Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions

Abstract

In E.M. Forster's remarkable novel, A Passage to India, there is, if my memory serves me, a brief but memorable scene. A businessman presents his card, which states his name and then his degree as "B.A. Oxford (Failed)." Like the businessman in Forster's wonderful cameo, there is a fascinating tendency in modern international law to cite, as authoritative and even "binding," acts that have not been legally completed, despite the fact that the formalities of completion are explicit requisites for their legality. I am not speaking of the wide variety of essentially non-authoritative material that counsel and idealistic law students increasingly rummage through and then assemble as proof that, thanks to the sheer quantity they amass, a customary rule of law has formed. I am speaking instead of the-to me equally curious-practice of international actors relying on acts that have manifestly and intentionally not been made legal and binding according to the procedures that have been prescribed for this purpose, as if they were, nonetheless, legal and binding. In short, I am speaking of the intentional use of, and the ascription of legal value to, a class of unperfected legal acts by international tribunals and the international constitutional implications of this practice.