Are Treaties a Better Source of International Law?

Are Treaties a Better Source of International Law? International treaty obligations are founded upon the maxim pacta sunt servanda (â€Å"pacts must be respected†). This is expressly recognised in the Preamble to the Vienna Convention[1] which â€Å"notes† that the principles of free consent and good faith and the pacta sunt servanda rule are â€Å"universally recognisedâ€Å". However, it might be argued that such a Convention is more a recognition of the status quo than an innovative development in international law. Article 2(1)(a) of the Convention defines a treaty as â€Å"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 [emphasis supplied].† This immediately draws attention to the fact that the term â€Å"treaty† is more generic than specific and covers a range of international agreements which might equally be referred to by such terms as protocols, covenants or conventions. The impact of treaties upon domestic legislation varies according to jurisdiction. The contrast is frequently drawn between the position in the US and the UK. In the former, the treaty-making power is vested under the Constitution in the President but he requires the â€Å"advice and consent† of two-thirds of the members of the Senate present and voting. In the United Kingdom it is argued that the making of treaties is an exercise of prerogative power. This is controversial: it might be suggested that prerogative power can only be exercised by the Crown. However, the preferred approach might be that of Dicey who suggests that a prerogative act is any act of government that is not authorised by statute. However, it should be noted that there is a degree of Parliamentary control. First, there exists the so-called â€Å"Ponsonby Rule† which applies to treaties which have been negotiated and signed but have not come into effect because they have not in terms of internationa l law been ratified by the parties. Under this rule, the government must notify Parliament of the treaty and must not ratify it save in cases of urgency until 21 parliamentary days have elapsed. Second, Parliament may restrict the power of the executive to enter into treaties by expressly providing that they require parliamentary consent. Finally, the making of a treaty does not automatically ensure its application in domestic law. It was held in A-G for Canada v A-G for Ontario[2] that â€Å"the making of a treaty s an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action.† Further, it was held in Rayner (Mincing Lane) Ltd v Department of Trade[3] that â€Å"except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts†¦have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest o f a private individual†. This analysis reveals treaties as having a somewhat uncertain foundation when it comes to their implementation in the states involved. This dilemma was illustrated in the controversial instance of the Maastricht Treaty on European Union and led to a challenge to the treaty-making power of the executive in R v Secretary of State for Commonwealth Affairs ex p Rees Mogg[4]. The treaty was to come into effect upon ratification by the Member States. In the UK there was substantial opposition to the treaty on all sides of the House and the issue raised in the litigation was whether the government had the power to ratify the treaty without such approval. The British government took the allegedly â€Å"safe† course of not referring the treaty under the Ponsonby Rules arguing instead that its ratification was an exercise of prerogative power. The Queen’s Bench Division held that this decision was not susceptible to judicial review. By contrast it might be argued that customary law is a far more amorphous concept. In international law, customary law refers to the legal norms that have developed through the regular exchanges which have occurred between states over time. Such norms gain their acceptance from agreement upon certain universal values. Two easily cited examples might be genocide or slavery which are generally held to be unacceptable behaviour by civilised nations. However, Alder[5] is sceptical: â€Å"The influence of customary values is not necessarily benevolent and custom may become dead wood but still inhibit legal change.† He cites as an example the fact that although an extension of the franchise took place during the late nineteenth century, the advance of female suffrage was inhibited by the fact that the courts refused to interpret the legislative use of the word â€Å"person† as including women. It is therefore submitted that the attempt to determine whether treaties are a better source of international law than custom is misguided. As might be observed from the above argument, treaties while possessing a high-sounding title are often little more than an attempt to formalise customary obligations that already exist between states. The division is further blurred if one pauses to consider the manner in which treaties are interpreted. Article 31 of the Vienna Convention is framed in extraordinarily wide terms: â€Å"1. 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 32 which deals with â€Å"supplementary means of interpretation† broadens the scope of interpretation still further: â€Å"Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.