Research Handbook on the Theory and Practice of International Lawmaking
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Research Handbook on the Theory and Practice of International Lawmaking

Edited by Catherine Brölmann and Yannick Radi

The global landscape has changed profoundly over the past decades. As a result, the account of the making of international law based on the traditional theory of sources is increasingly challenged. This Handbook offers a comprehensive guide to the theory and practice of international law‐making today. It takes stock at both the conceptual and the empirical level of the instruments, processes, and actors involved in the making of international law. The book contains essays by leading scholars on key aspects of international law-making and on law-making in the main issue areas, with an interest in classic processes as well as new developments and shades of normativity.
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Chapter 5: Lawmaking by treaty: Negotiation of agreements and adoption of treaty texts

Kirsten Schmalenbach


In the process of international treaty-making, the reaching of an international agreement is usually preceded by extensive negotiations between the prospective parties. Although many aspects of the process of international negotiations are not regulated by international law, certain (emerging) principles are nonetheless discernable that are both procedural and substantive in nature. Specific attention is given to negotiations at diplomatic conferences, with a focus not only on rules of procedure but also on the political and actual practice, as well as developments such as the involvement of non-state actors. When negotiations are concluded, the seemingly uncomplicated step of adopting the treaty text presents its own issues. In practice, the adoption of each text is a unique event with its own rules and developments, especially in connection with the question of consensus and majority voting. With the will of the States in international lawmaking and international negotiations usually holding center stage, this means that their own aims and objectives take priority, often at the expense of rules and conventional procedures.

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