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History in Reverse Gear? Treaty Withdrawal and the Loss of Normative Achievements

Political Theory
Regression
Normative Theory
Markus Patberg
Universität Hamburg
Markus Patberg
Universität Hamburg

Abstract

This paper argues that in order to fully assess the legitimacy of treaty withdrawals, we need to consider to what extent they cause institutional regression. As such, it challenges the standard view of sovereign voluntarism, according to which the legitimacy of both entry to and exit from multilateral orders simply depends on the “will” of the respective states. Recently, sovereign voluntarism has been challenged by legal scholars arguing that international law today encompasses areas of “mandatory multilateralism” (Criddle/Fox-Decent) as well as political theorists claiming duties of states to enter international institutions that pursue “morally mandatory aims” (Christiano, Scherz). I argue that these approaches attack sovereign voluntarism from the wrong side, unduly limiting states’ freedom – and ultimately their citizens’ constituent power – to decide on the purposes and forms of international cooperation. The main problem of sovereign voluntarism, I argue, is that it ignores the (potential) consequences of states’ use of their freedom, i.e. the implications of accession. Once states have established multilateral orders that can be considered normative achievements, the possibility of institutional regression arises – with implications for the legitimacy of exit decisions.