Unsigning.

• Author: Swaine, Edward T.
• Position: Treaty establishing the International Criminal Court - Symposium on Treaties, Enforcement, and U.S. Sovereignty

INTRODUCTION I. THE FORMAL LEGAL CONSEQUENCES OF SIGNATURE II. SIGNATURE AS A STRATEGIC PROBLEM A. Ex Post and Ex Ante Considerations 1. Ex post effects 2. Ex ante effects B. The (In)Adequacy of Interim Obligations C. Implications III. STRATEGIC SOLUTIONS CONCLUSION INTRODUCTION

What accounts for the tumult over the Bush Administration's decision to "unsign" the treaty establishing the International Criminal Court (ICC)? (1) On its face, the decision was not only rational, but to everyone's benefit. When signing the Rome Statute, President Clinton restated American objections to the ICC's jurisdiction, (2) claimed that his intention in signing was to maintain an avenue for changing the court, (3) and signaled that he would not submit the treaty to the Senate unless significant revisions were made--and would recommend that his successor likewise refrain. (4) Whatever promise for eventual ratification this tack once held disappeared when the Bush Administration made known that it sided with the Senate in categorically opposing U.S. participation. (5) Rather than maintaining an ambiguous or duplicitous stance, the United States simply reverted to the status it might have retained all along--namely, that of a nonparty (6)--by complying punctiliously with the notice required by the Vienna Convention on the Law of Treaties, to which the United States is not even a party. (7) Unsigning, on this view, was simply being forthright, and by providing more accurate information about the U.S. position, better enabled other signatories and nonparties to promote their own interests. (8)

Many did not see it that way, however. The widespread disapproval of the U.S. decision is probably easiest to understand in substantive terms. Those having faith in the ICC would have preferred full-fledged U.S. participation, and disliked unsigning because it signaled a decisive setback for that possibility--and the end to any obligation the United States assumed as a signatory. But this substantive explanation is also incomplete. The United States's longstanding objections to certain basic aspects of the court's operation, and its failure (despite concerted effort) to persuade other negotiating states of those objections' merits, make it implausible that remaining a signatory would have led it to participate harmoniously in the new regime (9)--let alone to engage in what Harold Koh has labeled "an international Marbury versus Madison moment." (10) If so, ICC-based objections to unsigning were either highly optimistic or preoccupied with the gesture's symbolism. (11)

International lawyers also regarded the mere act of unsigning as significant in itself. Some seemed to think it impossible, (12) and the European Union's official reaction hedged as to its effect. (13) It was, in any event, apparently unprecedented, (14) and a precedent some considered troubling. U.S. officials and their political supporters urged the unsigning of a number of important treaties that the United States has signed but not yet ratified--such as the Kyoto Protocol, the Biodiversity Treaty, the Comprehensive Test Ban Treaty, the Convention on the Rights of the Child, and the ILO Convention on Race Discrimination in Employment. (15) Other states, such as Israel, are considering the possibility with respect to the Rome Statute. (16) Given the number of unratified signatures to multilateral treaties, not to mention the number of multilateral treaties still open to signature, the scope of the obligation imposed on signatorieswand the limits, if any, to unsigning--are questions of considerable moment to treaty law. The former head of the U.S. delegation to the ICC negotiations cautioned that "there is a whole list of treaties that we've ratified that other states have signed but not yet ratified.... If we 'unsign' the ICC, we give a signal that a new practice is acceptable, and we lay the groundwork for undermining a whole range of treaties," (17) including for other states desirably constrained by international law. (18)

Unsigning exposed a potentially significant flaw in the prevailing law of treaties. (19) Part I briefly explicates the legal consequences of signature under the Vienna Convention, which is generally regarded as establishing default rules for bilateral and multilateral treaties between states. (20) As the relative significance of ratification has increased, international lawyers have wrestled with how to maintain the legal significance of treaty signatures; at least following the Vienna Convention, the majority view is that "mere" signatories (states that have signed but not yet ratified the treaty in question) assume an intermediate, interim obligation to refrain from frustrating the treaty's object and purpose.

