I inviolability of

--------------.-------------­
!!www.un.org/
of 1nternationaJ CHAPTER EICHT
IF-DEFENSE IN
ON THE IRAQI
1'S Press, 1996).
19: The Interac­
lcnts on Senator
Treaty System

~. PROCEEDINGS

Jamahiriya, 424
filed in 2004.
ds was dismissed
case was still in

CHAPTER OUTLINE
Introduction
8.1 Definition and Classification
8.2 Formation, Performance, Cessation
8.3 United States Treaty Practice
Problems
Bibliography
Endnotes
INTRODUCTION
States have used treaties to establish their mutual expec­
tations for many centuries-both orally and in writing. l
Today's primary method of determining mutual expec­
tations is the written treaty, governed by the 1969
\/
Vienna Convention on the Law ofTreaties. 2 From the
end ofWorld War II through 2003, the United Nations,
which receives copies of most treaties, has registered
over 50,000 bilateral and multilateral treaties. The contrib­
utors include: China-more than 6,000; France-almost
7,000; the United States and Japan-approximately
10,000 each. 3
Moscow-RuSSIA AND CHINA SIGNED A TREATY
of I]-iendship aDd cooperation yesterday, binding
the two nations closer together over the next
20 years.
The tre;lty also c01l1mits them to jointly oppose
much of the fi'amework for international security
that the United States is seeking to crect in the
post-Cold War era .
. . . [TJhe treaty formally joins Russia and China
in opposing the U.S. plans tor missile defense and
places Russia 1110re firmly behind China's claim. of
sovereignty over Taiwan.
It also strengthens military cooperation between
Beijing and Moscow and rejects the kind of human­
. itarian intervention that NATO undertook in the
Balkans in 1999:
One I USSlan commentator here described the
treaty as '\111 act of friendship against America."
-Patrick TyLer, Russia, Ch.ina sign strategic accord to
meet all.th.reats, j\.TyT News Service, July 17, 2001 .

• 8.1 DEFINITION AND

CLASSIFICATION
DEFINITIONAL CONTOURS
The word "treaty" means different things to different
people. Some three dozen terms are used interchange­
ably with that word. Thus, there have been several
prominent studies. A major Harvard Law School analysis
described treaty law as "confusing, often inconsistent,
unscientific and in a perpetual state of flux." The UN
International Law Commission (ILC) undertook an
exhaustive study of this term. The ILC characterized the
word treaty as a "generic term covering all forms of
international agreement 111 writing concluded between
355
 356 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

states."4 This analysis nevertheless concluded thaJ-':'judi­ law. As described by Professor Andreas Gasis of the Hel­ alteratio
cial differences, in so far as they exist at all ... lie almost lenic [nstitute oflnternational and Foreign Law (Greece): change i
exclusively in the method of conclusion and entry into term. T
force." The legal distinctions among these various terms As is \Nell known, man, when faced with a prob­ Phillimo
are minimal, however, in the sense that each synonym lem not previously encountered, frequently resorts to Il1strume
depicts obligations, which are binding under Interna­ a familiar solution, derived from an analogous situa­ as well a~
tional Law. s tion .... This practice is widespread in the realm of States
Article 2.1 of the 1969 Vienna Convention on the European Continental Law, where the more elabo­ do privat
Law ofTreaties (VCLT) defines a treaty as "an interna­ rated Civil Law of Roman origin has systematically imum fIe
tional agreement concluded between states in written been used as the root onto which new branches of of Helsin
form and governe~ by international law, whether law have been grafted.... "formal <
embodied in a single instrument or in two or more The ... phenomenon has also appeared in the cult for s
related instruments and whatever its particular designa­ realm of international law, where there has been an sending
tion." This" constitution" on treaty law does not address attempt to codify a Law of Treaties in recent years. procedun
oral agreements, because of the comparative prominence Thus, the relevant Vienna Convention on the Law reduces s
of written instruments as a basis for contemporary inter­ of Treaties, 1969, takes a notoriously narrow" con­ allowing I
national obligations. tract" view ofTreaties .... Hence, when reading the definition
/ Treaties may be made by States and international text ... ,one cannot escape the impression of being make [sUI
V organizations 6 In 1991, for example, tFie nternational at the forefront of ... a Continental Civil Code reached m
1\.1c;"netary Fund (IMF) signed an accord with the Soviet governing [the] private law [of] contract... 8 Il1strumen
Union (on the eve of its demise).That agreement estab­ edge that I
lished a special association, whereby the IMF could When drafting or applying a treaty between sover­ contract" ;
advise the Soviets on economic and fiscal policy during eigns, however, there is often a need for more flexibility treaty-drat
its transition to a market economy. The 1969 VCLT than expected of a business relationship between indi­ political s
deals only with tate treaties. The drafters wante"d to viduals. As aptly articulated by the University of New between t!
mold the State treaty regime fmt-saving the interna­ South Wales senior lecturer Shirley Scott: "A legal inter­ must view
tional organizational regime for another day. The 1986 pretation of a multilateral treaty takes the treaty at face
Vienna Convention on the Law of Treaties Between value. The preamble is read as indicative of tbe goals of "Unequal'
/ States and International Organizations or Between Inter­ ~~reaty. From the perspective of the political interpre­ supposedly
...J national Organizations is the organizational counterpart tation of a treaty, the treaty per se js not c~!l~ered to to create ri
of International Treaty Law.? have goals. The preamble points to, but does not define, number of
Treaty disputes have adversely affected international a principle whose acceptance as a basis of negotiation another be,
relations on many occasions, and in a variety of con­ was essential to the conclusion of the treaty. Whereas positions.
texts. There have been many issues of interpretation from a legal perspective all preambular parag~aphs are of During t
with the formation, observation, and termination of equal importance, from a political perspective those ers first raist
treaties. The United Nations thus developed the VCLT, making reference to the foundation[al] ideology ... are in the abser
as a code to govern international agreements-a treaty of greater political importance than the others. 9 1646, the t
on treaties. It governs written treaties made after 1980, The VCLT is thereby characterized as failing to guished ben
when the convention was ratified by the required min­ incorporate the fact that an international treaty is some- ' an unequal
imum number of nations to become effective. [t pro­ thing different than a contract governing private rela-V another, rat!
vides the best insight into the treaty practice of States, tionships between individuals, who often speak the same process. In J
and is the core of this chapter on the treaty system. native language. The above scholars argue that a treaty problem of
should not be thought of as a "concluded" agre:i11ent individuals, ~
Analogy to Contract Law? There is a daunting expressing the complete intent of the parties to the hypothesize<
question about whether public treaties between nations treaty. [nstead, it is merely evidence of an underlying individuals I
are analogous to private contracts between individuals legislative purpose to be ascertained by international treaties equa
(including corporate "persons"). By producing a global consensus. Even an agreed-upon meaning associated tial writers, I
yardstick, the VCLT drafters arguably oversimplified treaty with a particular treaty word can undergo subsequent treaties. A b;
 TREATY SYSTEM 357

of the Hel­ alteration, when there has be~n a lapse of time or a necessary prerequisite for a valid treaty between sovereign
(Greece):
l\' change in State practice regarding the application of that States. But as later stated by American author H. Halleck
term. The nineteenth-century legal writer, Robert in 1861, "the inequality in the ... engagements of a treaty
'ith a prab­ Phillimore, thus cautioned that "due construction of the does not, in general, render such engagements any the less
ly resorts to instrument may require a [kJnowledge of the antiquated binding upon the contracting parties."12
19ouS situa­ as well as the present use of the words...." 10 Examples of unequal treaties include Napoleon's 1807
he realm of States generally prefer less specific agreements than threat to place the king of Spain on trial for treason,
nore elabo­ do private international traders, in order to retain max­ unless the king surrendered his throne. Having no
'stematically imum flexibility in their respective dealings. University choice, King Ferdinand entered into an agreement with
branches of of Helsinki Professor Jan Klabbers comments that many France that was devoid of any bargained-for advantages
"formal and visible agreements make it politically diffi­ for Spain. In the 1856 Treaty of ~aris, Russia was pro­
ared in the cult for states to change their policies. The necessity of hibited from maintaining a naval fleet on the Black Sea
has been an sending proposed agreements through cumbersome at its geographically sensitive southwestern border. In
ecent years, procedures of approval in their national legislatures 1903, a US condition for recognizing Cuba's indepen­
:m the Law reduces states' freedom of action. Further, agreements dence from Spain was the Guantanamo Naval Base Treaty.
rrow"con­ allowing for quick renegotiation or modification are by The United States thereby "acquired" a permanent lease
reading the definition not as inflexible as agreements which do not for a military base that proved critical to US interests.
Ion of being make [such an] allowance. Finally, agreement can be The 1903 Panama Canal Treaty with Colombia validated
Civil Code reached more swiftly ... the more informal the proposed US control over the Canal (until relinquished in 1977).
:t... .8 instrument is considered to be."l1 One should acknowl­ The Treaty ofVersailles, which ended World War I, was
edge that the twentieth-century "public treaty as private signed by German delegates who had unsuccessfully
,veen sover­ contract" analogy is not without its critics. A lawyer in a objected to draconian terms requiring that Germany pay
Ire flexibility treaty-drafting process may prefer to "cross all the t's." A the victors for damages incurred duringWorld War 1. Just
:tween indi­ political scientist might focus on the relationship prior to World War II, Hitler threatened to bomb
sity of New between the four corners of the document. A diplomat Czechoslovakia to force the adoption of a treaty placing
A legal inter­ must view the process through both lenses. the Czechs under German "protection.''!}
treaty at face In the twentieth century, legal commentators began
'the goals of "Unequal" Treaties International agreements are to question the historical presumption that unequal
rica I interpre­ supposedly the product of a mutually beneficial decision treaties are valid. National Chengchi University (Taipei)
:onsidered to to create rights and honor obligations. Unfortunately, a Professor Hungdah Chiu summarized them as follows:
---...
fS rlOt define, number of treaties have been imposed by one State on
r negotia tiOll
eaty. Whereas
another because of their inherently unequal bargaining
positions.
After the 1917 Bolshevik revolution in Russia, the
Bolshevik government offered to abolish and later
graphs are of During the seventeenth and eighteenth centuries, writ­ did abolish some former Tzarist treaties imposed
ective those ers first raised the question of whether treaties were valid upon China, Persia, and Turkey; and Soviet writers
ology ... are in the absence of any real bargaining or negotiations. In then began to discuss the question of the validity of
ers
9 1646, the famous Dutch author Hugo Grotius distin­ those "coercive, predatory, and enslaving" treaties,
s failing to
guished between equal and Ul1equal treaties. He described although the term "unequal treaties" was not wide!y
eatv, is some­ \ (.
an unequal treaty as one that is forced on one nation by used after World War II. This early development in
private rela­ another, rather than being the product of a negotiated the Soviet Union, however, was generally ignored by
eak the SJ me process. In 1758, Swiss author E. de Vatte! examined the Western scholars.
that a trea ty problem of unequal treaties-concluding that States, like In the 1920s, however, ~e problem of unequal
" agreement individuals, should deal fairly wirh one another. De Vattel treaties received world-wide attention when China
arties to the hypothesized that because States "are no less bound than demanded the abolition of some treaties that it termed
n underlying individuals to respect justice, they should make their unequal. Only then did some Western writers renew
international treaties equal, as far as possible." Neither of rhese influen­ interest in the problem. In 1927, at the annual meeting
g associated tial writers, however, questioned the legal validity of such of the American Society of International Law, a session
subsequent treaties. A bargained-for exchange was not considered a was devoted to the discussion of China's unequal
358 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

treaties. With the abolition of what were presmned to Court ofJustice (IC]) reviewed some documents related Th
be the last of China's unequal treaties in the early 1940s, to a maritime boundary dispute. These were the 1987 dOlls i
Western scholars again lost interest in the subject. exchanges of letters between the King of Saudi Arabia played
With the emergence of many new states in Asia and the Emir of Qatar, and between the King of Saudi diplon
and Africa in the 1960s, the question of unequal Arabia and the Emir of Bahrain; and, a 1990 document rule 0
treaties again began to attract worldwide attention. entitled "Minutes," signed at Doha by the Mini~ters for books
When the Draft Articles on the Law ofTreaties pre­ Foreign Affairs ofBahrain, Qatar, and Saudi Arabia. These prepan
pared by the United Nations International Law Com­ exchanges constituted international agreements, which nation:
mission was sent to UN member states for comment, obligated the State Parties to abide by the terms of those 1899 2
many states expressed concern about the question of agreements, including the undertaking to submit their contrac
unequal treaties. 14 long-term maritime boundary dispute to the Court. 16 of civil
making
Bilateral versus Multilateral A bilateral treaty of equi
CONTEMPORARY CLASSIFICATION establishes mutual rights and obligations between two of State
The convenience of any treaty classification system is States. It normally affects only them, but not others. tates of
rivaled by the c!<mger of oversimplification. Four conunon Other States typically derive no benefits or duties fr0111 Duri
distinctions illustrate the general nature of most treaties: such a treaty. The States entering into this type of treaty while tl
oraLyersus written; bila~eral
"-
versus
..
multilateral;
. .. -- --.,
lawrnak­ do not intend to establish rules, which contribute to practice
ing versus contractual; and self-executing versus de clara­ the progressive development of International Law. For multipaJ
tioilofi;)tent. --... "-. - ""-.. example, there are hundreds of bilateral extradition Manley
treaties. Each one lists the circumstances under which umes 0
Oral versus Written The VCLT was drafted in the two treaty parties agree to return criminals to the period 1
terms of"written" treaties. While most treaties are writ­ State requesting extradition. The respective States do treaties (
ten, States routinely incur international obligations based not intend to make a change to international practice, the Uni
on oral agreements. State representatives may orally incur merely by agreeing on which crimes are thereby subject lnternati
a binding international obligation. to mutual extradition. specializc
In a prominent example, Denmark and Norway Bilateral treaties do not confer benefIts on or create together
established Denmark's sovereignty over Eastern Green­ obligations for nonparties, unless that is the express intent organizat
land in a manner, which was far less formal than a writ­ of the contracting parties. Nor does a multilateral treaty with spe<
ten treaty. The right to this vast area had been disputed necessarily do that. However, its contents may be evi­ birth to s
since the 1819 termination of the union between what dence of accepted State practice which lies within the covering
is now Denmark and Norway. In a recorded conversa­ parallel universe of Customary International Law than 33,0
tion in 1919, the Norwegian Minister of Foreign Affairs (§ 1.2).17 A multilateral treaty, on the other h~, is an
and a Danish diplomat agreed that Norway would not international agreement among ;:.h!:.~ore States. Lawmakin!
object to Danish control over all of Greenland, includ­ Most of the military, political, and econom.ic organiza­ be classified
ing the disputed portion of its eastern coast. The Per­ tions discussed in this book were created by multilateral lawmaking t
manent Court of International Justice (PCI]) held that treaties. They expressed the rights and duties of the Law designe
this oral understanding resulted "in the settlement of member States, and the competence of the particular 1982 United
this [sovereignty] question."15 The Court accorded great organization created by their treaty. number of r
weight to the context in which this particular conversa­ There was a significant proliferation of multilateral oceans. Alth<
tion occurred. Although certainly not as formal as a writ­ treaties in the twentieth century. Writing on the impact existing rule:
ten treaty, this agreement was nevertheless binding on of the 1982 UN Convention on the Law of the Sea, for eions, this 1111
Norway, because of the subject matter of this diplomatic example, George Washington University Professor Louis lawmaking pi
discussion. Two diplomats had orally resolved a question Sohn traces the comparative deluge after World War II: tional Seabed
falling within the negotiating authority conferred upon in which the
them by their respective nations. International lawyers have by now accepted the uted. Free "tr.
A writing does not have to be a formal treaty to create fact that rules for drafting and putting into force such applicable re,
international obligations. In 1994, the International [multilateral] agreements are flexible .... through the 0
 TREATY SYSTEM 359

lents related This flexibility is due_primarily to the tremen­ Ratification of some of the associated provisions
re the 1987 dous increase in the last fifty years in the role being would change State practice, which had not previously
Saudi Arabia played by international institutions and multipartite required either an equitable redistribution of global
ing of Saudi diplomacy. Originally, evidence of the existence of a resou rces or transit passage.
10 document rule of international law could be found only in On the other hand, some treaties are merely "con­
Mini~ters for books written by eminent professors or in briefS tractual." An import-export treaty sets forth the terms of
Arabia. These prepared by practitioners in disputes involving inter­ a contract, which the State parties agree to for a speci­
nents, which national law. ... The Hague Peace Conferences of fied period of time. For example, under the GATT/
~nns of those 1899 and 1907 inaugurated a new approach: the WTO regime (§13.2), State X agrees to charge an 8
submit their contracting parties, acting on behalf of "the society percent tariff on incoming State Y wine. State Y may
h.e Court. l6 of civilized nations," agreed on a number of law­ export up to 100,000 bottles of wine per year to State
making conventions ... [regarding] "the principles X. This arrangement is a simple contract. It does not
lateral treaty of equity and right on which are based the security purport to create, alter, or abrogate any of the norms,
between twO of States and the welfare of peoples ... and the dic­ which govern international trade.
It not others. tates of public conscience." French Professor Paul Reuter, in his distinguished
)[ duties from During the period of the League of Nations, treatise on treaty law, succinctly recounted that "[t]he
type of treaty while the 1930 Codification Conference [on treaty development of treaties dunng the second half of the
contribute to practice] did not prove successful, the number of nineteenth century prompted several new doctrinal dis­
anal Law. For multipartite treaties increased considerably. Professor tinctions .... [T]he expressions 'law-making treaties' and
al extradition Manley 0. Hudson collected in the first eight vol­ 'contractual treaties' came into use, the former referring
under which umes of International Legislation, covering the to the treaties [that] first laid down general conventional
iminals to the period 1918 to 1941,610 international multipartite rules governing [all of] international society.... It is
tive States do treaties of that period. Since the Second World War, important to make clear, when speaking of treaties as
:ional practice, the United Nations, acting not only through the either [normative] 'legislation' or [mere] 'contracts,'
hereby subject International Law Commission, but also through its whether they are being viewed fi'om [either] a legal or
specialized agencies and special conferences ... sociological standpoint." 19
ts on 0 r create together with the increasing number of regional An entire treaty, or parts of it, may break new legal
e express intent organizations and various groups of states dealing ground. The North American Free Trade Agreement
Iltilateral treaty with specific topics of international law, has given (NAFTA) associated Canada, Mexico, and the United
ts may be evi­ birth to several thousands of multipartite agreements States into a large free-trade area. That development was
lies within the covering practically every conceivable subject [more "lawmaking" because it created a new international
:national Law than 33,000 when this article was written].18 organization. Yet there was nothing novel or lawmaking
ler han , is an about their reduction of trade barriers to form a
~ore States. Lawmaking versus Contrac:tual Treaties may also common economic market. Many other countries, as in
)mic orgal1lza­ be classified as either "lawmaking" or "contractuaL" A the European Union, had already done so. In this sense,
by multilateral lawmaking treaty creates a new rule of International NAFTA merely created an international contract gov­
duties of the Law designed to modify existing State practice. The erning the respective goods and services exchange
~ the particular 1982 United Nations Law of the Sea Treaty contains a among the State parties, just like a private contract
number of new rules governing jurisdiction over the would do, between three merchants engaged in a simi­
of multilateral oceans. Although it codifies (restates) some p'reviously lar cross-border transaction. One could distinguish the
; on the impact existing rules that States applied in their mutual rela­ 1995 World Trade Organization (WTO), however. It
, of the Sea, for tions, this multilateral treaty also contains some novel replaced the established 1947 General Agreement on
Professor Louis lawmaking provisions. For example, the new Interna­ Tariffs and Trade (GATT) process. The physical bulk of
.World War n: tional Seabed Authority was created to control the ways the WTO process merely continued the GATT process
in which the ocean's resources are globally (re)distrib­ of publishing national tariff schedules. But establishing
/Iaccepted the uted. Free "transit passage" 'vvould replace the otherwise an authoritative WTO process involved fresh lawmak­
into force such applicable regime of restricted "innocent passage" ing, because of the way in which nations therein
through the territorial waters of coastal States (§6.3). decided to resolve their international trade disputes.
360 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

