What is a treaty? Is that the right question?
posted by Matthew Lister
(Thanks to Danielle and the Co-Op crowed for letting me stick around a bit longer.)
I am interested in how we should think about treaties. More specifically, I am interested in different ways we might think about treaties, and why different ways might be appropriate in different circumstances. At one extreme we might think of treaties as establishing sacred duties, as being based on oaths with deep religious implications. (Jeremy Waldon has a very interesting discussion of the history of this idea in his recent Charles E. Test lectures, “A Religious View of the Foundations of International Law”.) I think that there’s a case to be made that supposed principle of international law (or of natural law, depending on one’s account), pacta sunt servanda, depends on this understanding, though I won’t try to make that case here. (If so, this would be interesting in light of fact that Hans Kelsen at one point held, I believe, pacta sunt servanda to be the “basic norm” of international law, though he later abandoned this.)
At the other extreme we might think of treaties as being similar to contracts as understood by proponents of an economic analysis of law. This doesn’t seem plausible for some treaties, such as human rights treaties, but is not implausible in all cases, I’d argue. Something like this seems especially plausible in the cases of treaties relating to economic activity of the sort where something like expectation damages could be applied. Here’s an example of the sort of thing I have in mind, though others might work even better. In the “Beef Hormone Controversy”, the WTO Dispute Settlement Body found, and the appellate body upheld, that the EU was in violation of its WTO obligations in banning the sale of U.S. and Canadian beef that had been treated with certain hormones. The DSB authorized retaliatory tariffs against the EU, and these have been in place for some time. We might think of these tariffs as a punishment, meant to force the EU to live up to its moral obligations under the WTO treaties, but I think it might be more fruitful to think of them as damages that the EU has decided to pay rather than fulfill its contractual obligations. If the damages fully compensate the U.S. and Canada, then it is at least arguable that the E.U. has discharged its obligations under the treaty. (I should note that when I suggested this line of thought to David Unterhalter, then-chairman of the WTO appellate body, at a Salzburg Seminar session, he did not like it at all, though some of the junior WTO lawyers, as well as the director of economic research for the WTO, liked it more. Unterhalter’s objections, which I won’t go in to here, had some force, but didn’t seem to me to be decisive.)
Which view of treaties is right? I’d argue that that is the wrong question, and that we should ask instead when and why a particular approach is right. In particular, it seems to me that the traditional view has the most force when there is no independent body that can adjudicate disputes and try to enforce remedies, and that approaches that are closer to contract law become more appropriate when we have independent bodies that can determine damages and administer the enforcement of claims. There are more and more such bodies in international law, so we should expect to see the way we think of treaties change, at least for some treaties. There is a general moral we might draw from this line of thought, namely, that it will often be a mistake to ask about “the nature” of treaties (or of contracts, or of law in general) in the abstract, and that we should instead look carefully at how these ideas function in particular instances and locations. (This line of thought has some similarity, I think, with the approach Fred Schauer describes in his paper, “The Nature of the Nature of Law”, and in a more distant way, is relevant to Schauer’s re-assessment of certain aspects of John Austin’s approach to law.)
September 8, 2011 at 6:02 am
Posted in: Contract Law & Beyond, History of Law, International & Comparative Law, Jurisprudence, Legal Theory, Trade, Uncategorized
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Responses (4)
A.J. Sutter - September 8, 2011 at 10:16 am
Nice to see a post about public international law. I’m not sure the independent body criterion is sufficient — one reason it feels right about the WTO case is that the treaty’s subject matter is economic. If there were a body that assessed fines for human rights violations, we might not think it acceptable if a country were just to pay the fines and continue to torture its own people, say.
Nonetheless, this is an important practical issue if a country has second thoughts about continuing to be subject to a treaty that has a sanctioning mechanism. Although the Japanese government currently still buys the neoliberal line about free trade, at some point (I hope) it may begin to question whether the fad for such agreements really is in the country’s best interest. If some sort of partial withdrawal from WTO etc. isn’t feasible per the treaties’ terms, then enduring some level of sanctions might be the next best alternative. Figuring out how much pain might be tolerable requires a lot of study and forethought.
Matt Lister - September 8, 2011 at 10:53 am
Hi A.j.- thanks for the comment. I was starting to feel bad that I’d not received a comment from you on any of my posts. (I’m not joking, either- they are always useful.)
You’re right, I think, that we should make a distinction between economic cases and others. (I meant to suggest that but wasn’t very clear.) Exactly how to draw the line isn’t so clear, I’d guess, but that’s no reason not to try.
I’m probably somewhat more sympathetic than you are to the WTO, but I do think that the “all or nothing” aspect of the treaty has outlived its usefulness. It was probably useful for setting up the WTO, but seems like a huge stumbling block now, and a way for more powerful countries to push around the less powerful. I certainly don’t think I have all the answers here, but think this sort of idea might be a useful part of making trade agreements fairer and more useful.
(One big limit to the sort of solution I sketch above is that it is sometimes ineffective. If the U.S. continues to flout the ruling against it and in favor of Antigua in the case of on-line gambling, it’s not clear that Antigua would do anything but hurt itself if it tried to impose retaliatory tariffs on the U.S. But, the remedies in normal contacts cases are not always effective either, I guess.)
A.J. Sutter - September 8, 2011 at 8:57 pm
Thanks for the kind reply. It’s not only the big countries pushing around the small that is an issue. In particular, I’m thinking about changing circumstances in an economically big country.
Japan’s population, as is well-known, is aging and also is becoming less numerous. Its agriculture and artisanship are outstanding (e.g., all the nose cones on the high-speed “bullet” trains are still shaped by hand), but these skills could be extinguished if they aren’t passed on to further generations. Commitments like the WTO that can’t be scaled back will likely accelerate that loss of culture. Moreover, Japan already imports a huge amount of its food — including something like over 90% of its soybeans (think of how soy sauce, tofu, miso, etc. are staples of the cuisine).
The country also has, for it, unemployment near historic peaks (albeit about half of what’s affecting the US today). A 2007 Bank of Japan study found that “”import competition should be considered as an important factor explaining the severe employment condition existing in Japan since the 1990s.” (This study wasn’t mentioned, BTW, in an OECD report prepared for the December 2010 G-20 meeting in Seoul and entitled Seizing the Benefits of Trade for Employment and Growth; that report’s only comment about Japan was based on a 2003 study that said free trade agreements caused only “minimal” unemployment here.)
Japanese politicians are among the world’s least imaginative, and its bureaucracy is neoliberal; the BOJ report seems not to have made a dent in their thinking. In fact the current party is pushing for EU-style regional integration, even at the currency level, despite the discontent many Germans about feel about their role in the Eurozone, and despite the fact that political relationships in North Asia are much more hostile than those within Europe. They’re also pushing for the Trans Pacific Partnership. (Of course, they’re also pushing to weaken the yen, another stupid move.) But I think a better course is for the country to hold off and pull out, at least partially and gradually. The best way to do so isn’t yet clear.
Jordan J. Paust - September 9, 2011 at 2:02 pm
Want to know about treaties as law of the United States?
please see my treatise International Law as Law of the United States (2 ed. 2003), available thru http://www.cap-press.com
The Chief Justice does not know, but treaties as such in our legal process are ratified by the President, not the Senate and surely not the Congress. Most of the more than 14,000 international agreements that the U.S. is a party to are actually congressional-executive agreements that, in part, have a federal statutory base.
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