Book Reviews Kontou, Nancy. The Termination and Revision of Treaties in the Light of New Customary International Law. New York: Oxford University Press, 1994. Pp. xvii, 166. Index. $55. The problem addressed by this book is the situation created by the coming into effect of a rule of customary law that runs contrary to an existing treaty provision. It takes a rather strong position in favour of the idea that a state bound by a treaty which is contra to newer custom has the right to insist on its cancellation or renegotiation. This seems to follow from a rather straightforward, binary view of custom, namely that there either is or is not a new custom. Americans are inclined to be sceptical of assertions about custom, noting that they can be highly partisan, self-seeking and disingenuous. In a world without judicial institutions possessing broad jurisdiction, definitive resolution of questions about custom is rare. One fears that an assertion of a new custom may be one more in a set of reasons for avoiding a nation's treaty obligations. In fact, the supersession of treaties by custom is not a common event since in the context of modern international law the advent of new treaty rules codifying, modifying or cancelling prior customary law is by far the more usual. A large fraction of the examples considered in this book come from a single event - the supersession of various agreements by newer customary international law of the sea. The special quality of this new custom lies in the fact that it is primarily the product of widespread agreement among states upon the provisions of the Law of the Sea Treaty signed in 1982, together with its failure to achieve enough ratifications to cause it to come into effect before 1994. It is a somewhat uneasy state of affairs when a treaty that has failed qua treaty has such a major effect, coming through the back door as custom. For one thing, this shift from treaty to customary law alters the internal balance of power among branches of the government in the United States and perhaps in other countries as well. A treaty under the US Constitution requires the agreement of two thirds of the Senate, and even a presidential/executive agreement needs a vote of both houses of Congress. Yet a President can alone determine that a new customary rule has formed and that the United States should adhere to it. This is what happened in 1993 when President Reagan proclaimed a 200 miles exclusive economic zone. The judiciary also has some power to declare customary law as part of the law of the land. As between states, the existence of this new custom has been hotly controverted. The United States has with considerable success taken the position that the parts of the Law of the Sea Treaty that it likes have become custom, whereas the parts that it does not like, chiefly those relating to the Deep Sea Bed Mining Authority, have not. It has thus been able to avoid directly confronting the question whether it should accept the whole package. That has also weakened the position of states that thought they could insist on the deep sea bed provisions because states with other priorities would accept it in order to get the clauses they wanted. Dr. Kontou writes clearly and rather elegantly. There is so much bad prose assaulting the reader of international law publications that it is a pleasure to read straightforward declarative sentences without entangling clauses. In the best tradition of British international law it is lucid and understandable - and mercifully condensed. It also has some of the limitations of the British tradition. The view it takes of custom is rather old-fashioned. One finds no reference to the works of such authors as David Kennedy and Martii Koskenniemi who have tested the rhetoric of customary law and found it inadequate to explain why and when a customary rule is binding. An infusion of that scepticism would have made the book more realistic, though probably less readable. Detlev F. Vagts Harvard Law School
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