Reading and Interpreting International Conventions
International Conventions are the most significant source of international law due to which special rules apply in order to ascertain the scope and binding nature of the provisions of conventions. At its core, a convention is a special contract – governed by special rules of construction. In order to effectively read a convention, the nature of provisions introduced within it must be understood. Typically, three types of provisions can be found in International Conventions mainly; substantive provisions, implementing provisions and derogation provisions.
- Substantive provisions
Substantive provisions constitute the content of the Convention as they set out the rights, duties, obligations and rules which may be binding upon a State. These provisions form the core of the Convention and lay down the legal principles which are to be implemented. Within the International Conventions regarding human rights, all fundamental protections accorded within them constitute substantive provisions.
- Implementing Provisions
Implementing provisions provide for the mechanism through which a convention is to be applied. This may take the form of a requirement to amend domestic legislation in line with the substantive provisions of a Convention, or a positive duty on States to introduce laws to further the purpose of the Convention. Furthermore, these preclude Member States from making reservations to the implementation of certain substantive provisions, to signify the binding nature of certain parts of the Convention.
- Derogation Provisions
Finally, derogation provisions are those which set out the extent to which a Member State may derogate from the application of the substantive provisions of a Convention. These allow for State parties to refuse compliance with certain parts of a Convention and lay down the conditions which must be fulfilled for such derogation to be allowed. International law recognizes the principle of sovereignty of States due to which derogation provisions are introduced to strike a balance between the need for a State to protect its sovereignty and to ensure the application of the Convention to protect the rights of citizens.
[See Section 2 of this Website for a list of substantive, implementation and derogation provisions introduced within each core UN Human Rights Conventions.]
In addition to this, a significant aspect of reading a convention is its subsequent interpretation. It must be noted that customary law may be used as a tool for interpreting and understanding the meaning of provisions within a Convention, however more detailed rules for interpretation are to be found within the Vienna Convention on the Law of Treaties 1969 (VCLT) which also has customary status.
It is important to note that in accordance with the VCLT, signing a convention merely reflects a State’s support for the convention and does not make it binding. In order to be binding, a Convention must be ratified,[1] accepted, approved or acceded to in accordance with the procedure laid down in Articles 11 to 16 of the VCLT. A memorandum submitted to the United Nations by the Government of Pakistan in 1951 stated that there are no laws, regulations, decrees or judicial decisions regarding the negotiation and conclusion of treaties in. In 2018, Senator Mr. Mian Raza Rabbani introduced a Private Bill titled “Ratification of Foreign Agreements by Parliament Bill, 2018” (the ‘Bill’) proposing legislation in this vital area of public governance. Senator Rabbani introduced the same Bill in the Senate in 2007 and Dr Shireen Mazari proposed a similar legislation in the National Assembly in 2013, but both these proposals failed supposedly due to a lack of broader understanding on the significance of governance in this area of law.[2]
The existing legal framework includes Rule 16(H), of the Rules of Business, 1973. Rule 16 adjudicates upon cases that can be brought before the Cabinet. Rule 16(H) states, “proposals for signing of negotiated instruments with foreign countries and approval for ratification of the instruments.” The proposals pertain to negotiations with foreign countries, e.g., exchange of diplomatic and commercial representation, treaties and agreements, visits of goodwill missions, representation at international conferences and meetings, in addition to the process of transposing it in domestic law.[3]
Furthermore, the rules of interpretation are to be found within Articles 31 to 33 of the VCLT which establish the general rule of interpretation, supplementary means of interpretation and rules for the interpretation of treaties authenticated in two or more languages. The general rule in Article 31 explains that each convention must be interpreted in good faith, and that words in the convention must be given their ordinary meaning, interpreted in light of the object and purpose of the convention.
For this purpose, Article 31 goes on to explain that preambles, annexes and any agreements or instruments made in connection with the convention may be used to understand the purpose of a Convention for the purposes of interpreting its provisions. Article 31 further explains that any subsequent agreement, practice or relevant principles of international law may be used to understand the nature and scope of a Convention, to interpret it in accordance with its object, purpose and settled principles of international law.
Article 32 adds that in determining the nature and purpose of a Convention, the preparatory work of the Convention and the circumstances which led to its introduction may be referred to as supplementary means of interpretation in order to ensure that all parts of the convention are capable of clear application.
It is essential then that Courts refer to rules of reading and interpreting International Conventions while implementing international law within the domestic legal system to effectively comply with the purpose and object of such Conventions as well.
[1] In accordance with Article 2 of the VCLT ratification is defined as, “the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty.”
[2]https://sahsol.lums.edu.pk/law-journal/democratizing-foreign-policy-parliamentary-oversight-treaty-ratification-pakistan
[3] https://cabinet.gov.pk/SiteImage/Downloads/[ROB%20amended%20upto%2019%20August,%202019.pdf.
