Buffalo Law Review

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In Copyright


When a state undertakes conflicting treaty obligations are both treaties binding, or is the second precluded by the first? International lawyers have traditionally held opposing views on this question. This article, the first on the topic, provides a comprehensive analysis and critique of the treaty conflict problem, and offers a political theoretic explanation for its persistent intractability. According to this explanation, opposing views of the power of states to incur international commitments reflect opposing views of the normative basis for state sovereignty and the scope of state autonomy. One view proceeds from an imperial model of sovereignty, articulated by Bodin and Hobbes, that conceives the state as a custodian of the welfare insterests of a population. The other proceeds from a republican model of sovereignty, articulated by Machiavelli and Rousseau, that conceives the state as a vehicle for the self-expression of a community. Finally, drawing on the political economy of Smith, Hegel, and Polanyi, the article argues that the republican model is more effective in mobilizing the support of a population, but creates externalities that prevent it from being universalized. In short, autonomous republican sovereignty is always an illusion, depending on imperial sovereignty elsewhere. As long as nation-states remain a feature of the international system, sovereign equality will remain a myth. International law will have to regulate relations among governments of different kinds, including some form of colonial dependency.