Self-Executing versus Declaration of Intent A· international legal framework covering the whole It chan
treaty may be further classified as "self-executing" when spectrum of human activity, including human rights, bound
it expressly imposes immediate obligations. A self­ humanitarian affairs, the environment, disarmament, Howevi
executing treaty requires no further action to impose international criminal matters, narcotics, outer space, express
binding obligations on its signatories. It is instantly incor­ trade, commodities and transportation .... dependi
porated into both International Law and the internal Some of these multilateral treaties, though negoti­ tions wI
law of each treaty member by the express terms of the ated many years ago, are still to receive the minimum
_--...
treaty There is no need for additional executive
/--.--.
or legisla­ number of ratifications and accessions required for TREATY
tive a~tion .by the State parties to immediately create their entry into force. Others are still far from achiev­ The chr
bI~ding kgal obligations. Alternatively, a treaty may be a ing universal participation. It is my hope that Heads mentatic
'-----"" . ------=...
declaration of intent:" It would thereby contain general of State a.nd Government will ... rededicate them­ tu re, rati
statements of principle, which set forth a hortatory stan­ selves to the multilateral treaty framework and thereby and regis
dard of achievement for all parties. Such treaties require contribute to advancing the international rule of law
follow up, individual State action before any of the par­ and the cause of peace.... 20 Negotia
ties incur actual legal-as opposed to moral-obligations often bel
under the treaty. The following case arose in the now familiar context UN Gen
Bilateral treaties concluded by two States are nor­ of the Vienna Convention on Consular Relations. In the of global
mally self-executing. The contracting States would have §7.2 Torres case, you observed the sensitive fallout from problem ~
no treaty, if they were unable to agree to all of its terms. failure to provide consular access to an arrested foreign ference.5t
Not so with a multilateral treaty. Most multilateral treaties national. In a related case, the US Supreme Court ana­ with pre1
are·Jl.ot self-e~uting. The State draTrerswllo sign them lyzed whether that treaty is self-executing: conferenc
intend them to b?s"tatements of principle, which do not for examI
impose immediate legal obligations to act in a particular treaty. The
way. Such treaties are intended to articulate mutually of the nex
agreeable goals or standards of achievement. Each par­ negotiated
ticipant must undertake some subsequent act under its the oceans
internal law, for the stated standard to then ripen into a Medellin v, Dretke drafted, ane
binding legal obligation. SUPREME COURT OF THE produced;
If all treaties were self-executing, few States would UNITED STATES
least in pri
participate. There is a vast difference in economic, cul­ _ U.S. _ , 125 S.Ct. 2088, 161 LEd. 2d
Confere
tural, political, or military capabilities to immediately 982(2005)
to negotiajc
institute all features of certain multilateral treaties. An Go to course Web page at
diplomats 1
initial agreement on the aspirational goal accommodates <http://home.att.net/-slomansoi1b/txtcsesite.html>.
authorities,
these differences via the expression of conunonly under­ Under Chapter Eight, click Medellin v. Dretke.
with "futi f
stood objectives. As acknowledged by UN Secretary ment from <
General Ko£1 Annan, in his Millennium Summit invita­ or conferen.
tion for nations of the world to ratifY the twenty-five ence. That
core multilateral treaties: with variow
• 8.2 FORMATION, PERFORMANCE, perform any
Since the founding of the United Nations in of the treaty
CESSATION
1945, over 500 multilateral treaties have been tates assurar
deposited with the Secretary General. ... Without his section of the book deals with the treaty process: acceptable te
exception, all of these treaties have been the result of T how a treaty is formed, expectations regarding its per­ decide whet
meticulous negotiations and reflect a careful balance of formance, and when performance may be interrupted. negotiated b:
national, regional, economic and other interests.... Although this section focuses on the main international The lack
The aspirations of nations and of individuals for a treaty on treaties, local procedures for adopting it vary from tional relatio:
better world governed by clear and predictable rules country to country. As noted by the Council of Europe: signed two l
agreed upon at the international level are reflected in "Treaty-making constitutes the very basis of the interna­ authority to (
these instruments. They constitute a comprehensive tional legal order and influences international relations. minister imp

the whole It channels the expression by _States.of consent to be
mn rights, bound and defines the commitments (hey enter into.
arman1ent, However, the national procedures by which States
luter space, express their consent to be bound vary considerably,
depending on constitutional, legal and political condi­
Igh negoti­ tions which reflect the history of each country."21
: minimum
TREATY FORMATION
~guired for
am achiev­ The chronological phases in the formation and imple­
that Heads mentation of a multilateral treaty are negotiation, signa­
cate them­ ture, ratification, reservations (if any), entry into force,
and thereby and registration.
rule of law
Negotiations The emergence of a multilateral treaty
often begins when an international organ such as the
liar context UN General Assembly decides to study some problem
tions. In the of global concern. The Assembly might resolve that the
fallout from problem should be the subject of an international con­
sted foreign ference. State representatives commence the treaty process
Court ana­ with preliminary negotiations during an international
conference. Most nations of the world first met in 1974,
for example, to draft an International Law of the Sea
treaty. These initial discussions expanded, over the course
of the next eight years, during which many nations thus
negotiated their respective positions on proper use of
the oceans and its natural resources. These representatives
drafted, and redrafted, a "constitution" of the oceans. They
produced a f111al treaty text, which was satisfactory, at
least in principle, to the participants (§6.3).
Conference representatives must possess the authority
:d.2d
to negotiaJe .onbehalf of their respective ~~s. Not unlike
diplomats who present their credentials to host State
authorities, conference participants are normally vested
ite.htrnl> .
with "full powers" by the State they represent. A docu­
Dretke.
ment from each State's government is presented to a chair
or conference comm..ittee at the inception of the confer­
ence. That document normally vests the representative
with various powers: to negotiate, provisionally accept, or
perform any act necessary for completing tlus initial phase
:ANCE,
of the treaty process. The "full power" instrument facili­
tates assurances that conference developments will be
:eaty process: acceptable to the governments that will one day have to
rding its per­ decide whether to ratify the fmal draft of the treaty text
interrupted. negotiated by their respective conference representatives.
international The lack of such authority adversely affected interna­
g it vary from tional relations when a former US minister to Romania
il of Europe: signed two bilateral treaties, but without the president's
: the interna­ authority to do so. Regarding one of those treaties, the US
nal relations. m..inister improperly advised the president that he was
TREATY SYSTEM 361
signing a different treaty than the one he actually signed
with Romania. As to the other agreement, he had no
authority whatsoever to actually bind the United States.
The US attempt to avoid its obligations under those
treaties was resisted by Romania because the United States
had already officially entered into these two agreements. 22
To help clarif)l treaty expectations in such instances,
Article 8 of the VCLT provides that any "act relating to the
conclusion of a treaty performed by a person who cannot
be considered ... as authorized to represent a State for
that purpose is without legal effect unless afterwards con­
firmed by the competent authority of the State." This
language theoretically creates the potential for abuse,
whereby a State representative can enter into a treaty, and
the home State can subsequently disavow the authority of
its representative. In practice, however, the representative's
presentation of documentary powers at the inception of a
conference contains clear notification to all participants
about the extent of a particular delegate's powers (which
may be limited by the dispatching government).
In the 1960s, many of the neW nations and former
colon..ies in Africa and Asia advocated the proposition that
(the previously discussed) "unequal treaties" were no
longer acceptable under International Law. One promi­
nent forum for advocating this perspective was the draft­
ing negotiations for the 1969VCLT.Article 2.4 of the UN
Charter requires all members to "refrain in their interna­
tional relations from the threat or use of force ... [which
is] inconsistent with the purposes of the United Nations."
If force was illegal in international relations, then coercion
in the treaty process should invalidate the legality of any
treaty forced upon these former colonies whose bargain­
ing power was no match for their former occupiers.
The result of the VCLT negotiations was the incorpo­
ration of two articles applicable to treaties concluded after
the effective date oftheVCLT (January 27, 1980). Article
51 provides that the" expression of a State's consent to be
bound by a treaty which has been procured by the coercion (if
its representative through acts or threats directed against him
shall be without any legal effect" (italics added). Article 52
provides that a "treaty is void if its conclusion has been pro­
wred by the threat or use ojJorce in violation of the principles
of international law embodied in the Charter of the Un..ited
Nations" (italics added). Although coerced treaties that
concluded prior to the VCLT were presumed valid by
some writers, Articles 51 and 52 expressly negated that
presumption for subsequent rreaties. As stated by the IC],
there "can be little doubt, as is implied in the Charter of
the United Narions and recognized in Article 52 of the
362 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

Vienna Convention on the Law of Treaties, th~t_ under Nations," it is difficult to determine when a [I·eaty would State par
contemporary international law an agreement concluded be void on the basis of duress in its creation. are otten:
under the threat or use of force is void."23 that an OF
During the VCLT negotiations, a number of Eastern Signature The next significant step in the treaty process should be
communist bloc and African states advocated the view is "opening for signature." States, and any participating opinion, a
that Article 52's prohibition against force should expressly international organizations, are invited to sign (which is tions, whi,
include "economic, military, and political" coercion. Their distinct from subsequent ratification). A State that signs a As cla
attempts to ban treaties procured through these categories treaty has agreed, in principle, to the general wording of Appeals d
of force were rebuffed by Western representatives. The the articles appearing in the text of its final draft. Drawing I nternatic
Western position was that, given the difficulty of defming upon the example of the Vienna Convention on Diplo­
"force" in the treaty process, it would be too difficult to matic Relations (§7.2), negotiations were concluded in The ral
determine whether a treaty was invalid because it was 1969.The representatives had thereby finished drafting this serves s,
allegedly signed as a result of such duress. new "constitution" governing diplomatic issues. state th<
Article 52 of the VCLT therefore does not contain a In one sense, this was only the beginning. Under a comp
specific definition of force. Instead, it generally prohibits Article 81 of the VCLT, "[1'] he present Convention shall for an ir
the threat or use of force in violation of the principles be open for signature by all States Members of the for vari<
of International Law embodied in the UN Charter. That United Nations ... and by any other State invited by has beel
language thus meant that "the precise scope of the acts the General Assembly to become a party to the Con­ before t]
covered by this defl11ition should be left to be deter­ vention .. ." States that did not participate in the draft­ addition
mined in practice by interpretation of the relevant pro­ ing conference may subsequently "accede" to a treaty. States an
visions of the [UN] Charter." Yet Article 2.4 of the That State thereby consents to be bo~-:-albeit in prin­ that ma)
Charter also begs the question of what is the intended ciple, like any States that signed the treaty at or near the treaty, (2)
meaning of l' he term "force." It vaguely prohibits the use conclusion of the drafting conference. Alternatively, bodies as
of force "against the territorial integrity or political accession may express a State's willingness to accept the relevant !
independence of any state...."The Vienna Convention treaty's obligations as being immediately binding, with­
Article 52 definition of force in the treaty process was out the necessity of ratification (discussed below). Reservatio
likewise left purposefully vague, because it incorporated Unanimous and inm1ediate consent of aU States is pos­ usually not
the Charter's inherently vague definition of force 24 sible, but quite atypical-for reasons addressed m the tion is a Stat
Some ambiguity about the scope of the term "force" "reservations" portion of this section. Fully embracing the some gener,
was oiliet at the conclusion of the VCLT. The delegates treaty's commitments normally evolves through two Notwithstan
adopted the separate Declaration on the Prohibition of related stages. The first stage is proIJisional acceptance may exclude.
Military, Political, or Economic Coercion in the Conclu­ of the treaty by the conference delegates. This stage which wouk
sion of Treaties. They therein stated that the United expresses consent to the general wording of the final con­ of l' he "mod~
Nations Conference on the Law of Treaties "solemnly ference draft. Unless otherwise specified, the signature of reserving Sta'
condeillils the threat or use of pressure in any form, a representative on a multilateral treaty merely indicates generally; bUI
whether military, political, or economic, by any State in that his or her State agrees in principle with the essence aU terms. A S
order to coerce another State to perform any act relating of the treaty. Final acceptance would follow, >vhen a State conference d
to the conclusion of a treaty in violation of the principles expresses its willingness to be legally bound by the treaty's vation, althou
of the sovereign equality of States and freedom of con­ terms, expressed in that State's ratification of the treaty. A reservati
sent. .. ."25 This Declaration was actually made indepen­ ditional cons~
dently of the VCLT rather than directly expressed within Ratification Postconference ratification is the typical other parties,
the text of the Article 52 prohibition of force in the con­ mode for each State's full acceptance of a treaty. The general conser
clusion of treaties. This exclusion-which more precisely conference delegate has already submitted the provi­ is not bound
defined force, but in the supplemental text not officiaUy a sionally accepted treaty text to the proper authority ill able" trea t)' pr
part of the VCLT itself-was a compromise. It amelio­ his or her State for final approval. This ratification is ratified treaty I
rated Western opposition to nonmilitary duress as a basis then determined in accordance with each State's inter­ In the cas
for invalidating a treaty. Because the VCLT itself defines nal laws on treaty acceptance. Oxford University's Sir nations, rese
coercion only by the reference to the "principles of inter­ Humphrey Waldock provides a useful explanation for the two patti
national law embodied in the Charter of the United the necessity of postcon.ference ratification by each potential tive agl-eemenl
 TREATY SYSTEM 363

'lty would State party: "[T]he interests with which a treaty deals proposal, which is a counteroffer to change their treaty.
are often so complicated and important that it is reasonable Both States must agree on all terms of a bilateral agree­
that an opportunity for considering the treaty as a whole ment. Otherwise, it cannot become uniformly applica­
Lty process sl10uld be reserved. A democratic state must consult public ble for each treaty party.
rticipating opinion, and tlus can hardly take shape while the negotia­ Hypothetical reservation illustration: Assume that the
(which is tions, which must be largely confidential, are going on." representatives of States A, B, C, and D provisionally accept
hat signs a As classically articulated in a 2005 US Court of the final text of a treaty at the conclusion of their four­
vording of Appeals decision, drawing from two leading treatises on nation drafting conference. They express their agreement
t. Drawing International Law: to be bound by the broadly worded principles stated in the
on Diplo­ treaty. They open this treaty for signature (and subsequent
lcluded in The ratification process, in whatever form it may take ratification).The terms of the treaty are not self-executing
rafting this serves several functions. First and foremost, "it affords a because the conference delegates did not have the power
state the chance to scrutinize closely the provisions of to ratifY the treaty immediately upon conclusion of the
19. Under
a complicated agreement" after signing it. "The need drafting stage. No State is yet entitled to the rights, nor
ntion shall
for an institution such as ratification is principally that, bound to perform the obligations, specified in the treaty.
ers of the
for various reasons, states need time after agreement Each State must subsequently accept the treaty through
invited by
has been reached upon a definitive text of a treaty the respective national ratification processes. State A's lead­
the Con-
before they feel able to commit themselves to it." In ers review this treaty for possible ratification. They decide
I the draft­
addition, in the time between signing and ratification, to object to the application of one treaty clause. State A
to a treaty.
States are able ... (1) to effect changes in domestic law will thus tender a reservation to that particular provision
~it in prin­
that may be necessary for the implementation of a of the treaty. Assun1ing that A's reservation is acceptable to
Dr near the
treaty, (2) to seek and obtain the consent of legislative B, C, and D. State A is excused from perforn1ing that par­
ternatively,
bodies as may be required, and (3) to re-exan1ine the ticular provision of the treaty. Assume that B, C, and D do
accept the relevant provisions before comnutting to them 26 not tender the same reservation when they ratifY this
:ling, with­ treaty. Unlike State A, they are bound to perform whatever
low). Reservations Acceptance of a multilateral treaty is is required by this treaty clause among themselves. How­
ates is pos­ usually not an "all-or-nothing" proposition. A reserva­ ever, the three countries do not have to perform that obli­
;ed m the tion is a State's unilateral variation from the language of gation in their respective dealings with State A.
Dracing the some general term contained in the negotiated text. VlIhy are reservations permitted? They encourage wider
-augh two Notwithstanding ratification of the overall treaty, a State participation in multilateral treaties via the practical com­
acceptance may exclude, or modifY, the legal effect of its obligations, pron1ise, that is, pern1itting reservations. Broad participa­
This stage which would otherwise arise under the general language tion is better than lin1ited participation by only those few
e fmal con­ of the "model" article in the fmal draft of the treaty. The States that might be willing to accept every term in a draft
;ignature of reserving State is expressing its agreement with the text treaty. For example, few States would agree to be sued in
ly indicates generally; but it does not wish to become obligated on the International Court of Justice (ICJ) if they were
the essence all terms. A State's provisional acceptance at the drafting unable to make reservations to the final draft treaty pro­
,hen a State conference does not preclude it from tendering a reser­ vision regarding the ICTs competence to hear and decide
, the treary's vation, although it may have signed the treaty. its own cases. Article 36.6 of the UN's Statute of the ICJ
[he treary. A reservation to a specific provision in a treatyis a con­ provides that any disputes over the Court's jurisdiction, or
ditional consent. If the reservation is acceptable to the power to hear the particular case, are to be detern1ined by
the typical other parties, it lin1its the scope of the reserving State's the Court itself. Every UN member is automatically a
treaty. The general consent to the rest of the treatyThe reserving State party to this Statute, which is itself a treaty.
the provi­ is not bound by what it thus identifies as an "objection­ States often object to the Court's jurisdiction to hear
luthoriry in able" treaty provision. It is bound by all other terms of the a case, which has just been filed against them. Those
tification is ratified treaty to which it has not subn1itted a reservation. States may do so, if they had previously decided not to
itate's inter­ In the case of a bilateral treaty between just two give their full consent to Article 36.6 of the ICJ Statute.
lversiry's Sir nations, reservations are generally nonexistent. One of Many States tendered reservations to this treaty-based
lanation for the two parties may still have a "reservation" to a tenta­ competence of the IC] to decide its own jurisdiction.
leh potential tive agreement. But any reservation is effectively a fresh They reserved the question of the Court's power to hear
364 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

a case unto themselves, when they would be sumuwned yield a very sensitive debate. The classic example is the
as a defendant in a future case before the Court. This United Nations Genocide Convention 28 The principles COll\lCI
common reservation precludes the ICJ from deciding its enshrined in this 1948 instrument were unanimously ,COllcen
own jurisdiction under the IC]'s Statute. This complex adopted by all UN members in the aftermath of Nazi peared
feature of the Court's jurisprudence is analyzed in §9.4. Germany's Holocaust. Many States, however, did not ratifY It is
Suffice it to say that at this juncture, there was a practical the Genocide Convention. The term "genocide" has canJlot
need for compromise. Without the possibility of such a meant different things to different people. States were thus gucntly
treaty reservation, a number of major powers would not reluctant to accept it without knowing what specific obli­ against a
have recognized a distant Court-sitting in Europe-as gations might one day materialize. They feared that the is also a
having the absolute power to hear all international con­ absence of a reservation provision in the Genocide Treaty COllventi
troversies. Reservations like this one accommodate the might one day subject them to scrutiny on grounds that upon its
special interests of States, which would not othenvise they had never contemplated. The United States, for tracting I
participate in the overall process of international adjudi­ example, did not become a party until nearly forty years of unilat(
cation by the IC]. Half a loaf is better than none. later (1986) because of prior senatorial concern about the pose and
Such conditional assent cannot be used in all treaties. meaning and application of its various terms. pie was
The drafting conference negotiators may decide to insert The International Court of Justice Reservations Case cOl1ventic
a prohibition against reservations within the express lan­ addresses this issue. In 1948, the UN General Assembly concept i
guage of the final treaty text. The 1995 Agreement for unanimously adopted the Convention on Genocide. It valid' unle
Implementation of the Provisions of the United Nations began as a General Assembly resolution, and thus not without e
Convention on the Law of the Sea of 10 December directly binding upon UN members, without further been state
This c(
1982 relating to the Conservation and Management of action via individual State ratifications (§1.2 Sources). In
of Contrac
Straddling Fish Stocks and Highly Migratory Fish Stocks 1950, the UN General Assembly requested an advisory
ever, as reg
prohibits reservations. Predictably, such a provision can opinion from the IC]. The 1948 Convention had just
refer to a \'
limit effective participation. While the US Senate gave entered into force, because of the deposit of the mini­
more Hexil
its approval to this treaty in 1996, members of that body mum number of ratifications by 1950. There was no pro­
cirCUl1lstan
warned other nations that this should not be construed vision on the extremely sensitive question of whether
ter of the
as US acquiescence in future treaties containing a like reservations would be permitted. If reservations were to be
COl1VenriOI
provision.27 allowed, then States could theoretically exclude certain participatio
Many treaties say nothing about the possibility of the forms of genocide from their consent to be bound by this Conwnriol
parties being able to tender reservations to the final text. treaty. The General Assembly asked the Court to interpret this rype ha
Silence normally cannot be construed as supporting or the Genocide Convention, to determine whether a State mternatiOn<
defeating the right to become a party, while attempting to might ratify the Convention and simultaneously tender a tions. Mor~
do so via a reservation to a key text provision. This can limiting reservation to its egalitarian terms. aJlowance n
tence of pr~
author of r
•
tain COntract
Reservations to the Convention on Genocide party to the
parties that h
INTERNATIONAL COURT ,OF JUSTICE
tors ,1 re Illan]
1951 ICJ REPORTS 15 (1951) operation of
It must
AUTHOR'S NOTE: The Court chose to articulate a long as it was "compatible" with the language and pur­ Genocide C
somewhat abstract analysis of tlus sensitive question. pose of the treaty. The relevant portion of the opinion mously, it is I
Noting the apparent divergence of State views on the follows-unsigned by any member of the Court. ity Votes. Th
possibility of reservations to this particular treaty, the ICJ conclusion c
decided that it implicitly contained the right to become' COURT'S OPINION: [T]he precise determination of it necessary
a party and to simultaneou~ly present a reservation-as . the conditions for participation in the [Gellocide] This observal

