Law-Making Treaties:

Form and Function in International Law

Catherine Brölmann
(Amsterdam Center of International Law, University of Amsterdam)

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 competences to the “Convention
institutions.” 2
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 briefly explores
the concept of ‘law-making treaties’ (§ I); its place in the law of treaties (§ II); and its
value as a separate legal-analytical category (§ III). 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.

I. The Concept of Law-Making Treaties

‘Law-making treaty’ is an awkward notion. For one thing, it is questionable whether
treaties can create law at all. 3 But regardless of how we define ‘law’ to begin with,
‘law-making’ has a received meaning in the context of treaties. It refers to the
substance of the norms, which would be statutory rather than contractual. In the
words of Sir Gerald Fitzmaurice: law-making treaties stipulate ‘integral obligations’
(that is, they have to be performed as such and in their entirety), and they establish a
regime “towards all the world rather than towards particular parties.” 4 Such in
contrast to the ‘reciprocal’ or ‘concessionary’ obligations of a contract treaty, which
provides for “a mutual interchange of benefits between the parties, with rights and
obligations for each involving specific treatment at the hands of and towards each of
the others individually.” 5 The ‘integral’ character of the norm was for example what
the International Court of Justice looked for when it considered whether a provision

1 Following Lauterpacht - see South West Africa cases, (Ethiopia v. South Africa; Liberia v.
South Africa), ICJ Reports 1966, at 266.
2 European Court of Human Rights, Case of Loizidou vs. Turkey (Preliminary Objections),
Judgment of 23 March 1995, Series A no. 310 p. 25, § 84.
3 See below, § IV.
4 Second Report on the Law of Treaties by Sir Gerald Fitzmaurice, UN Doc. A/CN.4/107, YILC
1957, Vol. II, at 54.
5 Third Report on the Law of Treaties by Sir Gerald Fitzmaurice, UN Doc. A/CN.4/115, YILC
1958, Vol. II, at 27, Art. 18, § 2.

Electronic copy available at: http://ssrn.com/abstract=1334266

in the 1958 Convention on the Continental Shelf was likely to have assumed power of
customary law: “[i]t would in the first place be necessary that the provision
concerned should, at all events potentially, be of a fundamentally normcreating
character….” 6
Meanwhile the treaty instrument (and arguably the treaty concept as such) is
based on a contractual notion and hinges on the precepts of freedom of contract and
consent as the basis of obligation - which is the reason for its historic success as a
rule-making device in the international arena in the first place.
The idea of law-making treaties is, however, not new. Around the turn of the
19th century Triepel famously proposed the notion of the Gemeinwillen, a separate,
collective Will distinct from the sum of wills of individual states. 7 Such will would
logically be directed towards, in the words of Triepel, one single purpose and one
single plan. 8 Technically the Gemeinwillen would be embodied in an ‘agreement’
(Vereinbarung), as opposed to a ‘treaty’ (Vertrag). The latter would be the vehicle for a
‘legal transaction’ (Rechtsgeschäft), i.e. an agreement of a contractual nature. 9 This
distinction is based on the substance of agreements; formally there was no difference
between the Vereinbarung and the Vertrag. It is not a coincidence that the idea of a
legal instrument stipulating general norms, embodying a collective will, became
topical in the late 19th century – when Europe was to some extent governed by ‘laws’
agreed upon by the Great Powers, 10 and when the first international organizations
were created. 11
The unprecedented scale of conflict at the beginning of the 20th century then
strengthened the vision of rule of law and legal certainty. This influenced treaty
practice in two ways. It inspired the promotion of treaty publication 12 - initially
geared to what could be considered as the prototypal contract treaties: military

6 North Sea Continental Shelf cases (Germany / Denmark; Germany / Netherlands), 1969 ICJ
Reports 3, § 72, at 41-42; the passage also points to the practical complication that many
treaties contain a mixture of law-making and contractual norms, which would make it more
helpful to apply the notion to individual norms rather than to treaties as a whole. This aspect
of terminological difficulty is left out of account.
7 Heinrich Triepel, Völkerrecht und Landesrecht, 1899 - the basis for the binding force of the
Gemeinwillen, Triepel himself admitted, had to be found in an extra-legal context. Cf. Alfred
Verdross, Die Verfassung der Völkerrechtsgemeinschaft, 1926, at 20 (“…als Grundlage des
Völkerrechts”); also Peter Kooijmans, The Doctrine of the Legal Equality of States, 1964, at 133,
134.
8 Triepel (Ibid., at 56): “Denn hier ist die Wille aller Betheiligten vollkommen gleichen Inhalts;”
with regard to states in particular: „declarations of similar will (gleichen Willens), not only
geared to a common purpose (Zweck) but also to a common plan (Vorhaben).”
9 The Vereinbarung figured already in the writings of e.g. Karl Bergbohm (cf. Staatsverträge und
Gesetze Als Quellon des Völkerrechts, Leipzig, 1877, at 79).
10 In a formal sense it is noteworthy that the European Conference System developed a
practice of fostering adoption and conclusion of international conventions; see e.g. Paul
Reuter, Introduction to the Law of Treaties, Geneva, 1995, at 8, who remarks that it “in practical
terms often compares rather favourably with the League of Nations or the United Nations.”
11 See e.g. Inis Claude, Swords into Ploughshares: The Problems and Progress of International
Organization, 1971, 1-37.
12 Cf. Point I of the 1918 Fourteen Points Speech by President Woodrow Wilson: “Open
covenants of peace, openly arrived at, after which there shall be no private international
understandings of any kind but diplomacy shall proceed always frankly and in the public
view” (Arthur S. Link et al. (eds.), The Papers of Woodrow Wilson, vol. 45 (1984), at 536).

