OUVRAGE : A. Morelli, Withdrawal from Multilateral Treaties

Antonio MORELLI

The book Withdrawal from Multilateral Treaties by Antonio Morelli fills an important existing vacuum. As the author states, “international scholars and policy makers have long addressed treaty making and treaty maintenance in light of the binary choice between compliance and breach, while leaving un-regulated or at least under-regulated the act of pulling out”.

 

This choice acquires a special significance in a political environment where the criticism of a rule-based approach to international relations has gained traction, promoted by phenomena such as chauvinism and populism. In such a context, often fueled by concepts that prioritize the exercise of raw power, treaty breach, rather than being a singular exceptional act, threatens to be-come a way to reject international law as a whole or, at a minimum, to reduce radically its significance.

 

Morelli’s book, through a well-researched and rigorous analysis, focuses on withdrawal, seeking to enrich the toolkit of available possibilities for policy makers. Withdrawal, as a valid legal option, includes all the advantages of le-gal, orderly action. This option contributes on the one hand to broaden the political space for states that are not simply constrained to the stark need to react against violations of international law and, on the other hand, creates in-centives for states to choose withdrawal in accordance with international law rather than simply resort to the breach of their legal obligations. Withdrawal is, needless to say, neither a breach nor a breach with a different name, but an orderly path that allows for reflection, assessment of alternatives, and in some circumstances adaptations and negotiations.

Claudio Grossman (extract of foreword)

TABLE OF CONTENTS

Foreword, Claudio Grossman
Preface
Acknowledgments
Abbreviations
Table of Documents
Table of Cases
List of Figures

1. THE LEGAL FRAMEWORK OF WITHDRAWAL
FROM MULTILATERAL TREATIES

Introduction
 

I. Understanding Withdrawal

A. Definition of Withdrawal
B. The Progressive Codification of Withdrawal
C. Withdrawal as an Expression of States’ Voluntarism

II. Withdrawal in International and Domestic Law

A. Withdrawal in General International Law
B. Withdrawal in the Vienna Convention on the Law of Treaties
C. Withdrawal in Domestic Law
D. The Limits of Legal Formalism and the Way Forward

2. CONCEPTUALIZING WITHDRAWAL 

 Introduction

 
I. Analyzing Withdrawal through the Lens of Commitment and Compliance in International Treaties

A. Shifting Balances from Compliance to Commitment in Times of Withdrawal
B. Withdrawal and Commitment: Two Sides of the Same Coin
C. Differences between Withdrawal and Breach

II. Analyzing Withdrawal through the Lens of Risk Management

A. Risk Management in International Treaties
B. Risk in Treaty Making and Treaty Maintenance

III. Analyzing Withdrawal through the Lens of the Principle Pacta Sunt Servanda

A. From Cooperative to Noncooperative Outcomes
B. Lawfulness and Cooperativeness of Withdrawal

3. THE EVOLUTION OF WITHDRAWAL

Introduction 

I. From Unity to Disengagement in the International Legal Order

A. The Concept of Unity
B. International Legal Theory and the Treaty-Making Process

II. Quantitative Study on Withdrawal

A. Defining the Population of Interest and the Goals
B. Empirical Results

4. CATEGORIES OF WITHDRAWAL

Introduction 

I. International Tribunals and Committees

A. The International Court of Justice
B. The International Criminal Court
C. The UN Human Rights Committee

II. International Organizations

A. United Nations
B. UN Agencies
C. International Financial Institutions
D. Brexit and Regional Organizations

III. High-Profile International Commitments

A. Agreements Derogating from Norms of Jus Cogens
B. Arms Control Agreements
C. Climate Change Agreements

IV. Withdrawing from the Agreement, Remaining in the Regime
 

 V. Signatory Withdrawal

5. RATIONALES FOR WITHDRAWAL

Introduction 

I. Withdrawal as a Reaction in Domestic Politics

A. Economic Costs
B. Expansion of Jurisdiction (“Mission Creep”)
C. Perception of Bias or Unfairness

II. Withdrawal as an Act of State Power

A. Shift in Domestic Political Leadership
B. Leverage for Amending a Treaty
C. Defense Strategy
D. Alternative Consensus

6. REGULATING AND ENHANCING ORDERLY WITHDRAWAL
FROM MULTILATERAL TREATIES

Introduction 

I. International Solutions

A. Securing Commitment through Withdrawal Procedure
B. Enhancing Commitment through International Regimes

II. Domestic Solutions

A. Regulating Domestic Treaty-Making Power
B. Socializing Commitment through a Multi-Stakeholders’ Approach

Conclusion
Appendix: Table of Withdrawals
Bibliography
Index

Antonio MORELLI, Withdrawal from Multilateral Treaties, Leiden, Brill/Nijhoff, 2021 (296 pp.)