Law-Making Treaties: Form and Function in International Law
Nordic Journal of International Law, No. 74, 2005
17 Pages Posted: 29 Jan 2009
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: Suggested Citation