Electronic copy available at: http://ssrn.com/abstract=1334266

alliance agreements, which for their secret character were an acknowledged factor in
the outbreak of the War. Furthermore, it gave a new impulse to the idea of ‘law-
making treaties’. The grand project of international law codification started with the -
mostly unrewarding - endeavours under the auspices of the League of Nations.13 The
United Nations, with the explicit aim of “codification and development” of
international law in the Charter (in Article 13(1), 14 without counterpart in the League
Covenant), on the contrary was to be highly prolific. 15 This treaty-practice, in
particular the new class of treaties stipulating international human rights, brought the
discussion on objective legal norms on a more general plane.
The interest in law-making treaties is inextricably linked to the emergence of
a public dimension 16 to the international legal order. Such a public dimension, which
may be related to a particular functional field (such as the use of force, the care for
transboundary watercourses or the protection of the individual), is felt to bring the
need for rules with a statutory function, above and beyond rules governing voluntary
legal relations between equal subjects. This has become clear once more in relation to
the vision of an international community 17 - a vision which is coupled with the idea
of a unified system of law (as becomes clear from the concern over its
‘fragmentation’). 18 Thus, some ten years ago the president of the International Court
of Justice stated:
“[t]he resolutely positivist, voluntarist approach of international law still
current at the beginning of the century ... has been replaced by … a law more
readily seeking to reflect a collective juridical conscience and respond to the
social necessities of States organized as a community.” 19
As mentioned, for their contractual set-up treaties are not per se the instrument for
the creation of such communal rules. Indeed, treaties exist much longer than the
notion of international law, 20 while ‘international law’ existed long before it started to

13 The first attempt to codify and develop the whole field of international law was made in the
framework of the League, with the establishment in 1924 of the Committee of Experts for the
Progressive Codification of International Law, which was to be composed so as to represent "the
main forms of civilization and the principal legal systems of the world." Cf. the ILC website
(http://www.un.org/law/ilc/); on the 1930 Codification Conference, Shabtai Rosenne,
League of Nations Conference for the Codification of International Law, 1975.
14 “13(1). The General Assembly shall initiate studies and make recommendations for the
purpose of: a. …encouraging the progressive development of international law and its
codification; …”
15 See the impressive list of UN fostered “law-making treaties” at Multilateral Treaties Deposited
With The Secretary-General (http://untreaty.un.org/ENGLISH/bible/englishinternetbible
/bible.asp).
16 It is worth recalling that the terms ‘public international law’ and ‘private international law’ do
not render the division between the public and the private sphere of legal relations in the
domestic law sense. Rather, all ‘public international law’ for a long time canbe said to have
had a ‘private law’ character for its voluntarist underpinnings.
17 E.g. Bruno Simma & Andreas Paulus, “The ‘International Community’: Facing the Challenge
of Globalization”, 9 European Journal of International Law 1998, 266-277.
18 See the Report of the ILC on the work of its fifty-sixth session , UN Doc. Supplement No.
10 (A/59/10), at 281-304.
19 Legality Of The Threat Or Use Of Nuclear Weapons, International Court of Justice, Advisory
Opinion (8 July 1996); Declaration by President Bedjaoui, § 13.
20 Philip Allott, The Health of Nations: Society and Law beyond the State, Cambridge University Press,
2002, at 304.

3
be written in treaties. 21 Indeed, the central law-making role which has come to be
conferred upon the UN codification conventions is essentially due to a lack of
alternative. States drafting the UN Charter had strongly opposed conferring on the
Organization the power to enact binding international rules. Likewise, proposals to
give the General Assembly powers to impose certain general conventions on states
by some form of majority vote had been rejected. 22
To remain with the domestic analogy, treaties thus take care of both the
contractual and the statutory function in international law. This lies at the root of the
much-quoted statement by Lord Arnold McNair that “[t]he treaty is the only and
sadly overworked instrument with which international society is equipped for the
purpose of carrying out its multifarious transactions.” 23 The treaty instrument may
regulate any subject matter, but its scope and source are perceived very much in a
contractual framework. Thus, in law-making treaties the relation between form and
function is strained.

II. Law-Making Treaties in the Law of Treaties

In the preparations for the first Convention on the Law of Treaties one ILC Special
Rapporteur proposed to differentiate between treaties on the basis of content. Sir
Gerald Fitzmaurice, who worked on an expository code on the law of treaties
between 1955 and 1960, was also the most theoretically inclined of the four Special
Rapporteurs, and it is therefore especially fitting to consider his work in this Special
Issue.
Sir Gerald took a novel and rather technical approach which not only looked
to the function of a treaty 24 but also to the legal relations resulting from it. Essentially
his classification is still relevant today. He distinguished three main categories of
treaties: first, there would be treaties, bilateral or multilateral, that are based on a
reciprocal exchange of rights or benefits (as would be any classically contractual
treaty, for instance one establishing a customs union). Secondly, he identified a class
of ‘interdependent’ treaties, whose character make the performance of one party
dependent on that of all the other parties (the example given being a disarmament
treaty). Finally, he singled out a category of
“law-making treaties (traités-lois), or … system or régime creating treaties …,
or treaties involving undertakings to conform to certain standards and
conditions, or … any other treaty where the juridical force of the obligation
is inherent, and not dependent on a corresponding performance by the other
parties to the treaty …, so that the obligation is of a self-existent character,
requiring an absolute and integral obligation and performance under all
conditions…”. 25

21 Reuter, supra note 10, at 6.

22 Cf. introduction on the ILC website (http://www.un.org/law/ilc/).
23 Arnold McNair, The Law of Treaties, Cambridge University Press, 1961, at 739.
24 Which up until then had been the main take on ‘law-making treaties’; cf. Georges Scelle:
“[Law making treaties] present an entirely different interest of stability and generality. They
aim to establish a rule of law and are true legislative acts” (Le Pacte des Nations et sa liaison avec
le Traité de Paix, Paris, 1919, at 49 – translation quoted in D’Amato, infra note 81).
25 Supra note 4, at 31.

4
In the terminology of Fitzmaurice, ‘law-making treaties’ are a sub-category of
‘inherent’ treaties (in the following either that term will be used, or the more recent
‘normative treaties’, 26 creating ‘objective obligations’ 27 ). The commentary mentions
human rights treaties as an example of law-making treaties; maritime regimes as an
example of ‘system or régime creating treaties’; and ILO conventions as one example
of standard setting treaties. Obligations arising under such treaties are not – “neither
juridically, nor from a practical point of view” – dependent on a corresponding
performance by the other parties. 28 It is noteworthy that a reference to constitutive
treaties of international organizations is lacking, while these would appear as an
outstanding example of ‘inherent’ treaties, and had been identified as a separate
category for instance by McNair in 1930(!). 29 However, as illustrated by the
commentary’s examples, in the scheme of Fitzmaurice ‘régime’ is taken in the
territorial sense only.
The specific ‘self-existent’ character of inherent treaty obligations has legal
consequences in two situations, both covered in the first Chapter on ‘Validity of
Treaties’. One is the provision on fundamental breach of treaty – a precursor of
‘material breach’ Article 60 VCLT. This envisages a special regime for normative
agreements: a breach by one party would give no ground to the other parties - not
even vis-à-vis the defaulting party - for termination of the treaty (each party’s
obligations being ‘self-existent’), nor non-performance of certain obligations
stemming from the treaty (the obligations being ‘integral’). 30
When, on the contrary, treaty relations are bilateralized, the legal
consequence of breach may be so as well. Thus, under a reciprocal treaty a state
suffering from another party’s breach of obligations may respond by a non-
performance in its relation with the defaulting state. In case of an interdependent
treaty a breach of obligations by one party would be cause for the obligations of all
other parties to cease to exist, also vis-à-vis each other.
Likewise, a special regime is proposed for the case of conflict between
successive normative treaties, 31 (in this context grouped with interdependent

