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Such cases illustrate that the modern idea of treaty developed within but also beyond the parameters of international legal history. In global practice, and from a non-Western perspective, treaties of particular historical periods could be seen as instruments for the aggressive promotion of commercial and imperial interests. In this sense, their primary aim was less the creation of legally binding commitments and more the economic and political infiltration of territories whose population status was legally defined through the treaty in ways that made this possible. As unequal devices and cover-ups through which Western global hierarchy was legitimated and reinforced, such historical treaties provide an antinomy to their conventional legal purpose as currently understood. Yet there are specific conceptual and practical limitations that need to—and perhaps cannot—be overcome in transforming a treaty into a politically neutral instrument. For example, as the Vienna Convention on the Law of Treaties (Article 2.1a) and treaty specialists outline, the designation of an agreement as a "treaty" does not in itself render it into a treaty, if written in contrary spirit and terminology. Similarly, the designation of an agreement by a nontreaty name (including memorandum of understanding) does not mean that it is automatically not a treaty, if parties textually display intention to be bound, yet decide not to go through the usual legal motions. In short, almost anything is technically possible given that the status of international agreements, in the final analysis, always depends on the definition whims of sovereign agents. That is why legal attempts to progressively develop the concept of treaty by extending it to all kinds of agreements that create binding obligations, and thus challenging the devious uses of "soft law," may be important but can only go so far. Soft law is an expedient diplomatic practice that is likely to continue, exploiting the space between the "hard" obligations of treaty making and the dubious legality of nontreaty commitments, "creatively" mixing the two when politically necessary, establishing concomitant duties of varying degrees. This is not to belittle the usefulness and importance of treaties in creating contractual obligations that can be recognized if parties to a treaty agree (a current prerequisite under international law) to take disputes over validity and interpretation before an international tribunal or the International Court of Justice. It should be remembered, however, that treaties, like the one done in Waitangi, have also been an instrument to obliterate an international legal personality and deny an international locus standi, by creating internal rather than external treaty obligations, which can always be bypassed by new domestic law. From this perspective, as a means of both constituting and erasing international legal subjectivity, treaties have been essential in reproducing state sovereignty, through which humans invariably benefit or suffer.


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Costas M. Constantinou

Additional topics

Science EncyclopediaScience & Philosophy: Toxicology - Toxicology In Practice to TwinsTreaty - Linguistic Issues, Contexts, Covenants Old And New, The Treaty Of Waitangi, 1840, Jurisprudence