralized body capable of determining the existence of a breach of international law and to determine a suitable response where such breach occurs, it is left to individual states to determine the existence of the breach and the extent of the countermeasure. To that extent, it may truly be said that international law favors the more politically and economically, if not militarily, powerful state. Nevertheless, the problem is not as stark as it might at first seem.
First, any determination by a state that a breach of international law has occurred must itself be made by reference to the law. A state cannot simply act on a whim and states do, in their practice, consistently refer to international law in justification of the lawfulness of countermeasures. It has been argued that international law is lacking objective criteria for the making of such determinations. Thus, Hart’s assertion, referred to above, that international law lacks secondary rules of determination. However, international law is developing such rules of determination through various means. Thus reference can again be made to the work of the International Law Commission on the Law of State Responsibility, which is seeking to provide those very criteria, which Hart sees as lacking in the international legal system. While this work is on going, many of the proposed rules of state responsibility have already been accepted by states as part of customary international law. Furthermore, in the process of treaty making, states are increasingly accepting the compulsory resort to dispute settlement procedures ranging from the International Court of Justice to special courts, such as the International Law of the Sea Tribunal set up under the auspices of the Law of the Sea Convention 1982, as means for objective third party determination of breaches of relevant international rules. Similarly, where possible and appropriate, states are utilizing their own domestic judicial structures, rather than political organs in order to make the necessary determination. This form of determination is dependent upon the application of international legal principles within domestic systems and is increasingly relevant, particularly in relation to the enforcement of international human rights obligations against individuals.
As noted above, the only remaining mechanism by which states are legally entitled to use force in their relations with one another is in the exercise of self-defense. The right of self-defense has been recognized as an essential element of international relations for centuries. However, until the right to resort to war as a means of self-help was formally removed by international law, the legal justification of self-defense was rarely invoked. Nevertheless, the traditional definition of the right of self-defense was established in the Caroline Case in 1837. Following a dispute between Britain and the United States over the supplying of arms to American nationals who were conducting raids into Canada, which was then British territory, officials of both states agreed on the basic criteria of self-defense. There required that there existed a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation. While the actual circumstances of this case involved only the United States and Great Britain, the basic principles agreed in the case have been noted with approval on many subsequent occasions both by individual states and by international bodies. Accordingly, it is generally accepted that these criteria are part of customary international law and, as such are binding on all states.
The criteria have been tested on many occasions since 1837, particularly in the latter part of this century following the specific reaffirmation of the "inherent" right of self-defense in Article 51 of the United Nations Charter. During that period, few, if any states have resorted to the use of force without asserting the legal justification of self-defense. Thus the US quarantine of Cuba, support for the contras in Nicaragua, and attacks in Grenada and Panama, among others, have all been justified on the basis of self-defense. Similarly, interventions by the Soviet Union in Hungary, Czechoslovakia, and Afghanistan have been justified on the same basis. Iraq justified even the invasion by it of Kuwait in 1990 as self-defense in support of the claim that Kuwait was part of Iraqi territory. The difficulty here, as with the determination of the legality of lawful countermeasures, is that the determination by a state that it has been threatened to the extent that it is allowed to use force in self-defense is inherently subjective. Thus, the United States claims to have been acting in self-defense following their attacks on Tripoli following the terrorist bombing of a discotheque in Berlin and, more recently, United States attacks on Afghan and Sudanese territory following the bombings of US embassies in East Africa in August 1998 can hardly be said fully to have fulfilled the criteria laid down in the Caroline incident. Nevertheless, the perception by the United States that in both cases there existed a continuing threat to United States security interests cannot be directly challenged. The problem may well be exacerbated if, as many writers claim, there exists a right of anticipatory self-defense in the face of an imminent armed attack.
Here again, however, international law sets the standards within which states will seek to place their justification. In this context, the International Court of Justice in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996 has recently focused on necessity and proportionality as being the dominant criteria. Quite what will be necessary and proportionate will depend on the circumstances of the case. Nevertheless, a justification of self-defense by a state invoking that right will have to be acceptable to the international community. Accordingly, the determination of the right to use self-defense will be subject to consideration by the international community as a whole and more specifically by the Security Council under the terms of Article 51 of the United Nations Charter.
