By Mike Dorf
In my latest Verdict column, I take seriously Newt Gingrich's idea that the U.S. ought to establish a lunar colony by the end of 2020. I reach the following conclusions: 1) It's probably not technologically feasible on that timetable and almost certainly not without the sort of massive investment that Gingrich's fiscal druthers preclude; 2) It's illegal under the Outer Space Treaty (to which the U.S. is a party); 3) Withdrawal from the treaty would be a bad idea; 4) Work towards a multi-national lunar colony is worth considering as a means of preserving the human species; and 5) Considering the cost of such work, we might do better, in the short run, to take other measures to ensure the survival of our species.
Here I want to examine point 3) in a somewhat broader perspective. The question I want to pose is how treaties can be binding as a practical matter given the possibility of withdrawal. Under Article 56 of the Vienna Convention on the Law of Treaties, a party to a treaty may withdraw from that treaty by following the procedures, if any, set forth in that treaty for withdrawal or, if the treaty is silent on withdrawal, then only if that silence can be fairly construed to give the parties a right to withdraw. Before coming to my main point, I'll note a few oddities:
1) The Vienna Convention on Treaties itself does not specify whether parties can withdraw from it, so applying the presumption that the Vienna Convention on Treaties itself establishes, the Convention is permanent. This raises a question about whether sovereigns can permanently bind themselves that is similar to theoretical questions sometimes raised about the purported entrenchment of constitutional provisions.
2) The U.S. signed the Vienna Convention on Treaties in 1970 but never ratified it; however, the U.S. more or less accepts it as binding as Customary International Law (CIL). Except that maybe the actions of the U.S. belie that inference. Under the (second) Bush Administration, the U.S. withdrew from the Optional Protocol to the Vienna Convention on Consular Relations, even though that treaty has no withdrawal provision, meaning that the U.S. shouldn't have been allowed to withdraw under the Vienna Convention on Treaties. So either the U.S. breached its duty under CIL by withdrawing from the Vienna Convention on Consular Relations or was acting in such a way that indicated it took the position that it had no such duty.
3) These deep puzzles are mostly irrelevant in my example because Article XVI of the Outer Space Treaty does expressly specify that a state party can withdraw by giving notice a year before such withdrawal. One doesn't need the Vienna Convention on Treaties to see that under the plain language of the Outer Space Treaty, that makes withdrawal a ready option.
So this leads to a different puzzle, which I think I can illustrate by reference to a hypothetical private law case. Suppose that in October 2011, X and Y sign a contract in which X agrees to deliver 100 lbs of Grade A maple syrup to Y on March 31, 2012 at a price of $10/lb, which Y promises to pay. Now suppose that because of an unusually mild winter, the market wholesale price of maple syrup skyrockets to $20/lb. X tells Y that X doesn't want to deliver the maple syrup at the agreed-upon price but will deliver at $20/lb. Every first-year contracts student knows that unless there is some special term in the contract addressing this contingency (and let's assume there isn't), X is proposing to breach the contract, for which X will be liable to Y for $1,000: the difference between what it will cost Y to purchase 100 lbs of syrup on the market ($2,000) and what Y would have paid under the contract ($1,000). X cannot say to Y: "You know what, forget it, I'm withdrawing from the contract." Withdrawal here is breach. As Jerry said to Kramer, "the bet is the levels."
Now we can understand why parties to a private contract might put in terms specifying the possibility of withdrawal when certain circumstances change. We can also understand how parties might specify that either side can withdraw at any time, if, say, the contract is one for employment at will. The idea of such a contract is that it specifies salary and other terms that the employer owes to the employee so long as the employee doesn't quit and the employer doesn't fire the employee. Such a contract is "real" in the following sense: If employer fires employee on a Friday at the end of a 2-week pay period, the employer is on the hook for the salary for that most recent pay period. Again, this is all basic first-year contracts stuff that most people intuitively understand without going to law school.
But now suppose that A and B make a contract under which A and B each undertake not to do something but that the contract specifies that either party can do that very thing by simply withdrawing from the contract. This looks like a pointless contract (assuming withdrawal does not trigger any adverse consequences). And one might think that this is an apt description of the Outer Space Treaty.
Maybe not, you say. Maybe the one-year lead time is worth a good deal. If the U.S. announces that it intends to claim sovereignty over the moon (in violation of the Outer Space Treaty) on January 1, 2020, then it cannot legally do so until January 1, 2021, by which time other parties can withdraw and make their preparations. The problem here, however, is that it will probably take those other parties a lot longer than a year to gear up their competing lunar colonization efforts. So the one-year lead time does little to eat into whatever advantage the withdrawing party has had by planning all along to withdraw.
I want to be clear about the point I am making: I am not saying, as some observers sometimes say, that international law is not real law because its enforcement mechanisms depend on the voluntary cooperation of nation-states. I am fully prepared to say that obligations that are enforced through mutual reciprocity and inter-sovereign relations are real obligations. The question I am raising here is whether a treaty that specifically permits withdrawal without penalty but no exchange of benefits beforehand is a real agreement.
And the answer I want to give is still "yes." We can think of the moon colonization problem as a collective action problem akin to a prisoners' dilemma. For any nation-state capable of colonizing the moon, the best result is if no other nation-state claims sovereignty to the moon and it does. But the best net outcome for all parties in the aggregate is if no nation-state claims sovereignty. Classic game theory says that the parties need some way to coordinate to enforce their agreement that none of them will claim sovereignty to the moon.
In the first-order version of the prisoners' dilemma, we regard a failure to coordinate as a tragedy and say that coordination requires some external enforcement mechanism. In private examples, that external mechanism is the state, and because there is no state external to the sovereign nation-states of international relations, it looks like international law cannot punish defectors.
Except of course that it can, because the prisoners' dilemma is only a dilemma in the unusual scenario of a one-time interaction between strangers. When it's structured as an iterative game among repeat players, then measured responses can work even if they don't involve external sanctions (E.g., tit for tat, etc). I suspect that this is a useful way to understand international law as "real" law in the same way that social norms among long-term communities may profitably be understood as real law.
It just goes to show you: Newt Gingrich really is a great source of ideas!