Treaties and treaty materials: Role, relevance and accessibility

International and Comparative Law Quarterly

Volumn 46, Issue 3, 1997, Pages 643-662

  Gardiner, Richard ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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EID: 84928768415     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300060838     Document Type: Article

References (40)

1. The role of preparatory work as a subsidiary means of interpretation is set out in Art.32 of the Convention on the Law of Treaties, Vienna, 1969, U.K.T.S. No.58 (1980) Cmnd. 7964. This Convention is referred to below as “the Vienna Convention”.
2. See e.g. the Convention for the International Carriage of Goods by Road, Geneva, 1956. Art.l predicates application of the substantive provisions on relevant places being “in two different countries, of which at least one is a contracting country”. Art.46 provides for notification that the Convention shall extend to all or any of the territories for the international relations of which a “country” is responsible. A Protocol of Signature modifies the application of the treaty's provisions for specified traffic. For the problems these provisions presented in litigation see R. K. Gardiner, “Air Law's Fog: The Application of International and English Law” (1990) 43 C.L.P. 159, 167–170.
3. See Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, The Hague, 1970 (847 U.N.T.S. 231), Arts.2, 8, 24, 25 and 35.
4. Vienna Convention, Arts.31–33. See I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, 1984), pp. 153–154.
5. The Vienna Convention on the Law of Treaties (2nd, p.115.
6. [1981] A.C. 251.
7. See e.g. M.J. Bowman and D.J. Harris, Multilateral Treaties: Index & Current Status (1984) and Supplements;
8. C. Parry, D. J. Harris and J. A. Shepherd, Index of British Treaties (4 Vols, HMSO) and
9. C. Parry and P. Irwin, Index-Guide to Treaties (2nd edn, 1984)
10. P. H. Rohn, World Treaty Index (5 Vols, 2nd edn, 1984).
11. See e.g. Consolidated Treaties and International Agreements: United States Current Documents Series (Oceana, from 1990).
12. See e.g. Convention on International Civil Aviation, Chicago, 1944, Arts.38 and 54.
13. Convention on International Civil Aviation, pp. 238–239. Several of the provisions of the now named “Bermuda 1” Agreement were principles set out in the Final Act rather than in the Agreement in an Annex to the Final Act. Nevertheless, in substance, if not in form, the principles came to be viewed as obligations equivalent in force to those in the formal Agreement or treaty. This presented some problems at the time of denunciation of Bermuda 1 since a Final Act, being a formal record of proceedings, cannot appropriately be “terminated”.
14. McNair, The Law of Treaties (1961), p.4.
15. See A. Aust, “The Theory and Practice of Informal International Instruments” (1986) 351. C.L.Q. 787 and
16. D. N. Hutchinson, “The Significance of Registration or Non-Registration of an International Agreement in Determining Whether or Not it Is a Treaty” (1993) 46 C.L.P. 257.
17. In F. G. Jacobs and S. Roberts (Eds), The Effect of Treaties in Domestic Law, (1987) p.280.
18. Thus e.g. in Air Transport Agreement Arbitration (USA v. Italy) (1965) 45 I.L.R. 393, at p399, the arbitral tribunal refers to both this US publication and to the Official Gazette of the Italian Republic for the treaty texts, the reference to the U.N.T.S. having been added as a footnote.
19. Legal Studies (Journal of the Society of Public Teachers of Law) (Special Issue) (1995), p.49.
20. Young Loan Arbitration (1980) 59 I.L.R. 495. The need for access to a text in the original language, even though this was not a version reproduced in a statute, was shown in the English case Coro-craft v. Pan American Airways [1969] 1 Q.B. 616 (CA).
21. See e.g. G. Gaja, International Commercial Arbitration: the New York Convention on Recognition & Enforcement of A rbitral A wards, in which the preparatory works form part of a compendious looseleaf encyclopaedia;
22. R. Horner and D. Legrez, Minutes of Second International Conference on Private International Air Law, 1929 (1975), where the preparatory work of the Warsaw Convention is provided in translation from the French;
23. and I. Jasentu-liyana and R. Lee (Eds), Manual of Space Law (1979), in which the preparatory works of each of the main multilateral treaties on outer space are set out as part of a compendious 4-volume work of commentary and materials.
24. Italy v. Federal Republic of Germany 291.L.R. 442 (1959).
25. L.R., pp.459–468.
26. See e.g. Shawcross & Beaumont, Air Law (4th, looseleaf continuation), Vol.2.
27. The obvious answer, that a party to an amending protocol must be taken to be a party to the treaty which the protocol amends irrespective of whether it has undergone the formal process of becoming a party, is not in fact the case. The final clauses of the Hague Protocol make it clear that it establishes an independent treaty regime consisting of the Warsaw Convention as amended at The Hague. See R. K. Gardiner, “Carriage by Air in the US Court of Appeals” [1988] L.M.C.L.Q. 151, at p.156.
28. 99 I.L.R. 401 (Netherlands Supreme Court, 1983).
29. I.L.R., p.402.
30. 99 I.L.R. 430 (Netherlands Supreme Court, 1987).
31. See Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom) (Interim Measures) (1992) 941.L.R. 479.
32. See also Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (1993) 951.L.R. 1, where the relationship between a Security Council resolution and the Genocide Convention (1948) was considered.
33. Convention relating to the Status of Refugees, Geneva, 1951.
34. R v. Secretary of State, ex p. Bugdaycay [1987] 1 A.C. 514 (HL).
35. A.C., p.519.
36. M.K. v. State Secretary for Justice 99 I.L.R. 35 (the Netherlands, Council of State (Judicial Division), 1988).
37. See also Re Attorney General of Canada v. Ward 92 I.L.R. 691 (Canada, Federal Court of Appeal, 1990) where the court considered guidance given by the UNHCR Handbook on cases of dual or multiple nationality; although held not to be binding, the guidance was found “persuasive as forming a logical construction of the Convention refugee definition” (idem, p.705).
38. See C. Warbrick, “The Regulation of Navigation”, in Churchill, Simmonds and Welch (Eds), New Directions in the Law of the Sea (1973) Vol. III, chap.13.
39. See N. Grief, Public International Law in the Airspace of the High Seas (1994), pp. 66–69.
40. ((1989) 28 I.L.M. 896, para.2.2.4).