Some Reflections on the Vienna Convention on the Law of Treaties
| Author | P. Brazil |
| DOI | 10.1177/0067205X7500600201 |
| Published date | 01 June 1975 |
| Date | 01 June 1975 |
| Subject Matter | Article |
SOME REFLECTIONS ON
THE
VIENNA CONVENTION
ON
THE
LAW
OF
TREATIES
BY
P. BRAZIL*
Australia has recently acceded to the Vienna Convention on
Treaties, one of the major codifying treaties concluded under
United Nations auspices. Mr Brazil who was a member and later
Leader of the Australian Delegation to the Conference that drew up
the Convention, examines its scope, including its answer to the
question-should
the Convention cover the topic
of
treaty-making
capacity
of
parts
of
federal States? Mr Brazil suggests that the
Convention's rules on reference to preparatory materials as
interpretative aids should
be
adopted by Australian courts. Its
restatement
of
the topic of reservations and its reception
of
the
notion of international public order (jus cogens)
are
evaluated.
The themes
of
good faith and due process are seen to run through
the Convention, which though not yet in force, has already gained
wide acceptance.
Conferences, adjournments, ultimatums,
Flights in the air, castles in the air,
The autopsy of treaties
...
(Louis MacNiece)
On 13 June 1974 the accession of Australia to the Vienna Convention
on the Law of Treaties adopted on 22 May 1969 at Vienna by the
United Nations Conference on the Law of Treaties, was deposited with
the United Nations Secretary-General.
At
the date of writing, twenty-two
other countries have, by ratification or accession, also consented to be
bound by the Convention.1
It
will enter into force on the thirtieth day
following the date of deposit of the thirty-fifth ratification.
I
Much has been written already about the Convention;2 more will
undoubtedly come. The preparatory work leading to its adoption
is
particularly extensive and instructive, embracing not only the records of
*B.A., LL.B. (Hons.) (Qld.); First Assistant Secretary, Australian Attorney-
General's Department, Canberra. The views in this article are expressed as the
personal views
of
the author.
1 The Convention
is
set forth in
A/CONF.39/27
and Corr.
1;
also in (1969)
8 International Legal Materials 679.
It
will be printed in the Australian Treaty
Series 1974 No.
2.
Countries
that
have ratified
or
acceded to the Convention
are-
Australia, Argentina, Barbados, Canada, Central African Republic, Greece, Italy,
Jamaica, Lesotho, Mauritius, Mexico, Morocco, New Zealand, Niger, Nigeria,
Paraguay, Philippines, Spain, Sweden, Syrian Arab Republic, Tunisia, United
Kingdom and Yugoslavia.
2 The following
is
by no means
an
exhaustive list: Elias, The Modern Law
of
223
224 Federal Law Review
[VOLUME
6
the two Sessions of the Conference in 1968 and 1969, but also the
intensive work of the International Law Commission
(ILC)
between
1962 and 1966 in preparing the draft articles considered by the
Conference; and
we
are most fortunate in having Shabtai Rosenne's
The Law
of
Treaties; A Guide to the Legislative History
of
the Vienna
Convention3 to light the way through this embarrassment of riches. The
extent to which resort may properly be had to the discussions in the
ILC in interpreting the Convention
is
perhaps arguable,4 but it
is
clear
that the final Commentaries adopted by the
ILC
in 1966 on its draft
articles have a special place
as
constituting the expose des motifs of the
text that formed the main basis of the Convention.
When it
is
added that the Convention itself consists of 84 highly
condensed Articles dealing with many though not,
as
we
shall see, all
aspects of the Law of Treaties, it will be understood that the scope of
these present reflections must necessarily be severely selective, Their
bias will be Australian in the sense of seeking to express a personal
Australian viewpoint on parts of the Convention, its background and
setting, without, it
is
hoped, foresaking the objectivity and universality
Treaties ( 1974); Sinclair, The Vienna Convention on the Law
of
Treaties ( 1973);
Antippes, "Background Report
on
Codification
of
the Law of Treaties at the
Vienna Conference" (1969)
43
Tulane Law Review 798; Stanford, "United
Nations Law
of
Treaties Conference: First Session" (1969)
19
University of
Toronto Law Journal 59; Sinclair, "Vienna Conference
on
the Law of Treaties"
(1970)
19
International and Comparative Law Quarterly 47; Stanford, "Vienna
Convention
on
the Law of Treaties" (1970) 20 University of Toronto Law
Journal 18; Kearney, "Future Law
of
Treaties" (1970) 4 International Law 823;
Nahlik, "Grounds
of
Invalidity and Termination of Treaties" (1971)
65
American
Journal of International Law 736; Jacobs, "Innovation and Continuity in the Law
of
Treaties" (1970)
33
Modem
Law Review 508; Germer, "Interpretation
of
Plurilingual Treaties: A Study
of
Article
33
of
the Vienna Convention on the Law
of Treaties" (1970)
11
Harvard International Law Journal 400; Malawer, "New
Concept of Consent and World Public Order: 'Coerced Treaties' and the Conven-
tion
on
the Law
of
Treaties" (1970) 4 The Vanderbilt International
1;
Partridge,
"Political and Economic Coercion: Within the Ambit of Article 52
of
the Vienna
Convention on the Law of Treaties?" (1971) 5 International Law 755; Briggs,
"Travaux Preparatoires of the Vienna Convention on the Law
of
Treaties" (1971)
65
American Journal of International Law 705; Kearney and Dalton, "Treaty on
Treaties" (1970) 64 American Journal
of
International Law 495; Wozencraft,
"United Nations Arithmetic and the Vienna Conference on the Law
of
Treaties"
(1972) 6 International Law 205; Deutsch, "Vienna Convention
on
the Law of
Treaties" (1971) 47 Notre Dame Law 297; Koeck,
"'Changed
Circumstances'
Clause after the United Nations Conference on the Law
of
Treaties (1968-1969)"
(1974) 4 Georgia Journal
of
International and Comparative Law 93.
3 ( 1970).
The
main documentation consists
of
the Official Records of the
Conference (two volumes
of
summary records
of
the 1968 and 1969 sessions
respectively-A/CONF.39/11
and
A/CONF.39/11/
Add.1-and
one volume
of
documents
A/CONF.39/11/
Add.2) and the draft articles on the Law of Treaties
with commentaries adopted by the ILC in 1966: Yearbook
of
the ILC, 1966
Vol.
II
173-274.
For
earlier antecedents, pre-eminent place must be given
to
the
draft
on
the Law of Treaties by Harvard Research in International Law: (1935)
29
American Journal
of
International Law (Supp.) 653.
4 Shabtai Rosenne, The Law
of
Treaties (1970) 37.
To continue reading
Request your trial