I suggested in s.4.1 that an agreement is binding on its parties if and only if it meets the following two conditions: (1) the procedural justice condition, whereby (1a) the agreement is not secured by fraud, deception, or unjustified coercion, and

(1b) parties who negotiate the agreement are properly empowered to do so; (2) the substantive justice condition, whereby the agreement’s clauses (2a) are just vis-a-vis its parties and (2b) do not prevent the latter from meeting their overriding obligations of justice to outsiders. In this section, my focus is on the procedural justice condition.[1] An agreement which fails to meet the procedural condition so understood can be deemed invalid, in the sense that it fails to confer new rights and impose new obligations on its signatories, and that the latter therefore are not bound to one another to comply with it. As we shall now see, in accounting for that condition, we must attend to two separate issues, namely the issue of which actors have the authority to negotiate and ratify the agreement, and the issue of which conditions the negotiation process must meet in order for the resulting agreement to be binding.

  • [1] A full normative account of treaty-making should also attend to the conditions under which asignatory to a treaty which suffers neither from a vice in procedure nor from a vice in its terms canbecome exempt from its obligations. Material incapacity is one such condition, but see, more generally, articles 61 and 62 of the 1969 Vienna Convention. Those difficulties, though real and interesting,are somewhat tangential to my aim in this chapter.
< Prev   CONTENTS   Source   Next >