The Nuclear Option: Domestic Treaty Withdrawal Mechanisms

By Lucas Kowalczyk

Treaties are the main contractual instrument of cooperation between countries. A state can legally denounce a treaty in international law by adhering to the treaty’s withdrawal clause or to the default provisions outlined in the Vienna Convention on the Law of Treaties. Separate yet parallel withdrawal procedures exist in domestic legal systems. In a multi-year research dataset, 72% of the countries examined had enacted domestic withdrawal procedures which were more lenient than the international procedures; they lacked any notice period and required only the signature of the executive, allowing for swift withdrawal from treaties under domestic law.

Domestic withdrawal mechanisms facilitate swift withdrawal when a country is in a state of emergency and unable to continue fulfilling its treaty obligations, but is simultaneously unable to fulfill the notice period imposed by international law. These mechanisms ameliorate only domestic consequences, not international repercussions. The force of a treaty frequently stems from domestic courts, therefore, adherence to domestic, not international, law is of utmost priority. When a treaty is terminated through domestic withdrawal procedures, its force in national courts, and any legal remedy it provides, is also terminated.

Although legal under domestic law, unilateral withdrawal without notice is in violation of international law and would create enormous political costs. It is therefore dubbed the “nuclear option.” As with a nuclear strike, the domestic withdrawal mechanisms may never be invoked. Their existence, however, provides a security which likely contributes to countries’ decision to engage with the international system.

Despite the widespread repercussions that might result from such internationally sanctioned withdrawal, the domestic mechanisms remain unexamined and unacknowledged by the scholarly community. The international system requires further study in light of the current theories of compliance with the reality that states continue to retain the nuclear option. This Note attempts to explain the continued existence of domestic withdrawal mechanisms despite the presence of flexibility-enhancing mechanisms in international treaty-making.

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