xample is the
['he principles Convention constitutes a permanent interest of direct
unanimously concern to the United Nations which has not disap­
math of Nazi peared with the entry into force of the Convention ....
r, did not ratify It is well established that in its treaty rebtions ;1 State
genocide" has cannot be bound without its consent, and that conse­
tates were thus quently no reservation [by one stateJ can be eftective
It specific obli­ against any [other] State without its agreement thereto. It
[eared that the is also a generally recognized principle that a multilateral
enocide Treaty convention is the result of an agreement lieely concluded
n grounds that upon its clauses and that consequently none of the con­
tracting parties is entitled to !J-l\strate or impair, by means
ted States, for
of unilateral decisions or particular agreements, the pur­
arly forty years
pose and raison d'etre of the convention. To this princi­
lcern about the
ple was linked the notion of the integrity of the
us,
convention as adopted. a notion which in its .traditional
esetVatioHs Case
concept involved the proposition that nO'reservation was
'neral Assembly
valid unless it was accepted by all the contracting parties
n Genocide, It
without exception, as would have been the else if it had
I, and thus not
been stated during the negotiations.
~Iithout further
This concept, which is directly inspired by the notion
1.2 Sources). In of contract, is of undisputed value as a principle. How­
ted an advisory ever, as regards the Genocide Convention, it is proper to
ention had just refer to ~1 variety of circuJllstances which would lead to a
;it of the nuni­ more flexible application of this principle. Among these
lere was no pro­ circumstances may be noted the clearly universal charac­
ion of whether ter of th.e United Nations under whose auspices the
ations were to be Convention was concluded, and the very wide degree of
exclude certain p,1rticipation envisaged by Artick XI of the [Genocide]
}e bound by this Convention. ExteJ15ive participation in conventions of
ourt to interpre t this type has already given rise to greater flexibility in the
whether a State intern<1tional practice concerning Illtlltilateral <;onven­
neously tender a tions. More general resoi-t to reservations, very great
allowance made for tacit assent to reservations, the exis­
tence of practices which go so far as to adnut tl~ar the
author of re'servations which have been rejected by cer-'
tain contracting parties is _'nevertheless to be ·regarded as a
party to the convention in relation to thos'e contrac~ing
parties that have accepted the reservatioris-all these "fac-.
tors are manifestations of a riew need for flexibilitY in the
operation of multilateral conventions.··
It must also be pointed out· that althollgh the.
Genocide ·Convention "vas finally app.roved u·nani­
'lge and pur­ mously, it is nevertheless the result of a series of major­
the opinion
ity votes. The rnajority principle, while facilitating the.
Court. conclusion of multilateral conventions, nlayalso nlake
it necessary for certain States .to rna~e reservations.
mination of
This observation is confirmed by the great nun1ber of
[Genocide]
TREATY SYSTEM 365
reservatiQns "vh.ich have been made in recent years to
multilateral conventions.
In this state of international practice, it could cer­
tainly not be inferred f'rOnl the absence of an <lrticle pro­
viding f()r reservations in. a multilateral convention t1ut
the contracting States are prohibited fi'om making ...
reservations. Account should also be taken of the fact
that the absence of such an article or even the decision
not to insert such an article can be explained by the
desire not to invite a multiplicity of reservations. The
character of a multiJatera.l convemion, its purpose, pro­
visions, mode of prepar:ltion and ad.option, are factors
which must be considered in determining, in the
absence of any express provision on the subject, the pos­
sibility of making reservdtions, as well as their validity
and effect.. : .
The Court recognizes that ao understanding was
reached within the General Assembly on the £1culty
[ability] to nlake reservations to the Genocide Conven­
tion and that it is permitted to conclude therefimn that
States becoming parties to the Convention gave their
assent theretO. It must now determine wh~H kind of
reservations may be made and what kind of objections
may be taken to them.
. The solution of these problems must be found in the
special characteristics of the Genocide Coiwention. The
origins and character of that Convention, rhe objects
pursued' by the General Assembly and the contracting
parties .., . fLlrnish elements of interpretation of the will
of the General Assembly and. the parties. The origins of
the Convention show that it was the intention of the
United Nations to condemn and punish genocide as "a
crime under international law" involving a denial of the
right of existence of entire human groups, a denial
which shocks the conscience of l11.ankind and results in
great losses to humanity, and which is contrary to mor;."11
law alid to the spirit and aims of the United Nations
(Resolution 96(1) of the General Assembly, December'
11th, 1946). The first consequence arising fi:orn this
conception is that the principles underlying the Con­
·vention are principles which are recognized by civilized
.nations as binding on States, even without conventional
obligation. A second consequence is the universal char­
acter both of the condemnation of genocide and of the
. cooperation required "'in order to liberate mankind
from such an odious scourge" (Preamble to the Con­
vention): The Genocide Convention was therefore

1ple is the
principles Convention constitutes a permanent interest of direct
lalumously concern to the United Nations which has not disap­
th of Nazi peared with the entry il1to force of the Convention ....
d not ratifY It is well established that in its treaty rclations a State
.ocide" has cannot be bound without its consent, and that conse­
:s were thus quently no reservation Iby one state] can be efiective
Jecific obli­ against any [other] State without its agreement thereto. It
·ed that the is also a generally recognized principle that a multilateral
xide Treaty convention is the result of an agreement fi'eely concluded
upon its clauses and that consequently none of the con­
~rounds that
tracting parties is entitled to fi-ustrate or impair, by means
I States, for
of unilateral decisions or particular agreements, the pur­
i' forty years
pose and raison d'etre of the convention. To this princi­
rn about the
ple was linked the notion of the integrity of the
convel1tion as adopted, a notion wluch in its traditional
/1Jations Case
concept involved the proposition that iio reservation was
ral Assembly
valid unless it was accepted by aU the contracting parties
Genocide. It without exception, as would have been the case ·if it had
.nd thus not been stated during the negotiations.
hout further This concept, wluch is directly inspired by the notion
~ Sources). In of contract, is of undisputed value as a principle. How­
I an advisory ever, as regards the Genocide Convention, it is proper to . assent thereto. It must now determine w·hat kind of
tion had just refer to ;) variety of circumstances wh.ich would lead to a
of the rnini­ more flexible 'lpplication of this principle. Among tlle.se
c was no pro­ circumstances may be noted the clearly uJliversal cha.rac­
1 of whether ter of the United Nations under whose auspices the
ons were to be Convention was concluded, and the very wide degree of
,elude certain participation envisaged by ArtiCle XI of the lGeliocideJ·
bound by this Convention. Extensive participation in conventions of
Irt to interpret this type has already given rise to greater flexibility in the
,hether a State international practice concerning multilateral conven­
·ollsly tender a tions. More general resort· to reservations, very great
allowance made for tacit assent to reservations, the exis­
tence of practices· which go so far as. to -admit that· the
author of reservations· which have been rejected by cer­
tain contracting parties is nevertheless to be regarde~fas ~
party to the convention in relation to those contracting
parties that have accepted the reserv~tions~JJ these fac­
tms are manifestations of a new need for flexibility in the: . 11th, 1946). The first consequence arising from this
operation of multilateral conventions ..
It must also be pointed out that althougli the
Genocide Convention vvas finally approved un,lJ1i­
ge and pur­ lTlOusly, it is nevertheless the result of a ,e·ries of major- .. obligation..A second consequence is the universal char­
he opinion ity votes. The majority principle, while facilitating the
lourt. conclusion of multilateral conventions, may. also make
it necessary for certain States to make reservations.
mination of This. observation is confirmed by the. great number of
[Genocidel
TREATY SYSTEM 365
reservations which have been made in recent years to
multilateral conventions.
In tbis state of international practice, it could cer­
tainly not be inferred from the absence of an article pro­
viding for reservations in a multilateral convention that
the col1tr<lcting States are prohibited from making ...
reservations. Account should also be taken of the fact
that the absence of such an article or even the decision
not to insert such an article can be explained by the
desire not to invite a multiplicity of reservations. The
character of a multilateral convention, its purpose, pro­
visions, mode of preparation and adoption, are factors
which must be considered in determining, in the
absence of any express provision on the subject, the pos­
sibility of making reservations, as well as their validity
and effect.....
The Court recognizes that an understanding was
reached within the General Assembly on the f:.lCulty
[abilityJ to make reservations to the Genocide Conven­
tion and that if.:is permitted to conclude thereJiorn that
States becoming parties to the Convention gave their
reservations may be rnade and w.hat kind of objections
may be taken to them.
The solution of these problems must be found in the
. speciaL characteristics of the Genocide Convention. The
origins and character of that Convention, the objects
purs.ued by· the General Assembly and the contracting
parties ... furnish elements of interpretation of the will
of the General Assembly and. the parties. The origins of
the Convention show that it was the iritention of the
United Nations to condemn and punish genocide as "a
crime under international law" involving a denial of the
rigllt of existence of entire human groups, a denial
which shocks the con.~·cien.ce of mankind and results in
gt'eai los:;es to humanity, and which is contrary to 111.0ral
law and to the spirit ·and aims of the United Nations
(Resollition 96(1) of the General Assembly, December
conception is that the principles underlying the Con­
vention· are principles which are recognized by civilized.
·nations as binding on States, even without conventional
acter both of the condemnation of genocide· and of the
cooperation required "in order to liberate mankind
from snch an odious scourge" (Preamble to the Con­
vention). The Genocide Convention was therdore
366 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

United
imended by the General Assembly and by rhe contract­ would detract from the authority of the mOl'a! and through
ing parties to be definitely universal in scope. It was in humanitarian prinCiples which are its basis. It is incon­ Could I
fact approved on December 9th, 1948, by a resolution ceivable that the colltracting parties readily contem­ realistic<
which was unanimously adopted by fifty-six States. plated that an objection to a minor reservation should patibIe \
The objects of such a convention must also be con­ produce such a result. But even less could the contract­ 4. The text
sidered. The Convention was manifestly adopted for ·a ing parties have intended tei sacrifice the very object of R,eservat
purely humanitarian and civilizing purpose. It is indeed the Convention in (wour of a v,lin desire to secme as the Inter
difficult to imagine ,I convention that might have this many participants as possible. The object and purpose of ect is d
dual character to a greater degree, since its object on the the Convention thus limjt both the fi'eedom of making related tc
one hand is to safeguard the very existence of certain reservations and that of objecting to them. [t tollows a treaty ;
human groups and on the other to confirm and endorse that it is the compatibiJ.ity of a reservation witb the pOsition
the tnost elementary principles of moraJ.ity. In such a object and purpose of the ConventiON that must furnish reservatio
convention the contracting States do not have any the criterion for the attitude of a State in making the
on Huma
interests of their own; they merely have, one and all, a reservation on accession as well as for the appraisal by a
Conventi,
cOlllmon interest, namely, the accomplishment of those State in objecting to the reservation. Such is the rule of
ification, 1
high purposes which are the raison d'etre of the con­ conduct which must guide every State in the appraisal
lar provisi,
vemiofl. Consequently, in a conven'tion of this type one which it must make, individually and from its own
law then i
cannot speak of individual advantages or disadvantages standpoint, of the admissibility of any resen/arion.
with the p
to States, or of the maintenance of a perfect contractual Any other view would lead either to the ac(;:eptance
shall not C
balance between rights and duties. The high ideals of reservations which frustrate the purposes which the
which inspired the Convention provide, by virtue oftbe General AsserilbLy and the contracting parties had in ventions a,
cOl11mon will of the parties, the foundation and meas­ mind, or to recognition that the parties to the Conven­ .un.org/la\
ure of all its provisions. tion have the p0wer of excluding from it the author of rently und
The foregoing conSiderations, when applied to the a. reservation, even a minor one, which may be quite vations to t
question of reservations, and more particularly to tlle compatible with those purposes. 5. In 1999,'
effects of objections to reservations, lead to the follow­ It has nevertheless been ~rgued [i.ndependently of Optional P
ing conclusions. these. proceedings] that any State enritled to become a Civil and P
The object and purpose of the Genocide Conven­ party to the Genocide Convention may do so while provision tf
tion imply that it was the intention of the Genei-al making any reseI'vati011. it chooses by virtue of its sov­ Ifunates to
Assembly al~d of the States which adopted it that as ereign.ry. The Court cannot share this view. It is obvious Committee
many States as possible should participate. The complete that so extreme an application of the idea of State sov­ Trinidad an
exclusion fro111 the Convention of one or l'nore States . ereignty could lead to a complete disregard of tbe which purp'
would not only restrict the scope of its appJ.ication, but object and pUl'pose of tbe Convention. 1111nates to s
review. The'
tion was inc,
col. It thus ~
fr0111 an inm
• Notes & Questions
J. Gardner (ed.), HUMAN RIGHTS AS GENERAL NORNIS try's reservati
1. What test did the International Court ofJustice use AND A STATE'S RIGHT TO OPT OUT: RESERVATIONS tocol. See De
to determine whether a reservation to a multilateral AND OBJECTIONS TO HUMAN RIGHTS CONVEN­ Under the 4
treaty is permissible? T10NS (London: Brit. [nst. Compo Law, 1997). Covenant on
2. There would be a devastating impact on human rights 3. The United States ratified the International CovenaIlt Hum.Rts.C
programs if there were a flood of reservations to the on Civil and Political Rights (§ 11.2). This treaty is No. CCPR/I
various instruments-in the absence of provisions often referred to as the international guarantor ofOue 6. Certain treati,
regarding whether reservations are perrni:ssible. For Process of Law-especially its first t'vVO dozen articles. pies include t
fascinating analyses, see L. Lijnzaad, RESERVATIONS Upon ratification, the United States included two COUrt (§9.5),
TO UN-HUMAN RIGHTS TREATIES: RATIFY AND pages of"Reservations," "Understandings," and "Dec­ zation Frank'
RUIN' (Dordrecht, Neth.: Martinus Nijhoff, 1995) & larations." One of latter states as follows: "(1) That the The latter 1"1

United States declares that t~e provisions of articles 1
through 27 of the Covenant are not self-executing."
ral and
Could it be argued that the United States did not
incon­
onten1­ realistically ratifY this treaty? Is this declaration "com­
should patible with the object and purpose of the treaty?"
ontract­ 4. The text and commentaries in the Draft Guidelines on
,bject of Reservations to Treaties was provisionally adopted by
eCllre as the International Law Commission in 200LThis proj­
rpose of ect is designed to clarif)r mostly procedural issues
,making related to reservations, especially when a nation ratifies
follows a treaty and then wishes to later augment its earlier
Nith the position with a limiting interpretation of its existing
t furnish reservation. In reference to the European Convention
king the on Human Rights: "Any State may, when signing trus
aisal by a Convention or when depositing an instrument of rat­
e rule of ification, make a reservation in respect of any particu­
appraisal lar provision of the Convention to the extent that any
its own law then in force in its territory is not in conformity
on, with the provision. Reservations of a general character
:ceptance shall not be permitted under this Article," ILC, Con­
,hich the ventions and Other Texts, available at: <http://wvvw
~s had in
.un.org/law/ilc/convents,htm>, scroll to "Topics cur­
Conven­
rently under consideration," last entry under "Reser­
author of
vations to treaties," at 497 (pdf at 61), n. 1200.
be quite
5. In 1999, Trinidad and Tobago reacceded to the
Optional Protocol to the International Covenant on
Idently of
Civil and Political Rights. This Protocol included the
become a
provision that ratifying nations were to allow prison
so while
of its sov­ inmates to file claims with the UN Human Rights
is obvious Committee regarding alleged human rights violations.
State sov­ Trinidad and Tobago therein tendered a reservation,
d of the which purported to vitiate the ability of its death row
inmates to submit such communications for external
review. The UN Committee decided that this reserva­
tion was incompatible with the purpose of the proto­
col. It thus decided that it could hear such a petition
from an inmate, notwithstanding the acceding coun­
fERAL NORMS try's reservation to its obligations under the treaty pro­
lESERvATIONS tocol. See Decision of the Human Rights Committee
S CONVEN­ Under the Optional Protocol to the International
1997). Covenant on Civil and Political Rights, U.N. GAOR,
mal Covenant Hum. Rts. Conun" 67th Sess., Annex, ~ 7, U.N. Doc.
ffhis trea ty is No. CCPR/C/67/D/845/1999 (1999).
lrantor of Due 6. Certain treaties do not permit an)' reservations. Exam­
Gozen articles, ples include the Statute of the International Criminal
included two Court (§9.5), and the proposed World Health Organi­
zation Framework Convention for Tobacco Control.
The latter requires governmental control of the
TREATY SYSTEM 367
tobacco industry. Article 30 provides as follows: "No
reservations may be made to this Convention." In May
2003, the United States forcefully objected to this
nonreservation clause. It was willing to become a
party, but only if it could attach reservations to the
treaty provisions setting minimum sizes for tobacco
package warnings, restricting free distribution, and
limiting advertising promotions, See D. Fidler, World
Health Organization's Framework Convention for
Tobacco Control, ASIL Insight (Mar. 2003), available
at: <http://www.asil.org/insights/insigh100.htm> .
This convention entered into force in February 2005,
without US ratification.
Entry into Force The next phase of the trea ty process
is "entry into force." The participants may have provi­
sionally accepted the treaty's final draft language at the
drafting conference, followed by final acceptance of the
treaty by their individual ratifications. Unlike bilateral
treaties, where only two States have to agree on all terms
for a treaty to come into force, multilateral treaties usu­
ally require greater indicia of international consensus
before they are binding. An "entry into force" provision
ensures that an agreed-upon minimum number of States
ratifY the treaty before it becomes binding on those which
have signed.
The manner and date of entry into force is deter­
mined from the particular treaty's express provisions,
Multilateral treaties normally enter into force when a
minimum number of ratiflcations are deposited at some
central location, such as the United Nations, The 1948
Genocide Convention, for example, did not enter into
force until twenty States had deposited their ratifications
with the UN Secretary-General. The 1982 UN Law of
the Sea Convention did not enter into force until 1994,
one year after the sixtieth State (Bosnia) ratified it, pur­
suant to an express provision so stating in that treaty.
States that have not ratified a treaty are not bound by
its terms just because it has entered into force. They may
be bound by its underlying norms if the treaty codifies
the existing practice of most States, Those States may
consent to be bound by submitting a subsequent ratifi­
cation/accession.
Registration Treaties must be registered, meaning
that they are normally sent to the UN Secretariat, or
another appropriate international institution most
368 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

