The Position of the United States and the Soviet Union On Treaty Lsw and Treaty Negotiations

• Author: By Albert J. Espain
• Pages: 02

Thts article earnpares the So:iet rnlon and the West in relation to mternatzonol aweernents. V n ~ o u s asurcts o i

of the& differences 1s valuable 1% draitino ond nisotih-ting treaties with the Soviet Cnnzon.

1. ISTRODUCTIOS

   This article is concerned with the drafting and the negotiation of treaties and the rules and principles which are applicable to treaties, particularly those which relate to their enforcement and termination.

   Its principal purpo~e is to compare the position of the Soviet Union with that of the United States and other Western Sations on various traditional treaty rules and general principles of international law, and to discuss the implications which arise from substantive dissimilarities in view an these matters. In this manner the paper seeks to establish a valid basis far determining the feasibility of concluding various types of treaties with the Sayiets and the extent to which the Kestern Nations can rely on the provisions of treaties concluded with the Soviets. Determinations of this nature entail a Consideration of the views of the Soviets on such important matters as the binding effect of treaty commit-menrs, the circumstances that 7s-ould justify the unilateral madifi- 'This article is the result of the reieareh and an~lys~swhich the author

   performed m the fulfillment of a portion of B research contract rich the

   Unired States Arm% Control and Disarmament Agency. The article contains some neiv material, nerertheieas, it in in large measme iubstantwel.to the material whxh he submitted TO the agency under the eonrr op1n~ons and judgments erpreried are those of the author and do not purport to reflect the new9 af the United Statee Arms Control and Dmrmamenr Agency, rhe Department of the Arm?, or any other department or agene? of the United Stares Gorernmen~.

   *'Special Consultant to The Judre Advocate General on Internatzonal Law

   ber of the Bars of the State of South Carolina, District of Columbia, and the 0. 6. supreme court.

   cation or abrogation of tieaties. and the manner and means of en-forcing treaty obligation. There consideratma provide Important guidelines in reaching decisions as to the manner in which treaties with the Soviets should be drafted, and the matters vhich should be expressly set forth 111 such treaties.

   Generalij-, It may be said that, m theory, the Soviets recognize most of the rides and principles of treaty law that are recognized by the Cmted States and other IVestern Nations. An examination of Soviet practice as opposed to theori, howevei, discloses material differences both in the application of these rules and principles, and in their binding effect. This 13 because international Ian- in the Soviet Union piays on11 a subordinate roie in Soviet foreign policy and 1s used primanl3- to Justif>- and further that policy.'

   11. 1NTERSATIOS.AL LAK DEFISED

   For the purpose of this article international law i s defined as thow puinqies and rules of conduct, both customary and conrentionai, which states consider legaliy binding upon them in their re-lationships with each other. Time principles and rules include those which relate to the iunctiamnp and the relationships of inteinatmnal mtitutions and organizations and those which relate to the conduct of entities and individuals that are of concern to the international community:

   This definition recognizes that the basis of international lair 1s

   the common consent of the states xhich comprise the international community.a This consent may be either tacit or express. Tacit

   See J. TR~SHA

   THE THEORY. LAS AID POLICYor 8 0 1 1 ~ ~

   TRLMES 26, E-, 38:. 401-05 (1962) [hereafw cited as TRISK.A AZD S~~sii.81

   AXD R. SL~SEER.

   i d a t m a i t l e Pact and the Charrer m ~ s t

   ~e eamdered a i

   farce ~n a manrmr not permnted bi lax\ and :hat duress BUCthe treat)

   TREATIES

   consent is an implied consent, or consent which is clearly evidenced by the conduct of states and reflected by their adoption of the custom of conforming to certain general rules of international behavior. Express consent, an the other hand, is an affirmative consent which is giren either verbally or in writing to rules of international conduct.'

   111. THE NATCRE OF INTERNATIONAL LAW ITS BINDING EFFECTIt has been said that the designation, "international law," is a misnomer and that such a law does not exist because there is no international agency that is both empowered and capable of enforcing it. The critics consider international law as an inefficient code of canduet. of moral farce only. and that var conclusivelv attests to its ineffectiveness in infiuencing and controlling the be-havior of states.

