The Oxford Handbook Of United Nations Treaties

737 Pages·2019·4.158 MB·English

by  Simon Chesterman, David M. Malone & Santiago Villalpando

the oxford handbook of
U N I T E D NAT IO N S
T R E AT I E S

the oxford handbook of
UNITED
NATIONS
TREATIES
Edited by
SIMON CHESTERMAN,
DAVID M. MALONE,
and
SANTIAGO VILLALPANDO
with
ALEXANDRA IVANOVIC
1
1
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America.
© Oxford University Press
© the chapters their several authors 2019
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by license, or under terms agreed with the appropriate reproduction
rights organization. Inquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above.
You must not circulate this work in any other form
and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in-Publication Data
Names: Chesterman, Simon, editor. | Malone, David, 1954– editor. |
Villalpando, Santiago, editor.
Title: The Oxford handbook of United Nations treaties/edited by
Simon Chesterman, David M. Malone & Santiago Villalpando.
Description: Oxford [UK]; New York: Oxford University Press, [2019] |
Includes bibliographical references and index.
Identifiers: LCCN 2018045227 | ISBN 9780190947842 ((hardback): alk. paper)
Subjects: LCSH: United Nations—Treaty-making power. | United Nations.
Charter. | Treaties. | International agencies.
Classification: LCC KZ4992.7 .O94 2019 | DDC 341.3/7—dc23
LC record available at
https://lccn.loc.gov/2018045227
1 3 5 7 9 8 6 4 2
Printed by Sheridan Books, Inc., United States of America
Foreword by the UN
Secretary-General
Treaties are the building blocks of the international rule of law. For the United
Nations, they have been a vital means of living up to the promises of its Charter—which
is, of course, a treaty itself. To maintain peace and security, States have concluded trea-
ties in the areas of disarmament, dispute settlement, the fight against terrorism, and the
peaceful uses of outer space. To develop friendly relations among nations and achieve
international cooperation, they have elaborated complex treaty regimes on human
rights, labor relations, drugs and crime, environmental protection, trade and develop-
ment, health, culture, science and education, transport, and communications.
Over seven decades, the United Nations system has produced hundreds of multilat-
eral treaties, with detailed mechanisms of implementation and a complex network of
institutional structures. Countless studies have examined the treaty regimes in specific
areas of international relations. Library shelves are filled with books on the institutional
underpinning of multilateral cooperation and its effectiveness in responding to the
demands of the international community. What has been missing is a cross-cutting
assessment of how the United Nations system has contributed, through its multilateral
treaty-making activity, to the purposes and principles laid down in the Charter.
This Handbook, edited by Simon Chesterman, David M. Malone, and Santiago
Villalpando, gathers the writings of a select group of authors from different perspec-
tives: diplomats and international civil servants involved in treaty negotiations or work-
ing to implement them, scholars and experts analyzing those agreements in theory and
in practice. The diversity of these contributions is a vivid reflection of the breadth and
depth of United Nations treaty-making. Together, they tell the story of how United
Nations treaties have evolved from the ideals of the Charter in 1945 to the ambitious
goals of the 2030 Agenda for Sustainable Development.
When I took my oath of office in 2016, I noted that today’s paradox is that, despite
greater connectivity, societies are becoming more fragmented. In the end, however, the
links that bind the human family come down to the values enshrined in the Charter:
peace, justice, respect, human rights, tolerance and solidarity. These values find their
expression in the treaties negotiated under the auspices of the United Nations, an
endeavor to which this volume gives the scholarly attention it deserves.
António Guterres
Secretary-General of the United Nations

