In Claire Oakes Finkelstein & Michael Skerker (eds.), Sovereignty and the New Executive Authority. New York, NY, USA: pp. 283-307 (2019)

Matthew J. Lister
Deakin University
It is a common charge that treaties, perhaps especially recent treaties relating to economic activity, provide unreasonable restrictions on the sovereignty of the state parties. While this charge has been made most forcefully by smaller states, it is sometimes raised with justification by larger states or state-like bodies such as the E.U. as well. When a tribunal judging a dispute on an economic treaty tells a state that it may no longer make decisions such as to accept or reject genetically modified foods, allow internet gambling, or produce generic drugs for domestic consumption, the citizens of the state may rightfully think they have lost important aspects of sovereignty to bodies that do not have legitimate authority to govern. This, in turn, makes negotiating treaties, despite their obvious value, much harder than it otherwise would be, leading to decreased cooperation and the forgoing of potentially significant gain. In this paper, I argue that by importing certain ideas from contract theory to the interpretation of treaties, these worries may be significantly reduced. Contracts have the seemingly paradoxical ability to increase the autonomy of the signers by allowing them to bind themselves to perform certain future actions. But, the ability of contracts to perform this function would be greatly reduced if the only possible remedy for breach were specific performance. Yet, an analogous approach to treaties is common among many important theorists of international law, who demand the equivalence of specific performance in the case of treaties. I will show how importing ideas from contract law can help ensure that treaties, especially economic treaties, are sovereignty-enhancing for states in a way that is similar to the way that contracts may be autonomy-enhancing for individuals, and will show that importing these elements from contract law will strengthen, not undermine, the legitimacy and fairness of international law. (Please download the full paper from SSRN at the link on this page)
Keywords sovereignty  international law  international trade  philosophy of law  political philosophy  WTO  Contract law  Treaties  Treaty law  political legitimacy  international economic law
Categories (categorize this paper)
Buy the book Find it on
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy

Upload a copy of this paper     Check publisher's policy     Papers currently archived: 68,916
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

The Legitimating Role of Consent in International Law.Matthew Lister - 2011 - Chicago Journal of International Law 11 (2).
THE PROBLEM OF SOVEREIGNTY, INTERNATIONAL LAW, AND INTELLECTUAL CONSCIENCE.Richard Lara - 2014 - Journal of the Philosophy of International Law 5 (1):31-54.
Race, Marriage, and Sovereignty in the New World Order.Jane Dailey - 2009 - Theoretical Inquiries in Law 10 (2):511-533.


Added to PP index

Total views
24 ( #470,465 of 2,497,995 )

Recent downloads (6 months)
4 ( #171,501 of 2,497,995 )

How can I increase my downloads?


My notes