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

Forthcoming, D. Hollis (ed.), The Oxford Guide to Treaties (2nd ed., Oxford University Press, 2020)

21 Pages Posted: 21 Mar 2019

See all articles by Jean d'Aspremont

Jean d'Aspremont

Sciences Po Law School; University of Manchester - School of Law

Date Written: March 16, 2019

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

Suggested Citation

d'Aspremont, Jean, The Treaty in International Law: Icon, Text, and Progeny (March 16, 2019). Forthcoming, D. Hollis (ed.), The Oxford Guide to Treaties (2nd ed., Oxford University Press, 2020) . Available at SSRN: https://ssrn.com/abstract=3353810 or http://dx.doi.org/10.2139/ssrn.3353810

Jean D'Aspremont (Contact Author)

Sciences Po Law School ( email )

13 rue de l'université
Paris, 75007
France

HOME PAGE: http://www.sciencespo.fr/ecole-de-droit/en/profile/daspremont-jean

University of Manchester - School of Law ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom

HOME PAGE: http://www.manchester.ac.uk/research/Jean.daspremont/

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