directly involved with the object of the particul~ureaty. under League practice, but effective under UN prcictice posttreaty [(
Both of the Vienna Conventions, which govern the as long as it WciS not relied upon in any UN proceeding. was not cor
treaties of States and of international organizations, men­ As a practical matter, many treaties are not registered arbitrators ir
tion this obligation 2Y UN Charter Article 102 provides (published). Because of the time and money inherent in ulations had
that "Every treaty and every international agreement the registration/publication process, certain international internationa
entered into by any Member of the United Nations organizations have narrowly construed the meaning of in perfect gc
after the present Charter comes into force shall as soon the word "treaty" to limit which treaties are subject to the islate at will
as possible be registered with the Secretariat and pub­ UN Charter registration requirement. The United and lirniting
lished by it." The United Nations thus maintciins both Nations, although subject to budgetary constraints, has such acts as
print and electronic versions of its United Nations Ii-eat)' resolved to improve the availability of its documents on Various c
Series 30 Registration approximates the ftling of an the Internet. General Assembly Resolution 211 (C) of Justice illust
importcint document with a court such as a pleading, 1997 "[r]equests the Secretary-Genercil to ensure that the able good fd
which can be accessed by all interested parties at a texts of all new public documents ... are made available cases, the IC
known location where it is archived. Registrcition also through the United Nations Web site ... cind are ciccessi­ claims, not J
ensures that international agreements are public, as ble to Member States without delay. . cernin~,? the AI
opposed to the secret treaties that led to World Wars I eral trea ty re
and II. Treaties are usually registered at the UN, or cit the TREATY OBSERVANCE
their bound
headquarters of the internationcil organization There are several yardsticks for determining whether a upon arbitr
The publication of treaties is typical, but not always State has performed or properly rebuked "its end of the f<liled to act.
accomplished. Certain countries, especially those with the deal": good faith performance of national treaty obliga­ pute in 196(
economic capacity to do so, publish all of their treaties. tions; changed circumstances justifying nonperfor­ Years later,!'
While some govenunent representatives might prefer to mance; express and implied consent to suspension or because the
engage in "quiet" diplomacy and treaty negotiations, the termination of a treaty; matericil breach by one party fonnity wit!
product of their efforts must be subject to public scrutiny. justifying another's nonperformance; impossibility of had elapsed I
The US Congress therefore requires publication in the performance; and conflict with a peremptory norm of duras respon
comprehensive source United States Statutes at Large. International Law. bad faith, wa
Once published therein, US laws and treaties "shall be enforcement
legal evidence ofla'vvs ... treaties, and international agree­ Ciood Faith Performance Under Article 2.2 of the Nicaragua cc
ments other than treaties [that is, executive agreements] ."31 United Nations Charter, "Members ... shall fulfill in good pro blems, so
There is a peculiar difference between the League of faith the obligations assumed by them in accordance with plete and the
Nations Covenant cind the UN Charter regarding the the present Charter." The universal character of this norm IC]: "It wouJI
registration requirement embraced by both documents. was aptly articulated by the former Dutch ambassador to governing I
Article 18 of the Covenant contained an outright bar, the United Nations in 1967: "The principle of good faith [Nicaragua] I
which vitiated the legality of unregistered treaties. itself ... extends beyond the scope of this article cind is in the appoil
Secret treaties were thus characterized as being void generally recognized as expressing a fundamental concept up to the me
from the outset. UN Charter Article 102, on the other underlying the entire structure of the international public so as to prec
hand, provides that a party to an unregistered trecity may order. It applies to the observance and interpretation of In anoth
not "invoke that treaty or agreement before any organ treaties and even to the obligation not to frustrate the Thailand) ag
of the United Nations."This does not "void" the treaty. object of ci treaty prior to its entry into force, as well as to "Mixed Con
It declares that the particulcir instrument cannot be used the -fulfillment of obligations cirising from other sources of Cambodia. ']
in any proceedings involving the United Nations, such international lciw. Particularly in the context of the law of 1907.A subs
as judicial proceedings in the International Court ofJus­ treaties the principle of good faith ... clearly emerges as gious site sit
tice. In 1992, a London newspaper reported that presi­ having a fundamental cind universal nature."32 surveys con
dential candidate Bill Clinton had struck a secret deal State must not act in a way which 'v\10uld frustrate the veys apparen
with the head of the European Community. A new purpose of a treaty, which it has signed or ratified. It nla)' tory compris
world trade agreement (§13.2 WTO, effective 1995) not pass subsequent internal legislation that is inconsistent now Cambo
would be delayed until after his election, which he 'vvith those obligations. In a US-UK treaty delineating the received cop.
denied. Such an agreement would be completely void fishing rights of US citizens in Canadian waters, the UK's tirne of that

\J practice posttreaty regulations limited tbQse rights in a way that
I:Oceeding. was not contemplated by the wording of the treaty. The
registered arbitrators in this famous proceeding noted that such reg­
nherent in ulations had to be "drawn according to the principle of
ternational international law that treaty obligations are to be executed
neaning of in perfect good faith, therefore excluding the right to leg­
Jject to the islate at vvill concerning the subject-matter of the treaty,
1e United and limiting the exercise of sovereignty of the States ... ro
;traints, has such acts as are consistent with rhe treaty...."33
:uments 011. Various cases decided by the International Court of
211(C) of Justice illustrate the problems with applying the unassail­
Llre that the able good faith performance standard. In two significant
de available cases, the IC] dealt with what it perceived to be tardy
are accessi­ claims, not made in good faith. In the 1960 Case Con­
cerning the Arbitral Award Made by the King oj Spain, a bilat­
eral treaty required Honduras and Nicaragua to arbitrate
their boundary dispute. Spain's king was the agreed­
; whether a upon arbitrator after the treaty-designated arbitrator
; end of the f.1iled to act. When the king decided this boundary dis­
~aty obliga­ pute in 1960, neither country objected to his decision.
nonperfor­ Years later, Nicaragua challenged the validity of his award
,pension or because the king "was not designated arbitrator in con­
one party formity with the provisions of the ... Treaty [which]
lssibility of had elapsed before he agreed to act as arbitrator." Hon­
ry norm of duras responded that Nicaragua was thereby acting in
bad faith, waiting too long to assert this potential bar to
enforcement of the king's award. The IC] held that
e 2.2 of the Nicaragua could ~ot in good faith raise such procedural
Jlfill in good problems, so many years after the arbitration was com­
a·dance with plete and the treaty purpose fulfilled. In the words of the
::Jf tlus norm ICJ:"It would be contrary to the principle of good faith
nbassador to governing the relations between States were it
)f good faith [Nicaragua] permitted now to rely upon any irregularity
~ticle and is in the appointment to invalidate the Award. Its conduct
Intal concept up to the moment of the Award operated in my opinion
tional public so as to preclude it thereafter fi'om doing so...."34
tpretation of In another illustration, Cambodia and Siam (now
frustrate the Thailand) agreed to a boundary delimitation made by a
as well as to "Mixed Commission" of individuals from Thailand and
er sources of Cambodia. The commission's work was completed in
)f the law of 1907.A subsequent dispute arose over an important reli­
V emerges as gious site situated at the border, but not mentioned in
surveys conducted by the conunission's officers. The sur­
fj·ustrate the
veys apparently placed the temple area within the terri­ Law. Professor Charles Fenwick, former director of the
ified. It may
tory comprising French Indochina (included in what is Department of Legal Affairs of the Pan American Union,
; inconsistent
now Cambodia).cThe cOlrunission members £i:om Siam asserted the doubtful existence of this norm. He used
:lineating the
received copies of the surveys and did not object at the treaties of peace, imposed by the victor on the vanquished,
ers, the UK's
time of that body's findings. Years later, Thailand refused as his prime example that good faith was not seriously
TREATY SYSTEM 369
to cede authority over the area to Cambodia. In the 1960
proceedings before the IC], Thailand had two objections
to the treaty-based boundary of 1907: First, the surveys
were not actually the work of the treaty-designated
commission; second, they contained material errors in
the placement of the Thai-Cambodian boundary. The
IC] rejected Thailand's claim for two reasons: It was not
made in good faith because of the tardiness in asserting
it; also, Thailand had apparently acquiesced in the bound­
ary line fixed by the commission decades before it pre­
sented an objection. Both forms of conduct led to the
Court's useful articulation regarding the importance of
good faith performance:
The primary foundation of this principle is the good
faith that must prevail in international relations, inas­
much as inconsistency of conduct or opinion on the
part of a State to the prejudice of another is incompat­
ible with good faith. Again, I submit that such incon­
sistency is especially inadmissible when the dispute
arises from bilateral treaty relations.A secondary basis of
the principle is the necessity for security in contractual
relationships. A State bound by a certain treaty to
another State must rest in the security that a harmo­
nious and undisturbed exercise of the rights of each
party and a faithful discharge of reciprocal obligations
denote a mutually satisfactory state of things which is
/
permanent in character and is bound to last as long as
the treaty is in force. A State cannot enjoy such a situ­
ation and at the same time live in fear that some day the
other State may change its mind or its conduct and
jeopardize or deny rights that for a long time it has
never challenged. A continuous and uncontroverted
fulfillment of a treaty is tantamount to a pledge, a secu­
rity renewed day by day that the treaty rights, passive­
ness or any form of express or tacit acquiescence, and
other disputes have been decided against litigant States
on the general basis of inconsistency between the
claims of States and their previous acts."35
The lack of a precise definition of "good faith treaty
performance" has spawned the occasidnal question of
whether it is in fact a general principle of International
 370 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

expected in treaty matters. When a vanquished- State A fundamental change in circumstances which has treaties, wi
wanted to repudiate a treaty imposed on it by a victorious occurred with regard to those existing at the time of their inter
nation, the simple solution was another war. Given this the conclusion of a treaty, and which was not fore­ lem.... (
fact of international life, he argued that "[a]ppearances seen by the parties, may not be invoked as a ground ouslyemp
could be saved, if [even] necessary, by finding other for terminating or withdrawing from the treaty as rebus sic
grounds of war, and then, if the outcome were successful, unless: (a) the existence of those circumstances con­ Change
taking back what had been previously granted under stituted an essential basis of the consent of the parties unilateral;
duress.... Thus the faithful execution of treaties of peace to be bound by the treaty; and (b) the effect of the cumstancc
was adjusted to shifts in the balance of power, and the change is radically to transform the extent of obliga­ the alterati
principle of good faith was maintained while being indi­ tions still to be performed under the treaty. aUy suspen
rectly undermined."36 on the nat
Various organizations have thus attempted to articu­ This theme often surfaces as a defense to the good changed. ­
late a standard for resolving questions about the precise faith performance requirement. Defining "changed cir­ changed c
~ontent of the rather elastic "good . oR ' rformance" cumstances" is as amorphous an venture as defming commitmt
Vyardstick-often referred to pacta sunt servand . The UN "good faith." Commentators, diplomats, and jurists are beneficial
International Law Comrnission (ILC) conunenced its unable to agree on the precise circumstances for prop­ of the Vi
study of this "norm" shortly after the United Nations erly invoking this basis for avoiding treaty obligations. attempted
was created. The ILC's first work product on this subject This obstacle has not impeded the evolution of a spec­ circumstan
was the Draft Declaration on the Rights and Duties of trum of divergent views. For example, rebus sic stantibus lated its cc
States. Article 13 provided that every "State has the duty has been characterized as (1) a "clearly a reasonable doc­ however n
to carry out in good faith its obligations arising from trine [that] ... international law should recognize;" (2) an law of the
treaties ... and it may not invoke provisions in its consti­ "alleged principle of international law;" and (3) an trine of 1'('
tution or its [internal] laws as an excuse for failure to per­ "unsuitable method for altering treaty obligations to the same I
form this duty."37 This limitation was almost too accommodate changed conditions." confl11e til
acceptable, because it was not a functional description of The prolific Chinese scholar Wang Yao-t'ien dubbed and to reg
the norm's supposed content. changed circumstances as a contrivance fashioned by may be in'
Two decades later, some of the Vienna Convention capitalist States to abrogate treaties at will. In his 1958 which this
on the Law ofTreaties delegates thus argued in favor of treatise on trade treaties, he wrote that two States should cumstance
eliminating the term from international treaty law, renegotiate their treaty, rather than one of them unilater­ it is easy I
because of its perennial ability to mean different things ally suspending or terminating its treaty obligations. In inapplicabI
to different people. 38 The wording chosen for Article 26 his words: "There is a doctrine of'rebus sic stantibus' in the The exi
of the VCLT was general enough to achieve a consen­ works of bourgeois international law.... In interna­ has been
sus. It provides that every treaty "is binding upon the tional relations, sometimes it is necessary to revise or tion. The
parties to it and must be pelformed by them in good abrogate a treaty in the light of fundamental change of grudgingl)
faith."That language is no more specific than any earlier circumstances. However, capitalist states frequently use assess its c,
attempt to define good faith. Thus, good faith perform­ this principle as a pretext to justify their unilateral [abro­ apply it. 42
ance of treaty obligations does not mean literal compli­ gation] of treaties. Generally, the process should be:When Justice eft';
ance, and should be assessed by reference to the a fundamental change of circumstances occurs, the con­ cun1stance
circumstances of each particular case. tl'acting states should seek revision or reconclusion of the laterally te
original treaty through diplomatic negotiation."39 this case ,
Change in Circumstances A treaty is no longer Columbia University Professor Oliver Lissitzyn aptly sented bel
binding if there has been a "fundamental change in cir­ referred to the changed circumstances doctrine as a right (which ca
cumstances," also referred to as the doctrine of rebus sic with unsettled contours. In his words: "After centuries of decided) tl
stantibus. While a treaty is a solemn contract between doctrinal discussion, the existence, scope and modalities preferred
States, a party may invoke changed circumstances as an of such a right remain controversial and perplexing. Its edly based
excuse for suspending or terminating that contract. practical importance may at times be exaggerated; but 0pl11l0n,0
The Vienna Convention's essential provision is Article nations dissatisfied with the status quo continue to regard nial probl,
62.1. It provides as follows: it as a welcome device for escaping from burdensome taking adv
 TREATY SYSTEM 371

which has treanes, while others tear it as a threat to stability and to

the time of their interests. Terminology has complicated the prob­
IS not fore­ lem, , , . Governments, in asserting the right, have vau­ Fisheries Jurisdiction Cases
lS a ground ously employed or refrained from employing such terms (Germany v. Iceland)
the treaty as rev/,Is sic stantivus,"4o
INTERNATION,AL 'ourn or JUSTICE
tances con­ Changed circumstances does not permit an outright
Gen. List No. 56,1973 IC] Reports 49 (1973)

f the parties unilateral abrogation of treaty commitments, 'VI/hen cir­

Go to course Web page at

frect of the cumstances beyond the control of the parties necessitate

<http://home.att.net/~slonLln:;oub/tx(cscsi te. htm1 > .

It of obliga­ the alteration of a treaty commitment, the remedy is usu­

Under Chap(cl' Eigh(, click Fisheries lurisdicrion C;1SCS,

ty. ally suspension or termination of the treaty-depending

on the nature and extent of the conditions which have
o the good changed, The reality may be that the State claiming
hanged cir­ changed Clrcumstances may no longer want to fulfill
as defming commitments that have become inconvenient or not as TREATY TERMINATION AND SUSPENSION

:I jurists are beneficial as anticipated. During the 1960s, the drafters The stability of the treaty system is nomished by the ful­
:s for prop­ of the Vienna Convention on the Law of Treaties fillment of treaty commitments. Yet a State may legiti­
obligations. attempted to clanfy the legal contours of the changed mately terminate or suspend its treaty obligations, by
11 of a spec­ circumstances doctrine. The drafting committee articu­ employing recognized 1l1ethods for sllspendll1g or ter­
, sic stantibus lated its concern as follows:" Almost all modern jurists, minating a treaty,
onable doc­ however reluctantly, admit the existence in international
nize;" (2) an law of the principle, , , commonly spoken of as the doc­ Express Consent States typically enter into treaties of
and (3) an trine of revus sic stantibus, , .. Most jurists, however, at indefinite duration. Some treaties, however, terminate by
,liga tions to the same time enter a strong caveat as to the need to its their own termS-ll1 conformity with the expressed
confine the scope of the doctrine within narrow limits desire of the treaty parties. For example, the expiration of
'ien dubbed and to regulate strictly the conditions under which it a specified time of duration is a routine basis for termina­
lshioned by may be invoked; for the risks to the security of treaties tion. Tile People's Republic of China commonly makes
In his 1958 which this doctrine presents .. , [are] obvious. The cir­ treaties that remain in force only for a designated period,
;tates should cumstances of international life are always changing and For example, the 1950 Sino-Soviet Treaty of Friendship,
em unilater­ it is easy to allege that the changes render the treaty Alliance, and Mutual Assistance provided that the "pres­
,ligations. In lIlapplicable,"41 ent treaty will be valid for thirty years. If neither of the
ntibus' in the The existence of the changed circumstances doctrine contracting parties, . , desire[s] to renounce the treaty, it
In interna­ has been reluctantly conceded in international litiga­ shaJJ remain in force for another five years and will be
to reVise or tion, The Permanent Court of International Justice extended in compliance with this rule."43
aJ change of grudgingly recognized its vitality The Court refused to Treaties that do not expire under their own terms typ­
:quently use assess its contours, however, ultimately choosing not to ically contain provisions for advance notification of ter­
,ateral [abro­ apply it 42 In the early 1970s, the International Coun of mination. The 1955 Sino-[lldonesi<1I1 Treaty on Dual
dd be:When Justice effectively characterized Iceland's changed cir­ Nationality prOVided that if "after the expiration of
Jrs, the con­ cumstances defense as an unacceptable attempt to Ul1l­ twenty years, one party requests its termination, it must so
lusion of the laterally terminate its treaty obligations. The segment of notifY the other party one year in advance and in written
on."39 this case dealing with changed circumstance's is pre­ form; and the present treaty shall be terminated one year
issitzyn aptly sented below, It echoes the sentiment of the VCLT after the tendering of such notification ," The 1954
me as a right (which came into force seven yeaTS after this case was Mutual Defense Treaty between the United States and
centuries of decided) that renegotiation, or judicial settlement, is the the Republic of China (Taiwan) provided that it would
Id modalities preferred alternative to unilateral termination suppos­ remain in force "indefinitely [although] either Party may
:rplexing. Its edly based on "changed circuntstances," The dissenting terminate it one year after notice has been given to the
~gerated; but opll1ion, on the other Iland, vividly portrays the peren­ other Party" In 1978, President Carter gave notice that he
lUe to rega rd nial prob.lell1 associated with larger nations historically intended to terminate the trea.ty with Taiwan. That treaty
burdensome taking advantage of smaller ones: was terminated by the United States one year later when
372 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

