About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

11 Brit. Y.B. Int'l L. 100 (1930)
The Functions and Differing Legal Character of Treaties

handle is hein.journals/byrint11 and id is 104 raw text is: THE FUNCTIONS AND DIFFERING LEGAL CHARACTER OF TREATIES.' By ARNOLD D. McNAIR, C.B.E., LL.D., Fellow and Senior Tutor of Gonville and Caius College, Cambridge. THE following remarks are prompted by the belief that in- adequate attention has been given by students of International Law to the widely differing functions and legal character of the instruments which it is customary to comprise under the term treaty. It is suggested that this branch of the law would be in a more advanced state if more writers on the subject would study these essential differences and endeavour to provide for them instead of attempting to lay down rules applicable to treaties in general.2 Most writers recognize and enumerate different kinds of treaties but either fail to realize, or only realize insufficiently, that these differences do not stop short at their contents but affect their legal character as well. No attempt will be made here to construct a new classification of treaties. I shall content myself with pointing out by means of a few illustrations the essential juridical character of certain types of treaties and the legal con- sequences which seem to me to follow. The internal laws of the modern state provide its members: with a variety of legal instruments for the regulation of life within that community: the contract; the conveyance or assignment of* immovable or movable property, which may be made for valuable: consideration or may be a gift or an exchange; the gratuitous promise clothed in a particular form; the charter or private Act of Parliament creating a corporation; legislation, which may be constituent, such as a written constitution, fragmentary or com- plete, or may be declaratory of existing law, or create new law, or codify existing law with comparatively unimportant changes. Further, though rarely, we may find a constitutional document which closely resembles the international treaty itself, for instance, Magna Carta.3 It would not be suggested that all these differing private law 1 Based on a lecture delivered at the request of the University of London on May 7, 1930, and upon lectures delivered at the Institut Universitaire des Hautes P tudes Inter. nationales at Geneva. 2 For a recent survey of existing classifications, see Rapisardi-Mirabelli in Revue de Droit International et de Lgislation comparee, 3rd Ser., Vol. IV (1923), pp. 653-67. 3 On its legal character, see McKechnie, Magna Carta (2nd ed.), pp. 104-7.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most