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This chapter argues that Professor Schreuer's interpretation of Article 72 is incorrect. The contract analogy, which is unobjectionable as an aid to explaining the basic workings of the consent regime, ceases to be useful when it dictates conclusions that are inconsistent with the text of Article 72 and the context of the ICSID Convention. At that point, applying the contract analogy to Article 72 becomes an instance, in the context of legal discourse, of what J. S. Mill called the fallacy of false analogies. Recent studies have spent more time on the development of alternative theories than on pointing out the limits of the contract analogy. Studies must not only offer an alternative analysis based on those rules of treaty interpretation, but show why the opposing theories are inadequate. The chapter presents an analysis of this issue supplemented with brief observations on the limits of the contract analogy and on the inadequacy of other theories that, though by no means attributable to Professor Schreuer, may tempt those searching for an extra-textual justification for interpreting ‘consent’ in Article 72 as an ‘agreement to arbitrate’.

This chapter attempts to shed some light on the rule-exception scheme through the lens of the doctrine of fundamental change of circumstances in international law. In classical international law, the doctrine was considered either as non-existent, or under the guise of private law analogies or specially construed for the purposes of international law. The extent of the ‘exception’ to the ordinary law wrought by the clause was different in the context of these three versions: nought in the first case, related to specific treaties in the second, related to the entire legal order in the third. With the Vienna Convention on the Law of Treaties (VCLT) codification of 1969, the reach of the doctrine was reduced to an extremely narrowly tailored treaty-exception. Since then, the doctrine has rarely been invoked—even more rarely with success—in international litigation. The inroad of that exception has thus been progressively narrowed, if not extinguished.

This chapter examines the similarities and differences between the immunities of States and international organizations, as well as their interrelationship with diplomatic immunities. It also points out the pitfalls of analogies among the various immunities. The analogy between the immunities of States and international organizations might have proved promising when international organizations came into existence in the twentieth century, but it is now fraught with pitfalls. In an attempt to restrict the jurisdictional immunity of international organizations, it has been analogized to State immunity, but such an analogy is inapt even though the immunity of international organizations had roots in diplomatic and State immunities. Although the immunity of international organizations originated as “a general principle resting on the questionable analogy of diplomatic immunities; it has become a complex body of rules set forth in detail in conventions, agreements, statutes and regulations.”

Chapter 2 presents the core argument of the book. It first discusses how we may go about identifying the conceptual characteristics of international law’s authority. It argues that discussions on the authority of international law are largely modelled on discussions of the authority of domestic laws. It questions whether our concerns with the authority of law in a single state adequately carry over to the international realm. Chapter 2 then looks at how we can systematically think through the authority of international law as having the capacity to impose duties and confer powers on state officials. It illustrates the different types of duty that may be imposed on domestic authorities by international law. The chapter develops, first, the notion of the relational authority relationship and, second, the differentiated duties of obedience, respect, or rebuttal as a conceptual scheme that makes best sense of the authority of specific international laws.