The Problem of Unequal Treaties in Contemporary International Law: How the Powerful Have Reneged on the Political Compacts within Which Five Cornerstone Treaties of Global Governance Are Situated
Scott, Shirley V., Journal of International Law & International Relations
This article considers a phenomenon common to five cornerstone treaty regimes of global governance: those founded on the Charter of the United Nations (UN Charter), (1) the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), (2) the Third United Nations Convention on the Law of the Sea (LOSC), (3) the General Agreement on Tariffs and Trade and Marrakesh Agreement establishing the World Trade Organization (GATT/WTO), (4) and the United Nations Framework Convention on Climate Change (UNFCCC). (5) The vast majority of States have given their consent to these treaties, begging the question as to why the less powerful have agreed to treaties that in several instances appear to have favoured the interests of the most powerful. It will be seen that in each case the less powerful States agreed to the terms of the treaty as part of what they perceived to be a broader political compact with the most powerful States in that treaty regime. In each case the most powerful have reneged on their side of that compact. Viewing five of the cornerstone treaties of global governance as each situated within a political compact on which the most powerful have reneged can help us better to understand the depth of disappointment which has underpinned accusations of noncompliance in some of these regimes and the difficulty of reaching fresh political accommodations between powerful and less powerful being experienced within other regimes. The article concludes that the dissatisfaction emanating from a perception that the most powerful have consistently reneged on compacts made during the negotiation of treaties central to the emergent system of global governance may well have contributed to a diminishing association of international law with justice and to the 'legitimacy deficit' from which the contemporary system of international law is said to suffer.
International Law in the Emergent System of Global Governance
International law serves as the framework for the emergent system of global governance. It provides the constitutive treaties by which intergovernmental organizations are established and it serves as the vehicle through which States negotiate the means of addressing issues that require a coordinated response. Issues for which multilateral treaties currently embody the principal means of coordinating the international response include the possession of nuclear weapons, climate change, usage of the oceans, and the functioning of a system of world trade. One of the most basic principles of the international law of treaties is that a treaty does not create either obligations or rights for a third State without its consent. (6) The negotiation, conclusion and successful entry into force of the cornerstone treaties of the contemporary international order has therefore been a considerable undertaking and it has been strikingly successful if we consider the participation rates of the five treaties under review. The UN Charter has 191 States Parties; the NPT, 189; LOSC, 149; the UNFCCC, 189; and the WTO, over 150 members. (7) While such high rates of consent might easily be taken for granted, the challenges lying ahead in the production of a post Kyoto treaty on climate change as well as the difficulties that have faced those attempting to bring to a successful conclusion the Doha Round of negotiations in the WTO, serve as a reminder of just how difficult it can be to attain political accommodation amongst members of such a large and diverse group of States.
The fact that the less powerful agreed to the UN Charter and the NPT might seem particularly surprising. Both could be labelled 'unequal treaties', in that they each accord very different rights and responsibilities to different sets of States. (8) In both treaties the group accorded special rights represents only a very small minority of the States Parties; even given the smaller number of States at the time, it could be considered surprising that these treaties received the requisite support. …