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The Oxford Guide to Treaties edited by Hollis, Duncan B (1st July 2012)

s.VI Treaty Clauses, Preliminary Material

Edited By: Duncan B. Hollis

From: The Oxford Guide to Treaties

Edited By: Duncan B. Hollis

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 18 January 2020

(p. 652) Introduction

The preceding chapters cover the key treaty issues of today, explaining, in narrative form, how the relevant treaty theories, rules, and practices operate. But understanding may emerge from examples as much as explanations. Thus, the current Section offers a sampling of clauses from existing treaties to supplement the explanations that precede it.1

Judge Richard Baxter once famously described the ‘infinite variety’ by which States could make normative commitments.2 His description could just as easily be limited to treaty-making itself. The UN has now registered more than 64,000 treaties, and, by all accounts, there are many more treaties that go unregistered. The form of these agreements varies widely. Treaties may employ an array of titles and include any number of instruments. The parties vary by number (from bilateral relations to multilateral treaties to those with universal aspirations) and identity (including States, International Organizations (IOs), and other qualified subjects of international law). Treaty-making may occur on virtually any subject matter of concern to treaty-makers, and they have an equally wide spectrum of regulatory tools for embodying such commitments.3 In short, treaties have a nearly infinite variety of their own.

Thus, what follows is no more (and no less) than a sampling of recent treaty clauses. To capture the full diversity of approaches treaty-makers have employed—if even possible—would exceed the bounds of this volume. Nor should the inclusion of certain clauses be read as empirical evidence in any social science sense. Certainly, in some cases, a clause is sampled because it appears to be the predominant approach (eg the ‘all States’ formula for universal multilateral treaties), just as the inclusion of a range of clauses (eg for a treaty’s relationship with other treaties) may offer a sense of a treaty-maker’s options. But the inclusion of any particular clause is not intended as descriptive ‘proof’ of how States or other actors behave; it is not designed to link the use of that clause to a particular treaty subject or function. Whatever utility such a project might have, it is not the present one.4

What the current set of sample clauses does offer is a different lens for understanding the earlier explanations of treaty law and practice. It is one thing to read how treaty-makers construct their commitments and quite another to see the precise wording by which they do so. In some cases, clauses will illustrate how parties have applied the VCLT such as its various procedures for States to consent (p. 653) to be bound. Where the VCLT ‘rules’—and by extension customary international law—empower treaty-makers to make decisions (such as who may participate or the permissibility of reservations), the sampled clauses indicate the choices made. And where international law provides a ‘default’ rule, clauses can reveal not just how States implement it, but also the variations they have adopted. In certain instances, such as treaty amendments, the extent of the departure from the default rule is particularly striking.

Thus, sampling treaty clauses provides a richer appreciation for the relationship between the law of treaties and the actual practice of those who make them. The diversity of these clauses may also have more practical utility—as an aid to those who work with treaties. Blix and Emerson’s Treaty Maker’s Handbook has remained relevant for four decades precisely because it gave those negotiating treaties precedents that they could adopt or adjust to new circumstances.5 As a result, in several cases a clause is included here, not because it is in any way representative of treaty practice, but precisely because it reflects a creative or innovative example that others might wish to consider using in the future.

Of course, not every good example or innovative idea can fit within a sample set. And experienced readers will no doubt marvel at one or more omitted examples that they would have considered essential for inclusion. In such instances, there are other sources on which readers may rely, most notably the UN’s 2003 Handbook on Final Clauses of Multilateral Treaties.6 In the end, however, any deficiencies in the clauses assembled may be a function of the sampling approach as much as the sample set itself. The fact that the Guide to Treaties cannot mark every approach to treaty-making should not diminish its utility with respect to the examples it does provide. Current treaty practice is, moreover, both broad and deep. Whatever value sampling examples may have, the law of treaties still leaves treaty-makers essentially as masters of their agreements. In that role, they must recognize that cooperation and coordination can (and sometimes should) adopt new forms or approaches than those that came before.