26 Cf. the terminology used by the International Law Commission in its study of the topic “The
law and practice relating to reservations to treaties” (e.g. Report of the International Law
Commission (Fifty-sixth session, 2004), GAOR Supplement No. 10 (UN Doc. A/59/10), §
290).
27 Cf. the Inter-American Court of Human Rights in the Ivcher Bronstein Case (Competence),
1999 IACHR 9 (24 September 1999), §§ 42 and 45.
28 Ibid. At 54, 55.
29 See the critical observations by McNair on the futility of approaching constitutive treaties of
international organizations as ‘regular’ treaties; he recommended that “we free ourselves
from the traditional notion that the instrument known as the treaty is governed by a single
set of rules.” The author grouped IGO constituent treaties with dispositive treaties under the
heading of what would later be termed ‘objective regimes’. (Arnold McNair, “The Function
and the Differing Legal Character of Treaties”, XI British Yearbook of International Law 1930,
100-118, at 118); See also the reference to the category of constitutive treaties in the
Dissenting Opinion of Judge Alvarez to the Reservations To The Convention On The Prevention
And Punishment Of The Crime Of Genocide Advisory Opinion, 1951 ICJ Reports 15, at 51.
30 Ch. One, Part III, Article 19 - Termination or suspension by operation of law. Case of fundamental
breach of the treaty (conditions and limitation of application), see supra note 4, at 31.
31 Ch. One, Part II, Article 19 - Legality of the object (conflict with previous treaties – special case of certain
multilateral treaties); supra note 5, at 27, 28. Cf. article 30 of the VCLT.

5
treaties). When conflict arises between such treaties in time, the later treaty would be
null and void as a whole. 32 In contrast, conflicting multilateral treaties of the
“mutually reciprocating type” were suscetible to the regular lex posterior rule, 33 for the
reason that treaty relations can be bilateralized and the substance of the treaty is such
that a change in one relationship can be effectuated independently of the other
ones. 34
Fitzmaurice clearly proceeded from a contractual conception of the treaty,
and viewed multilateral treaty regimes as consisting of ever so many bilateral
relationships. Such both in case of regular contract treaties – where a multilateral
treaty can be fragmentized entirely into bilateral relationships which exist
independently of each other - and in case of interdependent treaties – where relations
are construed as bilateral, but dependent on each other for their existence. As
appears form the system of his draft articles (1, II, 19: “…Special case of certain
multilateral treaties”) this was the default position. The exception is the class of
normative treaties, which for their content have given rise to special rules in two
central areas of the law of treaties: consequences of breach, and conflict of treaties.
Interestingly, Fitzmaurice proposed no special regime in relation to reservations. This
may be owed to the landmark Opinion which the International Court of Justice had
rendered a few years before on Reservations to the Genocide Convention. The law-making
character of the Convention as such had been emphasized, leading, perhaps most
importantly, to the coinage of the object and purpose test. But for the purpose of
establishing the legal effect of objections to reservations the Court had taken the
position that even a law-making multilateral treaty could be construed as a bundle of
separate, bilateral relationships. 35
The subsequent Special Rapporteur and the International Law Commission
did not follow up upon the idea of substantial differentiation between treaties. One
reason certainly was that the International Law Commission had decided early on to
concentrate on the form of the treaty, 36 and not on the agreement (which is why the
Vienna Convention could leave out for instance the performance of treaty
obligations from its scope). And integral treaties, as also Fitzmaurice had pointed out
in his first report, are form-wise not different from other treaties. 37
Integral treaties and inherent obligations are thus not addressed in the
conventional law of treaties as it now stands in the 1969 Vienna Convention. Article
60(5), which excludes humanitarian treaties from the material breach régime, may
count as an exception. 38 More specifically, it is a treaty which carries integral

32 Supra note 5, at 27, 28; Commentary at ibidem, at 44, 45.

33 Draft article 18, supra note 5, at 27.
34 Supra note 5, at 44, § 93.
35 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, 1951 ICJ Reports 15, § 25; see also commentary by Reuter, supra note 10, at 77, and
references at 92.
36 YILC 1950, Vol II, §§ 161, 162; YILC 1959,Vol. II, § 9; and the first report by Special
Rapporteur Sir Humphrey Waldock, YILC 1962, Vol. II, § 39 at 128; briefly discussed in
Shabtai Rosenne, Developments in the Law of Treaties, 1945-1986, Cambridge University Press,
1989, at 11-13.
37 Part I, Introduction, Article 8 (Classification of Treaties); YILC 1956, Vol. II, at 108, 118
(commentary).
38 Article 60(5), added during the Diplomatic Conference, reads: “Paragraphs 1 to 3 do not

6
obligations. Also articles 41(1)b(i), 58(1)b(i) and 60(2) single out treaties, but a class
reminiscent of Fitzmaurices ‘interdependent’ treaties. 39 Finally, articles 53 and 64
(nullity in case of conflict with jus cogens) could be listed, although arguably these
provisions are a special case; rather than providing specific rules for certain treaties
on the basis of content, they set limits to the freedom of contract, and to the very
existence of a treaty, altogether. 40 The most notable case of – in casu integral - treaty
substance having legal effect, however, is Article 20(3), which requires acceptance of
a reservation to an organization’s constitutive treaty by the organization, rather than
by the states parties to the treaty. 41 On this point, the Commission had held that “the
integrity of the instrument is a consideration which outweighs other
considerations…” 42 (the other considerations being flexibility and universality,
contrasting motivations articulated by the International Court in the Genocide
Opinion). 43
Seeing that the Vienna Convention focusses on the form of the treaty
instrument, could the special character of normative treaties perhaps be captured in
formal terms? This is not really the case. It is true that to some extent normative
treaties overlap with multilateral treaties. While not all multilateral treaties are
normative treaties, 44 normative regimes are usually established by multilateral
agreements (although not always: see the 1977 régime treaty on the Panama Canal
between Panama and the United States). 45 Under circumstances the substantive traits

