Contractualism in the Law of Treaties

When Henry Sumner Maine famously observed that the movement of the progressive societies has hitherto been a movement from Status to Contract, he was invoking contract not as a device for binding parties to their commitments but, rather, as a metaphor for freedom. That metaphor lies at the heart of what legal scholars have come to call contractualism (or, sometimes, contractarianism)-the idea that people should be free to decide with whom, for what, and on which terms they enter agreements and that the law should minimize the constraints it places on these decisions. It is a proposition rooted in the values of liberty and efficiency-in the view that parties not only have a right to autonomy in structuring their relationships, but also are usually best situated to know what is good for them. And it has proved influential well beyond the law of contracts. Indeed, notwithstanding the highly anticipated, but ultimately unrealized, death of contract, contractualism has been urged on a growing variety of fields, including the law of corporations, bankruptcy, trusts, professional responsibility, family law, and environmental regulation. As Max Weber stressed, however, in no legal order is freedom of contract unlimited in the sense that the law would place its guaranty of coercion at the disposal of all and every agreement regardless of its terms. The existence of at least some mandatory rules-rules that may neither be varied nor waived by the parties to an agreement-has been justified by courts, legislatures, and legal scholars as necessary to address three problems inherent in the institution of contract: (1) the possibility that an agreement would have adverse effects on the protected rights of third parties, including those ostensibly represented by one of the parties to the agreement; (2) differences in capacity, knowledge, and power between contracting parties that undermine the voluntariness and fairness of their agreements; and (3) the need to protect the legitimacy and efficiency of the legal system when it is called on to enforce or invalidate an agreement between its subjects. What this Article examines is whether the freedom of contract of sovereign states is similarly constrained

Responding to Ethnic and Religious Conflict in the New Arab Order: The Promise and Limits of Rights

Intercommunal conflict has marred the political transitions unfolding in a number of states in the Middle East, raising questions about the status and protection of ethnic and religious minorities in the region\u27s evolving political order. In view of the transnationalc haracter and regional scale of the problem, this Article considers the efficacy of one potential regional response-the development of an Arab convention on minority rights. The Article begins by describing three types of minority problems that have been sources of conflict in the Middle East: (1) religious minorities and Islamist majoritarianism; (2) nationalist minorities and territorial disputes, and (3) politically dominant minorities and survivalist minoritarianism. The Article then sketches the international legal context, focusing in particular on the Council of Europe\u27s Framework Convention on National Minorities. Turning back to the Middle East, the Article concludes that while a treaty exercise of that kind is probably premature, an effort to begin building consensus about regional norms would be a valuable means of promoting discourse about the contours of local norms and their harmonization-both with one another and with evolving international human rights standards

Shadow or Shade: The Roles of International Law in Palestinian-Israeli Peace Talks

Pacta sunt servanda, the cardinal rule of international law, prohibits the breaking of agreements. But what role should international law play in the making of agreements? In How Nations Behave, Louis Henkin challenges lawyers to think beyond the substantive rules of law to the function of law, to the nature of its influence, the opportunities it offers, the limitations it imposes-as well as to understand the limits of its influence in a society of sovereign nations.\u27 2 In that spirit, international law scholars have redoubled efforts during the last decade to measure the influence of law on international politics, drawing on theoretical and methodological frameworks developed by political scientists. 3 Relatively little attention, however, has been directed to explaining how law functions in international peace negotiations, in part, perhaps, because it is difficult to find satisfying answers to this question within the framework of a single discipline. While contract and negotiation theorists have examined how parties make use of, and are constrained by, legal rules when engaged in private ordering, their analysis has tended not to address the peculiarities of the international setting-in particular, the relative indeterminacy of international legal norms and the relative unavailability ofrecourse to third-party adjudication and enforcement. Conversely, because studies by international law and international relations scholars have tended to focus on compliance with multilateral treaty regimes and adjudications by international tribunals, they overlook the unique roles that law plays in the context of international bargaining

The impact of surgical delay on resectability of colorectal cancer: An international prospective cohort study

