Treaty Abuse—Why Criticism of the Doctrine is Unfounded

Abstract

Although treaty abuse is an increasingly occurring element in international legal arguments, especially in the sphere of international economic law, the concept is still viewed by many lawyers as suspicious, for several reasons. First, lawyers have doubts about the legal status of the treaty abuse doctrine. Second, as many lawyers would seem to believe, the concept of treaty abuse is imprecise-it is the expression of some loose or unsettled idea about the function of international law that cannot be explained in a clear and coherent manner. Third, lawyers fear that by accepting the validity of a treaty abuse argument, a court or tribunal will import elements into a treaty that were not there originally, and by so doing, will encroach upon the sovereign right of the parties to define between themselves the precise terms of application of their treaty. (Less)