   This \,iew has persisted since the very development of modern international law. More than three centuries ago Grotius wrote:

   There is no lack of men who view this branch of law with con-tempt ss haiing no reality outside of an emptl- name. On the llpb of men quire generally E 7i.e ~a)-ing of Euphemus uhieh Thueydides qnares that in the case of a king or impend atg nothing 15 unjust ahieh 1% expedient. Of like impilcatmn is the Btatement that far thaee whom fonune farara might maker right . . , .nLaw, properly defined, is "a body of rules for human conduct within a community which by common consent of the community is and mu8t be enforced by external poi$-er." The essential conditions of law, as defined above, are to be found in international law, including the most essential condition: that the rules of international conduct shall be enforced by external power. Governments of states and world opinion agree that international law shall, if necessary, be enforced by external power. In the absence of a central authority for the enforcement of international law, states have resorted to self-help, intervention, and x%-ar, under the circumstances prescribed by the Charter of the United Satians, as means of enforcing international law. The Charter of the United Nations, by providing a sl-stem of sanctions for repressing violations of its principle ahlipation, has in effect recognized the enforcement of law as a principle of conventmnal law. Perhaps the best evidence of the existence of international Ian is its recognition

   6 1 OFFExKEm 2626.a 1 OFPESRE,M 10.

   H.

   GROTIUS, DE JLRE BELLI AC PACIS Llm TRES 9 (Camegie Trans. 1926).

   in practice as Ian.. Seither its legs1 nature nor ita obligatory farce is questioned by those who create and apply it.' International courts hare held that treaty undertakings are legal in nature, and that their interpretation is a legal, not a political, question.O World public opinion also considers e~erystate legally hound to comply trith international l a y and states have formally recognized the binding effect of international Ian by requiring, under their domestic Legislation. that their citizens, officials, and courts comply with the obligations imposed on them states by international Almost without exception states that riolate international laiv give lip jerrice to it by inroking its rule8 to justify or to prove the YB- liditj- of their acts: as for example, Hitler's instructions of 1 Oe-tober 1938. whxh suggested explanations to be issued by the international laii group to justify Geiman actrons under the laws of war.': Pinally, the Charter of the United Satians and the Statute of the Internstmnal Court of Justice clearly express the belief of nations in the binding effect of international la.\^'

   As Paj-son Kild puts it:inrrmica1l.v 1s no differenr from any oth- TPP of comr-unity a: interest and mutua! need as emts be:bnd the rules o i contract6 or a i

   ence. Tire i":es ." lsgard 14 treatlea , are

   n :nternatlOnal lelafimi

   Law. 54 i v

   J IZIL L. 326 aid Dynamic, 21 AM J ILT'L L

   L l 8 W

   0 [iszal P C I.J se2 B xc I at 19: [ma! I.C I. 61

   TREATIES

   part dl obey without the ;reed fop comprehensive smction3. It ia

   the same for individuals within the itate.ls

   Treaties are in fact more regularly observed than violated and the use of threat of farce has, generally, little to do with this behavior of states. The treaties which states are most likely to ob-serve are those which are based on B mutuality of interests. Treaties most likely to be violated are those vhich, without considering various political considerations that may cause states to disregard the law, attempt to control political conduct by prescriptive rules. International law therefore "must be conceived of less as a bods of commands which are expected to achieve their prohibitive purposes in opposition to social and political realities than as a canalization of those tendencies considered valuable in terms of social ends.""

   The absence of an international legidature with power to enact new rules of international law and the lack of compulsoq jurisdiction by an international court has not prevented states from rec-ognizing, creating, and applying international law It is true that international lai~has stressed substantive rights and obligations but that it has not yet developed adequate remedies and pracedural rights. Nevertheless it cannot be denied that international law has established legal rights and obligations that are generally recognized. The absence of an enforceable judicial remedy does not, any more than in the municipal sphere, preclude the designation of these rights and obligations as real law.'6

4. SOURCES OF INTERXATIONAL LAWCustom is the original source of international law and it is for that reason that international custom is referred to vhen the proper interpretation of a treaty is in doubt. It is mrth noting that treaties derive their force and effectiveness from the rule of customary international law that treaties are binding upon the contracting parties (pacta sunt semanda) .'a

   1. SOVIET VIEW

      The Soviet Union gives limited recognition to custom BS a Source of international law. It has, however, consistently held that treaties are the primary, and until recently, the sole source of in- Is Wild, What Is The Trauble With Intsnotional Law, 32 AIIER. POL. H.

      ...