apply to provisions relating to the protection of the human person contained in treaties of a
humanitarian character, in particular to provisions prohibiting any form of reprisals against
persons protected by such treaties.”
39 Article 41 (Agreements to modify multilateral treaties between certain of the parties only): possible, if [the
modification] (§1.b.i) “does not affect the enjoyment by the other parties of their rights
under the treaty or the performance of their obligations”; Article 58 (Suspension of the operation
of a multilateral treaty by agreement between certain of the parties only): possible, if [the suspension]
(§1.b.i) “does not affect the enjoyment by the other parties of their rights under the treaty or
the performance of their obligations;” for 60(2) see infra note 47.
40 See also Joost Pauwelyn, The Nature of WTO Obligations, 2002, NYU Jean Monnet Working
Paper No.1/02 (stable URL: http://www.jeanmonnetprogram.org/papers/02/020101-
02.html#P446 _124811), section I, 3, in which these 6 provisions are mentioned as ‘traces’ of
Fitzmaurices division in three classes of treaties.
41 Article 20(3) reads: “When a treaty is a constituent instrument of an international
organization and unless it otherwise provides, a reservation requires the acceptance of the
competent organ of that organization. Article 5 (“The present Convention applies to any
treaty which is the constituent instrument of an international organization and to any treaty
adopted within an international organization without prejudice to any relevant rules of the
organization.”) does not serve to illustrate the same point, as this is a general reservation
clause, limiting the effect of the law of treaties altogether.
42 Commentary to final draft article 17(3), YILC 1966, Vol. II, at 27; see also Jan Klabbers, "On
Human Rights Treaties, Contractual Conceptions and Reservations", in Ineta Ziemele (ed.),
Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or
Reconciliation, 2004, 149-182, at 178.
43 Cf. supra note 35, §§ 24 and 25.
44 The Fitzmaurice category of contractual multilateral treaties, as a compilation of bilateral
treaty relationships, is used in a fruitful manner by Joost Pauwelyn, "A Typology of
Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?" 14
European Journal of International Law 2003, 907-951 – see infra.
45 Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal ; Entry into force on
1 october 1979, after deposit of instruments of ratification (!) (stable URL:

7
of treaties have thus found their way into the law of treaties, but this is more of a
collateral effect. The multilateral treaty figures in the Vienna Convention as a formal
institution, and has been accommodated by the Convention to the best of its abilities.
The effect is visible for instance in the somewhat unwieldy provision of
Article 60 of the 1969 Convention, on termination or suspension of a treaty on the
basis of material breach by another party. 46 The article provides what would a parallel
to the exceptio non adimpleti contractus in domestic law of contract, but (logically) not
without effort when it comes to multilateral treaty relations. Here the Convention
resorts to a differentiation based on content, which, incidentally, is similar to that of
the ‘interdependent treaties’ in Fitzmaurice’s classification. 47 As to the relation
between the defaulting state and the state ‘especially affected’, the Vienna
Convention maintains strict reciprocity, but it adds a variable for other states parties
who may suspend the treaty only if their positions are ‘radically changed.’ A further
safeguard for the multilateral treaty régime is the qualification that the breach be
‘material’. In the history of the 1969 Vienna Convention material breach has rarely
been explicitly invoked - with the 1997 Gabcíkovo-Nagymaros case as a
comparatively recent exception - and has never passed the judicial test. 48
The conventional law of treaties is thus geared to form and procedure, and
the substance of treaties is a correspondingly weak factor. The task of creating
general legal regimes befitting a legal community has put a burden on the contractual
disposition of the treaty. 49 The integral and inherent nature of normative treaty
obligations interferes with the functioning of contractual mechanisms such as
reciprocity. From a different angle, the question is to what extent the treaty is suited
to accommodate the objectives that come with a community perspective. 50 Here, the
limitations of the formal framework have prompted doctrinal development and
discussion on how to have normative treaties governed by the law of treaties in a way
that is in line with their special objectives. Such development is visible in several
areas of the law of treaties, a few of which may be mentioned.

http://www.state.gov/p/wha/rlnks/11936.htm).
46 On Article 60 e.g. Jan Klabbers, “Side-stepping Article 60: Material Breach of Treaty and
Responses Thereto”, in Finnish Branch of ILA 1946-1996, Essays on International Law, 1998, 20-
42; Malgosia Fitzmaurice, “Material Breach of Treaty: Some Legal Issues”, 6 Austrian Review
of International and European Law 2001, 3-44.
47 Cf. Article 60(2): “A material breach of a multilateral treaty by one of the parties entitles: […]
(b) a party specially affected by the breach to invoke it as a ground for suspending the
operation of the treaty in whole or in part in the relations between itself and the defaulting
State; (c) any party other than the defaulting State to invoke the breach as a ground for
suspending the operation of the treaty in whole or in part with respect to itself if the treaty is
of such a character that a material breach of its provisions by one party radically changes the
position of every party with respect to the further performance of its obligations under the
treaty.”
48 International Court of Justice, The Gabcíkovo-Nagymaros Project (Hungary v. Slovakia),
Judgment, 25 september 1997 (on Article 60, invoked by Hungary, in particular §§ 96, 105-
108).
49 See e.g. Bruno Simma, "From Bilateralism to Community Interest in International Law", 250
Recueil des Cours de l'Académie de droit international 1994, 221-384, with pages 322-352 on “the
impact of community interest on the circumstances and procedures of treaty-making”.
50 See e.g. Catherine Brölmann, "Limits of the Treaty Paradigm", in Matthew Craven &
Malgosia Fitzmaurice (eds.), Interrogating the Treaty and the Future of Treaty Law, Wolf Legal
Publishers, 2005, [1-18].

