Thursday, December 08, 2005

In Praise of Treaty Denunciations

What if contract law scholars never studied the end game? What if they offered little to no analysis of early contract termination, rescission, or frustration of purpose? What if the entire focus of contract law was on contract formation, performance and breach, and that any unilateral lawful attempts to avoid contractual obligations were looked at with a jaundiced eye? What if Holmes never stood up and freely admitted that getting out of contractual obligations actually may be a good and salutary thing for the effective functioning of our economic system?

In many respect that is the state of affairs in the study of international treaties. Larry Helfer has just published a wonderful article in Virginia Law Review that begins to fill that void. Helfer makes a convincing case that sometimes treaty denunciations may actually be a good thing for the effective functioning of the international legal system.

Entitled Exiting Treaties, available here and on SSRN here, the article addresses the subject of the lawful termination of treaties. As Helfer notes, “[g]iven the prevalent use and diverse design of denunciation and withdrawal clauses, it is surprising that the subject of exiting treaties has received so little attention in international law and international relations … scholarship.” (p. 1585). Indeed.

So what are exit clauses? “Distilled to their essence, exit clauses create a lawful, public mechanism for a state to terminate its treaty obligations or withdraw from membership in intergovernmental organization. They do not require the consent or approval of other states and may often be effectuated simply by providing notice to the other parties.” (p. 1582). The Article discusses why exiting treaties is different – most importantly that it is lawful – and then offers some nice empirical analysis of the practice of treaty denunciations. (Peruse the tables on page 1603-1607 for a picture of denunciations in a nutshell).

But Helfer does not end there. After offering empirical analysis of treaty exit he then provides a theoretical basis to distinguish between treaty breach and treaty exit, offering “prescriptions for negotiators to structure denunciation and withdrawal clauses in ways that augment the cooperation-enhancing functions of exit while diminishing the incentives for unilateral opportunism.” (p. 1611). In short, Helfer thinks critically about how to structure exit options more thoughtfully into the process of treaty formation.

In his conclusion he offers this apt summary of why the article is important: “Although the possibility of unilateral denunciation and withdrawal may seem anathema to the successful functioning of international law, this Article suggests a strikingly different conclusion – that exit may sometimes enhance interstate cooperation.” (p. 1647).

Larry’s a friend and old classmate of mine so admittedly I am biased. But objectively speaking this article is definitely worth reading and taking quite seriously.

I may torture the Latin here, but perhaps the maxim should be amended to read: Pacta sunt servanda nisi exitus.

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