E-Book Overview
Whether or not a certain norm is legally binding upon international actors may often depend on whether or not the instrument which contains the norm is to be regarded as a treaty. In this study, the author argues that instruments which contain commitments are, ex hypothesi, treaties. In doing so, he challenges popular notions proclaiming the existence of morally and politically binding agreements and so-called "soft law". Such notions, Klabbers argues, are internally inconsistent and founded upon untenable presumptions. Moreover, they find little support in the pertinent decisions of municipal and international courts and tribunals. The book addresses issues of importance not only for academics working in international law, constitutional law and political science, but also for practitioners involved in the making, implementation and enforcement of international agreements.
E-Book Content
THE CONCEPT OF TREATY IN INTERNATIONAL LAW Developments in International Law VOLUME 22 This research was sponsored by the Foundation for Law and Public Administration (REOB), which is part of the Netherlands Foundation for Scientific Research (NWO) THE CONCEPT OF TREATY IN INTERNATIONAL LAW Jan Klabbers W 4 W KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / BOSTON A C.I.P. Catalogue record for this book is available from the Library of Congress. ISBN 90-411-0244-2 Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands. Sold and distributed in the U.S.A. and Canada by Kluwer Law International, 675 Massachusetts Avenue, Cambridge, MA 02139, U.S.A. In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands. 02-1098-150 ts Printed on acid-free paper All Rights Reserved ©1996, \ s t reprint 1998 Kluwer Law International Kluwer Law International incorporates the publishing programmes of Graham & Trotman Ltd, Kluwer Law and Taxation Publishers, and Martinus Nijhoff Publishers. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner Printed in the Netherlands. TABLE OF CONTENTS Detailed Table of Contents Preface A Guide to Official Documents List of Abbreviations INTRODUCTION vw xi xiii xv 1 CHAPTER I: Treaty-like instruments; an Overview 15 CHAPTER II: The 1969 Vienna Convention's Definition 37 CHAPTER III: On Intent 65 CHAPTER IV: Several Varying Theses 97 CHAPTER V: On the Co-existence of Normative Orders 121 EXCURSION TO CHAPTER V: The Soft Law Thesis 157 CHAPTER VI: The World Court 165 CHAPTER VII: Other Courts and Tribunals 219 CONCLUDING REMARKS 245 EPILOGUE: Some Remaining Questions 251 APPENDIX: A Questionnaire among Dutch Agencies 261 TABLE OF CASES 269 BIBLIOGRAPHICAL REFERENCES 279 INDEX 303 DETAILED TABLE OF CONTENTS Preface A Guide to Official Documents List of Abbreviations xi xiii xv INTRODUCTION Theoretical Orientation 1 10 CHAPTER I: Treaty-like instruments; an Overview Why cooperate? The road to agreement Televized diplomacy 15 25 29 33 CHAPTER II: The 1969 Vienna Convention's Definition Article 2, paragraph 1 (a) Designation Number of instruments Concluded between states In written form An international agreement Governed by international