One does not simply walk into Mordor.  Likewise, one does not simply read a treaty and call it good.  In order to ascertain the full scope of an international agreement, you’ve got to dig deeper and look to the reservations a country makes when it signs on to a treaty.

At its core, a treaty is really just a contract, albeit a very special one.  No, really… that’s all it is—a contract.  [Google Foster v. Neilson, 27 U.S. 253 (1829), if you don’t believe me.]

But because it’s a very special sort of contract, its construction is governed by very special rules.

The Vienna Convention of the Law of Treaties (VCLT) was adopted in 1969 and entered into force eleven years later.  The United States signed on in 1970 (thanks, Nixon), but has yet to ratify (thanks, boneheaded Senate).  Technically, then, we haven’t given full assent to be bound by its conditions, but it is no less binding on our behavior, as it stands as a sort of restatement of the law.  Now, I still have nightmares about restatements from 1L Contracts class (my professor was out of his tree, so you can understand), but they really do set forth a solid picture of applicable law.

On the global stage, that’s critical, because customary practice informs international law almost as much as specific treaties.  Look at it this way: customary international law is analogous to the “usages” we learned in Contracts:  course of performance, course of dealings, and usage in trade.  That is, repeatedly acting a certain way over time binds a person to a certain construction of contractual language.  Where no specific language governs behavior, we still apply certain standards based on past practice.

The fact that we participate in (lead?) the community of nations can be equated to going along with a contract without actually signing the paperwork.  You can still be bound to the terms if you’ve acted & enjoyed the benefit of the bargain—and you can’t defend a breach by saying “nope, I never signed anything.”

Vienna waits for you.
Vienna waits for you.  Try the schnitzel.

In terms of treaty interpretation, this means the Vienna Convention applies universally because nobody really disputes its content.  We accept the agreement because, frankly, going against it is monumentally stupid.  It’s so succinct and so widely acknowledged by the global community that it governs without much argument.

A critical component of the VCLT is spelled out in Articles 19 through 21.  In short, when a country signs on to a treaty, it can lodge reservations to specific parts of that treaty.  If a proposed accord lists 15 obligations and we intend to only accept twelve of them, we reserve the other three.  When we do so, those three passages are ineffective as to our participation in the agreement.  [Alternatively, a reservation can also be called a declaration, which speaks either negatively or positively about specific articles.  We declare either opposition to or applicability of a particular clause.  In short, “nope—we don’t like XYZ” or “yeah, buddy, we’ll sign on to ABC!”]*

This is pertinent to lawyers in every U.S. jurisdiction, especially in light of the Hague Service and Evidence Conventions.  These two treaties harmonize disparate doctrines of law between signatory countries, and they smooth the way for some of the most critical procedures in litigation.

The Service Convention spells out in Article 10 several alternative methods of service, provided the destination state (the country where the defendant is found) doesn’t object.  Declarations are negative in this sense; in short, “nope—we don’t like these alternative methods.”

The Evidence Convention, conversely, includes a rather controversial article (Art. 23), which requires a positive declaration of applicability.  Essentially, this is a “no fishing” clause that allows countries to reject evidence requests merely because they look like pre-trial discovery maneuvers.  In short, “yeah, buddy, we’ll sign on to flashing a big middle finger to American litigators!”  (The shortcomings of the Evidence Convention are the subject of several more rants to come.)

Accordingly, a practitioner can’t just read one of these Conventions and draw conclusions from the text in isolation.  You have to read into the declarations to form a full understanding of the applicable law.


*Some treaties specifically prohibit reservations, so they’re an “all or nothing” prospect.  They’re not so much contracts of adhesion as they are unseverable.

Image #2:  My favorite Billy Joel album.  Primarily because of Brender and her ex-husband, Eddie (who’d had it already by the summer of ’75) but also because… Vienna.  Slow down, you crazy child