The problem of unequal treaties in contemporary international law: how the powerful have reneged on the political compacts within which five cornerstone treaties of global governance are situated.

• Author: Scott, Shirley V.
• Position: Report

This article considers a phenomenon common to five cornerstone treaty regimes of global governance: those founded on the Charter of the United Nations (UN Charter), (1) the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), (2) the Third United Nations Convention on the Law of the Sea (LOSC), (3) the General Agreement on Tariffs and Trade and Marrakesh Agreement establishing the World Trade Organization (GATT/WTO), (4) and the United Nations Framework Convention on Climate Change (UNFCCC). (5) The vast majority of States have given their consent to these treaties, begging the question as to why the less powerful have agreed to treaties that in several instances appear to have favoured the interests of the most powerful. It will be seen that in each case the less powerful States agreed to the terms of the treaty as part of what they perceived to be a broader political compact with the most powerful States in that treaty regime. In each case the most powerful have reneged on their side of that compact. Viewing five of the cornerstone treaties of global governance as each situated within a political compact on which the most powerful have reneged can help us better to understand the depth of disappointment which has underpinned accusations of noncompliance in some of these regimes and the difficulty of reaching fresh political accommodations between powerful and less powerful being experienced within other regimes. The article concludes that the dissatisfaction emanating from a perception that the most powerful have consistently reneged on compacts made during the negotiation of treaties central to the emergent system of global governance may well have contributed to a diminishing association of international law with justice and to the 'legitimacy deficit' from which the contemporary system of international law is said to suffer.

International Law in the Emergent System of Global Governance

International law serves as the framework for the emergent system of global governance. It provides the constitutive treaties by which intergovernmental organizations are established and it serves as the vehicle through which States negotiate the means of addressing issues that require a coordinated response. Issues for which multilateral treaties currently embody the principal means of coordinating the international response include the possession of nuclear weapons, climate change, usage of the oceans, and the functioning of a system of world trade. One of the most basic principles of the international law of treaties is that a treaty does not create either obligations or rights for a third State without its consent. (6) The negotiation, conclusion and successful entry into force of the cornerstone treaties of the contemporary international order has therefore been a considerable undertaking and it has been strikingly successful if we consider the participation rates of the five treaties under review. The UN Charter has 191 States Parties; the NPT, 189; LOSC, 149; the UNFCCC, 189; and the WTO, over 150 members. (7) While such high rates of consent might easily be taken for granted, the challenges lying ahead in the production of a post Kyoto treaty on climate change as well as the difficulties that have faced those attempting to bring to a successful conclusion the Doha Round of negotiations in the WTO, serve as a reminder of just how difficult it can be to attain political accommodation amongst members of such a large and diverse group of States.

The fact that the less powerful agreed to the UN Charter and the NPT might seem particularly surprising. Both could be labelled 'unequal treaties', in that they each accord very different rights and responsibilities to different sets of States. (8) In both treaties the group accorded special rights represents only a very small minority of the States Parties; even given the smaller number of States at the time, it could be considered surprising that these treaties received the requisite support. The fault lines vary slightly between issue areas. In the case of nuclear weapons, the basic division has been between nuclear weapon States and non-nuclear weapon States members of the non-aligned movement; there is a developing-developed country divide in the WTO, although there is no single developing country coalition; (9) and there were a number of cleavages at the Third United Nations Conference on the Law of the Sea, of which the North-South divide was a particularly important one. (10) Let us begin by briefly reviewing the significance of the UN Charter and NPT to the contemporary international legal order and consider the manner in which the provisions of each could be deemed unequal.

The Charter of the United Nation as an Unequal Treaty

The Charter of the United Nations is the closest we have to an international constitution. It contains a general prohibition on the use of force in inter-State relations, (11) with exceptions for self-defence (12) and use of force when authorized by the Security Council. (13) By article 25 of the UN Charter, States Parties agree to accept and carry out the decisions of the Security Council, and by article 103, obligations under the Charter are to prevail over obligations arising from any other international agreement. The position of power accorded the P5 by the Charter was extraordinary. Substantive decisions of the Security Council are made by an affirmative vote of nine members, including the concurring votes or abstentions of the five permanent members (US, Russia, United Kingdom, France, and China). (14) Their veto in Council decisions on substantive matters is echoed in the provisions on Charter amendment. (15) Even article 109(3), which made it easier to hold a review conference if none had been held within ten years, left any resulting amendment of the Charter subject to the veto.

It is easy to become blase about the enormity of the change in inter-State relations represented by the introduction into international law of a prohibition on the use of force in inter-State relations. Previous to the Covenant of the League of Nations, which had served as a sort of tentative trial run, war had been an acceptable activity for a sovereign State, but equally accepted was the right of third parties to remain neutral. Prohibiting war for national purposes meant that States using force were now readily classifiable as in the right or in the wrong. In contrast to the nineteenth century presumption of a right to remain neutral, the bulk of States were, through their acceptance of article 25 of the UN Charter, effectively accepting a duty to support whoever had been deemed 'in the right'. (16) This was a considerable undertaking for most States.

The Treaty on the Non-Proliferation of Nuclear Weapons 1968 as an Unequal Treaty

The NPT is one of the cornerstone treaties of the emergent world polity because it addresses the question of who can possess nuclear weaponry. Some regard the treaty as second in importance to the UN Charter. (17) When the NPT was concluded in 1968, the then non-nuclear weapon States pledged in article II never to become nuclear weapon powers and, by article III (1), to accept International Atomic Energy Agency (IAEA) safeguards to verify their compliance with this obligation. This treaty has functioned to retain, or at least retard change to, the nuclear weapon status quo as it existed in 1968. With but a few exceptions it has been successful in this role. While the contribution of the NPT to restricting the spread of nuclear weaponry may be welcome, it is nevertheless striking that the P5 are allowed nuclear weapons but international law forbids Iran, for example, to enhance its national security through this means. Indeed, the International Court of Justice has subsequently not ruled out the possibility that the threat or use of nuclear weapons might be lawful in an extreme circumstance of self-defence. (18)

How did we come to get Unequal Treaties with Virtually Universal Participation?

The term 'unequal treaty' is usually regarded as of primarily historical interest and used in connection with the treaties imposed on China, Siam and Japan in the nineteenth century. (19) Many were concluded at gunpoint, (20) and typically included provisions on "extraterritoriality, nonreciprocal tariff and most-favoured nation privileges, territorial cessions and leases, the stationing of foreign military units, and many other humiliating restrictions upon sovereignty." (21) By article 52 of the Vienna Convention on the Law of Treaties, a treaty is void "if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations," (22) yet the term 'unequal treaty' is not recognized in contemporary international law. In legal terms it does not matter if a treaty is unequal, so long as it was not achieved with coercion. Many might assume that, absent coercion, unequal treaties are unlikely to be concluded. (23) Smaller States have generally occupied the majority in the large-scale post 1945 multilateral negotiations and so it would also be reasonable to assume that this would make it unlikely that the requisite proportion of States would have agreed to fundamentally inequitable treaties. (24) Given that we have already identified the UN Charter and NPT as having inequitable provisions, how then are we to understand acceptance of those treaties on the part of the less powerful?

There would seem to be two dimensions to the answer to this question. The first relates to the perceived necessity of order. As World War Two neared an end, the overwhelming need for all States was peace. The great powers presented a united front on the question of the veto, despite considerable opposition from smaller powers. At one stage during the San Francisco conference, divisions--including that in relation to the veto--meant that there was a real possibility...