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Theoretical background

Challenges and Perspectives

Vassilis Pergantis

Chapter 1 presents the theoretical premises upon which the book is based. It invokes and exploits critical theory by focusing on the binary constructions permeating the law of treaties discourse, such as the tension between individualism and collective interest, the juxtapositions between esoteric and manifested intent and the oscillation between the negotium and the instrumentum. The delineation of the theoretical framework and the discursive techniques employed allows the showcasing of both the binary and transformational characters of those tensions, as well as how they shape the discussion on challenges to the treaty concept and the paradigm of state consent in the cases discussed further down in the book. Keywords: individualism; communitarianism; formalism; negotium; instrumentum; State consent; critical approach

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Reconstructing the treaty concept

Challenges and Perspectives

Vassilis Pergantis

Chapter 2 explores the emergence of the ‘traditional’ concept of treaty and its rules through a series of different prisms. First, the author embarks upon an analytical discussion of treaty classification and highlights how the traditional treaty concept is recast as contractual and formalistic. Second, the above manipulation of the treaty identity is confirmed while presenting the role of treaties within the sources doctrine. Finally, the chapter tries to challenge some of the established ideas concerning the treaty concept, with a focus on the functioning of reciprocity and the idea of formalism, and suggests the adoption of a more flexible approach with regard to the treaty concept and the rules on the law of treaties. Keywords: classification of treaties; reciprocity; formalism; legislative treaties; contractualism; traités-lois versus traités-contrats

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Vassilis Pergantis

Chapter 3 focuses on the gradual ‘flexibilization’ of the expression of consent to be bound procedures in the framework of the law of treaties. Starting from an analysis of the codification work on Article 11 VCLT, the author then examines the innovative techniques for treaty-making employed especially in multilateral environmental agreements, and critically revisits the various theories proposed in order to accommodate this flexibilization within the paradigm of State consent, such as the theory of remote or tacit consent. The author concludes that international treaty law constantly oscillates between informal and formal solutions in an effort to establish an adaptable yet legally certain juridical regime. Keywords: consent to be bound; remote consent; opt-out clauses; tacit consent; COPs/MOPs

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State consent in treaty withdrawal cases

Challenges and Perspectives

Vassilis Pergantis

Chapter 4 deals with the right to withdraw from treaties and focuses on the various techniques employed in order to circumscribe this right. It first examines the preparatory work on Articles 54 and 56 of the VCLT and highlights the oscillation between allowing and restricting the right to withdraw. It then revisits the challenges to this right in two particular fields, namely disarmament and human rights treaties. The author analyses the jurisprudential practice and the discursive patterns and showcases how treaty bodies antagonize State consent and attempt to marginalize the role of State parties with regard to the evolution of treaty regimes. Keywords: withdrawal clauses; non-denunciation of human rights treaties; non-proliferation agreements; Article 56 VCLT; Ivcher Bronstein case

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Succession to public order treaties

Challenges and Perspectives

Vassilis Pergantis

Chapter 5 examines the challenges to the paradigm of State consent in the framework of State succession to treaties. It analyzes the theoretical contours of the problem of State succession and recounts the basic points of the VCSST, and especially the rules that elaborate aspects of the continuity principle in treaty relations. Then, it elaborates on the doctrine of automatic succession to human rights treaties by reference to scholarly views, treaty body and State practice and the relevant case law. In this framework, it analyses the theory of vested rights and critically assesses the arguments employed by treaty bodies for sidelining State consent in this field. Keywords: notification of succession; automatic succession to human rights treaties; theory of vested or acquired rights; Vienna Convention on Succession of States in Respect to Treaties; clean slate rule

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Vassilis Pergantis

Chapter 6 combines the challenges analysed in the three previous case studies, namely the issues of formalism and communitarianism, through the presentation of the most controversial aspect of the law of treaties, namely the law of reservations. It focuses on the constant oscillation between permissibility and opposability and highlights the tension between the formalism of the validity paradigm and the informality of the reservations dialogue. The author offers a first account of some aspects of the ILC Guide to Reservations and critically assesses the doctrine of severability of impermissible reservations. Keywords: reservations to human rights treaties; severability doctrine; reservations dialogue; opposability and permissibility schools of thought; universality; integrity

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Conclusion

Challenges and Perspectives

Vassilis Pergantis

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Selective bibliography

Challenges and Perspectives

Vassilis Pergantis

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Vassilis Pergantis

The paradigm of state consent in the law of treaties is increasingly under attack. Which narratives on the treaty concept legitimize or delegitimize the challenges to the consensualist paradigm? Which areas of the law of treaties are more concerned by these attacks? What are the ensuing risks? From consent to be bound to treaty succession, and from treaty denunciation to reservations, this book offers a tour de force on the paradigm of state consent, its challenges, and their politics.