he officidlly recognized the People's Republic oCChina Finally, Customary International Law may evolve in from the
(mainland China) as the de jure government of China. a way, which effectively supercedes an existing treaty. breach by
A treaty may be terminated or suspended even when There may be some disagreement among the treaty par­ the "subst
it does not contain revocation or notice provisions. The ties about whether a specifIC custom in fact conflicts one side [
partiClpants may simply repeal it 111 another treaty. with the treaty. Even assuming that a conflict does exist, permits d
Under Article 58 of the Vienna Convention on the Law State reaction varies as to whether the particular custom sponding
of Treaties, t'vvo (or more) nations may suspend a treaty trumps th e trea ty. The comrnon resol ution is to revise was allege
as it relates to their mutual obligations to one another. the treaty. A posttreaty rule may evolve, which possesses sions of t
States sometimes withdraw from treaties on political, the attributes of jus (ogens-a peremptory norm fr0111 ,/' have requ
grounds, unrelated to any breach. In September 2002, which no State rnayaeviate.l'he--VCLT provides that and to an
Mexico announced its intent to withdraw from the key such a rule trumps the treaty. It is otherwise silent, how­ claimed d
Organization of American States 1947 hemispheric ever, about the interplay of a new customary State prac­ the southc
defense treaty. Mexico was frustrated over the United tice conflicting with a prior treaty when that fresh norm inrernatiOI
States' more restrictive US immigration policy imposed is not jus wgens. In this instance, the Brussels writer agreement
in the aftermath of 9-11. Nancy Kontou has analyzed the jurisprudence of inter­ other [SOL
national tribunals assessing the impact of supervening until the c
Implied Consent Treaty parties can effectively disap­ custom on prior incompatible treaties. That research tion."47 N
prove it by implication. If a subsequent treaty is silent yielded the "proposition that one party has the right to each othel
about the continued validity of a prior treaty on the call for the termination or revision of a treaty on mitments
same subject, termination or suspension can be im.plied account of the development of new custom."45 In a 19
from the circumstances. The State parties may enter into Pakistan c>
a later agreement on the same subject matter as an ear­ Material Breach One party's treaty breach may allow era] aviatic
lier treaty. If provisions in the second treaty conflict with the other(s) to consider the treaty as either suspended or and divert
the fIrSt, then the fIrSt is canceled via the implied con­ terminated 46 The breach must be material, not minor. right to fly
sent of the parties. The supposedly conflicting provisions Under Article 60 of the VCLT, the material breach of a the merits
must be incompatible in order to impliedly terminate bilateral treaty by one party permits the other party "to India brea
the earlier treaty. invoke the breach as a ground for terminating the treaty allow PakJ
Examples include the 1939 Permanent Court of or suspending its operation in whole or in part." Mate­ however, t
International Justice (pCIJ) case, wherein a majority of rial breach of a multilateral treaty similarly entitles "the rights to p
the Cou rt had decided that two related agreements other parties ... to suspend the operation of the treaty constitutec
were compatible. Justice Anzilotti's dissent succinctly .. in the relations between themselves and the defaulting
stated the general requirements for implicit treaty abroga­ State [but not between one anotherl ." The clearest Impossib:
tion: There "was no express abrogation [of the 1931 example of a material breach under Article 60 would be j invoke il11]
treaty]. But it is generally agreed that, beside express abro­ an outright repudiation oLa=tJ.;eaty. The other party pending 01
gation, there is also tacit abrogation resulting from the fact would then be authorized to suspend or terminate its VCLT pro
that the new provisions are incompatible with the previ­ own obligations under that treaty. manent di~
ous provisions, or that the whole matter which formed the In practice, it is often difficult to establish what consti­ pensablefc
subject of these latter [understandings] is henceforth gov­ tutes a material breach and which party is actually respon­ theVCL
erned by the new provisions."44 Under Article 59 (b) of the
1969 VCLT, the parties may consent by implication to
sible for the breach. In 1966, North Vietnam claimed that
South Vietnam had materially breached the Geneva ---
an island t
drying up
treaty termination when a subsequent treaty is "so far Accords. That international agreement, agreed to by rep­ hyd~
incompatible with the earlier one that the two treaties ate resentatives of both governments, called for a cessation of of a treaty.
not capable of being applied at the same time." hostilities in Vietnam, the reduction of military forces, and Clrcums
Failure of compliance is another basis for implied con­ reuni6cation through tiee elections. The North Viet­ obligations
sent to a treaty's termination. A treaty can be negated bY namese claimed that South Vietnam had materially A funda
implication when all of the parties unabashedly ignore it~ I breached the Accords, premised on the introduction of US of treaty (
The absence of objections constitL~implied under­ military forces into the Southern portion of the country. jurists as itT
standing that the trea ty is no longer in force. The United States justified South Vietnam's departure line distinc
372 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

he officially recognized the People's Republic ofChina Finally, Customary International Law may evolve in from tb
(mainland China) as the de jure government of China. a way, which effectively supercedes an existing treaty. breach l:
A treaty may be terminated or suspended even when There lTlay be sonie disagreement among the treaty par­ the "sub
it does not contain revocation or notice provisions. The ties about whether a specific custom in fact conflicts one side
participants may simply repeal it in another treaty. with the treaty. Even assuming that a conflict does exist, permits
Under Article 58 of the Vienna Convention on the Law State reaction varies as to whether the particular custom spondini
ofTreaties, two (or more) nations may suspend a treaty trumps the treaty. The common resolution is to revise was alleg
as it relates to their mutual obligations to one another. the treaty. A posttreaty rule may evolve, which possesses sions of
States sometimes withdravv from treaties on political '. the attributes of jus cage IIs-a peremptory norm from -/ have reg
grounds, unrelated to any breach. In September 2002, which no State may_C1eviate. TheVCLT provides that and to ar
Mexico announced its intent to withdraw from the key such a rule trumps the treaty. It is otherwise silent, how­ claimed
Organization of AmerIcan States 1947 hemispheric ever, about the interplay of a new customary State prac­ the soutl­
defense treaty. Mexico was frustrated over the United tice conflicting with a prior treaty when that fi"esh norm internatic
States' more restrictive US immigration policy imposed is lIot jus COc\[e115. In this instance, the Brussels writer agreemer
in the aftermath of 9-11. Nancy Kontou has analyzed the jurisprudence of inter­ other [So
national tribunals assessing the impact of supervening until the
Implied Consent Treaty parties can effectively disap­ custom on prior incompatible treaties. That research tion."47 l'
prove it by implication. If a su bsequent treaty is silent yielded the "proposition that one party has the right to each othe
about the continued validity of a prior treaty on the call for the termination or revision of a treaty on nutments
same subject, termination or suspension can be implied account of the development of new custom."45 In a l'
from the circumstances. The State parties may enter into Pakistan c
a later agreement on the same subject matter as an ear­ Material Breach One party's treaty breach may allow eral aviati
lier treaty. If provisions in the second treaty conflict with the other(s) to consider the treaty as either suspended or and diver
the fmt, then the fmt is canceled via the implied con­ terminated 46 The breach must be material, not minor. right to t1
sent of the parties. The supposedly conflicting provisions Under Article 60 of the VCLT, the material breach of a the merit:
must be incompatible in order to impliedly terminate bilateral treaty by one party permits the other party "to India bre;
the earlier treaty. invoke the breach as a ground for terminating the treaty allow Pak
Examples include the 1939 Permanent Court of or suspending its operation in whole or in part." Mate­ however, I
International Justice (PCIJ) case, wherein a majority of rial breach of a multilateral treaty similarly entitles "the rights to r
the Court had decided that two related agreements other parties ... to suspend the operation of the treaty constitute,
were compatible. Justice Anzilotti's dissent succinctly .. in the relations between themselves and the defaulting
stated the general requirements for implicit treaty abroga­ State [but not between one another]. .." The clearest Impossib
tion: There "was no express abrogation [of the 1931
treaty]' But it is generally agreed that, beside express abro­
example of a material breach under Article 60 would be
an outright repudiation. oLa~tI:eaty. The other party
J invoke im
pending 0
gation, there is also tacit abrogation resulting from the fact would then be authorized to suspend or terminate its VCLT pro
that the new provisions are incompatible with the previ­ own obligations under that treaty. nianent di:
ous provisions, or that the whole matter which formed the In practice, it is often difficult to estabhsh what consti­ pensablerc
subject of these latter [understandings] is henceforth gov­ tutes a material breach and which party is actually respon­ the vcr
erned by the new provisions."44 Under Article 59(b) of the sible for the breach. In 1966, North Vietnam claimed that an island t
1969 VCLT, the parties may consent by implication to South Vietnam had materially breached the Geneva dryil~
treaty tenmnation when a subsequent treaty is "so far Accords. That international agreement, agreed to by rep­ hydroe eetI
incompatible with the earlier one that the two treaties are resentatives of both governments, called for a cessation of ofa~
not capable of being applied at the same time." hostilities in Vietnam, the reduction of military forces, and circUD1strrt.
Failure of compliance is another basis for implied con­ reunification through free elections. The North Viet­ obligations
sent to a treaty's termmation. A treaty can be negated by I namese claimed that South Vietnam had materially A funda
implication when all of the parties unabashedly ignore it\/ breached the Accords, premised on the introduction of US of treaty c
The absence of objections constitutesanimplied under­ military forces into the Southern portion of the country. jurists as an
standing that the treaty is no longer in force. The United States justified South Vietnam's departure line distinct
 TREATY SYSTEM 373

13y evolve in fi'om the Geneva agreement 02.1 the basis of a material analysis. Although there are similarities, the criteria

isting treaty. breach by North Vietnam. The United States claimed that e~..::.d_ f~r applyi.ng "impossibility" differ. Every

Ie treaty par­ the "substantial breach of an international agreement by impossibility of performance ir~olvesachanged circum­

fact conDicts one side [North Vietnamese aggression in South Vietnam]
ct does exist, permits the other side to suspend performance of corre­
cular custom sponding obligations under the agreemem. South Vietnam
.1 is to revise was allegedly justified in refusing to implement the provi­
lieh possesses sions of the Geneva Accords," which otherwise would
! norm from . / have required it to limit expanded military involvements
p;:ovides that and to arrange unification elections. South Viet Nam thus
e silent, how­ claimed that the introduction of miJitary personnel into
ry State prac­ the southern portion of the country "was justified by the
tat fresh norm international law principle that a material breach of an
russels writer agreement by one party [North Vietnam] entitles the
mee of inter- other [South Vietnam] at least to withhold compliance ..
f supervening until the defaulting party is prepared to honor its obliga­
That research tion."47 North Vietnam and South Vietnam thus accused
IS the right to each other of materially breaching their respective com­
a treaty on mionents under the Geneva Accords.
III 1."45 In a 1972 case in the International Court of justice,
Pakistan complained that India materially breached sev­
deh may allow eral aviation treaties. An Indian aircraft had been hijacked
stance, but not every changed circumstance constitutes
v
impossibili p.e formance. he changed circumstances
octrine may excuse difficulty of performance, while
impossibility excuses only that performance that would
. be totally impossible. This excuse exonerates one or both
parties from treaty performance when the relevant cir­
cumstance renders the treaty meaningless.s o
Assume that Spam and Portugal establish their
respective rights to fIsh in an area on either side of a
boundary in the international waters off their adjacent
coasts. They agree to regulate their respective fIshing
fleets on either side of rhe line separating Spain's area
from Portugal's area. The purpose of this treaty is to
maintain the equal distribution of the resources near
their respective coasts. If the fish unexpectedly migrate
into Portugal's area, then the treaty would be suspended.
The changed circUl11stance is that fish are temporarily
unavailable in equa ---mrrrrbei'S'!:oool:t,Soai"i'liiWt>0J.;tu­
gJi:-5p:riTI~hermen might be permitted to fish in Por­

r suspended or and diverted to Pakistan. India then revoked Pakistan's tugal's area of the high seas, because of the treaty's
ial, not minor. right to fly over Indian territory. For reasons unrelated to m~greed purpose of e~itable distribur~on.The
ial breach of a the merits of this case, the ICj did not resolve whether same fishing treaty would be terminated under the
Jther party "to India breached the aviation treaties when it refused to impossibility doctrine, if all of the fIsh were permanently
lti ng the trea ty allow Pakistani aircraft in Indian airspace. It did fmd, driven away by contamination 0 t~ treat):' area. he
in part." Mate­ however, that the Indian suspension of Pakistan's treaty treaty wou doe meaningless because the object of that
ly entitles "the rights to pass over Indian territory, and to land in India, agreement would no longer exist 51
,n of the treaty constituted material breaches of this aviation treaty48
:l the defaulting Conflict with Peremptory Norm A treaty is void if

." The c!eacest j Impossibility of Performance A treaty party may it conflicts with a peremptory n0l"l1l of International

Ie 60 would be invoke impossibility of performance as a basis for sus- Law. The common descriptive term for such a norm is
1e other party pending or terminating its obligations. Article 61 of the J'US cogens, referring to a supposed universally acknowl-
Jr tecl11inate its VCLT provides that impossibility "results from the per­ edged law from which no State could deviate. Article 53
manent disappearance or esrruc~on oran ..2. -~_e_ctjndis- of the Vienna Convention on the Law ofTreaties defines
ish what consti­ pensab e or t e execution 0'£
the treaty."The drafters of rhat term as a norm which is "accepted and recognized
actually respon­ the VCL usea t 1e following examples: submergence of by the international community of States as a whole as a
am claimed that an island that is the object of a treaty relationship, the norm from which no derogarion is permitted and which
~d the Geneva drying up of a river, and the destruction of a dam. or can be modified only by a subsequent norm of general
;reed to by rep­ hyd!:,:oe ectr~lition indispensable for the execu~ion international law having the same character." However,
or a cessation of of a treaty. The permanent or temporary impact of such the VCLT does nor provide examples of what constitutes
litary forces, and Clrcums ces would terminate (or suspend) righrs and such a nOrm.
le North Viet­ obligations arising under a treaty governing their use 49 The International Law Commission's july, 2001 Arti­
had materially A fundamental change that radically alters the nature cles on State Responsibility provide no substantive clues
Ioduetion of US of treaty obligations has been characterized by some regarding which norms fall within this category. Article
1 of the country.
jurists as impossibility of performance-presenting a fine- 26 states only that "Nothing in this Chapter precludes
nam's departure line distinction from the above "changed circumstances" the wrongfulness of any act of a State which is not in
374 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAVV

conformity with an obligation arising under a peremp­ Limitations Suspension or termination is subject to Sec<
tory norm of general mternationallaw." Article 40 follows other restrains. The severance of diplomatic or consular cOnstitl
with "the international responsibility which is entailed by rebtions does not necessarily affect treaty rights and simulta
a serious breach by a State of an obligation arising under obligations. Article 2.3 of the Vienna Convention on agreem
a peremptory norm of general international law. Consular R.eldtions (VCCR) provides that the "sever­ nations
[which] IS serious if it involves a gross or systematic fail­ ance of diplomatic re!Jtions shall not ipso factO rauto­ under t
ure by the responsible State to fulfil the obligation." matically in and of Itself] ll1volve the severance of by the]
Some jurists and cOlllmentators deny the functional collsular relations" (italics added). Article 45 of the of the S
existence of jlls cogens, because even the most generally VCCR expressly provides that a break in diplomatic The
accepted rules have not achieved unIversality. Moscow relations does IIOt alter the continuing obligation to treaties
State University's Professor Grigori Tunkin explains that honor treaty obligations having nothing to do with statutes
the "arguments of opponents of .IllS cogens can be diplomatic or consular matters. Therefore, war and spli ts Ie)
reduced to the fact that such principles are possible only other hostile relationships do not terminate all treaty makes a
in a well-organized and effective legal system, and since obligations of parties to the conflict. States are expected can use
ll1ternational law is not such a system, the existence of to continue to perform their obligations under treaties some cc
principles of general international law having the char­ like the Geneva Conventions of 1949 dealing with R.ed certain f
acter of jus cogens is impossible."5:! Cross assistance, the laws of war, and treatment of pris­ bel'S of I
One can make a reasonable theoretical argument that oners of war (§10.6). sued PrE
applying .IrIs cogens (assuming that it actually exists) Theory and practice, however, often diverge when of the P;
'vvould render cert~lin tre:Jties void. When two States nations are at war. The outbreak of war does not auto­ Constitu
have entered into a treaty' in which they agree to invade matically terminate treaty obligations. The US war with shall hav,
another country, tha~~~i~l~s-.:..he most fun­ Germany did not automatiG1Lly terminate the 1923 US the Unit
damental UN Chartel arti.cle: Article 2.4's prohibition treaty obligation to transmit property of deceased Il1di­ the Hou~
on e use of force in international relations. Such a viduals to German citizens 53 A prolonged state of war Constitu
treaty would violate an undisputable Charter norm. often presents problems with the performance of treaty the "Ad\
Today, Stalin and Hitler's then secret 1939 agreement to requirements, and continuing these obligations may make seeking I
divide Europe could not legitintately circuntvent the no sense. of Congl
Article 2.4 prohibition of force. The"
• 8.3 UNITED STATES was spaw
VCLT Applied In 1997, the ICJ adjudicated the fol­ tional Co
TREATY PRACTICE
lowing dispute between Hungary and Slovakia. Hungary was ultin
nder International Law, there are two gener~d prin­
relied on the VCLT's provisions discussed 111 this section
of the book-as its rationale for terminating its 1977
Budapest Treaty with (what was then) Czechoslovakia.
U ciples for resolving conflicting Jaws. One is that the
UN Charter prevails when it conflicts with another
role, whi,
with the:
ma tte r, th
international instruI11ent. 54 The other is that a nation's that diplc
internal law cannot be used as a defense to its breach of possible c
an international obligation. SL~_S~llato
Case Concerning the How various nations make treaties is beyond the intro­ of this de
Gabdkovo-Nagymaros Project ductory scope of this book. Suffice it to say that the range what rerr
(Hungary v. Slovakia) of practice includes "legislative" and "executive" treaties. 55 excluding
[NTERNATIONAL COURT OF JUSTICE (1997)
dent as th
TREATY VERSUS EXECUTIVE AGREEMENT
Gen. List No. 92
Almos
One must begin with three essential components of US the conse
Go to course Web page at

treaty practice. The first is the constitutional articulation agreemen

<http://h01l1c.att. net/-s]omansonb/txtcsesite. html>.

of the president's treaty power. Under Art. [I, Section 2, US Con

Under Chapter Eight, click Hungary/Slovakia Treaty

clause 2:"He shaU have Power, by and with rheAdfJicc alld "treaties."
Breach Case.

COIlSCi!t of the Smote, to make Treaties, provided that two ent ysaw
thirds of the Senators present concur ... [italics added]." known ir
 TREATY SYSTEM 375

ubject to Second, there is an oceanic distinction between the never beenjudiciaJJy interpreted by the judicial branch of
. consular constitutionally articulated "treaty" power and the nearly the US government-to mean that the president must
ights and simultaneous appearance of the president's "executive have the Senate's advice and consent for aU international
:ntion on agreement" power. All presidential agreements with other agreements.
Ie "sever­ nations or international organizations are treaties. But Two types of "executive agreements" evolved. One is
to [auto­ under US practice, executive agreements are undertaken the congressional-executive agreement. The president also
eJ'ance of by the president alone--without the advice and consent requests approval of certain executive agreements by joint
5 of the of the Senate, resolution of both houses of Congress. Columbia Univer­
liplomatic The third major theme is the relative ranking of sity Professor, Louis Henkin presents the following vindi­
,gation to treaties (either type), the US Constitution, and federal cation for 'this implied presidential power: "Neither
I do with
statutes when any of them conflict. The debate sometimes Congresses, nor Presidents, nor courts, have been seriously
"var and
splits legal hairs regarding whether the president-who troubled by these conceptual difficulties and differences.
, all treaty
makes aU treaties, with or without the Senate's consent­ Whatever their theoretical merits, it is now widely
: expected
can use the executive's treaty-making power to trump accepted that the Congressional-Executive agreement is
ler treaties
some constitutionally required legislative involvement in available for wide use ... and is a complete alternative to a
with Red
certain foreign affairs. In 1977, for example, sixty mem­ treaty: The President can seek approval of any agreement
nt of pris­ bers of the US House of Representatives unsuccessfully by joinuesolution of13.Pf11l10u~s-ofCongress rather than
sued President Carter when he relinquished US control by QVo-thirds of the Sen~te. Like a treaty, such an agree­
:rge when of the Panama Canal. Article IV, Section 3, clause 2 of the ment is the law of the land, superseding inconsistent state
, not auto­ Constitution provides that the "Congress [both houses] laws, as well as inconsistent provisions in earlier treaties, in
S war with shall have Power to dispose of ... Property belonging to other international agreements, or 111 acts of Congress."S8
e 1923 US the United States.... In the view of these members of The other category of'executive agreement is the
eased indi­ the House, President Carter had improperly relied on the "sol~I-IJive agreement." While congressional approval
tate of war Constitution's Treaty Power when' he successfully sought for executive agreements is often sought, it has been
~e of treaty the "Advice and Consent of the Senate"-rather than completely avoided in some instances. The president
s may make seeking the Canal's transfer to Panama via both houses has exercised the inherent power to incur an interna­
of Congress. tional obligation independently of the Senate (Article
The "treaty" versus "executive agreement" distinction II treaty) or both houses of Congress (congressional­
was spawned by early US practice. During the Constitu­ executive agreement). Columbia University Professor
tional Convention of 1787, the House of Representatives Oliver Lissitzyn succinctly describes the historical but
was ultimately excluded from an express treaty-making troubled development of the president's executive
:neral prin­ role, which would have been exercised in conjunction agreement power:
e is that the with the Senate, as originally proposed. After debating the
ith another matter, the delegates acknowledged the widespread feeling The making of executive agreements is a constitutional
It a nation's that diplomatic negotiations required a decrree ofsecrecy usage of long standing [that] apparently rests upon the
ts breach of possible onJy in the smaller senatorial body (then twenty­ President's vast but ill-defined powers in the fields of
si~'S"fi:OJ12.~theJ12ir:.te.fri-fciri11er colon ies). The fervor foreign relations and national defense. Neither the
ld the i11tro­ of this debate etfectively overshadowed the importance of usage nor the decisions of courts, however, provide
lat the range what remained in the final draft of the Constitution­ clear-cut guidance as to the scope of the treaty-making
'e" treaties 5S excluding the House completely, and including' the presi­ power and the scope of the executive agreement­
dent as the constitutional maker of US treaties 56 making power [which] are not mutually exclusive.
Almost immediately, US presidents, without seeking What may be properly accomplished by executive
nents of US the consent of the Senate, began to enter mto "executive agreement may also be accomplished by treaty. ...
articulation agreements." This contrast evolved, in part, because the It is not believed that any attempt to delimit
I, Section 2, US Constitution does not actually define the term rigidly the scope of the executive agreemen t-ma king
lie Advice allii "treaties."When it was adopted in 1787, its drafters appar­ power is likely to be successful or to result in a cor­
:led that two entlysaw no need to define a concept that was then well rect portrayal or prediction of actual practice. Some
dics added] ," known in international practice S7 The Treaty Clause has writers, while refusing to regard the executive
376 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