8
 The particular law-making objectives of normative treaties are visible more
than anywhere in the field of interpretation. It should be noted that the non-
hierarchical structure and general wording of article 31 VCLT leave considerable
room in this respect 51 - the Commission famously commented that “the
interpretation of documents is to some extent an art, not an exact science.” 52
Interpretation of normative treaties could be summarized as ‘organic’. Rather than
retracing the will of the parties, as in a domestic or international instrument of
contractual inspiration, 53 the normative treaty is interpreted with a view to its object
and purpose, the total of its provisions, and, where appropriate, its context in the
legal system as a whole. 54
This assumes as a premise that the treaty regime has become independent
from the instrument by which it was created – a construction we find proposed
already in relation to the Genocide Convention:
“[T]he said [law-making] conventions must not be interpreted with reference
to the preparatory work which preceded them; they are distinct from that
work and have acquired a life of their own; … These conventions must be
interpreted without regard to the past, and only with regard to the future.” 55
Such independent legal existence leaves room for a teleological approach, as well as
for a ‘systematic interpretation’ which takes into account the context of the entire
legal system in which the norm operates. This is an interpretive principle typically
used in domestic (statute) law, when the unity of the legal system is undisputed. 56
The related ‘evolutive interpretation’ in the classic, constitutionalist sense - also
reserved for the interpretation of normative treaties - pertains to developments of
the law. It is different from the doctrine of the ‘treaty as a living instrument’ – a
successful guiding principle of the case law of the European Court of Human Rights
– as the latter is concerned with developments in social reality. But what they have in
common is that also an interpretation of the European Convention “in the light of

51 Already the first paragraph of article 31 covers the basic range of intepretive tools: “A treaty
shall be interpreted in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose.”
52 YILC 1966, Vol. II, at 38, § 4.
53 The approach taken in the Vienna Convention is that the text is presumed to be an authentic
expression of the parties’ intentions – against this background the primary interpretive
exercise is to establish the meaning of the text; YILC 1966, Vol. II, at 220; cf. Sir Ian
Sinclair, The Vienna Convention on the Law of Treaties, Manchester University Press, 1984, at 115.
54 references
55 Genocide Opinion, 1951, supra note 35, Dissenting Opinion Judge Alvarez, at 53.
56 “…in the context of the legal system (sic) in force at the time when the interpretation takes
place…. This interpretation procedure is also that applicable to law-making treaties
(Vereinbarungen), as, for instance, the United Nations Charter…” (Aegean Sea Continental Shelf
Case (Greece v. Turkey), Dissenting Opinion Judge De Castro, 1978 ICJ Reports 3, at 68-69);
cf e.g. “That such account [of the subsequent evolution of the law] must be taken at any rate
in the case of jurisdictional and law-making treaty provisions seems clear” (Maritime
Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Separate
Opinion Judge Shahabuddeen, 1993 ICJ Reports 38, at 134).

9
present day conditions” 57 – an interpretation still further removed from the consent
of the original parties - is possible only in case of a normative treaty. 58
As the provisions in the Vienna Convention (see on article 20(3) above), specific
doctrinal practice regarding normative treaties is the most clear when the ensuing
legal regime is institutionalized, and thereby formalized. Thus, the interpretation of
constituent instruments of international organizations from the 1949 Reparation case
onwards goes to show a consistent trend: to teleological interpretation, and focus on
the practice of the organization, with a corresponding desinterest for the travaux
préparatoires, and the original intent as well as the subsequent practice of the original
treaty parties. 59
In the 1996 (WHO) Nuclear Weapons Opinion the Court takes its interpretive
exercise one step beyond regular (even if teleological) treaty interpretation to move
into a truly constitutional discourse, proceeding from the functions of the
organization, rather than working towards establishing them. Moreover, in one of the
less well-known passages of the Opinion, the Court uses an explicitly ‘systemic
approach’:
“As these provisions [in Article 63 UN Charter] demonstrate, the Charter of
the United Nations laid the basis of a ‘system’ designed to organize
international co-operation in a coherent fashion by bringing the United
Nations, invested with powers of general scope, into relationship with various
autonomous and complementary organizations, invested with sectorial
powers. The exercise of these powers by the organizations belonging to the
‘United Nations system’ is co-ordinated, notably, by the relationship
agreements concluded between the United Nations and each of the
specialized agencies [...] It follows from the various instruments mentioned
above that the WHO Constitution can only be interpreted, as far as the
powers conferred upon that Organization are concerned, by taking due
account not only of the general principle of speciality, but also of the logic of
the overall system contemplated by the Charter [...] any other conclusion would
render virtually meaningless the notion of a specialized agency.” 60
To return to the law of treaties Convention, the classification proposed by
Fitzmaurice – reciprocal, interdependent and integral treaties – is still visible. 61 It
relevance is illustrated in that it also figures in the commentary to the ILC Articles on
State Responsibility. 62 These Articles do not distinguish between ‘integral’ and

57 Cf. Tyer v. UK, 25 April 1978, Appl. nr. 00005856/72, § 31; Loizidou v. Turkey (Judgment -
Preliminary Objections), 23 March 1995, § 71; Selmouni v France judgment of 28 July 1999, §
101.
58 It should be noted that in other, classic inter-state branches of international law the living
instrument interpretation has not taken on.
59 Shabtai Rosenne, Developments in the Law of Treaties (1945-1986), 1989, at 190-200, with
references to ‘traditionalist’ and ‘constitutionalist’ writings in footnote 17; a survey of
doctrinal views and ICJ case law on the interpretation of constituent treaties (not yet
including the Nuclear Weapons Opinion) in Tetsuo Sato, Evolving Constitutions of International
Organizations, 1996.
60 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports 1996, §
26 (emphasis added).
61 See supra notes 39-41 and accompanying text.
62 James Crawford, The International Law Commission's Articles on State Responsibility
(Introduction, Text and Commentaries), 2002, commentary to article 42, at 257 (and

