The Treaty in International Law: Icon, Text, and Progeny

Abstract

The treaty occupies a very special place in international legal practice, as well as in the consciousness and imagination of international lawyers. Existing international legal practice and scholarship about the treaty reveal a very strong dualistic theoretical thinking, the sophistication of which ought not to be underestimated. It is the aim of the first part of this chapter to sketch out these dualistic modes of thinking about the treaty. This paper does not take issue with the current dualistic modes of thinking about the treaty, but rather seeks to supplement them with new theoretical perspectives with a view to shedding light on three overlooked uses of the idea of the treaty in contemporary legal thought and practice. In particular, the second part of this paper shows the extent to which the idea of the treaty allows the creation of conceptual anachronisms in the making of historical narratives about international law, the simplification of the process of interpretation, and the construction of a magic descendance that shields those invoking the treaty from any responsibility for anything that is done in the name of the treaty. These three specific uses of the idea of the treaty in contemporary thought and practice are captured by virtue of a three-tiered heuristic that presents the treaty respectively as an icon, a text, and a progeny. This paper closes with a few concluding remarks on the alternative theorization suggested here.

Keywords: International Law, Sources of International Law, Treaty, Interpretation, History of International Law, Hermeneutics, Dualistic Thinking, Lauterpacht, International Court of Justice