agreement-making power as co-extensive with the ments," undertaken as either the congressional or sole on Fon
treaty-making power, wisely refrain from attempting variations of that term. It is readily evident that the exec­ Foreign
to define the scope of the former. ... utive agreement has far surpassed the treaty in terms of The
It may be proper, therefore, to regard the executive how the president exercises the treaty-making power. but not
agreement-making power as extending to all the The Senate has occasionally expressed concern about execlltiv
occasions on which an international agreement is this spiraling use of executive agreements, which has Presiden
believed by the Chief Executive to be necessary in arguably emasculated its constitutional role in the treaty­ which e
the national interest, but on which resort to the making process. The most heated debate occurred basis f01
treaty-making procedure is impracticable or likely to between 1952 and 1957. Senator John Bricker gener­ Court c,
render ineffective an established national policy. The ated an intense challenge by his proposed amendment
test here suggested is the only one that adequately to the Constitution's Treaty Clause. He advocated that
accounts for the variety of situations in which the all international agreements by the United States should
President, with or without the approval of Congress, become effective only when legislation passes in both
has resorted to the executive-agreement procedure. It the House of Representatives and the Senate. If he had
also accounts for the increasing frequency of resort to been successful, the proposed constitutional amendment
the executive-agreement method in recent years, would have eliminated the president's ability to enter
with the growth of complexity in international affairs into any international agreement vvithout express con­
and of pressure of work in the Senate 59 gressional approval. He or she would thus have been AUTH
more of a negotiator than a 111aker of treaties. exeClIl
Not all Commonwealth countries allow executive Although the Bricker Amendment failed, Congress pIlles.
agreements to have automatic effect as domestic law. Such did pass the Case Act in 1972. It requires the president ipmo ,
a treaty is binding under International Law standards. to advise Congress (in writing) of all international purpo:
Under Australia's Constitution, however, an executive agreements made without the consent of the Senate ees 011
agreement cannot have any internal effect until it is or without a joint resolution of Congress. The presi­ the 10
enabled into law via legislation. dent may believe that public disclosure would preju­ gWlIlg
Exhibit 8.1 illustrates the historical comparison dice national security, however. In this instance, he or inlowl
between "treaties," in the constitutional sense of requiring she may secretly enter into and later transmit a com­ than il
the Senate's advice and consent, and "executive agree­ pleted executive agreement to the Senate Committee depenc
nation,
Thr
anyel1
EXHIBIT 8.1 ARTICLE II-TREATY EXECUTIVE AGREEMENT COMPARISON US Ove
Treaties and Executive Agreements Concluded by the United States from 1789-2004 permitl
nationa
Period Treaties Executive Agreements Treaty/Exec Agreements (Ofo) Jowed,
citizens
1789-1839 60 27 69/31 1971 11

1839-1889 215 238 47/53 these p

1889-1939 524 917 36/64 Senate'
1939-1989 702 11,698. 6/94 the 197
In l'
1990-1999 249 2,847 8/92
naval b
2000-2004 84 977 8/92 jobs hac
Total 1,834 16,704 10/90 to the i
tive agr
The author's percentage calculations are expressed in l'Ounded numbers. Data on the period since 1945 has been furnished by the US Department of they Wt
State, Office of the Assistant Legal Adviser for Treary Affairs. Data prior to 1945 is from the Congressional Record, May 2,1945, at 4118 & E. Borchard,
the US
Treaties and Executive Agreements, 40 AMER. POL. SCIENCE R.EV. 735 (Aug. J947). This table was adapted from, and further detail is available at:
<http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi'dbname=106_con~senate_print&docid=f:66922.wais>. The more recent numerical compar­ jobs at t
isons were forwarded to rhe author by Jennifer Elsea, Legislative Atrorney, Congressiona.l R.esearch Service.
 TREATY SYSTEM 377

onal or sole on Foreign Relations and the House Committee on addition to congressional acquiescence in the President's
lat the exec- Foreign Affairs 60 power to settle [such] claims, prior CJses of this Court
in terms of The US Supreme Court has occasionally described, have also recognized that the President does have some
19 power. but not clearly defined, the scope of the president's measure of power to enter into executive agreements
111Cern about executive agreement power. In a case growing out of without obtaining the advice and consent of the
;, which has President Carter's 1979 executive agreement with [ran­ Selldte."6l The following case illustrJtes the difficulty in
n the treaty­ which ended the hostage crisis (§7.4), and provided a drawing a precise legal demarcation between the presi­
te occurred basis for resolving business claims against Iran-the dent's executive agreement po\ver and the Senate con­
icker gener­ Court characterized that general power as follows: "In sent required under the US Constitution:
amendment
vocated that
States should
lsses in both U1!inbel'gel' P. Rossi
lte. If he had
SUPR-EME C )UR.T OF THE UNITED STATES

i amendment
456 U.S. 25,102 S.Ct. 1510,71 L. Ed. 2d 715 (1982)

lity to enter
express con­
IS have been AUTHOR'S NOTE: [n 1968, President Johnson made an
es. executive agreement with the Republic of the Philip­
ed, Congress pines. It provided for the preferential employment of Fil­
the president ipino citizel15 at US military bases in the Philippines. Its
international purpose was to ensure the availability of suitable employ­
If the Sena te ees on those bases, including individuals who could speak
is. The presi­ the local language. The underlying rationale was that
Nould preju­ giving these jobs to local Filipino nationals would rcsult
in lovvcr wage costs and less turnover in these positions,
IstanCe, he or
than if the same jobs were available to US military
lsmit a C0111­
dependents. The President thus decided to favor foreign
~ Committee
nationals in the hiring process on these bases.
Three years later, Congress enacted a law prohibiti"ng
any employment discrimination against US citizens on
US overseas military bases-unless a "treaty" expressly
permitted such discrimination as being necessary to US
national interests. Four more executive agreements fol­
reements (%) lowed, providing for preferelltial treatment of foreign
citizens ;It overseas mjlitary bases-after passage of the
1971 nondiscrill1i.!Iation legislation. However, none of
these postlegislation agreem.ents were submitted to the
Senate for its advice and consent, as argudbly required by
the 1971 law.
[n 1':178, several US citizens working at Ol{e of the US
naval bases in the Philippines were notitled that their
jobs had been converted into "local" positions (pursuant
to the intentional discrimination authorized by execu­
tive agreement with the Philippines). This meant that
Department of they would be disch.arged fi'ol11~ their employment with
&- E. Borchard, the US Navy--so that "local" citizcns could obtain those
vailable at:
jobs at the US military bases. The Kossis, and others who
ri':'11 com par-
Iud lost their jobs, sought reinstatement in their employ­
ment. They sued the US government (naming Secretary
of Defense Weinberger) for violating the 1971 antidis­
crirnination statute.
The Supreme Court had to interpret the "treaty"
exception in Section 106 of the 1971 anti-discrimina­
tion statute. It prohibited such discrimination, unless a
"treaty" authorized this discrimination ag:linst US citi­
zens, in favor of local nationals. Dut did this exception
mean that discrimination against US citizens would be
permitted only under a constitutional "treaty"-which
requires Senate consent to discriminate against US cit­
izens 'lbroa.d? Alternatively, did Congress intend to leave
the President's power to enter into an executive agree­
nlent permitting job discrimination intact, when it
passed the 1971 Act?
Tbe Supreme Court's task was to construe the fed­
eral statute, which provides as follows: "Unless prohibited
by treaty, no person shall be discriminated against ... in
the employment of civilian personnel ... in any foreign
country because such person is a citizen of the United
States or is a dependent of a member of the Armed
Forces of the United States." Justice Rehnquist's opinion
illustrates the difficulties with distinguishing between
"Article II treaties" and "executive agreements." The
Court's analysis arose in a very sensitive context, with
significant foreign policy ramifications.
COURT'S OPINION: Our task is to determine the
me:ming of the word "treaty" as Congress llsed it in this
statute. Congress did not separately define the word, as it
378 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

has done in other enactments. We must therefore ascer­
tain as best we can whether Congress intended the word
"treaty" to refer solely to [the COllStitution's] Art. II, §2,
cl. 2, "Treaties" those international agreernents con­
cluded by the President with the advice and consent of
the Senate-or whether Congress intended "treaty" to
also include ex cutive agreements such as the EtA [Base
LJbor Agreement, which permitted discrimination].
The word "treaty" has more th,lll one meaning..
Under principles of international law, the word ordi­
narily refers to all international agreement concluded
bet'ween sovereigns, regardless of the manner in which
the ,lgreement is brought into force. Under the United
States Constitution, of course, the word "tre'lty" has ,)
far more restrictive meaning. Article II, cl. 2, of that
whereby] tbe host country grants the United States base
rights in exchange for the preferential hiring of loca.! §106
nationals [of the host State]. Gen(
At the time § 106 was enacted, there were in force mem
12 agreements in addition to the BtA providing for oflo(
preferenti;ll hiring of local nationals on United States systel
miJitary bases overseas. Since the time of the enact­ local
ment of §106, four more such agreements have been lowel
concluded, and none of rhese were submitted to the aspol
Senate for its advice and consent. We think that some
affirmative expression of congressional intent to abro­
gate the United States" international obligations is
required in order to construe the word "tre<lty" in
§ 106 ,1S nle,ming only Art. If treaties. We therefore turn
to what legishtive history is available in order to ascer­
• Note

1. The S
instrument provides that the. President "shall have tain whether such an intent may tairly be attributed to
presid<
Po\over, by and \,.,ith the Advice and Consent of the Congress.
lzens
Senate, to l1l'lkeTreaties, provided ~vo thirds of the Sen­ The legislative hiMory seems to us to indic<lte that
abroad
ators present concur." Congress was principally concerned with the fin,1l1­
spouse
Congress has not been consistent in distinguishing cial hardship to American servicemen which resnlted
wage ~
between Art. II treaties and other forms of international from discrimination against American citizens at
agre·ements. For example, in the Case Act, 1 U. S. C. overseas bases. As the Conference ~om11littee Report be una
§112b(a), Congress required the Secretary of State to explains: accom
"transmit to the Congress the text of any international assignn
agreement, other than a treaty, to which the United States The purpose of r§ 1061 is to correct a situation US inti
is <l party" IlO later than 60 days after "sllch agreement has which exists at some foreign bases, primarily in foreLgn
entered into force." SiJnilarly, Congress has explicitly Europe, where discrimination in f.1Vor of local 2. The n
referred to Art. II treaties in the Fishery Conservation and nationals and against American dependents in process
Management Act of1976,16 U.S.c. §180 L, and the Arms employment has contributed to con.ditions of of the
Control and Disarmament Act, 22 USc. §2551. hardsh.ilJ for families of American enlisted rnen limits (
On the other hand, Congress has used "treaty" to whose dependents are efl:ectively prevented from or limil
refer only to international agreements other th,Ul .Art. obtaining employment. dent (tl
II treaties. In 39 U.s.c. §407(a), for eXJmple, Congress de term
authorized the Postal Service, with the consent of the The Conference Report, however, is entirely silent agreem
President, to "negotiate and conclude postal treaties or as to the scope of the "treaty" exception. SinliJarly, Treaty I
conventions." A "treaty" which requires only the con­ there is no mention of the 1.3 agreements that pro­ Second
sent of the President is not an Art." treaty. It is not dis­ vided for preferential h:ritig of local nationals. Thus, gressior
positive that Congress in §] 06 used the term "treaty" the Conference Report provides no support whatso­ whethe
without specifically including internarional agreements ever for the conclusion that Congress intended in As state
that are not Art. [J treaties lemphasis suppliedJ. ... some. way to limit the President's use of internation,ll
tiona! L
Thus, if Congress intended to limit the "treaty agreements th.at may discriminate against American
AgreelT
exception" in "106 to Art. II treaties, it must have citizens who seek employment at Unired States mili­
TIONAL
intended to repudiare these executive agreements that tary bases overseas.
Press,2f
affect the hiring practices or- the United States only at On the comrary, ... Congress was not concerned
its l1lilit;lry bases ovcrse<ls. One would expect that Con­ with limiting the authority of the President to enter into
The
gress would be aware th,lt executive agreements Ill,ly executive agreements with the host country, but with
elude
represent a quid pro quo lbargained for exchange the ad hoc decisionmaking of military comJIl;1I1ders
of th
prop<
 TREATY SYSTEM 379

tes base overseas. In early 1971 [just before Congress passed [of discriminating against US nationals on US military
of 10caJ §1061, Brig. Gen. Charles H. Phipps, Commanding b,lses in EuropeJ ....
General of the European Exchange System, issued a Wh.ile the question is not fi·ee fron, doubt, we con­
111 force memorandulll encouraging the recruitment and hiring clude that the "treaty" exception contained in §106
li11g for oflocaln3tionals inste,ld of United States citizens at the extends to executive agreements as well as to Art. II
d States system's stores ron us rnilitary basesJ. The hjring of treaties [characterizing these executive agreements as
enact­ local nationals, General Phipps reasoned, would result in "treaties" for the purpose of authorizing discrimina­
ie been lower wage costs and turnover rates. Senator Sch\.veiker, tion against US nationals on foreign US military
l to the a sponsor of § 106, complained of General Pmpps' policy bases] ....
at some
:0 abro­

tions is
:aty" in
• Notes & Questions
xeturn
for affecting foreign policy goals and, consequently,
a ascer­ 1. The Supreme Court effectively "lent its hand" to the that executive agreements are ultra vires [unconsti­
Juted to president's intentional discrimination against US cit­ tutional] seems adequately refuted ....
izens who hoped to work on US military bases At the other extreme the notion that executive
·ate that
abroad. This meant that military dependents, typically agreements know no constitutional bounds proves
~ f111an­
spouses of enlisted personnel, with a generally lower equally bankrupt. Executive agreements, no less
resulted
wage structure than that of military officers, would than treaties, must probably be limited to appro­
zens at
be unable to 'work, and in many cases thus unable to priate subject matter. The more difficult question
Keport
accompany their military spouses during overseas is whether there exist species of international
assignments. What was the rationale for promoting accord that may take the form of a treaty, but not
US interests via intentional discrimination in favor of that of an executive agreement.
1011
foreign nationals?
y1l1
,cal 2. The materials in this section suggest a two-part 3. In September 2004, a federal appellate court
111
process for deciding whether the president'S exercise resolved a conflict akin to Rossi-in this instance
of of the executive agreement power transgresses any between a president's military Status of Forces
nell limits contained in the constitutional Treaty Clause Agreement (SOFA) with the United Kingdom.and
from or limiting congressional legislation. First, the presi­ the US Foreign Sovereign Immunities Act (FSIA)
dent (through the appropriate federal agency) must (§2.6). During a bar fight in Tacoma, Washington,
determine whether his or her proposed executive several members of the British military started a
·ly silent agreement instead falls within the parameters of the fight with and severely injured a US civilian. The
illlilarly, Treaty Clause, which would require Senate consent. 1976 FSIA is ordinarily the "exclusive" source of
ut pro­ Second, the president must examine existing con­ jurisdiction over suits involving foreign States and
Is. Tilus, gressional legislation and attitudes to determine their lllstrumentalities. While foreign States are gen­
whatso­ whether congressional approval should be obtained. erally presumed to be immune from suit, this con­
nded 1n As stated lrl the principal treatise on US constitu­ duct fell within the FSIA's "noncommercial tort"
national tionallaw in the US, L. Tribe, Treaties and Executive exception. The civilian plaintiff could thus sue the
11wrican Agreements, §4-4, in 1 AMERICAN CONSTITU­ United Kingdom.
:es mili­ TIONAL LAW 648-649 (3d ed. New York: Foundation The 1951 SOFA executive agreement between the
Press, 2000): United States and the United Kingdom was created to
ncerned
avoid just such disruptions lrl military service obliga­
~ter into
The precise scope of the President's power to con­ tions. Local plaintiffs in either country may proceed
lut with
clude international agreements without the consent with their suits, but against the host country-just as if
Ill:lnders
of the Senate is unresolved. At one extreme, the its own soldiers had committed the wrongful act. The
proposition that the treaty is the exclusive medium United Kingdom was thus immune o'om suit under
380 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

the SOFA, but liable under the FSIA. The U$.s;ourt In parts of Europe, Mexico, and certain other regions, the lane
applied the familiar rule that US legislation should treaties must take precedence over internal law in the express
not be applied in a way that violates international event of a conflict. 62 The constitutions of Burkina Faso, The
obligations, unless Congress expressly says otherwise. Congo, Mauritania, and Senegal expressly provide that a "The la
Thus, the United Kingdom was dismissed, and the treaty is superior to internal law-although there is decision
local citizen's claim was instead deemed to be against apparently no reported judicial decision that affirms this that an}
the United States, under the Federal Tort Claims elevated status. and that
Act. Moore v. United Kingdom, 384 F.3d 1079 (9th The US Constitution does not provide a direct inconsist
Cir. 2004). answer to the resolution of such contJicts. Article VI pro­ £lict rene
4. Some US labor unions brought an action challenging vides only that the "Constitution, and the Laws [federal position
constitutionality of North American Free Trade Agree­ statutes] of the United States which shall be made in and Effe(
ment (NAFTA). President Clinton entered into that Pursuance thereof and all Treaties nude ... shall be the was thus
treaty, on behalf of the United States, with Canada and supreme Law of the Land...." This wording does not ginia stat
Mexico without Senate consent. The issue was establish any relative hierarchy in the event of a contJict. and deteJ
whether NAFTA required an "Article [[ Treaty" An internal law of the United States may occasionally Vienna I
requiring Senate ratification. The federal appeals court clash with, and supersede, a prior international agree­ Congress
"decided" that this was a nonjusticiable, political ques­ ment. This portion of the treaty chapter addresses the law. In it
tion (§1.4).Thus: resolution of such conflicts under US law, as opposed to Congress
International Law, where a State may not rely 011 its agreemen
The appellants [unions] concede, as they must, internal law to avoid international obligations. (prior to
that the Constitution affords the political branches when the
substantial authority over foreign affairs and com­ Treaty versus Constitution The US Supreme Court The U
merce. The appellants also concede that the has consistently held that the Constitution prevails when a case inv(
Supreme Court has recognized the constitutional it contJicts with statutes or treaties. Both a federal statute tary husba
validity of the longstanding practice of enacting and a treaty (executive agreement) were in conflict with Constituti
international agreements which do not amount to the Constitution in the 1957 case of Reid IJ. Covert. 63 The and a pric
full-fledged treaties .... Court held that civilian wives who had killed their rnili­ jurisdictiol
Indeed,just as the [Art. II] Treaty Clause fails to tary husbands on US bases, in England and japan, could the "Cour
outline the Senate's role in the abrogation of not be tried by a military court-martial. The Supreme Act of COl
treaties, we fll1d that the Treaty Clause also fails to Court examined several distinct sources of US law to tion, is on
outline the circumstances, if any, under which its arrive at this conclusion. The Uniform Code of Military statute wh:
procedures must be adhered to when approving justice (UCMj) is federal legislation, which then provided treaty, the
international commercial agreements. for a court-martial in this situ'ltion. Presidential executive treaty null.
Significantly, the appellants themselves fail to agreements governing crimes occurring on US bases
offer, either in their briefs or at argument, a work­ abroad, incorporated these provisions of the UCMj, (1) The
able definition of what constitutes a "treaty." which was thus expressly applicable to these civilian (2) A Sf<
Indeed, the appellants decline to supply any ana­ wives. The court found that neither the Military justice treaty­
lytical framework whatsoever by which courts can Code nor the executive agreements could deny the civilians
distinguish international agreements which spouses' constitutional rights to indictment by a civilian (3) The I
require Senate ratification from those that do not. grand jury, and to a jury trial by their peers. These rights trumps t
-Made ill the USA Foulldation lJ. Us., 242 enshrined in the US Constitution could not be vacated
F.3d 1300,1314-1315 (lIth Cir., 2001). by either the federal statute (UCMj), or by an executive
agreement, which purported to apply the UCi\l1j to mil­ • PROBI
itary dependents abroad. Problem 8
CONFLICT RESOLUTION
the ICJ 19
The other major problem in US treaty practice arises Treaty versus Statute Treaties and federal statutes Relations (
when there is a contJict among the US Constitution, a are on equal footing under Article VI of the Constitu­ of this boo
federal statute, and/or an international treaty conurutment. tion. Each is therein referred to as the "supreme law of the materia
 TREATY SYSTEM 381

