The Political Interpretation of Multilateral Treaties

231 Pages·2004·1.419 MB·English

by  Shirley V. Scott

THE POLITICAL INTERPRETATION OF
MULTILATERALTREATIES

The Political Interpretation of
Multilateral Treaties
by
Shirley V. Scott
MARTINUS NIJHOFF PUBLISHERS
LEIDEN / BOSTON
AC.I.P. Catalogue record for this book is available from the Library of Congress.
Printed on acid-free paper.
ISBN 90-04-13968-0
©2004 Koninklijke Brill NV,Leiden,The Netherlands
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CONTENTS
Introduction vii
Acknowledgements ix
1. Defining The Task 1
2. The Colonialism CSC of Antarctic Governance 27
3. The Chilean-Argentine Independence CSC of National Boundary
Delimitation in the South American Antarctic 51
4. The Scientism CSC of the Usage of Antarctica 73
5. Proposing APolitical Theory of Treaty Interpretation 97
6. The International Convention for the Regulation of Whaling and the
Introduction of a Moratorium on Commercial Whaling 119
7. Article VI and the Durability of the Nuclear Non-Proliferation Regime 145
8. The Struggle for a Tight CSC Nexus: The Basel Convention and its
Protocol 169
9. The CEDAW Regime: Reconciling The Treaty Text with Political
Reality 189
10. Conclusions: Regime Effectiveness and Treaty Strategy 213
v

INTRODUCTION
This book is an inter-disciplinary study of multilateral treaties. There has been a vast pro-
liferation of multilateral treaties since World War Two, in a wide range of issue areas,
and the process is continuing. And yet we have not had an adequate explanation of the
political role of those treaties. Typically, views follow the assumptions of the leading
explanatory paradigms in International Relations and International Law. Lawyers, their
world views emanating from the tenets of legal positivism, assume that multilateral treaties
do matter, and that States should comply with their treaty obligations. The realist tradi-
tion of International Relations, on the other hand, downplays the role of law in general,
and an extreme realist view is that treaties are ‘mere scraps of paper’. The flowery lan-
guage in which the preambles to treaties are generally worded only adds to the impres-
sion that States enter hypocritically into treaty obligations, or that the treaty itself has
little real world impact.
This book presents a perspective on the political impact of multilateral treaties more
balanced than either of these outlooks. The treaty establishing a regime is regarded as an
agreement to set some negotiated limits on pursuit of a common foreign policy goal so
that full-blown pursuit of that goal will not bring the States into conflict nor jeopardize
any State’s pursuit of that goal. States are then able to continue pursuing that goal with,
if anything, renewed vigour, albeit within the agreed limits. The issue in question is
thereby successfully ‘managed’and the impact of any ideologies currently rivalling those
of the status quo thereby contained. This perspective is better able to account for the fact
that States continue to negotiate treaties although the wave of multilateral treaty making
has not dramatically solved the global problems inspiring their creation. It also estab-
lishes a basis for reconceiving the notion of regime effectiveness and for developing
‘treaty strategy’for use by political actors, including international lawyers.
vii

ACKNOWLEDGEMENTS
I owe a special debt of gratitude to Professor Martin Stuart-Fox at The University of
Queensland who first awakened my interest in the process of theory construction. This
book took as its starting point the doctoral thesis that I completed at The University of
Queensland in 1993, entitled ‘The Geopolitical Organization of Antarctica as an Issue in
International Politics 1900–1961: Developing a Theory of Cognitive Structures of
Cooperation’. By further developing the theory of Cognitive Structures of Cooperation
I am aiming here to enhance theoretical understanding of multilateral treaties as not only
legal, but political, documents.
The Lauterpacht Research Centre for International Law at The University of Cambridge
provided a congenial and intellectually stimulating environment in which to undertake
the research for chapters 9 and 12. Mrs Stella Duff of the International Whaling Commission
helped me obtain relevant IWC documents.
I would also like to acknowledge the support of the Humanities Research Program at
The University of New South Wales and to express my sincere thanks to the staff at Brill
Academic Publishers.
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