3.

1 MAIN CONTENT

3.2 International Conventions

A convention is an agreement creating binding obligations between subjects of
international law. Other words, some of which also have other meanings, used
synonymously with convention are treaty, protocol, accord, arrangement,
understanding, compromise, regulation, provision, pact, charter, statute, act, covenant
etc. The word “Convention” must not be confused with a constitutional convention.

Treaties have been the main instrument of conducting international relations.

International cooperation has been carried out principally through these treaties. The
trend towards written law is irreversible. It clears doubts and ensures a common
understanding at least, among the parties. A treaty may supplement, modify or
override ob1igations derived from customary law. Conventions have been proliferated
as evidenced in the large number of treaties registered with the United Nations. They
diminish the importance of customary law as a source of international law.

A contract treaty is one that merely regulates specific relationship between two or
more states. For example, a loan agreement, a law making treaty lays down rules for a
number of states. A contract treaty may be more readily terminated than a law making
one, for example, by war or non performance by the other party. A constitutional
treaty is one that creates an international organisation in which case, the treaty is also
the constitution of the international organisation.

Although treaties normally bind only the parties, (pacta tertus nec nocent nec prosunt)
yet they are the nearest to legislation in a partially organised society. A recurrence of a
provision in treaties may create an international customary law to that effect. Thus, the
rule pacta sunt servanda (a party cannot be a judge in his own case) associated with
treaties is a customary rule of international law. The principles of treaty are now
largely codified in the Vienna Convention on the Law of Treaties 1969.
3.3 International Customary Law
The wording in the statute of the World Court “international custom, as evidence of
general practice accepted as law” has been criticized for its clumsiness. It is in fact,
the general practice of states that is accepted as custom under certain conditions.

Customs remained the most important source of international law until recently when
the situation was changed by the large number of multilateral law making treaties.
Customs may be gleaned from the practice of state as in press conferences, official
statement, opinions of legal officers and acts of state, official instructions to
diplomats, consuls, military commanders, of municipal courts and tribunals, and the
practice of international institutions and tribunals. Care must be taken to separate
political statements, rhetoric or mere promises.

For rules to become customs there must be a constant and uniform usage. In Lotus
case Permanent Court of International Justice (PCIJ) (1927), the PCIJ found that
state law were inconsistent, municipal decisions conflicted, text writers were divided,
and consequently, no uniform trend was discernable to support the existence of a
custom giving a flag state exclusive penal jurisdiction over ships in collisions at sea.