The Death of Treaty

This Article explores the decline and fall of Treaty. Part I of the Article traces the origins and development of treaties. It argues that Treaty reached its political and doctrinal zenith in the nineteenth century, the classical era of international law, when diplomacy revolved around shifting bilateral treaty relations, and a state\u27s promise was binding only if made in the context of a formal international agreement. Treaties were the centerpiece of a contract model of international relations. Part II explores the subsequent doctrinal disintegration of Treaty. It asserts that the traditional contract model of treaty doctrine has been challenged by a new tort model, one that holds states responsible for their unilateral promises in the absence of mutual agreement or even reliance by the promisee. I praise this development as an efficient means of channeling diplomacy into a new form-the binding unilateral promise. Part II also explores other doctrinal challenges to the traditional regime of pacta sunt servanda. Part III asserts that the decline of Treaty as an institution has been even more dramatic than its doctrinal disintegration. This part argues that the contract model of international relations, one that relied on interlocking bilateral treaties between individual sovereigns, is being replaced by a legislative model, one that relies more heavily on the direct democracy of multilateral conventions and especially the representative democracy of the United Nations Security Council. I applaud the legislative model as an efficient means of codifying, unifying, and advancing the law, but I argue for a continuing role for treaties, both bilateral and multilateral, to ensure that international law develops democratically and thus maintains its legitimacy. In addition, Part III asserts that the legislatification of international law extends to United States domestic law, which denies effect to most treaties unless Congress enacts implementing legislation. I argue that our preoccupation with implementing legislation has unduly diminished the importance of treaties in our domestic legal system. Finally, Part III contends that the congressification of United States foreign policy, together with a longstanding American missionary zeal, has contributed to an Americanization of international law that threatens to overwhelm Treaty. Increasingly, American statutory law, not international agreement, regulates conduct outside the United States. I argue that there is indeed a need for some American extraterritoriality but that Congress and the executive should place greater emphasis on international cooperation in the development of international law. Part IV concludes with speculations on the possibility that Treaty will be reborn