10
‘interdependent’ treaties (rather, from the commentary they appear to be taken as
identical, 63 contrary to the scheme of Fitzmaurice). True to say, the distinction
between interdependent treaties (where the performance by one party is dependent
on that of all the others) and integral treaties (where the performance by each party is
independent from that of any other party) is less important for the purpose of
invoking another state’s responsibility, 64 than for establishing the possibility of
termination on the basis of the law of treaties. 65
Fitzmaurices classification has had a revival also by Joost Pauwelyn’s in-depth
analysis of WTO obligations. The author goes back to the proposition that certain
multilateral treaties are reciprocal in nature, and hence essentially amount to a
compilation of bilateral contractual relationships. Such bilateralization, as Pauwelyn
convincingly applies to the 1994 WTO treaty, would have consequences for issues
such as countermeasures and modification of treaty obligations inter se. 66
Interestingly, in the same essay the author convincingly develops a second
argument in relation to WTO obligations which in contrast seems closely linked to
the notion of normative (i.e. non-‘bilateralizable’) treaties. A treaty such as the 1994
WTO agreement, 67 (and presumably any general normative regime which is regularly
modified, added to and updated, be it the 1973 CITES or the 1944 ICAO
Convention) has an ongoing existence. Since “WTO treaty provisions are dynamic in
nature and supported by state consent that was not exhausted in 1994 but continues
to be confirmed,” WTO treaty obligations are defined as “continuing norms.” 68
Rules such as lex posterior would therefore not be readily applicable, nor any rule
which relies on a temporal boundary (art 30 of the Vienna Convention), because
continuing treaties cannot be identified with the date on which they are signed, cq.
opened for signature. These treaties should be approached in an ‘evolutionary’ rather
than ‘contemporaneous’ manner. 69 This concept of evolutionary or dynamic
interpretation is focussed entirely (unlike the systematic approach or the living
instrument doctrine), on the temporal element. It follows that, rather than to lex
posterior, interpreters should look for instance to the lex specialis principle.
As to the nature of integral treaty norms, it had already been pointed out that
normative treaties are less prone to produce a well-defined interim obligation in the

footnote 706).
63 “..performance …by the responsible State is a necessary condition of …performance by all
the other States…; this is the so-called ‘integral’ or ‘interdependent’ obligation.” (Ibidem)
64 Either as an ‘injured state’ (art. 42), or as a ‘state other than an injured state’ who is part of a
group to which the obligation, protecting a collective interest, is owed (art. 48). It may be
noted that the distinction between erga omnes (towards the whole international community)
and erga omnes partes (towards all members of a group – e.g. established by a multilateral
treaty) is concerned with the scope of the community only, not with the nature of legal
relations; it therefore does not overlap with the distinction between integral and
interdependent treaties.
65 Supra note 30 and accompanying text; note that for the purpose of establishing invalidity
integraland interdependent treaties are grouped together, but as distinct categories, by
Fitzmaurice as well (supra note 31).
66 Pauwelyn, 2003, “Typology...”, supra note 44; and Pauwelyn, 2002, Jean Monnet, supra note
40, section I.
67 Pauwelyn, 2002, Jean Monnet, supra note 40, section II.
68 Pauwelyn, 2002, Jean Monnet, supra note 40, section III.
69 Pauwelyn, 2002, Jean Monnet, supra note 40, section II.6.

11
sense of article 18 Vienna Convention, than contractual treaties. Integral obligations
are never quite complied and done with, as it were, and hence the breach of their
‘object and purpose’ is not readily established either. 70
Finally, in the context of normative treaties the issue of reservations should
be mentioned. In the absence of a central authority to decide on a reservation’s
compatibility with object and purpose, the two-stage test of i. legality of the
reservation (Article 19(c)) and ii. acceptance of the reservation vel non by the treaty
partners (Article 20) has become muddled. 71 However, precisely in the case of
normative treaties the legality test is felt to be important. And precisely in the case of
normative treaties, which pose ‘inherent’ obligations, the formal reciprocity of treaty
obligations lacks practical effect and therefore does not function as a restraint on the
making of reservations. These are notorious factors in the case of human rights
treaties, which make for a particular class of normative treaties. A human rights treaty
not only stipulates inherent obligations, but it is “essentially ‘inward targeted’; it
turnes States’ insides out in an almost literal sense.” 72
While the practice of reservations, notably to human rights treaties, is
perceived as a problem, a solution in terms of ‘new rules’ does not appear to be at
hand. In as far as this can be construed as a legal problem, it would seem to require a
centralized authority to assess the legality of reservations in order to conciliate the
freedom of contract of states with the desired integrity of a normative treaty regime.
Such a role has been assumed by the European Court of Human Rights 73 and the
UN Human Rights Committee 74 with varying success. There does not (yet) appear to
be political support to attribute this role to treaty bodies on the basis of a general
rule. The study currently on the agenda of the International Law Commission on
reservations in relation to “normative multilateral treaties including human rights

70 “…in one form or another, an obligation exists not to impair the value of an undertaking
pending ratification or entry into force.” (§ III); “…as one can hardly defeat the object and
purpose of generally desirable behavior…” (§ VIII). Also for that reason the author
proposes a test of ‘manifest intent’ or ‘manifest bad faith’ - Jan Klabbers, "How to Defeat a
Treaty’s Object and Purpose Pending Entry into Force: Toward Manifest Intent", 34
Vanderbilt Journal of Transnational Law 2001, 284-332.
71 This particular point elaborated e.g. in Catherine Redgwell, “Reservations to Treaties and
Human Rights Committee General Comment No. 24(52),” 46 International and Comparative
Law Quarterly 1997, 390-412.
72 Bruno Simma, "Reservations to Human Rights Treaties - Some Recent Developments", in
Gerhard Loibl, Gerhard Hafner et al. (eds.), Liber Amicorum Professor Seidl-Hohenveldern - In
Honour of His 80th Birthday, 1998, 659-682, at 660.
73 Belilos v. Switzerland (10328/83) [1988] ECHR 4 (29 April 1988), cf. § 50. “The Court's
competence to determine the validity under Article 64 (art. 64) of the Convention of a
reservation or, where appropriate, of an interpretative declaration has not given rise to
dispute in the instant case….”.
74 HRC General Comment No. 24, ’On issues relating to reservations upon ratification or
accession to the Covenant or the Optional Protocols thereto, or in relation to declarations
under article 41 of the Covenant’, (Fifty-sixth session), 4 November
1994,CCPR/C/21/Rev.1/Add.6, § 18; the US, the UK and France objected to the
Committee’s view that it could disregard an incompatible reservation. (HRC Concluding
Observations on the United States, HRC Report for 1995 A/50/40, at 278 and Annex; and
HRC Report for 1996 A/51/40 , annex).

