Introduction 1175 I. WHY SOCIAL CONFLICT PRODUCES STURDY TREATIES 1182 A. Conflict Helps Weed Out Weak Treaties 1184 B. Concentrated Versus Diffuse Groups: How Political Liabilities 1187 Become Assets II. WHY CONSENSUS TREATIES BREAK DOWN 1190 A. Consensus Treaties Tend to Be Illusory 1191 1. Why Illusoriness May Cause Developing Countries 1192 to Defect 2. Why Illusoriness May Cause Developed Countries 1196 to Defect B. Unpredictability Regarding the Burden of Consensus 1198 Treaties III. CONFLICT AND CONSENSUS TREATIES COMPARED: INTERNATIONAL TRADE VERSUS INTERNATIONAL 1199 INVESTMENT A. Different Origins of Trade and Investment Treaties 1200 1. Conflict in the WTO/GATT Framework 1200 for Trade 2. Consensus in Bilateral Investment Treaties 1203 B. The Consequences of Consensus 1205 1. Responding to Unfavorable Litigation Outcomes 1205 a. Unconsolidated Deals: Treaty Withdrawals 1206 After Adverse Decisions b. From Indifference to Stalemate: Negotiating 1213 Dispute Resolution After NAFTA 2. Enforcing International Trade and International 1215 Investment IV. WITHDRAWAL FROM THE INTERNATIONAL CRIMINAL COURT 1219 A. The Role of Consensus 1220 B. The ICC's Illusion of Symmetry Disappears 1221 V. NORMATIVE TAKEAWAYS 1224 A. Is There Hope for Viable Consensus Treaties ? 1224 B. Using Escape Clauses to Neutralize Treaty Opposition 1225 C. Obstacles to Escape Clauses as a Solution 1227 1. Escape Clauses Might Not Be Feasible 1227 2. Escape Clauses Might Not Be Effectively 1229 Enforced CONCLUSION 1232 INTRODUCTION
In both negotiating and enforcing international treaties, the appearance of consensus is widely considered a virtue. It is commonly thought that treaties that enjoy overwhelming domestic and international support will be subject to a lower risk of defection, appear more legitimate to voters, and be easier to enforce by international and domestic courts. (2) The contemporary academic discourse on constitutional design not only accepts this benign view of consensus treaties but often bolsters it: in the United States, for instance, the constitutional requirement of a supermajority under the Treaty Clause has been praised for building consensus and fostering lasting international agreements. (3)
The puzzle is that in real life, however, the opposite is often true. When it comes to the survival of treaties, a paradox of consensus or an inverse logic of numbers seems to prevail. (4) Treaties forged in the wake of intense domestic and international disagreement have often proven to be fairly sturdy and easier to enforce by judicial bodies, while those molded by overwhelming consensus have often turned out to be fragile and more easily susceptible to withdrawal or atrophy. (5) Take, for instance, the web of international agreements that underpin the global trading order. Historically, such agreements have been marred by intense and drawn out social conflict, often pitting domestic export groups against protectionist groups. (6) When such agreements make it through domestic legislatures, they often pass by slim or non-substantial margins. (7) Nonetheless, the WTO/GATT framework for adjudicating international trade disputes is widely considered to be remarkably resilient and one of the most successful modern international legal regimes. (8) By contrast, international investment treaties have often sailed through domestic legislatures with overwhelming consensus and barely any political resistance. (9) In the modern era, however, it is these latter treaties that have been particularly subject to a rash of withdrawals, renegotiations, or significant revisions by national politicians, especially in the wake of unfavorable litigation outcomes against host states. (10) The recent backlash by certain African countries against the treaty establishing the International Criminal Court may be yet another illustration of the fragility of consensus treaties. (11)
The explanation for this rather puzzling development is straightforward. Consensus treaties tend to lack one key advantage of treaties forged in conflict: the intense support of domestic interest groups hardened by sustained political combat. Typically, when their favored international agreements are threatened, such groups are usually willing to go to extraordinary lengths to protect the fruits of their political struggles. Moreover, because of the presence of such groups, it is often conflict-ridden treaties--like those that underpin the WTO/GATT framework--that tend to weather adverse international judicial decisions that supposedly impinge on national sovereignty. (12) This state of affairs may explain, for instance, why international investment treaties have proven to be quite vulnerable to threats of withdrawal or significant renegotiation in certain countries. (13) National politicians are aware that their domestic constituencies who favor investment treaties are often unable or unwilling to fight hard enough when these treaties are challenged.
