Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

1994

Abstract

This Article explores the decline and fall of Treaty. Part I of the Article traces the origins and development of treaties. It argues that Treaty reached its political and doctrinal zenith in the nineteenth century, the "classical" era of international law, when diplomacy revolved around shifting bilateral treaty relations, and a state's promise was binding only if made in the context of a formal international agreement. Treaties were the centerpiece of a "contract" model of international relations. Part II explores the subsequent doctrinal disintegration of Treaty. It asserts that the traditional "contract" model of treaty doctrine has been challenged by a new "tort" model, one that holds states responsible for their unilateral promises in the absence of mutual agreement or even reliance by the promisee. I praise this development as an efficient means of "channeling" diplomacy into a new form-the binding unilateral promise. Part II also explores other doctrinal challenges to the traditional regime of pacta sunt servanda.

Part III asserts that the decline of Treaty as an institution has been even more dramatic than its doctrinal disintegration. This part argues that the "contract" model of international relations, one that relied on interlocking bilateral treaties between individual sovereigns, is being replaced by a "legislative" model, one that relies more heavily on the "direct democracy" of multilateral conventions and especially the "representative democracy" of the United Nations Security Council. I applaud the legislative model as an efficient means of codifying, unifying, and advancing the law, but I argue for a continuing role for treaties, both bilateral and multilateral, to ensure that international law develops democratically and thus maintains its legitimacy. In addition, Part III asserts that the "legislatification" of international law extends to United States domestic law, which denies effect to most treaties unless Congress enacts implementing legislation. I argue that our preoccupation with implementing legislation has unduly diminished the importance of treaties in our domestic legal system.

Finally, Part III contends that the "congressification" of United States foreign policy, together with a longstanding American missionary zeal, has contributed to an "Americanization" of international law that threatens to overwhelm Treaty. Increasingly, American statutory law, not international agreement, regulates conduct outside the United States. I argue that there is indeed a need for some American extraterritoriality but that Congress and the executive should place greater emphasis on international cooperation in the development of international law. Part IV concludes with speculations on the possibility that Treaty will be reborn.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.