12
treaties,” is organically linked to the 1969 Vienna Convention, 75 and for now adheres
to the classic law of treaties system. 76

III. Separate Categories?

“Considered in themselves, and particularly in their inception, treaties are, formally, a
source of obligation rather than a source of law.” This proposition by Sir Gerald
Fitzmaurice (in his quality of learned author) 77 brings us back to the awkwardness of
the notion ‘law-making treaty’. That notion reflects the functions and ideals tied in
with the vision of a legal order, and possibly an international community - but on a
formal level treaties have difficulty catering those ideals. Individual consent and
reciprocity are entrenched in the treaty machinery, and the scope of the treaty’s
binding force, governed by the canonical pacta tertiis rule, is limited to the parties.
From that perspective treaties would not be able to create ‘law’ in the sense of norms
that eo ipso bind all subjects in a legal order, and could not be a formal source of
international law to begin with. This is a formal and arguably formalist point, but it
remains problematic. As the Court held in the South West Africa cases: “However, even
such law-making treaties bind only signatory States and they do not bind States
which are not parties to them.” 78
Meanwhile, the statutory function on the international plane is open, and the
‘law-making treaty’ is felt to be a powerful and necessary idea in the shaping of world
relations. The logical response then is to look less to form and more to substance –
as appears from the above-cited declaration by President Bedjaoui. 79 Judge Alvarez,
in his dissenting opinion to the 1951 Genocide Advisory Opinion, had stated:
“the said [law-making] conventions are almost real international laws…..these
conventions signed by a great majority of States ought to be binding upon the
others, even though they have not expressly accepted them: such conventions
establish a kind of binding custom, or rather principles which must be
observed by all States by reason of their interdependence and of the existence
of an international organization.” 80
In a similar vein D’Amato - “[i]t is true that treaties are agreements, but so also is a
Constitution an agreement among the citizens -” in 1962 had taken pains to explain
why law-making treaties should be considered to create binding effect for non-
parties: not as a source of custom, but as an independent source. 81 Such essentially

75 “…the consensus in the Commission that there should be no change in the relevant
provisions of the 1969, 1978 and 1986 Vienna Conventions,” 2003 ILC Report UN Doc.
A/58/10, Supplement No. 10, at 148.
76 For the effect of this system on human rights treaties, e.g. Ryan Goodman, "Human Rights
Treaties, Invalid Reservations, and State Consent", 96 American Journal of International Law
2002, 531-560; recent developments are analyzed in Jan Klabbers, “On Human Rights
treaties…” 2004, supra note 42.
77 Sir Gerald Fitzmaurice, "Some Problems Regarding the Formal Sources of International
Law", in F.M. van Asbeck, et al. (ed.), Symbolae Verzijl : présentées au professeur J. H. W.Verzijl à
l'occasion de son LXX-ième anniversaire, 1958, 153-176, at 157-160, quotation at 159.
78 South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), International Court
of Justice [including Sir Gerald Fitzmaurice], 1966 ICJ Reports, at 7.
79 Supra note 19.
80 Dissenting Opinion Judge Alvarez, supra note 29, at 52-53 (emphasis added).
81 Anthony D’Amato, "Treaties as a Source of General Rules of International Law", 3 Harvard
International Law Journal 1962, 1-35, citation in section V.a.

13
along the same lines as the International Court in the 1949 Reparation Opinion when
it argued that a majority of 50 states by signing the UN Charter were capable of
creating legal effect also for the 51st state which had never given its consent to the
treaty. 82
The problem is not, as it is sometimes presented, the contrast between law-
making and contractual treaties. This traces back to to the general opposite between
state sovereignty and international community and that is the same old liberal tension
between freedom of the subjects and collective interest (or, just so much
constraining order as is needed to safeguard individual freedom) which generally
characterizes the machinery of (late-)modern international law. Nor is the problem
that the treaty has a dual function. In his treatise on the law of treaties Professor
Reuter mentions, almost in passing, that “…distinctions… like the one between law-
making and contractual treaties, have been shown to be rather inaccurate and
irrelevant.” 83 Proceeding from the conventional law of treaties, which is based on the
premise of one single treaty instrument and geared almost entirely to form, it indeed
seems to have relative importance (although the system is stretching its boundaries).
The true problem is the gap between contractual form and law-making
function that exists in normative treaty-making. This discrepancy can be
inconvenient when we move within the positivist, formal sources paradigm, as § II
above has sought to indicate. In relation to human rights treaties Klabbers remarks:
“[t]he tragedy is that reservations can only be fought with a contractual perspective,
while the contractual perspective itself fails to satisfy the sense of idealism and
progress inextricably bound up with human rights.” 84 Essentially this holds for all
normative treaties, also for the United Nations Convention Against Corruption; 85 the
WHO Framework Convention on Tobacco Control; 86 and the Stockholm Convention on
Persistent Organic Pollutants; 87 to name a few recent UN treaty projects.
At this point there seem to be two options. One is to abandon the law of
treaties - that is: voluntarist - paradigm for the creation of general normative regimes
altogether. This is at stake for instance in the discussion on whether to label certain
treaty adaptations, such as ICAO ‘standards’ adopted by the council of the
organization and binding upon all the members, as ‘majority legislation’ or rather as
an evolved form of consent-based treaty practice. 88 Undoubtedly there is a shift in

82 “[T]he Court's opinion is that fifty States, representing the vast majority of the members of
the international community, had the power, in conformity with international law, to bring
into being an entity possessing objective international personality” (Reparation For Injuries
Suffered In The Service Of The United Nations, International Court of Justice, Advisory Opinion,
ICJ Reports 1949, 174, at 185).
83 Reuter, supra note 10, at 35.
84 Jan Klabbers, "On Human Rights Treaties…", 2004, supra note 42, at 181.
85 Adopted on 31 October 2003 at the fifty-eighth session of the General Assembly of the
United Nations (UN Doc. A/RES/58/4).
86 Adopted in Geneva, 21 May 2003.
87 Adopted at the Conference of Plenipotentiaries on the Stockholm Convention on
Persistent Organic Pollutants at Stockholm on 22-23 May 2001.
88 For example 'adjustments' to the original standards laid down in the 1987 Montreal Protocol
on Substances which Deplete the Ozone Layer are - failing consensus adopted by a two
thirds majority - binding on all parties. Many technical organizations, or Multilateral
Environmental Agreements envisage such procedures (cf. e.g. Robin Churchill & Ger
Ulfstein, “Autonomous Institutional Arrangements in Multilateral Environmental