AIM: The SARS-CoV-2 pandemic has provided a unique opportunity to explore the impact of surgical delays on cancer resectability. This study aimed to compare resectability for colorectal cancer patients undergoing delayed versus non-delayed surgery. METHODS: This was an international prospective cohort study of consecutive colorectal cancer patients with a decision for curative surgery (January-April 2020). Surgical delay was defined as an operation taking place more than 4 weeks after treatment decision, in a patient who did not receive neoadjuvant therapy. A subgroup analysis explored the effects of delay in elective patients only. The impact of longer delays was explored in a sensitivity analysis. The primary outcome was complete resection, defined as curative resection with an R0 margin. RESULTS: Overall, 5453 patients from 304 hospitals in 47 countries were included, of whom 6.6% (358/5453) did not receive their planned operation. Of the 4304 operated patients without neoadjuvant therapy, 40.5% (1744/4304) were delayed beyond 4 weeks. Delayed patients were more likely to be older, men, more comorbid, have higher body mass index and have rectal cancer and early stage disease. Delayed patients had higher unadjusted rates of complete resection (93.7% vs. 91.9%, P = 0.032) and lower rates of emergency surgery (4.5% vs. 22.5%, P < 0.001). After adjustment, delay was not associated with a lower rate of complete resection (OR 1.18, 95% CI 0.90-1.55, P = 0.224), which was consistent in elective patients only (OR 0.94, 95% CI 0.69-1.27, P = 0.672). Longer delays were not associated with poorer outcomes. CONCLUSION: One in 15 colorectal cancer patients did not receive their planned operation during the first wave of COVID-19. Surgical delay did not appear to compromise resectability, raising the hypothesis that any reduction in long-term survival attributable to delays is likely to be due to micro-metastatic disease

Reducing the environmental impact of surgery on a global scale: systematic review and co-prioritization with healthcare workers in 132 countries

Background Healthcare cannot achieve net-zero carbon without addressing operating theatres. The aim of this study was to prioritize feasible interventions to reduce the environmental impact of operating theatres. Methods This study adopted a four-phase Delphi consensus co-prioritization methodology. In phase 1, a systematic review of published interventions and global consultation of perioperative healthcare professionals were used to longlist interventions. In phase 2, iterative thematic analysis consolidated comparable interventions into a shortlist. In phase 3, the shortlist was co-prioritized based on patient and clinician views on acceptability, feasibility, and safety. In phase 4, ranked lists of interventions were presented by their relevance to high-income countries and low–middle-income countries. Results In phase 1, 43 interventions were identified, which had low uptake in practice according to 3042 professionals globally. In phase 2, a shortlist of 15 intervention domains was generated. In phase 3, interventions were deemed acceptable for more than 90 per cent of patients except for reducing general anaesthesia (84 per cent) and re-sterilization of ‘single-use’ consumables (86 per cent). In phase 4, the top three shortlisted interventions for high-income countries were: introducing recycling; reducing use of anaesthetic gases; and appropriate clinical waste processing. In phase 4, the top three shortlisted interventions for low–middle-income countries were: introducing reusable surgical devices; reducing use of consumables; and reducing the use of general anaesthesia. Conclusion This is a step toward environmentally sustainable operating environments with actionable interventions applicable to both high– and low–middle–income countries

Reducing the environmental impact of surgery on a global scale: systematic review and co-prioritization with healthcare workers in 132 countries

Abstract Background Healthcare cannot achieve net-zero carbon without addressing operating theatres. The aim of this study was to prioritize feasible interventions to reduce the environmental impact of operating theatres. Methods This study adopted a four-phase Delphi consensus co-prioritization methodology. In phase 1, a systematic review of published interventions and global consultation of perioperative healthcare professionals were used to longlist interventions. In phase 2, iterative thematic analysis consolidated comparable interventions into a shortlist. In phase 3, the shortlist was co-prioritized based on patient and clinician views on acceptability, feasibility, and safety. In phase 4, ranked lists of interventions were presented by their relevance to high-income countries and low–middle-income countries. Results In phase 1, 43 interventions were identified, which had low uptake in practice according to 3042 professionals globally. In phase 2, a shortlist of 15 intervention domains was generated. In phase 3, interventions were deemed acceptable for more than 90 per cent of patients except for reducing general anaesthesia (84 per cent) and re-sterilization of ‘single-use’ consumables (86 per cent). In phase 4, the top three shortlisted interventions for high-income countries were: introducing recycling; reducing use of anaesthetic gases; and appropriate clinical waste processing. In phase 4, the top three shortlisted interventions for low–middle-income countries were: introducing reusable surgical devices; reducing use of consumables; and reducing the use of general anaesthesia. Conclusion This is a step toward environmentally sustainable operating environments with actionable interventions applicable to both high– and low–middle–income countries