Foreword
For delegates taking part in the 1945 San Francisco Conference, it was clear that the
Charter of the United Nations (UN) was a historic document. Its ambition was to build a
new international system, founded on the rule of law. From their inception, the UN
Organization and its specialized agencies—at different speeds and through different
procedures—pursued that ambition through treaty-making, which today embraces
almost every aspect of international affairs.
Assessing the contribution that the UN system has made, through its treaty-making,
to our contemporary world is a daunting task. It demands remarkable attention to detail:
each treaty regime—in human rights, environmental protection, disarmament, etc.—
has its own individual features, complex treaty-making techniques, and detailed imple-
mentation mechanisms. To truly understand their scope and significance, one needs to
examine thoroughly each of these regimes separately, taking into account the back-
ground of negotiations and their influence on the practice of states. But, at the same
time, this task requires an all-embracing view of the multilateral treaty framework as a
whole. In assessing the impact of a multilateral regime on international relations, con-
sideration needs to be given to its interactions with other treaty regimes, how institu-
tions have engaged in a dialogue to achieve their common goals, and how they have
influenced each other’s treaty-making practices.
In their introduction, the Editors of this volume advance the argument that the UN’s
greatest contribution to humankind might properly be thought of as a process—in other
words, that the UN has permitted a major shift in the normative structure of interna-
tional law that has expanded the range and depth of subjects covered by treaties. They
show how the UN has served as a flexible forum of treaty negotiation, which has taken
advantage of the institutional strengths of the system, as well as an effective vehicle for
implementation, to ensure that treaty regimes are followed up in practice. They demon-
strate how this has transformed the landscape of international law, in its evolution from
bilateralism to multilateralism.
The present Oxford Handbook on UN Treaties is an invaluable addition to scholar-
ship in this field. The Editors were uniquely positioned to initiate this endeavor. Their
combined expertise draws from their long-standing involvement in diplomatic circles
and international organizations, as well as their impressive scholarly production cover-
ing a multitude of topics of international law. But an enterprise of this magnitude is nec-
essarily a collective one, since it requires a detailed examination of many treaty regimes.
And the Editors have been able to call upon an extraordinary group of contributors,
which includes judges of international tribunals, experienced diplomats and interna-
tional officials, and distinguished scholars in law and other social sciences, as well as
viii foreword
younger voices from practice and academia. The result is 34 chapters, which individually
offer insightful descriptions of specific regimes or thematic issues, but together form a
remarkable mosaic that will allow readers to make their own assessment of the contri-
bution of UN treaty-making to international relations.
The first part of the volume, entitled “Evolution,” provides a historical and systemic
overview of how the activity of the UN system has developed in the area of treaty-
making. This part traces the evolution of UN treaty-making means and objectives from
the Charter into the various treaty regimes, but also offers a fascinating dialogue
between scholars offering a theoretical analysis of major trends and practitioners who
can assess those same trends from their firsthand involvement in the UN system.
The second part, entitled “Practice,” provides an in-depth examination of specific
treaty regimes, structured in four main areas: international peace and security, economic
and social development, human rights, and international law. Each contribution identi-
fies the major UN treaties in the area and describes the background of their negotiation; it
also examines the main aspects of the relevant treaty regime and assesses its impact on
international relations, as well as avenues of future development. In many cases, authors
are leading authorities in their field, often with personal experience on the topic. An
interesting feature of the volume is that, in some cases, the main contribution on a spe-
cific topic is supplemented with a “practitioner reflection” in which a person involved in
the practical aspects of the treaty regime provides a unique inside view of negotiations.
Finally, the third part, entitled “Technique,” addresses certain practical matters relat-
ing to the building of the international treaty framework. Chapters examine patterns in
the negotiation of multilateral treaties, the participation of international organizations
and other nonstate actors in the multilateral treaty process, the depositary role played by
the Secretary-General with regard to multilateral treaties, and the lessons learned from
the significant body of treaties and international agreements registered under Article
102 of the Charter. These chapters bring us back to a more hands-on perspective of UN
treaty-making, showing major trends in legal techniques.
The Editors invited all contributors to an “Authors Meeting,” which was held in
Greentree, not far from the United Nations Headquarters in New York, early in the process
of drafting, in April 2017. That gathering offered an opportunity for contributors to share
their preliminary thoughts on this Handbook and exchange views on possible approaches
to its topic. More importantly, the meeting, which I joined, created a sense of community
in this collective endeavor—something apparent in reading the pages of this volume.
Like the subject matter it addresses, this Handbook shows how diversity may engen-
der unity and coherence. I commend the book to anyone interested in understanding
how international law has contributed to world order and prosperity, and how the UN
and its specialized agencies have helped draft and implement the growing number of
documents grouped here, fittingly, as “United Nations treaties.”
Miguel de Serpa Soares
United Nations Legal Counsel and Under-Secretary-General
for Legal Affairs
Acknowledgments
Books such as this are rarely the product of a few hands. We have many people to thank.
Financial support was provided by the United Nations University and the National
University of Singapore Faculty of Law. The Greentree Foundation allowed us the use of
their wonderful facilities in Long Island, NY, to convene an authors’ retreat. This enabled
our many scholars and practitioners to exchange ideas in person, engendering a rich set
of interactions that we hope has been transferred to the page. We are also very grateful
for the in-kind support provided by the UN Office of Legal Affairs.
Preparing the manuscript for publication was a herculean effort that would not have
been possible without additional research support. Thank you especially to Sheiffa Safi
(in Singapore) and Jonathan Agar (in New York).
The editors have been greatly helped by several individuals, above all Alexandra
Ivanovic (of the UN University), herself a law graduate and lecturer, who marshaled this
complex project to conclusion—cajoling, encouraging, and ultimately succeeding in
extracting from our terrific authors the high-quality chapters of which they were capable.
The UN University’s Office team in New York, headed by James Cockayne, himself also
with a legal background and much published, together with Alexandra Cerquone, made
possible the author meeting at the Greentree Estate mentioned above. We are very grateful
to them all.
David Malone warmly thanks the Council of the UN University for encouraging his
own research work.
Thank you also to Blake Ratcliff, John Louth, and their colleagues at Oxford University
Press for believing in the project from the outset and sticking with it to conclusion.
Insofar as the volume has merit, it is due to the hard work of all these people. Any defi-
ciencies can be attributed to the editors themselves.
Santiago Villalpando and David Malone record here that the views expressed within
the volume, including its introduction, reflect not the UN’s or UNESCO’s position on
the issues involved, but, where relevant, their own opinions.
Simon Chesterman, David M. Malone, Santiago Villalpando
March 2019