The clauses that follow are organized around the life-cycle of a treaty, rather than the order in which they may be drafted or appear. The treaty-drafting process is so idiosyncratic as to defy easy summary given variations in participants, timeframes, subject matters, locations, and political will. Similarly, although most (but not all) common types of treaty clauses appear at the end of the text as so-called ‘final clauses’, they do not necessarily arise in any particular order. Moreover, it must be emphasized that not all the topics addressed here will find their way into any particular treaty. The inclusion of specific clauses is largely a function of the treaty-makers’ specific preferences (and sometimes their attention to detail). Most of those preferences will centre on substantive provisions addressing a specific subject area or regulatory form that are less interesting to treaty law and practice generally. The current sample set does not, therefore, survey variations within specific subject areas (p. 654) (eg clauses to protect human rights or the environment) nor does it examine non-obligatory forms of regulation (eg how a treaty may constitute an IO). Such important issues are better dealt with in the relevant literature for each specific subject.

The treaty topics sampled focus on issues likely to arise in many and, in some cases, all treaties. This Guide includes twenty-three types of clauses, which can be divided into six groups. For starters, there are clauses that address whether an instrument is a treaty, what its object or purpose is and who can participate in its formation or operation. Second, there are clauses dealing with the procedures for consenting to be bound by the treaty, including those for reservations, declarations, and notifications. A third set of clauses focuses on constituting the treaty, establishing its scope, the procedures and conditions for entry into force, and any subsequent dissemination conditions. Fourth, an array of clauses deals with treaty application, whether in terms of timing, territory, disputes, or a treaty’s relationship to other treaties or factual circumstances. A fifth group of clauses examines how treaties may be amended. Finally, the survey concludes with clauses that examine different ways treaty obligations end, whether temporarily via suspension, or permanently through a party’s withdrawal or denunciation or the treaty’s own termination.

Each sampled clause is preceded by a very brief description of its nature and purpose, including, where relevant, references to earlier chapters. Excerpts are in English and are authentic texts unless otherwise indicated. Space constraints require limiting excerpts to the relevant wording. Thus, where a particular clause is of interest, readers are advised to proceed to examine the treaty from which it is taken, including its text, context, and object and purpose (and perhaps even subsidiary materials) to illuminate why the particular wording was chosen. To facilitate such research, each excerpt is accompanied by a heading (where relevant) and a citation that identifies: (a) the relevant section, article, or paragraph from which it is taken; (b) the treaty title; (c) for bilateral and plurilateral treaties, the parties; (d) the year it was adopted, signed, or opened for signature; and (e) the relevant volume of the United Nations Treaty Series (UNTS), International Legal Materials (ILM) or some other location where it may be found. In the current Information Age, treaty texts (particularly multilateral ones) are available online and may regularly be found by inserting the title into an internet search engine. Such searches may actually be the easiest way to access the treaties sampled here.

Footnotes:

1  This sampling is limited to treaty texts. Models and examples of other treaty-related instruments (eg full powers, Final Acts, instruments of ratification) are available elsewhere. See eg A Aust, Modern Treaty Law and Practice (2nd edn CUP, Cambridge 2007); DB Hollis and others (eds), National Treaty Law and Practice (Martinus Nijhoff, Leiden 2005). The UN also provides examples in its Treaty Handbook. UN Office of Legal Affairs, Treaty Handbook (2006) <http://treaties.un.org>.

2  RR Baxter, ‘International Law in “Her Infinite Variety”’ (1980) 29 ICLQ 549.

3  For a survey of the various functions treaty regulations perform see Chapter 1 (Part II.C).

4  For that sort of project, see B Koremenos and T Betz, ‘The Design of Dispute Settlement Procedures in International Agreements’ in JL Dunoff and MA Pollack (eds), International Law and International Relations: Synthesizing Insights from Interdisciplinary Scholarship (CUP, Cambridge 2012).

5  H Blix and J Emerson, The Treaty Maker’s Handbook (Oceana, Dobbs Ferry 1973).

6  The UN Handbook is available online at <http://treaties.un.org/doc/source/publications/FC/English.pdf>.