The inadequacy of the contractual analogy in the Law of Treaties.
University of Cambridge
Department of Pharmacology
Doctor of Philosophy (PhD)
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Raftopoulos, E. (1983). The inadequacy of the contractual analogy in the Law of Treaties. (Doctoral thesis). https://doi.org/10.17863/CAM.11502
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Conventional theories of Law and the policy-oriented theory about Law rest on the erroneous assumption that a legal concept can only be expressed in terms of an "observational language" of Law related to a "pure theory of meaning. The proposed relational approach to legal concepts demonstrates that the con-,. textual relevance of contract or t:peaty Laws is not a proof''-Of the inadequacy . of Law but of_ t;ie adopted theory of the language of Law. The employment .6f analogy, in the domain of scientific enquiry, and the resort to the method of codification are misleading to the extent they attempt to associate the "meaning" of a legal concept with inherent normative qualities in the form of perennial rules and principles. For their normative meaning contracts and treaties depend, in actuality, on a structure of interest protection based on the achievement of "Consensus fl. GROTIUS, WOLFF and VATTEL develop, in their writings, a consensus construction of treaty law and offer their insight into the pu - blic hature of treaty rights. Correspondingly, the various treaty patterns established between European Nations and Islamic Nations or African Rulers are "paradigms" of. an institutional order where consensus is reached at he level of competing community-traditions. The public law view of treaties continues .to dominate the 19th and the early 20th century~ Jurispudence and the writers of this period explain treaties as partaking of the nature of contract and Legislation. In ternational Adjudication projects a "public view" of treaty law and by no means restricts treaty rights to a purely contractual domain. The strictly contractual view of treaty law emerges when the community clai..m for more effective achievement of 11 consensus 11 is theoret\ cally perceived in terms of separation of law and context. The Harvard Draft Research, the work of the International Law Commission and the finally emerged Vienna Convention on the Law of Treaties are noto - . , __ rious in this regard, although they fail to eliminate the � � public law element .from their structure. Ort . the other hand, cont�mporary contractua~ patterns .point .to the connection between c~ntract �law and the protection of contextually relevant interests. While the "consent" view of contract rights is actually relative to the function of a particular Municipal Law structure, the various "subjective" uses .of contract relations demonstrate that contract rights are determined in relation to the protection and promotion of the interests of the parties as collective and individual entities . Cor~espondi ngl y , a "public law" view of treaty r ights is elabor ated vrith res - pect to treaty patterns regarding the Use of Nuclear Energy, Air Navigation, Maritime Co-operation and Extradition, ernpha -sizing the legislative implementation of treaty- purpose by achieving "consensus" .
This record's DOI: https://doi.org/10.17863/CAM.11502
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