'egions, the land." Neither is superior to the other, under the 1. Did the Vienna Convention on Diplomatic Relations
in the express terms of the Constitution. have to be "self-executing" for the United States to
la Faso, The US Supreme Court applies the following rule: claim that Iran breached it?
Ie that a "The last in time prevails." As stated in the above Reid 2. Are those provisions (text, p. 342) self-executing? Can
there is decision, the Court has "repeatedly taken the position this be answered by reading the given articles?
rillS this that an Act of Congress ... is on full parity with a treaty, 3. Based on the iVledelli1'l case analysis, how would you
and that when a statute which is subsequent in time is resolve the question of whether the Diplomatic Rela­
a direct inconsistent with a treaty, the statute to the extent of con­ tions treaty is self-executing?
:VI pro­ flict renders the treaty null."64 The Court affirmed this
[federal position in 1998, when construing the 1996 Antiterrorism Problem 8.B (after §8.2 Reservations case) The
made in and Effective Death Penalty Act. A Paraguayan defendant treaties you will study in Chapter 11 illustt"ate the UN
U be the was thus foreclosed from appealing the failure of the Vir­ promotional role in humdl1 rights. One of them is the
:loes not ginia state court system to notifY Paraguay of his arrest UN Convention on the Elimination of All Forms of
conflict. 3nd detention. Such notification is required by the 1963 Discrimination Against Women (CEDAW), available at:
asionally Vienna Convention on Consular Relations (§7.2)65 <http://www. un.org/woIl1enwatchldawl c.::claw I cedaw
al agree­ Congress may thus denounce it prior treaties under US .htm>. Read and compare the following information
esses the law. In its comprehensive Anti-Apartheid Act of 1986, regarding the reservations submitted to this convention
'posed to Congress expressly repudiated a presidential executive by Bangladesh, Saudi Arabia, 3nd the United States:
lyon its agreement providing for air service with South Africa
• Bangladesh:"On reading the Bangladeshi reservation to
(prior to the improvement in international relations,
the Women's Convention, indicating that it will imple­
when the white minority relinquished power in 1993).66
ment this convention in accordance with Islamic Sharia
me Court The US Supreme Court illustrated this progression in
Law, the advocates of women's rights cannot but be
'ails when a case involving civilian wives who murdered their mili­
extremely skeptical about the possible contribution of
ral statu te tary husband's abroad. The case involved all three: the US
the Convention (as amended by the [Sharia Law]
lflict with Constitution's Bill of Rights, a federal statute (UCMj),
reservation) to the improvement of the situation of
IJert 63 The and a prior treaty regarding which country would have
women in Bangladesh." (Insight about that law is avail­
their rnili­ jurisdiction to try civilian spouses. When conflicts arise,
able in §1.3 of this textbook.) L. Lijnzaad, RESER.VA­
pan, could the "Court has ... repeatedly taken the position that an
TIONS TO UN-HUMAN RIGHTS TlliATIES: RATIFY AND
, Supreme Act of Congress, which must comply with the Constitu­
RUIN? 3 (Dordrecht, Neth.: Martinus Nijhoff, 1995).
JS law to tion, is on a full parity with a treaty, and that 'vvhen a
)f Military statute which is subsequent in time is inconsistent with a
• Saudi Arabia: "In case of contradiction between any
rr provided treaty, the statute to the extent of conflict renders the
term of the Convention and the norms of islamic
l executive treaty nuU."67 So in the event of a conflict:
law, the Kingdom is not under obligation to observe
US bases the contradictory terms of the Convention."
e UCMj, (1) The Constitution prevails over International Law.
se civilian (2) A statute (UCMj) and a bilateral Status of Forces • United States: The United States has signed (1980)
ary justice treaty-regarding which country would try these but not ratifted CEDAW The United States is there­
deny the civilians-were on the same legal footing. fore committed in principle, but has yet to merge
1 a civilian (3) The later in time-either treaty or federal statute-­ word and deed via Senate confIrmation. Per materi­
hese rights trumps the prior of the two. als in §8.2 of the textbook, a signatory cannot take
be vacated any action that is inconsistent with the object and
l executive purpose of a signed treaty.
V!J to mil­ • PROBLEMS
Problem 8.A (after §8.1 Medellin case) Reconsider Determine the following:
the ICJ 1980 Hostage Case, and the 1961 Diplomatic
ral statutes Relations Convention provisions, both set forth in §7.4 (1) Do the Bangladesh and Saudi Sharia Law reserv3tions
Constitu­ of this book. Answer the following questions based on comply with the ICJ Reservations Case"compatibihty"
me Jaw of the materials in §8.1: test?
382 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW

(2) Does the United States have a higher duty tQ ..avoid Some US senators thus stated for the Congressional reprlnte
discrimination against women-than either of the Record that "Haven had added genocide to the long list criticiSlT
above two ratifYing nations-based on the United of international obligations breached by Haven in the to raise
States signing the CEDAW? Does the post-Repara­ last decade. Haven has failed to adhere to the bilateral process
tions Case note, on the Draft Guidelines on Reserva­ treaties between the two nations, to the wishes of the Malawel
tions to Treaties, help to resolve these questions? Organization of American States, and to the unmistak­ A vel
able minimum standards of international behavior." tration 0
Problem 8.C (after §8.2 Reservations case) Article Under the Genocide Convention, genocide is the killing Crisis."1
17(2) of the 1969 VCLT states that when "it appears from of members of a particular ethnic group with the intent lies, or a
the ... object and purpose of the treaty that the applica­ to destroy it (as analyzed in §9.5 Radio Machete case). United ~
tion of the treaty in its entirety between all the parties is an Under the applicable US-Haven treaty, murder is an where e
essential condition of the consent of each one to be bound extraditable offense. Last October, the US Department of not wor]
by the treaty, a reservation requires acceptance by all the State demanded that Haven extradite those responsible for military
parties" (italics added).vCLT Article 19(1)(a) provides that killing the US citizen so that they could be tried either in failed res
the legal efrect of a reservation is that it "[m]odifies for the the United States or in some international tribunal for the executive
reserving state the provisions of the treaty to which the crime of genocide. Haven refused this extradition request guarantet
reservation relates to the extent of the reservation." because "those who have killed the US citizen may have several h<
Assume the following facts: La Luce del Pueblo­ conunitted murder, but they could not possibly be thereby of the pI
meaning "Light of the People," or LLP-is an ultra­ responsible for the bizarre claim of genocide." [ran that
radical group of citizens within a hypothetical Caribbean Assume that Haven, attempting to show its solidarity The l
State called Haven. Last September, Haven's military with the world community, chooses this point in time to (the Algi,
leader placed the LLP in charge of guarding some kid­ become a party to the Genocide Convention. Haven ten­ 2003.Th
naped US citizens. They were being held inconwlUni­ ders its consent to the appropriate international authority. the July:
cado during political hostilities with the United States. It also submits the following reservation: "Haven hereby Iran was
Without authority from the country's leader, some mem­ adopts the Genocide Convention as binding. Haven families' (
bers of LLP decided to mistreat the US citizens. Several reserves the sovereign right, however, to use any means at terrorist ~
were beaten. One was brutally murdered. His body was its disposal to eliminate external threats to Haven's terri­ ereign In
then dumped on the steps of the US embassy in Haven, torial integrity." branch n,
where journalists had gathered to learn about the latest Can Haven legitimately tender this reservation to the this actie
developments in the escalating hostilities. Genocide Convention, under the IC]'s Resen!ations Case? AlgIers A
A number of foreign newspapers printed a picture of The Vienna Convention on the Law ofTreaties? "terrorist
the body of the dead US citizen on the US embassy steps. ASSUJ1l
Their news story about the beatings and execution Problem 8.0 (§8.2. after "Invalidity" Materials) [n ety of PI
assigned responsibility to "LLp, the zealous group of 1980, the VCLT became effective when the minimum above ex,
Haven idealists who say that they resent the decades of number of national ratifications were deposited with the and Iran.
the US dominance in hemispheric atIairs."This newspa­ United Nations. During the negotiating process, US is not wl­
per account included LLP's statement to these journalists: hostages initially remained captive in the American necessary
"We plan, for the benefit of the People's Revolutionary embassy and, for most of the time, at other locations in The Sen.
Party (led by Haven's military leader), to elim.inate all US [ran. The United States and [ran had no direct diplo­ can avoid
citizens in Haven who hinder our progress." Subse­ matic relations. Algeria assisted US President Jimmy basis that
quently, US citizens were randomly attacked and beaten Carter in negotiating a treaty with Iran to secure the release tre
in Haven's restaurants and bars. Nationals from other liberation of these hostages. They were released in Senatol
countries were not harmed in these incidents. Haven's exchange for the simultaneous expungement of Iranian do not wi:
leader denied any involvement with what he character­ assets in the United States, which had been frozen by arrangemc
ized as "an idealistic, but irresponsible splinter group of Carter near the outset of the crisis. The United States hostilities'
radicals to be dealt with if found." Worldwide media also agreed to return assets subject to its control that on its ob
attention now focused on Haven and its growing con­ belonged to the family of the former Shah of Iran.Var­ physical, n
frontation with the United States. ious documents about that treaty and related matters are povverful I
 TREATY SYSTEM 383

19ressi 0 nal reprinted in 20 INT'L LEGAL MAT'Ls 223-240 (1981). A United States that employed forceful tactics, rather than
Ie long list criticism of the US Department of State's decision not Iran, when Carter's military rescue mission failed."
len in the to raise the question of force in this particular treaty Senator Hawk represents an opposing group of sena­
Ie bilateral process is presented in Iranian Hostage Agreel1lel1tJ~ in tors. She and her colleagues bope to refreeze Iranian
hes of the Malawer book, at 27 (cited in note 14 below). money accounts and gold bullion still within the United
unmistak­ A very sensitive provision of this treaty required arbi­ States or controlled by private US businesses in foreign
behavior." tration of any subsequent disputes related to the "Hostage countries. She wants to renew the 1980 Hostage Case liti­
the kiUing Crisis."This provision precluded the hostages, their fami­ gation in a separate phase in tl1e [C]. (See §7.4 for IC] case
the intent lies, or any governmental entity from suing [ran in the excerpts on the Court's order that Iran free the US
?te case). United States, the International Court of Justice, or any­ hostages.) Relying on Article 52 of the VCLT, Hawk
urder is an where else. President Carter's economic sanctions were believes that the ICJ should render an authoritative deci­
mtment of not working, and he did not want to undertake further sion characterizing the hostage treaty as being invalid on
Jonsible for military action to retrieve the hostages from Iran, after a the basis of VCLT duress.
~d either in failed rescue attempt in 1979. Instead, he entered into an Senator Hawk thus contends that "the Iranian treaty
unal for the executive agreernenl to resolve this crisis and obtain the would never have seen the light of day if we were not
ion request guaranteed safety of the hostages. Subsequent suits by forced into it by the hostage situation." Senator Dove's
11 may have several hostages were dismissed by US courts, on the basis litmus test for validating the treaty is an imaginary
,be thereby of the president's agreement not to pennit suits against bright line that separates military and nonmilitary coer­
[ran that were spawned by the Hostage Crisis. cion in all circumstances. "The proper approach, in my
ts solichrity The US Senate attempted to abrogate this agreement not so humble opinion, is to invJlidate the sham, and
t in time to (the Algiers Accords) on several occasions, as recently as shameful, Iranian deal by distinguishing between lawful
Haven ten­ 2003. This is a recurring legislative response to cases like and unlawful coercion-rather than Senator Dove's
al authority. the July 2003 District of Columbia federal case, where approach, which isolates military duress to invalidate the
wen hereby [ran was potentially subject to a judgment in a hostage treaty from nonmilitary duress, whereby the treaty would
ing. Haven families' class action lawsuit. [ran had been designated a be unaffected."
ny means at terrorist State, under an amendment to the Foreign Sov­ Make the following assumptions:
aven's terri­ ereign Immunities Act (textbook §2.6). The executive
(a) [ran is a party to the VCLT.
branch nevertheless intervened to obtain a dismissal of
(b) [t did not make any reservations.
'ation to the this action. Its lawyers successfully argued that the
(c) The hostages have been released, but the [ranian
~atiol1s Case? Algiers Accords were not affected by [ran's subsequent
assets are still frozenlavailable for seizure.
Ities? "terrorist" status under US law68
(d) The Carter hostage release agreement was made
Assume that the US Senate is debating the propri­
afier the January 27, 1980 "start" date for the
terials) In ety of President Carter's negotiations leading to the
prospective applicability of the VCLT.
e minimum above executive agreement between the United States
ted with the and Iran. The topic of this hypothetical Senate debate Two students will present the arguments that Sena­
process, US is not whether the Senate's advice and consent were tors Dove and Hawk might use in their Senate debate
e American necessary for the hostage-release agreement with Iran. on the applicability of the VCLT. Can the United States
locations in The Senate has instead chosen to debate whether it void its treaty obligations to IrJn under President
lirect diplo­ CJn avoid the US obligations under the treaty, on the Carter's executive agreement?
dent Jimmy basis that the president had to enter into the hostage­
) secure the release treaty under duress. Problem 8 E (after §8.2 Fisheries Jurisdiction
released in Senator Dove represents a number of colleagues who cases) The United States and the hypothetical Larin
I1t of Iranian do not wish to alter or negate the effect of the president's American State of Estado entered into a 1953 Treaty of
~n frozen by arrangement with Iran.They do not want to risk renewed Friendship, Commerce, and Navigation (FCN).This treaty
Jnited States hostilities or create the impression that America goes back initiated their international relationship and covered a
control that on its obligations. Dove contends that "there was no number of detaiJs. In the relevant treaty clause, the United
of Iran. Var­ physicJI, military, or economic coercion that forced this States agreed that Estado could nationJlize American busi­
d ma tters are powel-{u! nation into President Carter's treaty. It was the ness interests. In return, Estado was required to provide
384 FUNDAMENTAL PERSPECTIVES ON INTERNATIOr~AL LAW

reasonable compensation, which was defined in the treaty mitments with the United States after the US senators Electr
as "the fair market value of all nationalized assets." Widely condemned its nationalization of the US corpo­ ASIL (
The US-Estado relationship has turned sourThe Estado rate property. Questions: (Tre
Frequer
government nationalizes a major US corporation's prop­
toob
erty in Estado, but does not tender an)' compensation. (1) Is the United States now required to perform Its
Estado resisted the US claim of entitlement to compensa­ obligations under any treaty with Estado?
tion under the 1953 friendship treaty. Estado's Minister of (2) Does the United States have any remedies under the
State issued the following statement: Vienna Convention on the Law ofTreaties? • EN
1. See
UIT\
A fundamental change in circumstances has pre­ 2. The
• BIBLIOGRAPHY
cluded the continued viability of the 1953 FCN L8i
§8.1 Definition and Classification tletcl
Treaty.The 1974 United Nations Declaration on the
J. Grenville & B. Wasserstol1 (ed.), THE MAJOR INTERNATlON/\L 3. DH
Establishment of a New International Economic
TREATIES OF THE TWENTIETH CENTUIW (3d ed. New York: tice,
Order obviously necessitates termination of the
Routledge. 2001) NATI
decades earlier compensation requirements of the out­ D. Johnson. CONSENT I\NI) COMMITMENT IN THE WOI~L1) Mart
moded US-Estado FCN Treaty [see §4.4 of this text COMMUNITY: THE CLASSIFIU\TION I\NI) ANALYSIS OF the [J
on the NIEO].The changed circumstance is that our INTEI~NATIONAL INSTRUMENTS (lrvington-on-Hudson, NY: 4. Com
nation, which the Creator has endowed with natural Transnational, 1998) the V
Li ZhaoJie, Cultural Relativity and the Role of Domestic Courts Docu
resources, need no longer fall prey to another
in th~ Enforcement of International Hunlan Rights: A Survey Law(
nation's multinational enterprises. The United States of the Practice and Problems in Chilla. in E. Mendez & A. inafte
corporation has plundered untold billions of dollars TraehoJd (de.), HUMAN RIGHTS: CHINESE AND CI\NADIAN agree!
in excessive profits from the very core of Estado. All PEI~Sl'ECTIVES 185 (Ottawa: Univ. Ottawa, 1997) ten in
of the profits have been repatriated back into the 5. Harum
§8.2 Formation, Performance, Cessation AJvLER
United States, rather than remaining here to benefit
compl
Estado's economy. The content of International Law V Gowlland-Debbas (ed.), MULTILAII "AL TitEATY-MAI(ING: THE
ing de
was developed by powerful nations over the many CUfl,"ENT STATUS OF CHALLENGES TO AND REFO"MS NEElJEU
Treatie
IN THE INTE"NATlONAL LEGISLATIVE P"OCESS (I-Jague: Martinus
centuries before Estado even existed. It is a self-pe­ /"nelllan
Nijhoff,2000)
rpetuating vehicle used by countries like the United 6. See M
F. Hom, RESE"VATIONS AND INTEIU"ETIVE DECLAI~ATIONS TO
States to justify its asserted right to compensation in THE E
MULTILATEIU\L T"EATIES (The Hague, Neth.: T.M.C. Asser
SINGLE
the amount of the "fair market value" of nationalized Inst. 1988)
7. UN G
property. Due to these changed circumstances, S. Kosenne, B"EACH OF T"EATY (Cambridge, Eng.: Grotius, 1985)
reprim
S. Rosenne, THE LAW OF TitEATIES: A GUIDE TO THE LEGISI../\TIVE
Estado may reasonably J L1stify its refusal to pay any STAloS
HiSTOIW OF THE VIENNA CONVENTION (Dobb, Ferry, NY:
compensation to a corporation that has already NY:Ec
Oceana, 1970)
acquired much more than it could ever repay to 8. A. Gas;:
A. Vamvoukos, TE"MINATION OF T"EATIES IN INTE"NATIONAL
CONTI!
Estado. As a shovving of good faith on the part of my LAW: THE DOCTI"NES OF REllus SIC ST/\NTI13US ANI)
(Athen~
Government, Estado will not seek reimbursement in DESLLTUDE [acquiescence] (Oxford, Eng.: Clcirendon Press,
COl/l./'aCi
an international forum, sealing instead for the fair 1985)
9. S. SCOtt
P. Wesley-Smith, UNEQUAL T"EATY: j 898-1997 (rev. ed. Hong
market value of the nationalized assets, which is only ch. 5, in
Kong: Oxford Univ. Press, 1984)
a small fraction of what the United States enterprise T"EATIJ
has itself expropriated natural resources from the (italics a
§8.3 United States Treaty Practice 10. R Phil
people of Estado.
R. Dalton, United States, Ch. 20, in D. Hollis, M. Blakeslee & L. LAW 99
Edel.'ington (ed.), NATIONAL T"EATY LAW AND PI~ACTICE 765 11. Sriel/lij/(
Can Estado properly invoke the doctrine of rebus sic (Leiden, Neth.: Mal.'tinl1s Nijhoff, 2005) ;md the
stantibus to terminate its treaty obligation to repay fair M. Glennon, The Senate Role in Treaty Ratification, 77 AME".J. dt 151 I
INT'L L. 257 (1983) lnsrrunH
market value for nationalizing the US corporation;J
E. Surrency, How the United States Perfects an International oFTIUA
Agreement, 85 LAW LiU.JOU"NAI.. 343 (1993) 1996)
Problem 8.F (end of §8.2) Refer to Problem 8.E D. V"gts, The United States and its Treaties: Observance and 12. Cro/ius: ~
above Assume that Escado later repealed all treaty C0111­ Breach, 95 AMEI<.J.INT'L L. 313 (2001) 394 (Kei

