The International Legal Obligations of Signatories to an Unratified Treaty

There are currently two major international agreements of the United States which have been signed by the parties and transmitted by the President to the Senate for its advice and consent: the Treaty with the Soviet Union on the Limitation of Strategic Offensive Arms, known as SALT II, and the Agreement with Canada on East Coast Fishery Resources and the accompanying Treaty to Submit to Binding Dispute Settlement the Delimitation of the Maritime Boundary in the Gulf of Maine Area. Both agreements were signed after lengthy and complex negotiations. Both agreements are extremely detailed and represent a delicate balancing of the interests of the nations involved. Already there have been considerable delays in the ratification of both agreements. Perhaps neither agreement will be ratified. The President, however, continues to insist that ratification of both agreements is in the national interest, and eventual favorable action on them is still possible. Most contemporary treaties provide that they will enter into force only upon ratification by the states that are to become parties to the agreement. There is growing agreement that general international law imposes on the signatories to an unratified treaty the obligation not to defeat the object and purpose of that treaty prior to its entry into force. Once viewed as a moral admonition this obligation has come increasingly to be regarded as legal in nature. The desirability of such a principle is of course evident. The long and complicated process of negotiation during which each state may have made numerous concessions should be protected, especially where a signed agreement is the result. Furthermore, during negotiations the states may have refrained from taking certain actions—heavy fishing of certain stocks or the development of new weapons systems for example—because negotiations were pending. This self-restraint in expectation of a binding agreement should be encouraged. It is the thesis of this Article that general international law imposes on the signatories to a treaty the obligation not to defeat the object and purpose of that treaty prior to its entry into force. Decisional law, state practice, and the Vienna Convention on the Law of Treaties all support this proposition. The obligation has a firm theoretical basis in the general principle of abuse of rights. Finally, after examining the existence and nature of the obligation, the Article concludes with a discussion of the content of the obligation and attempts to discern its contours and extent.