The issue of self-defense is perhaps one of the most problematic in contemporary international law. Even if third party determination were compulsory as part of international law, the nature of self-defense is such that states will be unwilling to wait for a determination of the existence of a threat to their security before taking what they determine to be in their interests. Nevertheless, by delimiting the criteria in which self-defense can lawfully be exercised, international law is setting standards which states will seek to achieve in order to avoid the condemnation of other states in the international community.
5. Mechanisms to Create and Support Conventions and Treaties
The term treaty is the generic term used to refer to all formal written agreements between states. Accordingly, conventions are themselves only one type of treaty instrument used most commonly to refer a to large multilateral agreement on a topic that is generally of considerable importance. Other terms commonly used to denote multilateral agreements of this type include Charter, Final Act, Protocol, and Statute. As of December 1 2000, there were 520 major multilateral instruments deposited with the Secretary-General of the United Nations covering a range of subject matters such as Human Rights, Disarmament, Commodities, Refugees, the Environment, and the Law of the Sea. However, these make up only a fraction of the over 40 000 international agreements currently registered with the United Nations. It is worth noting that a treaty does not require to be registered with the United Nations in order to have effect. However, in terms of Article 102 of the United Nations Charter, any treaty that has not been registered with the United Nations cannot be invoked before any organ of the United Nations, including the International Court of Justice. Accordingly, most treaties are registered with the United Nations. It is clear from the number of treaties currently registered with the United Nations that the vast majority of such instruments are bi-lateral or small multilateral instruments. Furthermore, it is also apparent from the rapid growth in the number of treaties registered that states are increasingly more and more willing to enter into written agreements in order to formalize their relations with one another.
The process of treaty making is similar for both bilateral and multilateral instruments. In the case of bilateral treaties, either party initiates the process. Delegations, composed of representatives of responsible departments/agencies, are then dispatched to negotiate the treaty. Throughout the negotiation process, delegates will consult with their home government and other departments/agencies affected by the negotiations. It will then be the responsibility of the delegations to settle upon a final text. Once negotiated, the delegates will initial the final text in order to signal an intention to submit the draft to their respective government for approval. The treaty is then ready for signature. A government will normally nominate an individual to sign the treaty and grant to him an instrument of full powers authorizing him to do so. The effect of signature is not, as one might expect, to bind a state to the terms of a treaty. There is usually a further stage of ratification required before a state party can be said to be fully bound. Nevertheless, the signature of a state to a treaty is not without effect. A state that has signed, but not yet ratified, a treaty is bound not to do anything contrary to the objects and purposes of that treaty prior to ratification or withdrawal of signature. However, a state is not bound to follow the terms of a treaty in their entirety until ratification.
Ratification allows states time in which to consider fully the ramifications of entering into specific treaty obligations. In many cases, it allows for states to comply with domestic legal rules on treaty execution. Thus, for example, in the United Kingdom and Australia, as with other commonwealth countries, the text of a treaty must be tabled in Parliament for a certain period of time before ratification can take place. Ratification takes the form of an exchange of diplomatic notes or instruments of ratification. A bilateral treaty will then enter into force on a date specified in the text or calculated in accordance with its provisions, usually when notes/instruments are exchanged, or following a predetermined elapse of time after the exchange.
Multilateral treaties are created in much the same way as bilateral treaties except in a few important respects. First, multilateral treaties are usually initiated at the behest of an international organization, most often the United Nations. Indeed, the International Law Commission, a body set up by the United Nations General Assembly in 1947 and charged with the progressive development of international law and its codification, formulated many of today’s multilateral conventions. Negotiation of such treaties normally takes place at one or more international conferences. Signature and ratification occur in the same way as with bilateral treaties. However, the entry into force of a multilateral treaty will usually occur a set time after a minimum number of ratifications have been deposited. This may take a considerable period of time. Indeed, it has in the past taken over a decade for some large multilateral conventions to attract sufficient ratifications to allow them to enter into force.