JS senators Electronic Resources
ASIL Guide to Electronic Resources for International Law
US corpo­
(Trearies): <http://wwwasiLorglresource/trearyl.htm>
Frequently Cited Treaties: <http://wwwlaw.umn.edu/library/
too lsi pa thflnd ers/ most-ci tcd. html >
perform its
It
:s under the • ENDNOTES
:ies? 1. Ser generally D. Bederman, INTERN,~TIONAL LAW IN ANTIQ­
UITY [Cambridge, Eng.: Cambridge University Press (2001)].
2. The text of this convention is reprinted in 63 AMER.]. [NT'L
L. 875 (1969),8 INT'L LEGAL MAT'LS 679 (1969), and <http://
tletcher.tufts.edu/l11ulti/texts/BH538.txt> [hereinafter VCLT].
TERNATIONAL 3. D. Hollis, A Comparative Approach to Treaty Llw and Prac­
d. New York: tice, ch. 1, in D. Hollis, M. Blakeslee & L. Ederingron (ed.),
NATlONAL TREATY LAW AND ['RACTICE (Leiden, NerI1.:
THE Wm\.LI) Martinus Nijhoff, 2005), containing chaptered analyses on
!\NALYSIS OF the neaty practice of nineteen nations.
Hudson, NY: 4. Comment (2) to Art. 2, Int'l L. Comm'n, Commentary on
the Vienna Convention on the Law of Tteaties, in OffLcial
mestic Courts Documents-United Nations Reports of the International
giltS: A Su rvey Law Commission, 61 AMEI\..].INT'L L. 248, 287 (1967) [here­
Mendez & A. inafter Com/nrnta/ies]. The ILC study did not address "oral"
m CANADIAN agreements, because of the compararive prominence of writ­
7) ten instruments as a basis for internarional oblig;1tions.
5. Hamard study: Drafr Convention on the Law of Treaties, 29
AMER. J. INT'L L. 652, 712 (Supp., 1935). Mulliple ler",s: A
In comprehensive table depicring these terms, with accompany­
(-MAKING: THE ing derails, is available in D. Myers, The Names and Scope of
'ORMS NEElJED Trearies, 51 AMER.]. INT'L L. 574,576 (1957). ILC study: COI11­
lague: Martinus IlIel'llaries, Commem (3) to Art. 2, at 288 (cired nore 4 above).
6. Sre M. Kaniel, THE EXCLUSIVE TI1.. EATy-MAKING POWEI~ OF
:LAI,ATIONS TO THE FIJ\.OPEAN COMMUNITY UI' TO THE PEIUOD OF THE
: T.M.C. Asser SIN0LE EUROPEAN ACT (The Hague: Kluwer, 1996).
7. UN Gen. Ass. Doc. A/CONE 129/15 of March 20, J 986,
:Grotius, 1985) reprinted in P. Menon, THE LAW OF TREATIES BETWEEN
HE LEGISLATl VE STATES AND INTERNATIONAL OI\.GANIZATIONS J 59 (Lewiston,
bbs Ferry, NY: NY: Edwin Mellon Press, 1992).
8. A. Gasis, Preface to E. RaftopouIos, THE INAlJEQUACY OFTHE
,TERNATIONA L CONTI\.ACTUAL ANALOGY IN THE LAW OF TI1.. EATIES Xl[[
rANTIJ3US AND (Arllens: Hellenic Inst.lnt'l & Foreign Law, 1990) [herein:Jfrer
larendon Press, COII/mClual A'JaloRY]'
9. S. Scott, Proposing a Political Theory offreaty Interpretation,
(rev. ed. Hong ch. 5, in THE POLITICAL INTEI\.PI1.. ETATION OF MULTILATERAL
TitEATIES 97, at 111 (Lei den, Neth.: Martinus Nijhoff, 2004)
(italics added).
10. R. Phillimore, 2 COMMENTAI\.JES UPON INTEI\.NATIONAL
, Blakeslee & L. LAW 99 (3d ed. London: Burterworrhs, 1892).
) PRACTICE 765 11. Scimlif'" appmach:The Public LawView ofTrearies in rhe 19[h
and the Early 20th Century, ch. 5, in Comrac!ual Analogy text,
on, 77 AMER.]. at 151 (cired note 8 above). In/Urinal approach: Treacy-Like
Instruments:An Overview, ch. 1, in]. l<Jabbers, THE CONCEPT
n Internarional OF Tl\.EATY IN INTEI\.NATIONAL LAW 27 (The Hague: l<Juwer,
1996).
)bservance and 12. emfillS: 2 DEJUI\.E BELLI Ac PAClS [The Law of War and Peace]
394 (Kelsey transbtion, Wash., DC: Carnegie Endowment for
TREATY SYSTEM 385
Im'l Peace, 1925). E. de f/cwel: 3 LE DI\.OIT DE GENS OU
PRINCIPES lJE LA LOl NATUIULLE [The Law of Nations or
Principles of Natural Law] 165 (Wash" DC: Carnegie Endow­
ment for Int'l Peace, 1916 reprint of 1758 treatise). AI11C1'1cau
alltho/: H. HaUeck, INTEI\.NATJONAL LAW 196 (San Francisco:
Bancroft, 1861).
13. Trealy of Paris: An accounr of this event and its related treaty
validity problems is provided in J. L. Brierly, THE LAW OF
NATIONS 332-333 (Waldock 6th ed. London: Oxford Univ.
Press, 1963) [hereinafter Brierly]. Y,'ealy <ifVer.<aille.<: This treaty
and its consequences are described in C. Fenwick, INl'EI\.NA­
TIONAL LAW 531-532 (4rh ed. New York: Appleton, 19(5)
(Fenwick rranslation from rhe French) [hereinafter Fenwick].
Hitler Irraty: A derailed ,lccount of the events is provided in
G. Von Glahn, LAW AMONG NATIONS 479-480 (7rh ed.
Bosroll: Allyn and Bacon, 1996).
14. H. Chiu, Comparison of the Nation"lisr '1I1d Communist
Chinese Views of Unequal Treaties, in]. Cohen (cd.), CHINA'S
PRACTICE OF INTEI\.NATIONAL LAW: SOME CASE STUDIES
241-242 (Cambridge, MA: Harv. Univ. Press, 1972) (footnores
olnirted). A brief assessmem and criticism of the Soviet writers
on rhis subject is available in S. Malawer, Soviets and Unequal
Treaties, in Ess/\Ys ON INTERNATIONAL LAW, at 101 (Buffalo,
NY: I-kin, 1986).
15. Srarus of Eastern Greenland (Denmark v. Norway), 1933
PCI], SEI'... A/B, No. 53.
16. M,Jritime Delimirarion and Terrirorial Questions between
Qarar and Bahrain (Qatar v. Bahrain),]udgment of 16 March
2001, available at <hrtp://wwwicj-cij.org/icj\'lww/idocket/
iqb/iqbframe. htm>.
17. The general rule against creation of third-party obligations is
exhaustively examined in C. Chinkin, Srares as Third Parries
to Trearles: Formal Prescriprions, ch. 2, in THII1..I) PArUIES IN
INTEP.NATIONAL LAW 25 (Oxford, Eng.: Clarendon Press,
1993). Potential exceptions are also addressed in A. Verdross,
VOLJ<ERIUCHT 143-144 (5th ed. Vienna: Springer Verlag,
1964). An English-language restarement of rhe Verdross Posi­
tion is provided in G. I.Tunkin, THEOI\.Y OF INTEitNATIONAL
LAW 93 (Cambridge, MA: Harv. Univ. Press, 1974) (Burler
translarion from Russian language) [hereinafrer 1imkin].
18. L. Sohn, lnrernational Law Implications of the 1994 Agree­
menr, 88 AMER. J. IN'r'L L. 696, 701-702 (1994).
19. P. Reuter, INTROI)UCTlON TO THE LAW OF TI1..EATIES 20
(2d ed. London: Pinter Pub., 1989) (Mico & HaggenmJcher
translarion).
20. K. Annan, Foreword, MILLENNIUM SUMMIT MULTILATEI\.AL
TI\..EATY FRAMEWOI\.K: AN INVITATION TO UNIVERSAL PAR­
TICIPATION ix (New York: UN, 2000).
21. Council of Europe (cd.), Forewmd, TI\.EATY MAKING­
EXPRESSION OF CONSENT TO liE BOUND llY A Tl\.EATY
(Hague: Kluwer, 2001).
22. An accounr of this evem is provided in 4 G. Hackworth,
DIGEST OF INTERNATIONAL LAW 467 (Wash., DC: US Gov't
Prinr. Off., 1942).
23. Fisheries Jurisdiction (U,K. v. [ce!Jnd), 1973 ICJ REp. 1, 14
(decided after 1969VCLT conference, but before rhe VCLT's
1980 effeccive date).
386 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW
24. COl1fl11llllisl-Ajricall p<>-<ilioll: An account of the varied p.erspec­
tives of the participants is aV;lilable in R. Kearney & R..
Dalton, The Treaty on Treaties, 64 AMEIC]. INT'L L. 495,
532-535 (1970) [hereinafter Tt'ealy Oil Tt'ealies article]. Force left
ulld~(i'1ed: Coml1lentaries, Art. 49 Inow Art. 52], Comment (3),
at 407 (VCL:r cited in note 2 ;lbove).
25. UN Doc. A/CONF. 39126, contained in Documents of the
Conference, at 285, May 22, 1':>6':>. The text is reprinted in 8
INT'L LECAL MAT'LS 733 (1969).
26. /-Valdock qllofe: Bried)\ 319-320 (cited in note 13 above). Caliri
quote: Avero Belgium Ins. v. American Airlines, Inc., 423 F.3d
73,80 (2d Cir. 2005) (citing Oppenheim & Brownlie treatises).
27. 'llealy: UN Doc. A/Conf. 164/37 (1':>95), reprinted in 34
INT'L LEGAL MAT'LS 1542 (1995). Sell ate caveat: [T]he Senate's
approval of rhis rreaty should not be construed as a precedent
for acquiescence to future treaties containing such a provi­
sion. Dep't State Files LIT, discussed in 90 AMER.]. INT'L L.
270 (1996).
28. Convention on the Prevention and Punishment of the Crime
of Genocide of December 9, 1945, 78 UN TREATY SERIES
277 (1951), available at <http://fletcher.tufts.edu/multilrexts/
BH225.txt>.
29. Stales: VCLT,Art. 80.1 (cited in note 2 above). O,;gallizotiol1S:
Orgallizaliono/ Treaty, Art. 81.1 (cited in note 2 above).
30. This UN publication, approaching nearly J ,500 prim volumes,
is available in electronic form at <Imp:! /untreary.un.org/>
(subscription required).The United Nations charges a fee for
using this site. LZesearchers can obtain no-cost electronic ver­
sions of many major multilareral treaties from online univer­
sity collections and the Web pages of individual professors.
31. 1 US CODE §112.
32. P-H. Houben, Principles of International Law Concerning
Friendly Relarions and Cooperation among States, 61 AMEI~.
]. INT'L L. 703, 725 (1967)
33. North Atlantic Coast Fisheries Arbitration, Permanent Court
of Arbitration No. vrr (1910), 11 ROYAL INST. FOltElGN
AFI'AWS 167 (1932).
34. H.onduras v. Nicaragua, 1960 ICJ REI'. 192 (Judgment of
Nov. 18, 1960).
35. Case Concerning the Temple of Preah Vihear (Cambodia v.
Thailand), 1%2 ICJ REP. 6 (Judgment ofJune 15,1.962).
36. Fenwick, at 531 (footnore omitted) (cired in note 13 above).
37. See Proposed Article 13, Report of the lnrernational Law
Commission Covering Its First Session, conrained in UN
GAOR,4TH SESSION, SUPt'. No. 10, Doc.A/925, at 8 (1949).
3S. See Treaty 011 rfrealies article, at 5 J 6-5 J 7 (cited in note 24
above). The proposed exclusion is therein reported by
members of US Department of State participants in the
VCLT.
39. Spectrum ofIJiews: The quoted characterizations are contained in
the Brierly treatise, at 338 (cited in note 13 above) (clearly rea­
sonable); Briggs,The AttOrney General Invokes Rebus Sic Stan­
tibll5, 36 AMER.]. INT'L L. 89, 93 (1942) (aIJeged principle); M.
Akehurst, A Modern Introduction to International Law 145
(7th ed. I~ondon: Routledge, 1997) (unsuitable). Chillese view:
This excerpt is from Internatioml Trade Treaties and Agree­
ments (Peking: 1958) and is reprinted in 2 J. Cohen & H. Chill
(eds.), PEOPLE'S CHINA AND INTERNATIONAL LAW, at 1257 THE
(Princeton: Princeton Univ. Press, 1974) [hereinafter People:,· Tra
C"ina]. 57. An
40. O. Lissitzyn, Treaties and Changed Circums(,1nccs (Rebus Sic lnte
Stanribus), 61 AMEI~.]. INT'L L. 895 (1967) [hereiJlJfrer Stat
Changed Circumstances]. 58. L. I­
41. CO/l"lmelltarie.,~
Art. 59 (now Art. 62), at 428-429 (cited in note 217
4 above). omi
42. See The Free Zones of Upper Savoy and the District of Gex 59. 0.[
(Switzerland v. France), 1<)29 PCU, S£I~. A, No. 22, and ser. Tran
A/B No. 46, 2 WOJUD Couln R.EI'. 448 (1971). (fOOl
43. Translarion provided in 2]. Cohen & H. Chiu, People~ C"ina 60. The
1166,1.167 (cited in note 39 above). Cod
44. Electricity Company of Sofia and Bulgaria (Belgium v. 61. Dam
Bulgaria), 1939 PCU, sm.. A/B, No. 77, at 64 (dissenting 2988
opinion of Judge Anzilotti). pow,
45. N. Komol!, THE TEI~MINATION AND REVISION OF TREATIES been
IN THE LIGHT OF NEW CUSTOMARY INTERNATIONAL L,W:,i 2 cenc,
(Oxford, Eng.: Clarendon Press, 1994). 62. Swit2
46. See generally M. Gommaa, SUSPENSION OR TEI~MINATION OF XXV
TI'.. EATJES ON GROUNDS OF BI~EACH (The Hague: Marrinus
Nijhoff,1996).
47. The US governmem's brief is reprimed In US Department
of Stare, The Legality of United Stares Participation in the
Defense ofViet-Nam, 60 AMEI~. J. INT'L L. 565, 585 (first
quote) and 577 (second quote) (1966). For additional detail,
see American Society of International Law, THE VIET-NAM
WAR AND INTERNATIONAL LAW (PrincetOn: PrincetOn Univ.
Press, 1968) (three volumes).
48. Appeal Relating to the Jurisdiction of the ICAO Council
(India v. Pakistan), 1972 ICJ REP. 46 Gudgmem of Aug. 18,
1972).
49. COI1/1l1entaries, Art. 5S (now An. 61), Comment (2), at 427
(cited in note 4 above).
50. C"atlsed Circumstances article (cited in note 40 above).
51. See American Law Institute, RESTATEMENT SECOND OF THE
FOJ~EIGN RELATIONS LAW OF THE UNITED STATES, §153,
Illustration 1 (St. Paul:West, 1965). (Unlike the prior Restate­
mellt, the new Restalel11elll Third does nor use illustrations in
the replacement §336.)
52. Jlldicial dellial: see Commentaries, Commenr (1) to Art. 50 (now
Art. 53), at 409 (cited In note 4 above). Academic deJIia/:
7i1l1kin, at 149 (cited in note 17 above).
53. Clark v. AJlen, 331 U.S. 503, 67 S.Ct. 1431,91 L. Ed. 1633
(1947).
54. See lCl's analysis regarding the Pan Am Flight 103 Libyan ter­
rorist bombing case in §6.4 of this book under Monrreal Sab­
otage Convention. UN Charter Article 103 was thus
characterized as controlling, notwithstanding the conflicting
treaty that would otherwise accord Libya the exclusive right
ro resolve this matrer within its Judicial system.
55. See S. Reisenfeld & F. Abbott (eds.), PARLIAMENTARY PAlmCI­
PATION INTHE MAKING AND OPERATION OFTIUATIEs:A COM­
PARATIVE STUDY (Dordrecht, Neth.: Martinus N~ho£f, 1994).
56. The process is recounted in A. Bester, A.dvice from the Very
Beginning, Consent When the End is Achieved, in L.
Henkin, M. Glennon & W. Rogers, FOI~EICN AFFAI\~S AND
 TREATY SYSTEM 387

~w, ~t 1257 THE U.S. CONSTITUTION (, (Ardsley-on-Hudson, NY: Belgium: Minister for Econom.ic Affairs v. S.A. Fromagerie
after People:\ Transnat'! Pub.: 1990). Franco-Suisse, 1972 Common Market Law Rep. 330.lvlexico:
57. An analysis of the drafters' intent is available in L. Henkin, Constitution,Art. [33.
s (Rebus Sic Jnt~rmtional Concern and the Treaty Power of the United 63. Reid v. Covert, 354 U.S. 1, 77 SCt. 1222, 1 L. Ed.2d 1148
[hereinafter States, 63 AMm.]. [NT'l L. 272 (1969). (1957).
58. L. Henkin, FOREIGN AFFAIRS AND THE US CONSTITUTION 64. Reid, 354 U.S. at 18,77 S.Ct. at 1231.
:ited in note 217 (2d ed. Oxford, Eng.: Clarendon Press, 1996) (footnotes 65. Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d
omitted). 529 (1998).
strict of Gex 59. O. Lissitzyn,The Legal Status of Executive Agreement on Air 66. See South African Airways v. Dole, 817 Fed. Rptr. 2d 119
22, and ser. Transportation, 17 ]. AII"- L. & COMM. 436, 439-442 (1950) (D.C Cil'. 1987).
I· (footnotes om.itted). 67. Reid v. Covert, 354 U.S. 1,18,77 S.O. 1222, 1231, 1 L. Ed.
leople's China 60. The relevant section of the Case Act is contained in 1 US 2d 1148 (1957). Subsequent legislation includes the 2000
Code § 112b(a). Military Extraterritorial Jurisdiction Act, first applied to a
(Belgium v. 6l. Dames & Moore v. Regan, 453 U.S. 654, 682,101 S.O. 2972, woman who stabbed her husband to death on In Air Force
4 (dissenting 2988,69 L. Ed. 2d 918 (1981) (noting tim the President's base in Turkey in May 2003. The US Justice Department
power to settle claims regarding international relations had may thereby prosecute civilians who accompany military
OF TI~EATIES been exercised for 200 years with congressional acquies­ personnel on international assignments. See 18 U.S. CA.
IONAl LAW 2 cence) (italics added). § 3261
62. Swilzerlol1d: Librairie Hachette, S.A. v. Societe Cooperative, 68. See Roeder v. Islamic Republic of Iran, 333 F.3d 22~ (D.C
\1[NATION OF XXV Annuaire Suisse de Droit International 239 (1968). Cir. 2003), ceft dell'd, 542 U.S. 915 (2004).
:ue: Martinus

, Dep~rtment
pation in the
65, 585 (first
litional dewil,
fiE VIET-NAM
inceton Unlv.

:AO Council
lt of Aug. 18,

nt (2), at 427

above).
COND OF THE
STATES, §153,
prior Reslale­
il1ustrations in

o Art. 50 (now
endemic denial:

I L. Ed. 1633

03 Libyan ter­
Montreal Sab­
03 was thus
:he coniJicting
exclusive right

ITAIW PAIUICl­
:ATIES:A COM­
ijhoiJ, 1994).
from the Very
:hieved, in L.
, AFFAIP..S ANI)