† This blurs the distinction between treaties and custom still further since it leads to a situation in which a treaty can be interpreted so widely as to allow almost any meaning to be placed upon it thus further undermining its status as a definitive document. Finally, a further respect in which the status of treaties as an authoritative source of international law is undermined stems from the manner in which treaty obligations can be ended. Obligations in international law are regarded as arising from the consent of the contracting parties rather than from externally established norms that can be held to be permanently binding. Part IV of the Convention regulates the â€Å"Amendment and Modification of Treaties† and makes it clear that consensus is required for a treaty to remain in force. However, Article 43 is, it is submitted, highly significant: â€Å"The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty [emphasis supplied].† It may be argued that this provision fatally undermines the status of treaties: in effect, while treaties might rise and fall effectively at the will of the participating states, international legal obligations remain. It may be questioned, therefore, whether treaties should enjoy any real legal status or whether they should more accurately be regarded as a species of diplomacy and little more than a temporary statement of intent within the prevailing foreign policy of the parties. In conclusion, therefore, it may be suggested that while treaties have become a commonplace within international law, they should not be accorded the status with which domestic legislation, for example, is regarded. If this premise is accepted, the role of custom in international law becomes more prominent. As has been seen, it is custom that truly informs international law. Indeed, it is possible to argue that so-called â€Å"international law† is no more than the recognition of established norms between sovereign and independent states. International law cannot be regarded as stemming from any recognisable international legislature and is enforceable only as a result of the acquiescence of the states involved. In the final analysis, it might be better to dispense with the concept of â€Å"international legislation† and concentrate instead upon the agreed rules of behaviour between states. In this regard, custom becomes far more influential in determining international obligations and treaties for all their written formality and supposed authority should be regarded as little more than a written record of customary rules. Bibliography Alder, J., General Principles of Constitutional and Administrative Law, (4th Ed., 2002) Allen, M. Thompson, B., Cases and Materials on Constitutional and Administrative Law, (7th Ed., 2003) Barnett, H., Constitutional and Administrative Law, (5th Ed., 2004) Bradley, A. Ewing, K., Constitutional and Administrative Law, (13th Ed., 2003) International and Comparative Law Quarterly Merrills, J., International Dispute Settlement, (4th Ed., 2005) United Nations, Vienna Convention on the Law of Treaties, (1969) Westlaw Footnotes [1] United Nations, Vienna Convention on the Law of Treaties, (1969) [2] [1937] AC 326 at 347 [3] [1990] 2 AC 418 at 477 [4] [1994] QB 552 [5] Alder, J., General Principles of Constitutional and Administrative Law, (4th Ed., 2002), p.42 What Is Public Health Health? What Is Public Health Health? Wanless (2004, p.27 [online]) defines public health as the science and art of preventing disease, prolonging life and promoting health through the organised efforts and informed choices of society, organisations, communities and individuals. From this definition we can establish that the main focus of public health is to reduce health inequalities with the key concepts being to protect the public from transmissible diseases, improving service provision and to promote the health of the population (Naidoo and Wills, 2005, p.8). Health promotion and public health are intricately linked as the idea behind health promotion is to encourage individuals to have greater control over the decisions that affect their overall health. Health is a difficult term to define as people have different perceptions of what being healthy means and it is linked to the way people live their lives. The most common definition of health was set by the World Health Organisation (WHO) in 1948, which suggests that health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity (WHO, 2003 [online]). This definition suggests that health is the achievement and maintenance of physical fitness and mental stability however, each individual is unique so the term health varies from person to person and can therefore be a number of ideas that people have in their minds at different times of their lives (Pearson, 2002, p.45). Discuss the following key concepts in public health: Health inequalities The particular challenges that clients living in poverty face in relation to improving their health. Health inequalities can be described as the variation in the health status or the health gap between the socio-economic classes. Evidence suggests that there is a link between health and wealth, where people in the upper socio-economic classes have more chance of avoiding illness and living longer than those in the lower socio-economic classes and as a result, mortality rates are greater for the lower social classes than for the higher social classes (Marmot, 2010, p.16 [online] ; Acheson, 1998 [online]). Mortality rates are a useful indicator when assessing health inequalities because of its sensitivity to social conditions and even though the life expectancy years of individuals have increased, the life expectancy gap between the social classes has continued to exist (Marmot, 2010, p.45 [online]). The contributing factors to this life expectancy gap