Widespread objections to the apparently unprecedented decision by the United States to "unsign" the treaty establishing the International Criminal Court reflect concerns particular to that treaty and to U.S. involvement in international affairs. But the controversy also illuminates a genuine problem in the formation of multilateral treaties. The interim obligation for signatories, often understood as a means for maintaining a vestigial role for signature, should also be considered as an incomplete answer to ex post and ex ante commitment problems observable in the treaty context and elsewhere - incomplete, in part, because signatories can effectively withdraw from their obligations without the delay imposed by withdrawal provisions on those states that have completed ratification. After examining the effect of various possible limits to unsigning, the paper proposes ways of reducing the exit gap between withdrawal mechanisms and unsigning that would diminish any strategic opportunities created by this emerging practice.
GW Paper Series
GWU Legal Studies Research Paper No. 2012-65; GWU Law School Public Law Research Paper No. 2012-65
Edward T. Swaine, Unsigning, 55 Stan. L. Rev. 2061 (2003).