Does Conflict During Formation Make A Treaty Stronger?

By Anthony Ayres

On September 30, Georgetown University Law Center hosted a conference on International Economic Law. The first panel dealt with law-making in international economic law and specifically focused on how to predict what laws will be effective. The panel included Jide Okechuku Nzelibe from the Northwestern Pritzker School of Law, Tania Voon from Melbourne Law School, Abraham Newman from the Edmund A. Walsh School of Foreign Service, and Dick Stewart, Paul Mertenskoetter, and Thomas Streinz from New York University School of Law.

Nzelibe presented a theory that international treaties are stronger when they face some sort of conflict during their creation. This is counter-intuitive to the natural assumption that if a treaty is reached easily by consensus as something that everybody wants, it will be stronger when faced with a challenge. However, Nzelibe argued that when a treaty faced some sort of conflict in its creation – whether the conflict is a difficulty in domestic ratification or the fact that one country that thinks it is losing something in the deal – will be stronger when faced with a challenge. The reasoning behind this is if a treaty faces conflict in creation, there must have been some interest group that fought for the creation. Therefore, when the treaty faces a challenge in the future, that same interest group will go to bat for the treaty and thus will help it stay in effect. Nzelibe believes, then, that the strength of international law can be predicted based on whether a treaty faces conflict in its creation.

In examining this theory, it is helpful to see if the inverse can be disproved easily. This would mean taking a widely agreed on and fairly consensus-based treaty and seeing if it is actually strong in the face of challenge. An example of a treaty that did not face much challenge in ratification is the Rome Statute, a statute that entered into force with sixty ratifications decades faster than predicted.

The Rome Statue, which establishes the revolutionary International Criminal Court (ICC), has pushed international law to a new era. Previously, the ability to hold war criminals accountable was essentially left to the victors, and the legal basis of many such trials occurred was suspect at best. Furthermore, the principles of sovereign immunity always made the it difficult to hold the perpetrators accountable. The Rome Statute would thus seem to be an effective piece of international law. Simply by providing a mechanism that has been able to hold war criminals accountable and the fact that the ICC is still in effect could make the Rome Statute seem effective.

However, the Rome Statute faces serious challenges that have hindered its effectiveness. The most prominent issue is the lack of enforcement mechanisms for state actors that refuse to cooperate with the ICC. The only possible way the Rome Statute can be effective is if a state cooperates with it, and anytime a state party challenges the treaty, this effectiveness disappears, only backed up by international diplomatic pressure. Therefore, despite the fact that there was consensus in its creation, the Rome Statute does struggle when faced with challenges or conflict.

Showing a treaty that was reached by consensus struggles in times of challenge does not necessarily prove that conflict treaties are stronger; it only is a necessary step in the logic. To examine whether a conflict treaty is actually more effective, we need to examine how one fares under pressure. A good example of a conflict treaty is the Comprehensive Nuclear Test Ban Treaty (CNTBT). The CNTBT remains a hotly contested treaty, as the United States, Russia, the Democratic People’s Republic of Korea (DPRK), Egypt, India, Iran, Israel, Pakistan, and China have not ratified the treaty. These states are reluctant to give anything up in the face of political rivals before the others do.

However, simply because the CNTBT has faced some struggles in ratification does not mean that it has not been successful. The only country to conduct a nuclear weapons test in the past decade has been the DPRK. None of the bigger countries have challenged the treaty. While this might be because of the nature of nuclear weapon politics, it is impossible to deny that there has been a reduction of nuclear weapons tests since the CNTBT came into force. On average, 400 tests were conducted in the five years prior to the adoption of the treaty. In the sixteen years since the CNTBT was adopted, there have only been a handful of tests. It would be foolish to say that the CNTBT did not play a hand in the reduction of nuclear tests. These two treaties are two classic examples of a consensus-based treaty and a conflict treaty. While they are only two treaties, they go to show that Nzelibe’s theory holds truth.