includes issues such as poor diet, obesity, smoking and higher drug and alcohol consumption (Marmot, 2010, p.37 [online]) and despite the reduction measures previously taken, this health gap between the wealthiest and the poorest continues to increase (Triggle, 2010 [online]). Access to health care services have also been reported as uneven (Acheson, 1998 [online]) however, an individuals health can be adversely affected by more factors than just the availability of healthcare and these other factors include gender, ethnic groups, religion, age, geographical location, residential deprivation, education, occupation and economic conditions (Marmot, 2010, p.39 [online]). Many of these factors can independently affect health however, those in the lower socio-economic classes tend to be disadvantaged by most, if not all, of them and the combination of these factors can lead to a significantly higher health burden for those who are living in poverty (DoH, 2010, p.15). Poverty is when individuals, families and groups do not have the income needed for the minimum standard of living and poverty can be measured as relative or absolute (Alcock, 2006, p.64). Relative poverty is when the income received is less than the average income for the country, where access to goods and services are limited compared to the rest of society and absolute poverty is where the level of income is below the required amount to afford a decent living or be able to sustain human life and as a result, only the bare minimum levels of food, clothing and shelter can be afforded (Alcock, 2006, p.64). Without sufficient money, people are less able to provide themselves and their families with adequate housing, nutrition, clothing and heating. People who live in poverty are also less likely to have the means to travel to specialist clinics and hospitals which may mean that they are less likely to attend appointments or take advantage of health screening opportunities (Kozier, 2008 , p.133). Identify a contemporary public health issue and describe its health consequences. Obesity is a term which is used to describe a condition where an individual is carrying excess body fat (WHO, 2011 [online]). It is a complex modern health problem facing society today which has both personal and economic consequences. In the UK alone the economic cost of obesity prevention, management and its consequences such as, premature death and employment absence is estimated at up to  £4.2billion per annum and is continuing to rise (DoH, 2010, p.20). As such, obesity prevention has become a public health priority, with significant focus being given to childhood obesity (DoH, 2008, p.27). Children who are obese are likely to suffer both short term and long term adverse health effects, such as increased blood pressure and hyperlipidaemia (NOF, 2011 [online]). They are also at greater risk of developing diabetes, coronary heart disease or even metabolic syndrome prematurely (WHO, 2011 [online]) and as a result, they tend to have a shorter life expectancy (DoH, 2008, p.2). Obese and overweight children also have a tendency to suffer poor psychosocial health and are therefore particularly susceptible to emotional stress, stigmatisation, discrimination and prejudice (NOF, 2011 [online]), which also increases the chances of children suffering with low self-esteem, depression and eating disorders (BMA, 2005, p.8 [online]). One of the biggest concerns of childhood obesity is that it is likely to continue on into adulthood (Coleman, 2007, p.71). Select a health promotion model and discuss how it applies to your chosen public health issue. The prevention of obesity is easier than the treatment and prevention relies heavily on education, therefore for this issue the education model will be used. The aim of this approach is to give information to ensure that each individual has the knowledge and a basic understanding about obesity, which allows the individuals to make informed choices about their own lifestyles (Ewles and Simnett, 2003, p.44). A good example of this approach is the school health education programmes, which not only increases the childs knowledge but also helps the child to the learn skills of healthy living (Ewles and Simnett, 2003, p.44). Educational programmes could also be targeted at the parents and could involve the promotion of breastfeeding, the delaying of weaning onto solid foods to infants and building an awareness of the types of foods that are available within home. Parental education could also focus around building the self-esteem of the child and an understanding of how to address the childs psychological issues. Education in early childhood could also include information about healthy diets, workshops (which could include food tasting) and physical activity (NICE, 2006, p.75 [online]). Identify public health strategies relating to this public health issue at the following levels: Local National and Global The rise in obesity combined with the increased public awareness has prompted new public health initiatives. The white paper Healthy weight, healthy lives, in conjunction with the National Institute for Clinical Excellence (NICE) guidance, sets out guidelines for action on obesity (DoH, 2008 ; NICE, 2006 [online]). Policies and strategies were introduced following the recommendations outlined in these papers and were developed with the main focus being to assist in the prevention and management of obesity and to encourage healthy eating and physical activity (NICE, 2006 [online]). These strategies include school based educational and physical activity programmes and public health messages through the media such as, television, radio, poster campaigns and leaflet distribution. Local authorities have developed strategies which tackle obesity from a local level. A great example of a local initiative within the northeast is Medal Motion, which encourages children to walk or cycle to school whilst also working towards preventing obesity (Local Motion, 2011 [online]). Each locality has different needs and local strategies that are in place have been developed in conjunction with government initiatives and influenced by national policy such as, healthy schools. National interventions include the five a day scheme which encourages people to eat more fruit and vegetables, extended from this is the school fruit and vegetable scheme which helps increase the childs awareness of the importance of eating fruit and vegetables (NHS, 2011 [online]). Change4life is another example of a nationwide initiative which was launched to improve childrens diets, increase their physical activity and which, in turn, improves their chances of living longer, healthier lives (NHS Northeast, 2011 [online]). The national child measurement programme is a national strategy which requires school nurses to weigh and measure all four to five year olds and ten to eleven year olds annually, this monitors prevalence and evaluates obesity reduction strategies (DoH, 2011 [online]). Other national initiatives include Sure Start, school sports programmes, simplified food package labelling and the regulation of television advertising on childrens channels. The WHO has launched a major consultation into the diet-related disease and stated that their global strategy would focus on diet, physical activity and health (WHO, 2004 [online]). This global preventative strategy includes reducing the childs energy intake and improving their intake of nutritional foods, increasing physical activity and reducing time spent in sedentary behaviour, such as watching television (WHO, 2004 [online]). The WHO developed a framework and implementation toolkit which is used to monitor and evaluate their Global Strategy on Diet, Physical Activity and Health (WHO, 2008 [online]). Following on from this framework, the WHO called on governments to take action against food marketing to children and to regulate marketing messages that promote unhealthy dietary practices (WHO, 2007, p.9 [online]). Give an example of how nurses can improve health for this issue The recent white paper called Healthy Lives, Healthy People (DoH, 2010) sets out guidelines for healthcare professionals to support individuals to make their own decisions and choices about their health. Nurses can optimise their role by offering health promotion to individuals who seek help and support in relation to obesity, whilst acting as an advocate for healthy lifestyles and ensuring the clinical environment supports and encourages children to make healthy choices. Healthcare professionals, especially school nurses, are ideally placed to identify if a child is overweight and screening, parental support and health promotion activities should be routinely addressed where possible. Children and families should be offered support to manage weight sensibly, by discussing small incremental changes in family behaviours, and by making any necessary referrals for specialist investigation, psychological help or specific dietician advice (NICE, 2006, p.49 [online]). It is vitally important that the nurse possesses the necessary skills and adequate knowledge on healthy eating in order to educate children and their families (NICE, 2006, p.44 p.101 [online]). Additionally, the necessary resources should be readily available such as advice leaflets, to pass on to parents to aid in the communication and teaching process. Evidence suggests that when talking to children and families about obesity and food behaviours, that problem-solving techniques can have some success (Ewles, 2005, p.95) and as such, nurses can interpret when and where eating patterns become an issue and can therefore offer advice and guidance on how to manage in difficult situations (NICE, 2006, p.148 [online]). Why do people find it difficult to engage in health improvement interventions? A number of factors can inhibit access to healthcare such as language, age, attitudes to healthcare, disabled access, financial barriers and geographical location (Kozier, 2008, p.133). A geographical barrier can be that some patients may have to travel long distances for certain services or to receive specific treatments. The travel costs for these services may be relatively high and access to transport may also be limited. There is also the issue of the postcode lottery of healthcare services where some treatments are only available in certain parts of the country and not in others, such as the Herceptin postcode lottery (Kozier, 2008, p.133). Cost also affects most individuals as some services are not free, such as dental treatment and eye tests and some individuals also have to pay prescription charges which can lead to illnesses being left untreated, as some people afford to pay for their prescriptions. Additionally, due to limited income, some individuals may not have access to the internet and therefore may not be able to access certain services such as Choose and Book, which is primarily an internet based appointment booking service. Other issues that can inhibit access to healthcare include the cost of health insurance, lack of knowledge and awareness and lack of a support network.