Rethinking Human Rights Treaty Withdrawals: A Process-Based Approach

Authors

Laurence R. Helfer, Duke Law SchoolFollow
Başak Çalı

Document Type

Article

Publication Date

2025

Abstract

This article presents the case for reconsidering the rules governing withdrawals from human rights treaties that permit unilateral exit. Once a rarity, such withdrawals have been on the rise across the globe. We propose a process-based approach to address this trend. The heart of our proposal focuses on sequenced domestic and international processes to publicise and scrutinise the nearly unfettered authority of executive branch officials to exit from such human rights treaties. This approach requires that national executives explain and justify a decision to withdraw, which can then be evaluated by a wide range of domestic and international actors. Drawing upon numerous real-world examples from international law, foreign relations law and comparative constitutional law, we explain how national legislatures, domestic and international courts, state parties, and treaty depositories can implement the process-based approach. Opening the black box of unfettered executive power in pursuit of reason-giving and dialogue is not only timely for human rights treaties but also has the potential to radiate across international law more generally.

Comments

Non-consecutively paginated versions of all articles published in MJIL are open access per publisher's policy.

Citation

Laurence R. Helfer & Başak Çalı, Rethinking Human Rights Treaty Withdrawals: A Process-Based Approach, 26 Melbourne Journal of International Law (2025)