30 Brit. Y.B. Int'l L. 401 (1953)
The Conflict of Law-Making Treaties

handle is hein.journals/byrint30 and id is 407 raw text is: THE CONFLICT OF LAW-MAKING TREATIES
By C. WILFRED JENKS, LL.D.
I
THE world community still has no legislature and it seems improbable that
anything comparable to a national legislature can be developed on a world
scale in the foreseeable future. Supra-national legislative authorities may be
created successfully within limited political communities at no distant date,'
but on the most optimistic estimate of their possibilities these are more
likely to represent new forms of decentralized federalism adapted to the
needs of areas-such as western Europe, the original home of the national
State-where traditions of national independence are particularly strong,
than to afford a model for new international institutions on a world scale.
The constant creation of new law by legislative action has, however, become
as characteristic a feature of the world community as of the modern State.2
Statutory law has always been regarded by common lawyers as of secondary
interest3 and this attitude has frequently coloured the evaluation of the
importance of law-making treaties in the development of international law.
An attitude of caution on the subject is, of course, both legitimate and wise
for, as Sir Arnold McNair has pointed out, 'the term international legis-
lation is a metaphor', since 'the essence of legislation is that it binds
all persons subject to the jurisdiction of the body legislating, whether they
assent to it or not, whether their duly-appointed representatives assent to
it or not', whereas international legislation 'only binds parties who have
duly signed the law-making treaty and, where necessary, as it usually is,
have ratified it'.4 But the content of even widely-ratified law-making treaties
is frequently treated by the international lawyer with a degree of detach-
ment which recalls Lord Wright's statement that the bulk of 'the statutory
portion of law . . . is now great and is growing, but such law is for the
specialist and has little interest for the student of law save in so far as it
illustrates principles of construction and save in so far as it indicates trends
of social thought and policy, which may have repercussions on the atti-
tude of judges when they deal with common law questions of kindred
character'.5 This is an understandable reaction to a complex body of
detailed rules, many of them dealing with matters of a highly technical
character, which do not afford the same scope as the common law for the
I Concerning the suggested legislative powers of the proposed European Political Community
see Robertson in this Year Book, 29 (1952), pp. 383-401.
2 See Hudson, International Legislation, vol. i (193 i), Introduction.
3 See, for example, Wright, Legal Essays and Addresses (T939), pp. 396-8
4 See McNair, 'International Legislation', in Iowa Law Review, 19 (1934), No. 2, p. 178.
s Op. cit., p. 397.
B 4104                            Dd

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