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.
Tuesday, January 26, 2016
Moeckli & White: Treaties as 'Living Instruments'
Daniel Moeckli (Univ. of Zurich - Law) & Nigel D. White (Univ. of Nottingham - Law) have posted Treaties as 'Living Instruments' (in Conceptual and Contextual Perspectives on the Modern Law of Treaties, Dino Kritsiotis & Michael Bowman eds., forthcoming). Here's the abstract: