A Comparative Approach to Treaty Law and Practice

Abstract

Traditionally, scholars and practitioners have viewed the study of treaties primarily through the lens of international law - considering how treaties constitute a source of law or obligation and analyzing the formation, interpretation, and application of such laws/obligations as between the various subjects of international law. At the same time, others have taken a more national approach, examining how a particular state's domestic legal system regards treaty obligations assumed by that state. This chapter, and the book - "National Treaty Law & Practice" - that it introduces, advances a third, comparative perspective on treaty law and practice. In it, I argue that if we only examine treaties from the traditional perspectives, we gain an incomplete, and at times inaccurate, account of treaty law and practice. As treaties proliferate in both numbers and subjects, a comparative view offers alternative insights, experiences, legislative approaches and practices for dealing with treaties. By comparing how different states negotiate, conclude and implement their treaty obligations, we necessarily respond to those concerned with a national perspective by obtaining views on how individual states relate to treaties. More importantly, the comparative approach can inform the international law of treaties. By analyzing a representative group of states, we can compile evidence of what state practice is, which, in turn, informs the content of the customary international law of treaties. To demonstrate how the comparative approach operates, this chapter analyzes a representative group of nineteen states - Austria, Canada, Chile, China, Colombia, Egypt, France, Germany, India, Israel, Japan, Mexico, the Netherlands, Russia, South Africa, Switzerland, Thailand, the United Kingdom, and the United States. It compares the surveyed states' treaty laws and practices with respect to four core questions: (1) How do states define treaties as a matter of domestic law and practice? (2) What is the scope of the executive's authority over treaty making? (3) What role does the legislature play in treaty making? and (4) How are treaties incorporated into national law?

Keywords: comparative law, international law, treaties, Austria, Canada, Chile, China, Colombia, Egypt, France, Germany, India, Israel, Japan, Mexico, Netherlands, Russia, South Africa, Switzerland, Thailand, United Kingdom, United States

JEL Classification: K33, K3, K39, K10, K30