Chapter 6:
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The Norms vs. Treaties
Relevance of History and Prehistory
A norm or a treaty is no less one just because it was verbally promulgated tens of thousands or even millions of years ago rather than in writing, even if no one now even guesses who promulgated it or when, where, how, or why and even if no one knows for certain its precise original content, many sources having been lost. It may suffice that the people responsible for being experts in international law approximate the original norm or treaty and agree on modern general acceptance of that approximation.
Where a treaty provision is unclear relative to a given factual situation, the treaty’s history may illuminate the intentions of the parties to the treaty. Thus, a treaty’s history, if available, is especially important to treaty interpretation.
For a norm, however, even if its applicability to a given factual situation is unclear, no history may be available. And, if the norm is old enough, the nations that originally promulgated it may no longer exist. That could render the norm difficult or impossible to understand or apply. As the impossibility occurs for wider ranges of facts, that particular norm could evolve into becoming effectively void, subject to revival.
Treaty Contradicting the Norms
If a treaty, or, likely more often, a treaty provision if separable, precisely contradicts the norms, whether the treaty or provision is therefore void depends on whether the provision of the norms thus contradicted may, with respect to the party-nations to the treaty, be amended or repealed by the treaty while the treaty is in effect. If not, the treaty or provision is void to that extent. In either case, the norms remain unamended and unrepealed with respect to all other nations.
Since the norms are not codified and are available in a mixture of natural languages, a problem will be in ascertaining whether such a contradiction exists. However, a similar problem occurs with any question applying the norms and is generally resolved by the determination of a larger community of nations, perhaps the world.
Unilateral Voiding of a Treaty
Some treaties may ground permission unilaterally to renounce with advance notice on the basis of “supreme interests”. One is the Comprehensive Nuclear Test-Ban Treaty, article IX, sections 2–3.26
That a nation could unilaterally renounce without such a provision provided it then wins against a war intended to enforce that treaty with the result of establishing a right unilaterally to renounce treaties at least under some circumstances, with the war’s outcome having precedential value, seems clear. That such has probably happened seems highly likely. However, I don’t know if that has ever happened, what the law on that point is now, or what those circumstances would be. And unilateral renunciation without those circumstances would be void. It’s also possible that a right of unilateral renunciation even under the limited circumstances could never apply to all treaties, because that might so weaken all treaty-making power as to violate the norms, perhaps including even the peremptory norms.
On the other hand, if unilateral renunciation were never allowed, then a nation should be able to kidnap a sufficiently high government official of another nation, force or induce (viz., blackmail or bribe) that official to sign a treaty in betrayal of the official’s nation, and, because a treaty can be required by a war victor or the losing party can be killed as part of the war, rely on duress not being a permitted basis for renunciation, so that the other nation would be irrevocably bound. I don’t think I’ve ever heard of that happening or being proposed, even as a fringe idea from a hardly-known individual. And getting someone publicly to betray their own nation and bind their nation to their act is practical only where renunciation could be prevented, such as by war or a surrender’s aftermath, where the nation that gained from the betrayal could keep the gain by weakening the opposition to having too little efficacy so they couldn’t renounce with effect.
If renunciation couldn’t be prevented, then the procedure of kidnapping and either forcing or inducing would be a waste of effort. Besides, such a procedure would itself be an act of war that could lead to a retaliatory war. If the nation kidnapped from were to win, that nation could demand a treaty reversing the gain from the kidnapping or continue the war. That such a procedure is not used for that purpose suggests that renunciation is possible.
Thus, a nation can renounce a treaty even after someone on its behalf agreed to it, although probably it would have to do it soon after learning of the agreeing through an official channel and it probably has to make counterparties whole for any compensable gain the renouncing nation received under the treaty, and it probably has to act visibly against its own individual whose act of agreeing was contrary to governmental authority.
