The spatial dimension: treaties and territory

This chapter will explore the spatial dimension of treaties – their operation in, and with regard to, territory. Because Statehood continues to be the primary ordering principle in the global arena, because States conclude treaties to regulate their own behaviour, as well as (less often) the behaviour of certain non-State actors, and because States themselves are defined in territorial terms, as entities effectively governing territory and laying claim to it, examining the territorial scope of application of treaties is an obvious line of inquiry. Yet that inquiry either quickly exhausts itself or runs into conceptual hurdles that are difficult to overcome. As we will see, from the broad generalization that States, as the primary treaty makers and subjects thereof, are defined by the sovereign title they hold over territory comes very little by way of general rules regarding the territorial application of treaties. Indeed, one could almost say that no such rules exist. The 1969 Vienna Convention on the Law of Treaties (VCLT) gives us one paltry provision in its Article 29, widely accepted as customary precisely because it says so little: ‘[u]nless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.’ While this chapter will deal with Article 29 in detail, it is not meant to be a commentary thereof – such works already exist and there is no need to duplicate them.