The law governing the operation of treaties in international law is codified in the Vienna Convention on the Law of Treaties 1969. This instrument makes it clear that treaties are essentially consensual or contractual in nature. Thus, Articles 7–18 of the treaty contain provisions relating to the expression of consent to be bound, including the effect of signature (Articles 11 and 18) and ratification (Article 14), as outlined above. It is not intended here to go through the convention article by article. However, it is worth highlighting some of the more important provisions of the Vienna Convention in order more fully to understand the functioning of treaties in international law.
The binding nature of international law in general has been explored previously in this article. However, treaties themselves are binding as a result of the operation of the Latin maxim pacta sunt servanda. This maxim is translated in terms of Article 26 of the Vienna Convention on the Law of Treaties, which provides that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." In signing and ratifying international treaties, states consent to be bound by the rules contained therein as against the other states parties to the relevant treaty. However, many questions have been asked about this explanation. For example, the question has been posed as to how a treaty can purport to bind a state that wishes to withdraw its consent. However, it is generally accepted that by participating in the international legal system, states have agreed that they are bound by treaty obligations to which they have given their consent. Crucially, they will remain bound by those obligations even if they purport to withdraw the consent that sanctified their obligations in the first place.
The flip side of the consensual nature of treaties as sources of international law is that treaties cannot purport to bind states that have not given their consent. Thus in terms of Article 34 of the Vienna Convention, "A treaty does not create either obligations or rights for a third state without its consent." Thus, treaties in and of themselves are not constitutive of general international law. In contrast, as will be highlighted below, customary international law is binding on all states except those that persistently object to an emerging rule of customary international law. Thus, international treaties cannot be considered as sources of universal international law unless they are entered into by all states. In other words, international treaties are not legislation.
Some writers have argued, however, that certain large multilateral treaties, which purport to develop the law in a particular area, are capable of being regarded as general sources of international law. They assert that the existence of a considerable number of multilateral international treaties to which all or almost all states are parties, as well as extensive efforts in the field of codification of international law, have led to a situation where international treaties have become a direct method of changing, developing and creating new norms of general international law. It is probably correct to say that large multilateral treaties can give rise to general obligations among the states parties to those treaties. However, the fundamental difficulty with this approach, as with any approach directed at attempting to create universal obligations out of purely treaty-based obligations, is that treaties cannot in and of themselves bind non-party states.
A much more satisfactory approach explaining the impact of multilateral treaties on the development of international law is to regard them as instruments which set standards with which non-parties may comply. There is no obligation on non-parties to comply with such standards but where treaties attract the support of a large number of states, the pressure on non-parties to comply may be overwhelming. Thus, law-making treaties are intended to have an effect generally, not restrictively. They can be contrasted with those treaties that merely regulate limited issues between a few states. Law-making treaties are those agreements whereby states elaborate their perception of international law upon any given topic or establish new rules, which are to guide them for the future in their international conduct.
Where third parties do adhere to treaty rules, they assist in the development of customary international law that may, as a result, be identical to a treaty rule but will bind states in a different way. In such a way, treaty rules may in themselves constitute state practice. However, it is important to note that the state practice of non-parties to the treaty will be crucial to the determination of whether a parallel rule of customary international law exists. Thus non-states parties fall directly within the category of "states whose interests are specially affected" identified by the International Court of Justice in the North Sea Continental Shelf cases (1969). These states are required to act in conformity with a putative rule of customary international law before it can properly be said to form such a rule. The danger of relying solely on the practice of state parties to a particular convention is that treaties would thereby take on the form of legislation and become binding on all states regardless of consent.
