The Breakdown of International Treaties

Jide Nzelibe*

“[A] cause seldom triumphs unless somebody’s personal interest is bound up with it.”¹

In the past few years, we have witnessed a rise in antiglobalization sentiment in which certain treaties have succumbed to domestic political backlash. But why are particular treaties susceptible to breakdown while others tend to be more resilient? Paradoxically, this Article argues that the fragility of treaties follows a peculiar logic: treaties are most vulnerable to breakdown or withdrawal if they were originally negotiated in the absence of social conflict among domestic groups. The reason is that, having been negotiated and ratified with hardly any political struggle, consensus treaties often lack the support of battle-hardened special interest groups who are willing and able to defend such treaties against downstream political threats. This Article uses the contemporary backlash against both bilateral investment treaties and the Rome Statute establishing the International Criminal Court to illustrate the vulnerability of consensus treaties. By contrast, treaties negotiated amid intense political disagreement, such as the WTO/GATT framework governing international trade, have exhibited remarkable resilience over time. On a more speculative note, both the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) were likely rendered politically fragile by the first generation of consensus investment treaties entered into by the United States. Finally, this Article concludes by recommending measures to counteract the tendency of consensus treaties to collapse by making them more politically sustainable.

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© 2018 Jide Nzelibe. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor, Northwestern Pritzker School of Law. I am grateful to Melissa Durkee and Sonia Rolland for detailed suggestions on an earlier draft of this paper. For useful comments I thank Laura Appleman, David Restrepo Amariles, Perry Bechky, Chris Brummer, Steve Calabresi, Steve Charnovitz, Peter DiCola, Marija Dordeska, David Friedman, Ezra Friedman, Aziz Huq, Tonja Jacobi, Neha Jain, Joshua Kleinfeld, Jonathan Koehler, Andrew Koppelman, Pierre LaRouche, Brian McGarry, Stephen Meili, Timothy Meyer, Peter Molk, Fred Morrison, James Nafziger, Ruth Okediji, Laura Pedraza-Fariña, James Pfander, Jeremy Rabkin, Darren Rosenblum, Max Schanzenbach, Aaron Simowitz, Gwynne Skinner, Richard Stewart, Symeon Symeonides, Samuel Tenenbaum, Deborah Tuerkheimer, and participants at the Northwestern Pritzker Law School Faculty Workshop, University of Minnesota International Law Workshop, Willamette University Law School Workshop, the 2017 Law and Society Workshop in Mexico City, the 2016 American Society of International Law Annual Research Forum at the University of Washington, and the ASIL International Economic Law Interest Group’s Biennial Conference at Georgetown Law School. Thanks also to David Lurie and Jaya Bajaj for excellent research assistance.

1 John Stuart Mill on the Protection of Infant Industries 16 (Cobden Club Publ’ns 1911).