Treaty exit clauses

Treaty exit clauses

“The international legal system is grounded on a fundamental principle: pacta sunt servanda- Treaties must be obeyed.1 States, or more precisely the government officials who represent their interests at diplomatic negotiating conferences, are masters of their treaty commitments. No state can be forced to accept a treaty without its consent, nor can it be compelled to join an intergov-ernmental organization against its will. Once a state has assented to a treaty and has successfully shepherded it through its national ap-proval process, however, it must observe its treaty commitments in good faith.”

This is the commencement of an issue of the Virginia Law Review, where Professor Helfer presents an analysis of “treaty exit,”specifically, the unilateral exit by States from international conventions and organizations. The analysis includes six “distinguishing characteristics”of treaty exit and empirical evidence of treaty exit since 1945. After concluding the topic of treaty exit has been largely ignored by legal scholars and international relations theorists, Helfer presents a framework to “rethink”treaty exit from both an international law and international relations perspective. Based on this framework, Helfer provides a “blueprint for future research”for the “under-explored phenomenon of treaty exit.”

According to Professor Helfer, exit clauses “create a lawful, public mechanism for a state to terminate its treaty obligations or with-draw from membership in an intergovernmental organization. De-nunciation and withdrawal are also fundamentally unilateral acts. They do not require the consent or approval of other states and may often be effectuated simply by providing notice to the other parties. Moreover, a state that invokes these clauses to quit a treaty occupies a very different position from a state that breaches its treaty commitments. An exiting state faces different burdens and benefits, different prospects of being sanctioned, different reputa-tional consequences, and different responses by other parties than a state that breaches an international agreement.
Treaty clauses that authorize exit are pervasive. They are found in a wide array of multilateral and bilateral agreements governing key transborder regulatory issues, including human rights, trade, environmental protection, arms control, and intellectual property. More intriguingly, exit clauses impose different types and degrees of restrictions on a state’s ability legally to withdraw from a treaty and the obligations it imposes. And occasionally, exit clauses are absent altogether, raising the possibility that exit may be implicitly precluded as a matter of international law.”

Laurence Helfer, Exiting Treaties , 91 Va. L. Rev. 1579 (2005) (full text, pdf).

Author: international

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