A revised approach to treaties and instruments of less than treaty status in light of their post-war transformation

Abstract

It has been almost 50 years since the adoption of the Vienna Convention on the Law of Treaties in 1969. This marks the evolution of the treaty in the field of external relations and diplomacy, during which time treaty law has become characterised as a code of customary law—or, rather, a restatement and consolidation of existing or emerging principles. In view of the importance of international custom in forming the law of treaties, the significance of the post-war transformation in relation to treaty law lies not simply in the Vienna Convention itself but in the extent to which it has successfully become accepted and applied as a restatement of international customary law by both international and national courts, as well as governments and foreign ministries. High levels of acceptance are, however, complicated by the practice of some states, including some with which Australia enters agreements, particularly with regard to arrangements of less than treaty status. These have caused, and continue to cause, many problems for Australia in its diplomatic relations with others states. Less than treaty status arrangements (also referred to as memoranda of arrangements, memoranda of understanding or soft law) represent another notable post-war development in policy implementation between states. Despite their prominence, their legal status is far from certain, which has contributed to growing confusion and inconsistent approaches, leading to unintended results in implementation of government policy, including for Australia. Australian treaty practice does not recognise that an international agreement between states that is not a treaty can give rise to rights and obligations that are binding under international law. The treatment of documents of less than treaty status represents a gap in present Australian treaty practice: there are no principles or rules that are applicable to the interpretation of such documents. This thesis proposes a new approach to treaties and arrangements of less than treaty status that is coherent with Australian constitutional structures and approximates the practices of the United Kingdom, the United States of America and the European Union in order to achieve a higher level of consistency.

Date of Award	2016
Original language	English
Supervisor	Murray Raff (Supervisor), Don Fleming (Supervisor) & Fanny Thornton (Supervisor)