Part II, the heart of this Article, considers the interim obligation as a potential solution to the strategic problems posed by signature. Within the formalist perspective predominant among international lawyers, the interim obligation is understood as a mechanism for retaining a vestigial role for signature. I reconceive the interim obligation as a partial answer to ex post and ex ante commitment problems observable in the treaty context and elsewhere, but conclude that it is unable to resolve them satisfactorily. Were interim obligations made effective, moreover, they would still destabilize multilateral treaty regimes, since signatories can effectively withdraw from their obligations without the delay that withdrawal provisions impose on ratifiers.

What, if anything, is to be done? Part III continues with an assessment of the alternative legal mechanisms for addressing these strategic problems. After considering other options, I propose a simple means of reducing the exit gap between withdrawal mechanisms and unsigning that diminishes any strategic opportunities created by this emerging practice.

1. THE FORMAL LEGAL CONSEQUENCES OF SIGNATURE

   The history of the law of treaties, greatly simplified, supports a shift in gravity from signature to ratification. (21) Signature was generally regarded as sufficient between monarchs or, for that matter, between their duly authorized representatives. Even in the early twentieth century, dictators sometimes personally negotiated, signed, and through those acts made binding treaties along much the same lines. (22) But separate ratification procedures also have an ancient pedigree in international relations, have come to be required by numerous national constitutions, and are now the default procedure for international agreements. (23)

   The relationship among negotiating authority, signature, and ratification raises a host of technical issues, but at least one of potential consequence: If ratification is required before a state can become a party, what significance remains for prior acts, particularly signature? To be sure, signature has some recognizable, if often overlooked, consequences. Collectively, signature tends to fix the treaty's substantive terms--at least in the absence of reservations. (24) It also establishes the terms by which a treaty is to come into force, such as by setting a time limit for ratification or stipulating the minimum number of signatories. (25)

   Commentators puzzled, however, over the significance of individual signatures for state consent, a problem made more acute by widespread and prolonged delays in ratification. (26) Some conceded that the signature lacked any legal effect, (27) but most shrunk from such a nihilistic view. At the opposite end of the spectrum, some claimed that signature created an obligation to ratify. (28) But this would basically divest ratification of significance, and in the process slight the functional arguments for it. Because adding discrete stages to the consent process may improve the likelihood of cooperation, rendering ratification redundant may harm the objectives of treatymaking. (29) Moreover, to the extent that domestic ratification processes broaden participation--as in the United States, where ratification increases public scrutiny, requires legislative participation, and presents the executive branch with a second opportunity to evaluate the treaty--requiring ratification on the international plane may improve the credibility of treaty commitments. (30)

   In any event, the argument for an obligation to ratify faded for more conventional reasons. Such an obligation may have made more sense when diplomats were regarded as personal agents of a head of state, and could be viewed in terms of a conventional principal-agent relationship, but identifying the principal (conceivably, the head of state, a legislature, or the state itself), the agent (not only the envoy, but the head of state, too), and the nature and consequences of delegated authority became less straightforward. (31) Any such obligation also had to confront the fact that states frequently do not ratify treaties that they have signed, which is powerful evidence that no such principle existed as a matter of customary international law. (32) Perhaps mindful of that problem, those presupposing a legal obligation to ratify, and even the greater number regarding any such obligation as purely moral in character, imagined categories of acceptable excuses: The exceeding of negotiating powers, duress, conflict with prior or otherwise superior legal norms, or fundamental changes in circumstances were all regarded as permissible bases for nonratification. (33) By the time the Harvard Research in International Law project was compiling a code of treaty law, it felt comfortable stating conclusively that there was no duty whatsoever to ratify a signed treaty. (34) Special Rapporteurs to the International Law Commission's subsequent efforts at codification, which formed the basis for what became the Vienna Convention, urged inclusion of a binding legal duty "[t]o submit the instrument to the proper constitutional authorities for examination with the view to ratification," (35) but...