The validity of treaties concluded under coercion of the state : sketching a TWAIL critique

The invalidity of treaties based on non-military coercion remains one of the biggest unresolved problems within the law of treaties. It paradoxically combines great certainty and clarity on the side of soft law with uncertainty and indeterminacy on the side of hard law. Unfortunately, the codification undertaken at the Vienna Convention on the Law of Treaties (VCLT) not only did not solve the hard law uncertainties, but also enlarged the cleavage between the perspectives of weak and strong States regarding international relations. By combining legal positivism with Third World Approaches to International Law (TWAIL), this paper suggests that (i) the way Article 52 of the VCLT was drafted had the effect of undermining the concept of consent and paving the way for the entrenchment of power politics, and (ii) that there is some elbow room for trying to consolidate a wider interpretation of the Article. Such an interpretation would allow us to condemn economic and political pressures that amount to true coercion as illegal strategies in treaty negotiations, safeguarding weaker States