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International Treaty Rulemaking as a Political Process

Abstract

The article examines in detail the historical and theoretical approaches to the formation and development of the interstate law-making process. Starting from the period of the emergence of treaty rule-making in the Ancient East as a politically motivated process, the development of legal technology in the Middle Ages, the structure of the text of an international treaty and the method of drafting reservations is traced. The article analyzes the novelties of treaty technology (annexes, activity of conferences, procedural rules for registration) and the doctrinal processing of the international process in the New Time. The institutional contribution of the League of Nations and the UN ILC to the norm-setting technique and the bringing of international codistics to a new doctrinal-universal level are noted. The authors of the article formulate a number of features of the codification technique of treaty acts. The article analyzes the basic consensus approach to the legal process of creating norms of international law, which presupposes the traditional way of rule-making directly by the subjects of international law on the basis of the method of harmonizing the wills and positions of states. The authors also touch upon the cooperative way of developing regulations in modern international rule-making, mediated in the form of the creation of norms, initially devoid of binding force, in the process and as a result of the activities of international organizations and conferences. In the second part of the article, the authors rethink the most significant Western international legal theories and concepts (postmodernism in law, economic analysis of international law, communicative theory of interpretation of international treaties, etc.). The positions of American realist internationalists and the influence of the realistic school of law on the change in goal-setting in international rule-making are analyzed. Most modern concepts regard the essence and forms of international rule-making as a political, or at least a quasi-political process. The authors come to the conclusion that the “dialogical approach” widespread in rule-making will help the international legislator, already at the stage of developing an international agreement, to avoid a bias towards the politically “strong point in the treaty”.

Keywords:

interstate relations; international treaty; law-making and international rulemaking; interstate negotiations; sovereignty; national interest analysis; international law codification; postmodern; institutionalism.


Authors: Aleksey Malinovsky, Elena Trikoz

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