At bottom, in the absence of conflict, the long-term benefits--if any--of consensus-based treaties may often prove difficult to consolidate once such agreements become subject to downstream attack by hostile forces. To paraphrase a common aphorism about the frailty of collective goods: treaties that belong to everyone are defended by no one. (14)
But why would certain treaties be more susceptible to beneficial conflict in their origins, while others are more prone to counterproductive consensus? The answer is that consensus treaties tend to exhibit three characteristics that are often absent in conflict-prone treaties: illusoriness, diffuse benefits, and low predictability about the burden of downstream costs.
First, consensus treaties are often somewhat illusory or nonreciprocal. From a strategic perspective, the real goal of such treaties is often to bind others while creating the pretense that all are bound. Indeed, in most cases, it is usually groups in developed countries that are trying to bind governments in developing countries. But in order not to appear biased against a subset of countries, developed countries also agree to assume obligations under these treaties, even when such obligations may be unnecessary. The rationale is simple: if the burden of consensus rules seems to apply to all parties in the agreement, then it may appear more tolerable for those whom it was really intended to constrain.
Take, for instance, international investment treaties. In principle, they commit each side to a range of symmetric obligations or constraints, including promises not to expropriate the private property of foreign investors without compensation. But in practice, it is usually one side that has both the willingness and ability to defect and engage in uncompensated expropriations--the capital-importing state. (15) The capital-exporting state is usually constrained by other considerations beyond the treaty. In the United States, for instance, constitutional rules prevent the state from confiscating private property (including those of foreigners) without adequate compensation. Thus, for the capital-exporting state, consensus-based investment treaties follow a peculiar logic: having been blocked by its own domestic laws from being able to expropriate the assets of foreigners, the developed state now seeks to use international law to level the playing field between itself and the developing country.
Nonetheless, there is a fiction that both state parties face symmetric compliance and defection incentives. (16) But this fiction becomes less credible once the obligations of the treaties become politically costly, and the developing country knows it can defect without facing any equivalent defection by the developed country. For developed countries, however, the reasons for withdrawal or renegotiation are usually different and more nuanced. So long as the obligations under the consensus treaty are interpreted in a manner that completely overlaps with what their domestic laws already require, all is fine. But once a tribunal or court interprets the treaty in a way that expands beyond what is provided in domestic law, then a dispute over the scope and meaning of the consensus treaty is likely to ensue.
By contrast, conflict treaties are often characterized by the logic of mutually assured defection in which harm inflicted by one state is reciprocated with harm. Take international trade treaties, for instance. Because each state knows that its trading partner is willing and able to retaliate by raising tariffs or other nontariff barriers if there is a breach or withdrawal, politically opportunistic withdrawals from international trade treaties are uncommon. (17)
Second, there is yet another feature that often plagues consensus treaties: uncertainty about their downstream costs. Let us return to the example of international investment treaties. When these treaties are first negotiated, the upfront benefits to foreign investors seem obvious, but it is often difficult to know ahead of time which domestic interest groups will bear the brunt of the costs of the treaty's provisions. So few groups have an incentive to mobilize against the treaty. But once there is an actual dispute under the treaty and the likely litigation outcome threatens policies favored by strong domestic constituencies, the dynamics change. In the wake of such litigation, not only are current investment treaties threatened, but the negotiation of future treaties is as well. With international trade agreements, by contrast, it is usually known at the time of the negotiation which groups bear the costs of the agreement; in most instances, it is protectionist groups.
Third, the groups that benefit the most from consensus treaties like investment and human rights agreements tend to be large and diffuse in both time and space, which means that the costs of organizing are often high. (18) Conflict-prone treaties are usually different. In the world of...