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