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The Paradigm of State Consent in the Law of Treaties

Challenges and Perspectives

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.
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Conclusion

Challenges and Perspectives

Vassilis Pergantis

Extract





This study explored the paradigm of State consent in the law of treaties and its challenges thereto from a critical perspective. In the first part, we revisited the concept of treaty and highlighted how the narratives of renewal with regard to the consensualist paradigm presented a distorted image of the treaty concept. This analysis served as a basis for better understanding the challenges to the consensualist paradigm, as exemplified in the case studies contained in the second part of this book. These concern the ‘flexibilization’ of the processes of consent to be bound, the impact of collective interest on treaty withdrawal, the doctrine of automatic succession to public order treaties and, finally, the regime of reservations to collective interest treaties. Three constants can be discerned from the relevant analysis.

The first concerns the ambivalence of the notion of community interest. It is indeed clear that treaties protecting collective goods and community ideals have special traits that should be reflected in their workings. Nevertheless, a series of conceptual difficulties arise as we try to operationalize this paradigm shift.

First of all, the content of community values is not so evident. A new treaty paradigm founded on such values can only succeed if the latter are precise and commonly shared by the various actors in the international legal order. This is precisely the point of the communitarian narrative, since it presupposes a harmony of interests within the international community.1 But, as we have shown,...

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