What is a treaty? Is that the right question?
(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.)