The Oxford Guide to Treaties

897 Pages·2020·7.761 MB·English

by  Duncan B. Hollis (editor)

THE OXFORD GUIDE TO TREATIES

The Oxford Guide
to Treaties
second edition
Edited by
DUNCAN B. HOLLIS
1
3
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For Emily

Preface to the Second Edition
It was the best of times, it was the worst of times, it was the age of wisdom,
it was the age of foolishness, it was the epoch of belief, it was the epoch of
incredulity . . .
Charles Dickens, A Tale of Two Cities
Dickens provides an apt summation of the current state of treaty law and practice. In some
ways, it is the best of times. Today, treaties dominate the international legal landscape. Since
I first published The Oxford Guide to Treaties, States and depositaries have registered an
additional 8,000 treaties (bringing the total registration rolls from 64,000 up to 72,000, not-
withstanding that many States fail to register their treaties or do so only after lengthy de-
lays).1 Among these, States have concluded seminal multilateral treaties, such as the Arms
Trade Treaty2 and the Paris Agreement,3 alongside new efforts at global governance on
issues such as international trade,4 the environment,5 humanitarian relief,6 dispute settle-
ment,7 and non-p roliferation.8
Whether because of their number or substance, treaties are now ubiquitous in the day-
to- day work of international (and in many states, domestic) lawyering.9 Today, judges,
diplomats, government lawyers, international organization officials, activists, and aca-
demics regularly read, invoke, and interpret treaties in manifold bilateral, multilateral,
and multistakeholder settings. Consider, for example, the work of the 24 ‘permanent’
international courts and the 37,000 binding rulings they have issued since the end of the
Cold War.10 Treaties provide the foundation for all these cases; they are almost always the
source of the court’s jurisdiction and authority, and, in many cases, provide the substan-
tive standards for evaluating litigant behavior. Treaties have played a similar role—w ith
often- significant economic repercussions— in the 676 reported cases of investor- State
1 See Chapter 11 for more on UN treaty registrations.
2 Arms Trade Treaty (adopted 2 April 2013, entered into force 24 December 2014) [2013] 52 ILM 985.
3 Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) [2016] 55 ILM 740.
4 See eg Protocol to the WHO Framework Convention on Tobacco Control to Eliminate Illicit Trade in
Tobacco Products (adopted 12 November 2012, entered into force 25 September 2018) (I55487) at <https:// www.
who.int/ fctc/ protocol/ illicit_ trade/ protocol- publication/ en/> .
5 See eg Minamata Convention on Mercury (done 10 October 2013, entered into force 16 August 2017) [2016]
55 ILM 582.
6 See eg Food Assistance Convention (adopted 25 April 2012, entered into force 1 January 2013) 2884
UNTS 5.
7 See eg UN Convention on International Settlement Agreements Resulting from Mediation (adopted
20 December 2018, not yet in force) CN 154.2019, at https://u ncitral.un.org/s ites/u ncitral.un.org/f iles/
media-d ocuments/E N/T exts/U NCITRAL/A rbitration/m ediation_c onvention_v 1900316_e ng.pdf ; UN
Convention on Transparency in Treaty- based Investor- State Arbitration (adopted 10 December 2014, en-
tered into force 18 October 2017) at <https://t reaties.un.org/d oc/T reaties/2 014/1 2/2 0141210%2011-5 2%20
AM/C H_X XII_3 .pdf>.
8 See Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017, not yet entered into force) UN Doc
A/ CONF.229/ 2017/ 8.
9 For more on the domestic applications of treaties, see Chapter 15.
10 K Alter, The New Terrain of International Law (Princeton Univ Press, Princeton 2014) 4.
viii Preface to the Second Edition
arbitrations.11 Major disputes like those in the South China Sea remind us, moreover, of the
dramatic geo- political implications treaties have even where their existence or meaning is
contested.12 Simply put, today’s treaties may have a more prevalent and important role in
the construction of international law and international relations than at any other time in
human history.
And yet, for many treaty lawyers, these are not good times. An AJIL Unbound Agora
asked in 2014 if we are witnessing The End of Treaties?13 Although further empirical re-
search is needed, several signs suggest that States and scholars may no longer regard the
treaty as the go- to instrument for international agreement. The World Trade Organization
has not reached a major agreement in the decades since its creation,14 while 2017 witnessed
the conclusion of the fewest bilateral investment treaties since 1983.15 In the United States,
the post- Cold War boom of multilateral treaty- making has receded dramatically,16 while its
most visible mechanism for joining treaties— ratification following advice and consent of a
supermajority of the U.S. Senate—i s widely viewed as broken.17
In lieu of treaties, States appear to increasingly employ non- binding ‘political commit-
ments’ (or ‘informal agreements’ to use Timothy Meyer’s term in Chapter 3).18 Whether due
to the speed and flexibility that informality allows— or perhaps the (undemocratic) oppor-
tunity to evade often lengthy and uncertain legislative approval processes— States now use
political commitments in lieu of treaties to redress a range global governance issues. When
States sought to respond to the 2008 financial crisis, they chose a political commitment—
Basel III— to do so.19 Likewise, participants in the 2015 Joint Comprehensive Plan of
Action (JCPOA) sought to regulate Iran’s nuclear program without employing the classic
treaty form.20
The challenge to treaties is not, however, only a matter of competition— the last decade
has witnessed rising distrust in global governance generally and various agreements
11 See RL Wellhausen, ‘Recent Trends in Investor– State Dispute Settlement’ (2016) 7 J Int’l Dispute Settlement
117, 118 (cataloging recorded arbitrations from 1990–2 014).
12 See eg An Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of
