Treaties as 'Living Instruments'

Chapter ___ in Dino Kritsiotis/Michael Bowman (eds.), Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge: Cambridge University Press) 2016, Forthcoming

28 Pages Posted: 25 Jan 2016

See all articles by Daniel Moeckli

Daniel Moeckli

University of Zurich, School of Law

Nigel D. White

University of Nottingham

Date Written: January 22, 2016

Abstract

This paper argues that a treaty may change in relation to changing social conditions and therefore justifiably be described as a ‘living instrument’. However, this is only possible if the following two elements are present: first, it is a predominantly constitutional or law-making, rather than contractual, treaty; second, it has an inbuilt dynamic for change in the form of a court, a quasi-judicial body, a political organ, a technical body or a regular (and active) conference of the states parties. It is the understanding of this body as a collective in relation to changed social conditions (and not the social conditions per se) that is the determinative factor. Under classical international law only a ‘living instrument’ that is driven by the collective understandings of all the states parties could be seen as fully respecting the principle of consent. However, it is reasonable to conclude that, by agreeing to the establishment of a political organ of limited membership or one that adopts decisions by majority vote, states have accepted an erosion of their consent. This holds all the more true for a treaty that establishes a judicial or quasi-judicial organ, since the states parties have thereby accepted that the treaty will be developed by (quasi-)judicial interpretation.

Keywords: Treaties, interpretation, "living instrument", UN Charter, human rights

JEL Classification: K33

Suggested Citation

Moeckli, Daniel and White, Nigel D., Treaties as 'Living Instruments' (January 22, 2016). Chapter ___ in Dino Kritsiotis/Michael Bowman (eds.), Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge: Cambridge University Press) 2016, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2720539

Daniel Moeckli (Contact Author)

University of Zurich, School of Law ( email )

Raemistrasse 74/50
CH-8001 Zurich
Switzerland

Nigel D. White

University of Nottingham ( email )

University Park
Nottingham, NG8 1BB
United Kingdom

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