Revisiting Human Rights Treaty Withdrawals: A Process-Based Approach

This Article presents the case for revising the rules governing withdrawals from human rights treaties that explicitly allow for denunciation. Once a rarity, withdrawals (and threats of withdrawal) from global and regional human rights treaties have been on the rise across the globe. Standard rules of international law address these withdrawals by giving unfettered powers to executive organs of the state, only limited by notification requirements. We argue that standard rules have important shortcomings and instead propose a process-based approach that require domestic and international judicial and political procedures to scrutinize the nearly unfettered exit authority of executive branch officials from human rights treaties. Drawing upon numerous real-world examples from international law, foreign relations law, and comparative constitutional law, we explain how a wide range of actors—national legislatures, domestic and international courts, state parties, and treaty depositories—are well-placed to implement the process-based approach. We then carefully consider four principled objections to our proposal, namely, lack of legal basis, impermissible blending of domestic and international procedures, bad legal policy and insufficient constraints on withdrawing states. We conclude by explaining why opening the black box of unfettered executive power in pursuit of reason giving and dialogue is timely for addressing withdrawals from human rights treaties but also for other treaty regimes whose substantive goals are not reducible to inter-state transactions.