The Law of Treaties.

Vol. 15 No.3 (March 2005), pp.231-233

THE LAW OF TREATIES, by Scott Davidson (ed). Burlington, VT: Ashgate/Dartmouth, 2004. 606pp. Cloth. $250.00 / £130.00. ISBN: 0-754-62385-8.

Reviewed by Sanford R. Silverburg, Department of Political Science, Catawba College. Email: ssilver@catawba.edu .

THE LAW OF TREATIES is an anthology of theoretical articles that offers a wealth of information on treaties. The book is part of a series, The Library of Essays in International Law, from Ashgate Publishing. None of the essays is either an original contribution, nor are any in journals to which a major research or law library would not be expected to be a subscriber. Surprisingly, there is no serious rationale for the selection of the articles given by the editor, Scott Davidson, a law professor from New Zealand, except the categories that set out the positioning of each essay. There is, to be sure, a slim introduction with some commentary concerning the reasons for inclusion of the materials, but it is rather unsatisfying in this regard.

The book is divided into five parts.

Part I-Evolution of Treaties includes a discussion of the substantive components of the Vienna Convention on the Law on Treaties, rather than a dreary history of the development and the traveaux préparatoires of it. This represents the organizational effort of the International Law Commission, codifying years of state practice and international custom, while not defying or deterring any additional positive development. However, notably missing in this massive collection is a treatment of the important and relevant principles of clausula rebus sic stantibus or pacta sunt servanda.

Part II-Nature addresses what exactly can be expected by a “treaty,” as distinct from a pact, agreement, or an understanding. Also included is analysis of an International Court of Justice (ICJ) determination regarding the binding nature of a maritime issue between Qatar and Bahrain, an interesting approach but not exceptionally helpful in providing guidance to the question. We then confront the intriguing question of whether an inter-state agreement, when registered with the UN, becomes a treaty at that juncture in the negotiation process.

Part III-Integrity assesses how the credibility and effectiveness of treaties can be diminished by the legislative bodies of signatories, who, in the ratification process, add reservations to the conditions under which adherence to an already negotiated agreement.

Part IV focuses upon the complexities of Interpretation. It is understood that we are dealing with multiple publicists’ understanding of the process. Perhaps the most important contribution in this section is Judge Sir Gerald Fitzmaurice’s review of the near classic work of Myres McDougal, Harold Lasswell and James Miller (1967, 1994). A more substantive approach is found in an analysis of the International Law Commission’s work given over to the interpretation of treaties in subjective, textual, and teleological formats, followed by a very [*232] structured look at the general method of treaty interpretation.

Part V addresses Invalidity, Suspension and Termination: Prior to the REPARATIONS decision (1949), States were the primary political actors engaged in treaty creation, and subsequent beneficiaries. Following this case, international organizations and national liberation groups are afforded legal personality, and the international community awaits customary acceptance of other organized efforts. The more contemporary practice, particularly as practiced by the European Court of Human Rights, is to view individuals as subjects. The Vienna Convention is a contemporary foundation for the development of this particular instrument of international law. Thus Part One deals with the evolution of treaties as lex scripta, beginning with an article delineating the components of the Vienna Convention. The discussion on the traveaux préparatoires of the Convention focuses on four British lawyers who served as rapporteurs, each of whom is well known to students of international law: James Brierly, Sir Hersch Lauterpacht, Sir Gerald Fitzmaurice, and Sir Humphrey Waldock. Each of these dignitaries added their personal influence to the development of treaties and their acceptance in international law according to the issues of their individual agendas. Not only did individual national lawyers ultimately have an impact on treaty law, but we have also witnessed distinctive national approaches. Thus newer states have tended to emphasize developing state problems, not always appreciated by their more established and wealthier counterparts and often amplified by Communist representatives who viewed international law as rules set by capitalist powers. The Eurocentric approach by the developed world was successful in introducing jus cogens, as indicated by Article 64 with a qualification in the subsequent essay.

While a treaty is, essentially, an agreement between two or more states, depending upon the complexity or the coverage of the issues and in order to accommodate compromise, it may be more important to conclude an arrangement by focusing on a subset of issues. This aspect of treaty law reflects a realistic relationship to international politics allowing a state to enter a multilateral treaty with reservations—the bilateral treaty is not so covered. The analysis of reservations focuses on the opinio juris in RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (1951).

Since language’s primary function is to transmit cultural norms from one generation to another, a signatory’s understanding of a treaty’s meaning may differ as cultural lines are crossed. Hence, a treaty’s function often requires additional effort as t its strictures are put into effect. This stage is the interpretation given to any aspect of the treaty, and this section of the book covers a variety of approaches to treaty interpretation.

The final section deals with the underlying reason for acceptance of a treaty—mutual benefit. When one party to a treaty finds its interests no longer satisfied by a previously accord, there are ways to disengage. Sometimes, [*233] however, the process by which a signatory withdraws from a treaty is not always amicable. There may be several reasons for withdrawal from a contractual arrangement. For example, it may be determined that a treaty has become invalid. Similarly, an agreement can break down, because of a change in circumstances, as exhibited by the CASE CONCERNING THE GABCÏKOVO-NAGYMAROS PROJECT (1998). Most importantly, the Vienna Convention on the Law of Treaties and a consideration of unilateral termination of treaty obligations is sometimes in play.

It is easy to critique the selection of materials in an edited volume; however, it does not seem unreasonable to expect some discussion of issues such as “soft law,” the validity of multilateral treaties to which major states avoid compliance, and treaties dealing with newly developed technological phenomena. A necessary question to ask in any review is “what does it add to our knowledge?” Most major treaties, and related official documentation, are available in online databases. That leaves us with commentary and analysis, which, if perceptive, is quite useful. In this reviewed book, however, all the articles can be found in reasonably accessible sources. Given the published price, one would have to give considerable thought to adding this work to a private collection.

REFERENCES:

Myres McDougal, Harold Lasswell and James Miller. (1967/1994). THE INTERPRETATION OF AGREEMENTS AND WORLD PUBLIC ORDER. Boston: Martinus Nijhoff Publishers.

CASE REFERENCES:

CASE CONCERNING THE GABCÏKOVO-NAGYMAROS PROJECT (Hungary v. Slovakia), 37 I.L.M 162 (1998).

REPARATIONS CASE, ([1949] ICJ Rep. 174) (Advisory Opinion).

RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, [1951] ICJ 15 (Advisory Opinion).

*************************************************