One major criticism that is regularly directed at international law in general and the law of treaties in particular is that it leads to too much rigidity and formality. Scholars of international relations voice this criticism most often. Those adhering to the dominant international relations school of realism question whether international law is able at all to influence the behavior of states, whose primary concern is national self-interest. These scholars argue that where national self-interest demands action contrary to perceived rules of international law, the only obligation on states is to act in their own self-interest. Even among more "enlightened" international relations scholars, the role of international law is regarded at best as minimal. Thus, institutionalists, who, contrary to realist scholars, accept the ability and willingness of states to co-operate in their international relations, focus upon regimes, rather than international agreements, as the basis for such cooperation. These scholars argue that international regimes vary greatly in the extent to which they are expressed in formal agreements, treaties, or conventions. They admit that it may be helpful to formalize regimes into agreements, but argue that formalization is not a necessary condition for the effective operation of international regimes. What, then is an international regime? The classic definition of regimes is that they are sets of principles, norms, rules and decision-making procedures around which actor expectations converge in a given issue-area. For international lawyers, this definition appears strikingly familiar. Indeed it has been suggested that international regimes may simply be international law under a different name. However, institutionalists have avoided the word "law" like the proverbial plague. It is suggested that approaches such as these fail to understand the nature and purpose of international law, and, more specifically, international treaties.
Undoubtedly treaties set down rules on the ways that states should behave. However, the purpose of treaties is not to set down rigid and unchanging rules. Rather, treaties are increasingly regarded as a means of creating law-making frameworks. Their purpose is to provide a framework for negotiation in which the techniques and general principles of international law can be employed, first to negotiate and formalise accepted but very general principles, and second to create means of facilitating ongoing negotiations from which more specific, "harder" rules may subsequently emerge. In this way, international law is regarded by international lawyers not as a system of static rules, but as an on-going process in which regard will be had to states’ intentions in entering into agreements, past decisions on the interpretation of specific rules and, perhaps most importantly, to policy alternatives for the future. This is particularly the case in relation to the recent emergence of international treaties relating to the environment as will be illustrated in the following section of this work.
For present purposes, it is worth examining one particular convention in order to illustrate some of the points outlined above, that is, the United Nations Convention on the Law of the Sea 1982. It cannot be denied that many of the provisions of the 1982 Convention are framed in formal and definite terms. Thus, for example, Article 3 of the Convention provides that "Every State has the right to establish the breadth of the territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention." Although there may be some room to argue about the issue of the drawing of baselines, once these have been established, there can be no room for states to argue that they can extend their territorial sea to more than 12 miles. On the other hand, Article 83 of the Convention deals with the vexed issue how to delimit the extent of a continental shelf between opposite and adjacent states.
The continental shelf is defined as a natural prolongation of a state’s land territory to the outer edge of the continental margin or to a distance of 200 nautical miles. Where opposite or adjacent states share a continental shelf, as is often the case, the question of where a boundary should be drawn arises. As a result of the fact that no two situations will be identical, it is virtually impossible for strict rules to be agreed. Accordingly, Article 83(1) of the Convention provides that the delimitation of the continental shelf between states with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution." This provision is undoubtedly elastic and indeterminate. However, this is not to say it is devoid of meaning. It clearly provides, for example, that states should seek to settle any dispute by means of agreements based upon the principles of international law. Where states are unable to settle disputes in this way, reference may be had to the variety of dispute settlement procedures available in international law, including mediation, conciliation, adjudication, arbitration and, ultimately judicial settlement. If the provision is then subjected to a case-by-case analysis it will be possible to identify a jurisprudence relating to the interpretation of the provision which will result in the provision becoming more and more determinate. The result will never be one single rule. However, the process will result in the creation of a number of principles and guidelines which states will then be able to utilise where necessary.
The process by which states utilise treaties not as rule-formulation mechanisms but as process-formulation mechanisms has not always been apparent. It is certainly the case that treaties that came into being during the first half of the twentieth century, for example, sought to impose upon states rigid rules that, it was hoped, would stop states engaging in unacceptable activities. The naivety and idealism of such aspirations is all too apparent. However, as the twenty-first century has dawned, the process of treaty making has become more realistic and less formalistic.
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