14
perception in this respect, but certainly it is at its early stages. As yet, international
practice uses predominantly treaties to create normative regimes, and emphatically
stays with the law of treaties discourse – underscoring the expression of consent, the
sovereignty and the free will of the subjects. 89
A second option is to acknowledge the disconnexion between form and
function that may occur. A next step would then be to abandon the idea of
substantive rules covering all treaties 90 and, while considering that general systematics
are out of reach, to aim and fix specific rules for specific treaties. 91 This would seem
the most promising course in the short run, as it works from the paradigm currently
prevailing. One example of that is Article 20(3) of the Vienna Convention: the rule
for reservations to organizations’ constitutive treaties is different from the general
regime: reservations to such treaties require the consent of the organization. 92 And
still, witness the debate on reservations, it is difficult enough to set apart specific
classes of treaties. For one thing because of the inevitable difficulty of fixing the
dividing line between normative and contractual treaties. 93 Another reason is that in
the end much depends on political will. 94 This approach is similar but less farreaching
than the deferral strategy where the general level settles for procedural rules and
defers the substantive decision elsewhere 95 - for the law of treaties this would mean
that on the general level specific rules would not be formulated at all, but that they
would be deferred to specific treaty regimes. The Vienna Convention contains one
example, and again it relates to a regime that is not only constitutionalized, but also
institutionalized: the general reservation clause of article 5 which limits the operation
of general law of treaties altogether in respect of constitutive treaties of international
organizations. 96
What may be summarized as the procedural strategy seems to fit in well with
developing doctrine and practice. Apart from the provisions in the Vienna
Convention two trends emerge from a cursory view at normative treaties and their
place in the law of treaties. These are the move to a ‘constitutional’ discourse and the
effect of centralization.

Agreements: A Little-Noticed Phenomenon in International Law”, 94 American JIL 2000,

623-659). Already Charles Alexandrowicz (The law-Making Functions of the Specialised Agencies of
the United Nations), 1973, at 40-69 (on ‘quasi-legislative acts’ of Specialised Agencies) held
“this is no doubt an extra-treaty process” (at 152).
89 examples
90 Following the suggestion of e.g. McNair in 1930 – see supra note 29.
91 I am indebted to Jan Klabbers for articulating this view.
92 Supra note 41 and accompanying text.
93 Cf. “..a treaty was rarely entirely normative or entirely synallagmatic: in most cases, including
human rights, a treaty contained both contractual clauses recognizing reciprocal rights and
obligations and ‘normative’ clauses” (1997 ILC Report, Chapter 5, § 69).
94 Jan Klabbers, "On Human Rights Treaties…", 2004, supra note 42, at 154.
95 This appears as a procedural variant of ‘the strategy of referral’ (Martti Koskenniemi, From
Apology to Utopia: The Structure of International Legal Argument, 1989, 439 ff. (on UNCLOS)
which has a rule defer the material decision to another rule; see also David Kennedy,
International Legal Structures, 1987, 201-245; and Philip Allott, “Mare Nostrum: A New
International Law of the Sea”, 86 American Journal of International Law, 1992, 764-787.
96 See supra note 41.

15
 In the scheme of Fitzmaurice, 97 the essence of normative treaties or ‘integral
obligations’ lies in the absence of a bilateral, synallagmatic relation with other treaty
parties. An underlying premise is that once the treaty is concluded, the legal order it
has established, assumes a life of its own. This is why the distinction between
reciprocal and interdependent treaties, on the one hand, and inherent treaties (the
true ‘law-making’ instruments), on the other, is relevant. This construct is different
from the network of bilateral relations that was envisaged for the purpose of the
reservations regime by the International Court of Justice in its Opinion on the
Genocide Convention. 98 Rather, the construction is reminiscent of the “consensual
bond” which comes into being upon acceptance of the jurisdiction of the
International Court of Justice under the optional clause in Article 36(2) of the ICJ
Statute. 99 It is also how the Inter-American Court for Human Rights construed that
“[i]n concluding these human rights treaties, the States can be deemed to submit
themselves to a legal order within which they, for the common good, assume various
obligations, not in relation to other States, but towards all individuals within their
jurisdiction.” 100
Related to this is the ‘constitutional’ perspective which is visible in
contemporary practice regarding normative treaties in general, notably their
interpretation. Here the original agreement has faded into the background, leaving an
an independent, self-propelling treaty regime. This view allows for normative treaties
to be interpreted in an ‘evolutionary’ manner, the purport of the rules changing in
connexion with other legal norms, or with social reality. There are also strong
arguments to use the evolutionary interpretation in a temporal sense, and to consider
normative treaties as ‘continuing’ norms to which for that reason certain time-based
rules of the law of treaties do not apply.
The detachment of the original treaty from the resulting regime is not new –
thus the concept of the ‘objective regime’ has developed from the longstanding
category of status treaties. Legal scholars have come to agree on the view that the
treaty-based regime, once established, simply lies outside the scope of the law of
treaties. Or, in the words of Paul Reuter: “[…] the various theoretical views followed
on this point by the International Law Commission […] regard certain legal effects
not as a consequence of the treaty itself but of the situation established by the
treaty.” 101
The constitutional approach would thus enable us to detach the treaty
mechanism from the treaty regime: “it is certainly true that ‘treaty law’ has a certain
utility…but that is a far cry from any supposition that the [human rights] instruments
in question can only be understood within that framework.” 102 Technically this could

97 Supra § II.
98 Supra note 35.
99 Cf. Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections,
Judgment, ICJ Reports 1998, 275, § 25.
100 The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts.
74 and 75), Inter-American Court of Human Rights, Advisory Opinion OC-2/82, of
September 24, 1982, § 29.
101 Reuter, supra note 10, at 128 (emphasis in the original); see 121-129 on some alternative
perspectives from which to approach the phenomenon of ‘objective regimes’.
102 Matthew Craven, "Legal differentiation and the concept of the human rights treaty in
international law", 11 European Journal of International Law 2000, 489-519, at 519. See also the

16
take the form of substantive rules for particular treaties being deferred to another
level, ultimately to the treaty itself.
Finally, it seems that the viability of a constitutional perspective is intricately
linked with an element of centralization. Where previously treaties had to operate in a
horizontal, co-ordinated structure, also when multilateral and even ‘law-making’, this
is no longer the case. In many cases the treaty now operates in a centralized legal
environment. Often, this is formalized in an international organization, but it may
also be the constitutionalized frame of reference (or frame of mind) 103 of a field of
law, or a treaty regime such as in human rights. Arguably, in such a context it will be
increasingly uncomplicated to distance ourselves from the treaty mechanism and
concentrate on the treaty regime – or, in the case of normative treaties, to let the gap
between form and function become less important.

above-quoted remarks by McNair, supra note 29; and Rosenne on this topic, in
Developments…supra note 36, at 257-258.
103 E.g by the introduction of the concept of jus cogens overriding other norms - cf. Erika de Wet,
The International Constitutional Order, Inaugural Lecture, Universiteit van Amsterdam, Vossius
Pers, 2005.

17