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Law-Making Treaties: Form and Function in International Law

Law-Making Treaties: Form and Function in International Law Law-Making Treaties: Form and Function in International Law CATHERINE BRÖLMANN* 1. Introduction When considering the situation in South West Africa, the International Court of Justice observed that the League of Nations mandate had “characteristics similar to law-making treaties”, and defined the latter as “concluded for the purpose of establishing new rules for the law of nations”. 1 In the Loizidou case, the European Court of Human Rights explicitly set apart the European Convention as a “law-making treaty”, attributing corresponding special com- petences to the “Convention institutions”. 2 The distinction between ‘law-making treaties’ and ‘contract treaties’ is a fre- quently 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 briefly explores the concept of ‘law-making treaties’ (Section 2); its place in the law of treaties, and its value as a separate legal-analytical category (Section 3). 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 (Section 4). The most important reason is that the treaty is construed as one http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Nordic Journal of International Law Brill

Law-Making Treaties: Form and Function in International Law

Nordic Journal of International Law , Volume 74 (3-4): 383 – Jan 1, 2005

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Publisher
Brill
Copyright
© 2005 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0902-7351
eISSN
1571-8107
DOI
10.1163/157181005774939887
Publisher site
See Article on Publisher Site

Abstract

Law-Making Treaties: Form and Function in International Law CATHERINE BRÖLMANN* 1. Introduction When considering the situation in South West Africa, the International Court of Justice observed that the League of Nations mandate had “characteristics similar to law-making treaties”, and defined the latter as “concluded for the purpose of establishing new rules for the law of nations”. 1 In the Loizidou case, the European Court of Human Rights explicitly set apart the European Convention as a “law-making treaty”, attributing corresponding special com- petences to the “Convention institutions”. 2 The distinction between ‘law-making treaties’ and ‘contract treaties’ is a fre- quently 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 briefly explores the concept of ‘law-making treaties’ (Section 2); its place in the law of treaties, and its value as a separate legal-analytical category (Section 3). 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 (Section 4). The most important reason is that the treaty is construed as one

Journal

Nordic Journal of International LawBrill

Published: Jan 1, 2005

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