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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
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.

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