Law-Making Treaties: Form and Function in International Law

Nordic Journal of International Law, No. 74, 2005

17 Pages Posted: 29 Jan 2009

See all articles by Catherine M. Brölmann

Catherine M. Brölmann

University of Amsterdam - Amsterdam Center for International Law

Date Written: January, 28 2009

Abstract

The distinction between 'law-making treaties' and 'contract treaties' is a frequently used analytical tool in treaty practice and doctrine. At the same time, little trace of it is found in the positive law of treaties. This contribution explores the concept of 'law-making treaties'; its place in the law of treaties; and its value as a separate legal-analytical category . This will lead to the conclusion that law-making treaties indeed suffer from a gap between form and function, but that it is not instrumental to cultivate the dichotomy between 'law-making' and 'contractual' treaties. The most important reason is that the treaty is construed as one single instrument and that, moreover, for now it is (perceived as) the prime instrument for the formal creation of international rules - of any kind. It therefore seems more fruitful to embrace the law of treaties as a procedural framework and to take it from there in finding strategies that leave room for a 'law-making' function.

Keywords: Treaty, law of treaties, contractual, law-making

JEL Classification: K33

Suggested Citation

Brolmann, C. M., Law-Making Treaties: Form and Function in International Law (January, 28 2009). Nordic Journal of International Law, No. 74, 2005, Available at SSRN: https://ssrn.com/abstract=1334266

C. M. Brolmann (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

PO Box 1000
Amsterdam, 1030 BA
Netherlands

HOME PAGE: http://https://home.medewerker.uva.nl/c.m.brolmann/

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