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Contract, treaty, and sovereignty

chapter
posted on 2018-01-01, 00:00 authored by Matthew Lister
International economic law has long had a legitimacy problem. Especially since the 1970s, with the developments coming out of the Tokyo round of GATT trade negotiations, increasing questions about whether this body was intruding into the rightful sovereignty of states became common. This criticism has increased in frequency and intensity since the 1970s, growing along with the large number of bilateral investment treaties (BITS), NAFTA, and the start and development of the WTO, extending now to the proposed Trans- Pacific Partnership (TPP) agreement. In this chapter, I will argue that drawing on insights from contract law provides a means to address these legitimacy concerns. It is my contention in this chapter that drawing on insights from contract law, especially relating to remedies for breach, can help solve or reduce this tension. In particular, I will argue that states should be able to craft new remedies to violations
of treaty obligations, moving beyond the current rule, which is roughly equivalent to specific performance in contract law. Doing so will encourage more mutually beneficial interaction between societies without unduly limiting the policy space different societies rightfully claim.

History

Title of book

Sovereignty and the new executive authority

Series

Ethics, national security, and the rule of law

Chapter number

14

Pagination

283 - 308

Publisher

Oxford University Press

Place of publication

New York, N.Y.

ISBN-13

978-0190922542

ISBN-10

0190922540

Language

English

Publication classification

B Book chapter; B1 Book chapter

Copyright notice

2018, Oxford University Press

Extent

15

Editor/Contributor(s)

Claire Finkelstein, Michael Skerker