the Sea (The Republic of Philippines v The People’s Republic of China), Award on Jurisdiction, PCA Case No 2013- 19
(29 October 2015).
13 ‘Agora, The End of Treaties?’ (2014) 108 AJIL Unbound 30-7 8.
14 See T Meyer, ‘Agora, The End of Treaties? Collective Decision- Making in International Governance’ (2014)
108 AJIL Unbound 30-3 6.
15 UNCTAD, ‘Recent Developments in International Development Agreements’ (May 2018) IIA Monitor
No 1, 2.
16 C Galway Buys, ‘Agora, The End of Treaties? An Empirical Look at U.S. Treaty Practice: Some Preliminary
Conclusions’ (2014) 108 AJIL Unbound 57, 58. According to Buys, the United States joined 105 multilateral
treaties between 1990 and 1999 and only 62 between 2000 and 2009 (the lowest number since the 1960s). Treaty
actions in the ensuing decade suggest a further decline. Although the US can join multilateral treaties by other
means, it is notable that the US Senate gave advice and consent to only 8 multilateral treaties from 2010–2 018. See
US Senate Foreign Relations Committee, ‘Treaties’ at <https:// www.foreign.senate.gov/ treaties>.
17 See eg C Bradley, O Hathaway, and J Goldsmith, ‘The Death of Article II Treaties’ Lawfare (13 Dec 2018);
Secretary of State John Kerry, ‘Testimony Before the Committee on Foreign Affairs’, House of Representatives, Ser
No 114- 93 (28 July 2015) (responding to a question on why the Iran Deal was not concluded as a treaty: ‘frankly, it
has become physically impossible. That is why. Because you can’t pass a treaty anymore. It has become impossible
to, you know, schedule. It has become impossible to pass’).
18 DB Hollis, Second Report on Binding and Non-B inding Agreements, Inter- American Juridical Committee,
OEA/ Ser.Q, CJI/d oc.553/ 18 (6 February 2018) [13] (responding to OAS Questionnaire, Colombia, Ecuador, Peru,
and Uruguay indicate witnessing the increasing use of political commitments).
19 Meyer (n 14) (discussing OECD’s Guidelines for Multinational Enterprises).
20 See JCPOA (done at Vienna 14 July 2015) at <http:// eeas.europa.eu/ archives/ docs/ statements- eeas/ docs/
iran_ agreement/ iran_ joint- comprehensive- plan- of- action_ en.pdf>.
Preface to the Second Edition ix
manifesting it specifically. As Larry Helfer explains in Chapter 26, States have begun to head
towards the exits in manifold treaty contexts. Brexit looms large as the most significant—
and complex— example.21 But the United States is not far behind, walking back its commit-
ments to both binding (the Paris Agreement) and non- binding (the JCPOA) international
instruments.22 Nor is this a solely Anglo-A merican phenomenon. Other States have with-
drawn from the Whaling Convention (Japan), the Rome Statute (Burundi, the Philippines)
and the Washington Convention establishing the International Centre for the Settlement
of Investment Disputes (Bolivia, Ecuador, and Venezuela).23 UNCTAD reports, moreover,
that 2017 marked the first year where the number of BIT terminations (22) outpaced the
number of new treaties concluded (18).24
How should international lawyers reconcile these contradictory narratives? On the one
hand, we might attempt to declare one descriptively superior to the other. Richard Gowan,
for example, suggests that ‘reports of the death of international cooperation appear to be
exaggerated, at least for now’.25 Indeed, evidence of US treaty retrenchment may not sug-
gest a global trend so much as an idiosyncratic example. And even if treaties are forming at
lower rates, it does not mean the concept is moving towards a definitive end-p oint of obso-
lescence. On the contrary, it might signal the strength and successes of treaty-m aking— the
pervasiveness of existing treaties on everything from fish to finances reducing the need for
new agreements. Or, treaties’ popularity— and utility— may be cyclical in lieu of some one-
way, downward ratchet. In short, treaty proponents may insist that the proper narrative is
one of increasing inter- dependency where the treaty operates like a Swiss Army knife, per-
forming a variety of necessary and valuable functions related to international cooperation
and collective action.
Alternatively, treaty- critics might— subject to more empirical evidence— make the
case that the treaty (if not international law writ large) has passed its heyday. Even where
parties comply with their terms, it is not clear how often treaties are actually effective
in achieving the goals that motivated their formation. More agile alternatives like pol-
itical commitments are readily available when States or other stakeholders agree on the
need for international cooperation. Growing populist sentiments may, moreover, call
into question the need for (or utility of) such international cooperation in the first place.
Taken together, such evidence could predict— and explain— increasing resistance to
new agreements and/ or the withdrawal from existing ones. In other words, there may
be a compelling case for a story of declining treaty- formations, even if there is not yet
sufficient evidence of systemic retrenchment in the law and practice applying all extant
treaty commitments.
On the other hand, international lawyers may attempt to accommodate both of these
tales in lieu of giving one dominion. This is, after all, a sophisticated and widely-u sed ve-
hicle for agreement among States and other stakeholders. The breadth and depth of current
21 See P McClean, ‘After Brexit: the UK will need to renegotiate at least 759 treaties’ Financial Times (31 May
2017).
22 See Chapter 26 at 635 (recounting US indications of intent to denounce the Paris Agreement and withdraw
from the Universal Postal Union, while also noting US withdrawal from the UN Economic and Social Council
(UNESCO) as well as its termination of the 1955 Treaty of Amity with Iran and the Intermediate-R ange Nuclear
Forces Treaty with Russia).
23 See ibid.
24 UNCTAD, ‘Recent Developments’ (n 15).
25 R Gowan, ‘Multilateralism in Freefall’ Center for Policy Research (UN University, 30 July 2018).