What is a treaty? Is that the right question?

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4 Responses

  1. A.J. Sutter says:

    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.

  2. Matt Lister says:

    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.)

  3. A.J. Sutter says:

    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.

  4. Jordan J. Paust says:

    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.