Typologies and the ‘Essential Juridical Character’ of Treaties

Abstract

Legal scholarship, doctrine and practice differentiate between treaties. References to ‘peace treaties’, ‘lawmaking treaties’, ‘environmental treaties’, ‘fundamental treaties’, ‘contract treaties’, ‘constitutional treaties’, and ‘self-executing treaties’ are a received part of public international law discourse. Classifications of treaties are also not new. In his 1930 article, Lord Arnold McNair distinguished between ‘widely differing functions … of the instruments which it is customary to comprise under the term “treaty”’, and sought to link these to their ‘essential legal character’. This paper aims to trace classifications of treaties prevalent in international affairs today, and to look at their significance within and outside the law of treaties framework. Findings suggest that the various treaty typologies may be grouped into three main categories: form typologies, normative effect typologies and content typologies. While it turns out that the Vienna Convention regimes have little sensitivity to differentiation between treaty types, treaty typologies appear to play an important part in international law and policy more generally. This paper thus also goes to illustrate how the treaty has moved beyond its role of a content-neutral, formal instrument to gain relevance as a context-dependent body of normative authority.

Keywords: International law, law of treaties, Vienna Convention on the Law of Treaties, lawmaking treaties, constitutive treaties, multilateral treaties, treaty types, normative scope, normative content, form of treaties

JEL Classification: K33