No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
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.
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 Treaties (1974)Google Scholar; Sinclair, The Vienna Convention on the Law of Treaties (1973)Google Scholar; Antippes, “Background Report on Codification of the Law of Treaties at the Vienna Conference” (1969) 43 Tulane Law Review 798Google Scholar; Stanford, “United Nations Law of Treaties Conference: First Session” (1969) 19 University of Toronto Law Journal 59CrossRefGoogle Scholar; Sinclair, “Vienna Conference on the Law of Treaties” (1970) 19 International and Comparative Law Quarterly 47CrossRefGoogle Scholar; Stanford, “Vienna Convention on the Law of Treaties” (1970) 20 University of Toronto Law Journal 18CrossRefGoogle Scholar; Kearney, “Future Law of Treaties” (1970) 4 International Law 823Google Scholar; Nahlik, “Grounds of Invalidity and Termination of Treaties” (1971) 65 American Journal of International Law 736CrossRefGoogle Scholar; Jacobs, “Innovation and Continuity in the Law of Treaties” (1970) 33 Modem Law Review 508CrossRefGoogle Scholar; 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 400Google Scholar; Malawer, “New Concept of Consent and World Public Order: 'Coerced Treaties' and the Convention on the Law of Treaties” (1970) 4 The Vanderbilt International 1Google Scholar; Partridge, “Political and Economic Coercion: Within the Ambit of Article 52 of the Vienna Convention on the Law of Treaties?” (1971) 5 International Law 755Google Scholar; Briggs, “Travaux Preparatoires of the Vienna Convention on the Law of Treaties” (1971) 65 American Journal of International Law 705CrossRefGoogle Scholar; Kearney, Dalton, , “Treaty on Treaties” (1970) 64 American Journal of International Law 495CrossRefGoogle Scholar; Wozencraft, “United Nations Arithmetic and the Vienna Conference on the Law of Treaties” (1972) 6 International Law 205Google Scholar; Deutsch, “Vienna Convention on the Law of Treaties” (1971) 47 Notre Dame Law 297Google Scholar; 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 93Google Scholar.
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) 37Google Scholar.
5 Article 2( 1)(a).
6 Article 73.
7 Yearbook of the /LC,1966 Vol. II 216-217.
8 Id 192.
9 Id.191.
10 Official Records, Second Session 6-16.
11 (1961) 37.
12 Official Records, Second Session 15.
13 Id. 12.
14 E.g. the Canadian, Federal Republic of Germany, Soviet Union and Indian representatives; Official Records, Second Session 6-7, 8, 10, 11. The Soviet Union supported retention of the ILC formulation.
15 Id. 8 (emphasis added).
16 Yearbook of the ILC, 1953 Vol. II 112; 1954 Vol. II 127; 1956 Vol. II 123.
17 Yearbook of the ILC, 1966 Vol. II 202.
18 Official Records, First Session 106.
19 Official Records, Second Session 37.
20 Yearbook of the ILC, 1966 Vol. II 35ff.; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide ICJ Reports 1951 15.
21 (1935) 29 American Journal of International Law (Supp.) 653, 659-660
22 ICJ Reports 1951 15, 24.
23 Official Records, First Session 126.
24 Id 29.
25 Official Records, Second Session 35.
26 See North Sea Continental Shelf CasesICJ Reports 1969 4, 38-39, in which Article 12 of the Geneva Continental Shelf Convention allowing reservations “other than to Articles 1 to 3 inclusive” was considered.
27 Official Records, First Session 155.
28 E.g. McNair, Law of Treaties (1961) 100-101, 761. Article 27 is to be distinguished from Article 43 on the international constitutional laws regarding competence to conclude treaties. As the President of the Conference (Professor Ago) observed, there is no conflict between the Articles because Article 24 refers to treaties already in force: Official Records, Second Session 54.
29 Yearbook of the ILC, 1966 Vol. II 220-223.
30 The submissions of the United States representative (Professor McDougul) are set forth in (1968) 62 American Journal of International Law 1021. They were rejected by 66 votes to 8, with 10 abstentions: Official Records, First Session 185.
31 Grey v. Pearson (1857) H.L.C. 61, 106: “... in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument .. ,”
32 Brazil, “Legislative Hi' story and Interpretation of Statutes” (1961-1964) 4 University of Queensland Law Journal 1Google Scholar.
33 The Foreword by Sir Oarfield Barwick, Chief Justice of the High Court, to Pearce, Statutory lnterpretaition in Australia (1974): “Whilst it is not appropriate for me here to express a qoncluded or personal view, I may say that I am far from thinking that the knor,vledge and understanding of the preparatory antecedents of legislation may not be of assistance, at least on some occasions, in its construction. But any tend ncy to alter or substitute the actual language of the legislature which such knowledge may induce must be eschewed. The Judge's task is construction of what the legislature has enacted and not the effectuation of purposes which it had or rhay have had but did not enact. However, minds that are conscious of the limite nature of the task might well profit on occasions by knowing what the legislatwie was endeavouring to do and should not be deflected by that knowledge from deciding whether by the words of the statute the legislature has achieved those qitentions. It may be that obscurity of an intention to achieve a particular result vyhich the words of the enactment with due construction could effect may be removed by such knowledge and understanding.”
34 In Porter v. Freudenberg [1915] 1 K.B. 857, 876, the preparatory materials of the Hague Convention ,of 1907 on the Laws and Customs of War on Land were referred to,
35 Yearbook of the ILC, 1966 Vol. II 224 (emphasis added).
36 (1935) 29 American Journal of International Law (Supp.) 653, 971 (emphasis added).
37 Document A/CONF.39/C.1/L.197. See also the discussion Official Records, First Session 189-190.
38 PCIJ (1924) Series A, No. 2, 19,
39 [1912] 3 K.B. 190, 196.
40 8th ed. (1955) Vol. I 956.
41 Manley O., Hudson The Permanent Court of International Justice (1943) 559 n. 2Google Scholar.
42 (1935) 29 American Journal of International Law (Supp.) 653, 972.
43 Shabtai, Rosenne op. cit. 231Google Scholar, gives references to discussions of the “most–favoured-nation-clause” in the ILC. See also Yearbook of the ILC, 1966 Vol. II 177.
44 Judgment of the International Tribunal [at] Nuremberg H.M.S.O.Cmd 6964 (1946).
45 ICJ Reports 1969 41.
46 Id. 225.
47 Official Records, First Session 343.
48 Yearbook of the ILC, 1966 Vol. II 250-251; Official Records, First Session 336-337, 339.
49 Yearbook of the ILC, 1966 Vol. II 237.
50 Nuclear Tests case (Australia v. France) ICJ Reports 1974 253, 338. See also Memorial dated 23 November 1973 filed by Australia on the questions of jurisdiction and admissibility in that case.
51 4th ed. (1895) 343.
52 Yearbook of the ILC, 1966 Vol. II 248.
53 Official Records, First Session 471.
54 Id. 227.
55 6th ed. Sir Humphrey Waldock (ed.) (1963).
56 Id. 82-83.
57 Yearbook of the ILC, 1966 Vol. II 176.
58 Elias, The Modern Law of Treaties (1974) 7Google Scholar, and Sinclair, “Vienna Conference on the Law of Treaties” (1970) 19 International and Comparative Law Quarterly 47, 68-69CrossRefGoogle Scholar.
59 ICJ Reports 1971 16, 47.
60 ICJ Reports 1972 46, 67.
61 ICJ Reports 1973 49, 63.
62 ICJ Reports 1974 253, 338, 349-350, 357, 381, 383, 404-405, 418.