Time to Put on the 3-D Glasses: Is There a Need to Expand JSCOT's Mandate to Cover ‘Instruments of Less than Treaty Status’?

Joint Standing Committee on Treaties, 20th Anniversary Seminar

UNSW Law Research Paper No. 2016-23

28 Pages Posted: 31 Mar 2016

See all articles by Andrew C. Byrnes

Andrew C. Byrnes

University of New South Wales (UNSW) - Faculty of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: March 18, 2016

Abstract

Many significant agreements between Australia and other countries are contained in instruments which are neither designated as nor intended to be treaties binding as a matter of international law. While some of these agreements may in fact be treaties, most are arrangements that are binding only as a matter of political or moral obligation, and their efficacy results from the shared interests of the countries which have concluded them.

This paper addresses the current state of Parliamentary and public access to the texts of formal arrangements between Australia and other countries that are of ‘less than treaty status’. It argues that many of these arrangements are of considerable practical and political significance to the relations between Australia and the other countries which are parties to those agreements. At present the publication of such documents is sporadic and unsystematic, and the text of many such instruments is not available to the public on government websites. The paper argues that some of the reasons that led to the systematic approach to the publication of treaties and related information and to enhanced Parliamentary consideration of treaties also apply in relation to many of these instruments.

The paper recommends that a review of the practice of (non-)publication of instruments of less than treaty status be undertaken, with a view to the adoption of a more systematic approach to the collection and publication of such instruments, with a presumption in favour of publication. It also proposes that the conclusion of such instruments should be reported on a regular basis to JSCOT and that the Committee should have the mandate to consider those instruments as it thinks fit.

Keywords: Public International law, Treaties, Arrangements of less than treaty status, Australia, Parliamentary role in treaty making, Joint Standing Committee on Treaties, Publication of treaties

Suggested Citation

Byrnes, Andrew C., Time to Put on the 3-D Glasses: Is There a Need to Expand JSCOT's Mandate to Cover ‘Instruments of Less than Treaty Status’? (March 18, 2016). Joint Standing Committee on Treaties, 20th Anniversary Seminar; UNSW Law Research Paper No. 2016-23. Available at SSRN: https://ssrn.com/abstract=2755328 or http://dx.doi.org/10.2139/ssrn.2755328

Andrew C. Byrnes (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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