A THEORY OF INTERNATIONAL
The conventional international lawyers’ wisdom about treaties is uncomplicated. When a state enters an agreement that evinces an intent to be governed by international law, it puts itself under an international law obligation to comply with the agreement. The legalization of the agreement, on this view, creates a special obligation beyond that which is created by a mere nonlegal agreement. This special obligation is usually captured by the pacta sunt servanda doctrine: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith” (Vienna Convention on the Law of Treaties, Art. 26).
Under mainstream international law theory, legalization enhances compliance by increasing the normative strength of the agreement and thus a state party’s sense of obligation. The mainstream view acknowledges that states sometimes violate treaties when their interests are strong enough to outweigh their sense of obligation. Desiring to strengthen the international legal system, the more theoretically inclined international lawyers see their task as that of strengthening the normative obligation created by treaties. As with customary international law, these scholars explore the conditions for normativity and urge that these conditions—for example, “right process,” the participation of liberal democracies, domestic law penetration, management and deliberation—be strengthened whenever possible (Franck 1990; Tesón 1998; Koh 1997; Chayes and Chayes 1995). They also argue that treaty compliance would be more widespread if treaties were more precise and