Breach of Treaty and Response Thereto

Abstract:     
This article, written in the context of the UN International Law Commission’s preparation of what ultimately became the Vienna, Convention on the Law of Treaties, argues that foreign office officials look at international treaties and issues of treaty breach much differently from the way traditional law assumes. In contrast to formal treaty doctrine, the treaty world of foreign offices is murky, flexible and unruly, dominated not by form and logic but by function, process and accommodation. It is a world in which obligation and no-obligation, compliance and breach shade imperceptibly into one another and achieve operational definition only in the practical outcomes of the parties’ interactions - a world in which issues of breach are frequently part of the treaty game rather than outside of it.

Thus, to foreign office officials: (1) treaties and other international agreements are not simply legal instruments for creating obligations but, more broadly, multi-purpose foreign policy tools; (2) particular treaty issues may often be only one element in a constantly shifting overall pattern of foreign policy interests and positions; and (3) treaty provisions and behavior frequently reflect an uneasy and uncertain compromise between officials’ desire to maintain their own flexibility and freedom of maneuver to cope with changing circumstances and their desire for certainty and predictability of behavior on the part of foreign officials. In this context, foreign office officials may see treaty disputes or issues arguably involving breach not as isolated transactions but rather as incidents in a continuing business relationship, in which considerations such as preservation of the relationship, reputation, or the desirability of accommodation and compromise may seem more important than either unduly pressing or resisting a claim or “winning” the dispute.

The article concludes by suggesting, inter alia, that: (1) our “law of treaties” may not accurately or usefully reflect or predict actual state behavior; (2) we might better think, not of a single monolithic law of treaties, but of somewhat different rules for different kinds of treaties; (3) we need to develop a better understanding of why states enter into treaties and of the functions treaties really serve in the international system; (4) we need, in particular, to develop a better understanding of why and under what circumstances states comply or do not comply with treaty obligations, and of how we can structure our agreements so as to make compliance more likely; (5) the legal concept of breach has limited practical usefulness since in many cases we may not be able - or even want to - obtain a legal determination of breach; (6) the treaty device may be more flexible than assumed, with a capacity for considerable informal responsiveness to changed circumstances; (7) the ways in which treaty norms, as well as other non-binding kinds of norms, affect state behavior may be more subtle and complex than usually assumed; and (8) there is a clear and pressing need for more empirical research as to how and why states make, implement, change and either comply or fail to comply with treaties and other international agreements.

The discussion in this article was subsequently further developed by the author in Richard B. Bilder, MANAGING THE RISK OF INTERNATIONAL AGREEMENT (Madison, University of Wisconsin Press, 1981), and “Beyond Compliance: Helping Nations Cooperate”, in D. Shelton (ed.), COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM (Oxford U. Press, 2000)

Number of Pages in PDF File: 14

Keywords: law of treaties, treaty law, breach of treaties, treaty compliance, international law, compliance and international law, Vienna Convention on the Law of Treaties, U.S. foreign relations, U.S. foreign policy

JEL Classification: K40, K42

Accepted Paper Series