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.1 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.Google Scholar

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. See Art.6^ler of the Paris Convention for the Protection of Industrial Property, 1883, in the Stockholm Act 1967 as amended 2 Oct. 1979. Art.6^ler provides that, in addition to notifying its list of State emblems and official signs and hallmarks to the Bureau, “each country shall in due course make available to the public the lists so communicated”.

5. See reference to Air Transport Services, infra n.18 and text following it.

6. Vienna Convention, Arts.31–33. See Sinclair, I., The Vienna Convention on the Law of Treaties (2nd edn, 1984), pp.153–154.Google Scholar

7. Idem, p.115.

8. Arts.31 and 32.

9. [1981] A.C. 251.Google Scholar

10. E.g. lists of protected symbols notified under the Paris Convention, supra n.4, (with amendments).

11. See e.g. Bowman, M. J. and Harris, D. J., Multilateral Treaties: Index & Current Status (1984)Google Scholar and Supplements; Parry, C., Harris, D. J. and Shepherd, J. A., Index of British Treaties (4 Vols, HMSO)Google Scholar and Parry, C. and Irwin, P., Index-Guide to Treaties (2nd edn, 1984)Google Scholar; Rohn, P. H., World Treaty Index (5 Vols, 2nd edn, 1984).Google Scholar

12. See e.g. Consolidated Treaties and International Agreements: United States Current Documents Series (Oceana, from 1990).Google Scholar

13. See e.g. Convention on International Civil Aviation, Chicago, 1944, Arts.38 and 54.Google Scholar

14. See e.g. the International Air Transport Association's Air Carrier Liability Reports.

15. See e.g. the provision on data as to aircraft registration and ownership collected by the ICAO under Art.21 of the Chicago Convention (supra n.13). Under that provision this data is made available to States. Contrast Art.III(2) of the Convention on the Registration of Objects launched into Outer Space, New York, 1975, which provides for the UN Register: “There shall be full and open access to information in this Register”.

16. The principle of Internet access was endorsed by the UN General Assembly in its Resolution on Electronic Treaties Database (Res.51/158 of 16 Dec. 1996). Some specialised agencies and other international organisations are also developing their own databases.

17. American Society of International Law periodic newsletters, published five times a year, Internet Home Page http://www.asil.org.

18. Award 22 Dec. 1963, 381.L.R. 182.Google Scholar See also text accompanying n.56 infra.

19. Idem, 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”.

20. McNair, , The Law of Treaties (1961), p.4. The Vienna Convention, supra n.1, Art.2, defines “treaty” for the purposes of that Convention as: “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”.Google Scholar

21. The term “Protocol” serves several functions, denoting an originating instrument equating to a treaty, a convenient vehicle for amending a treaty or (as a “Protocol of Signature”) an interpretative document adopted alongside a treaty.

22. See supra n.20 and text infra.

23. The nominal description and apparent status of a document may belie its actual significance. For example, a “Memorandum of Understanding” may in some usages record terms of agreement, in others it may indicate merely the non-binding statements of intentions to be carried out in good faith as a “gentlemen's agreement”. Yet if those who express their intentions in a written record abide by them over an extended period, or act on them as if they have altered their existing obligations, even the apparently non-binding instrument may produce binding results, particularly when associated with an actual treaty. See Aust, A., “The Theory and Practice of Informal International Instruments” (1986) 351.C.L.Q. 787Google Scholar and Hutchinson, D. N., “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.Google Scholar

24. See supra n.1.

25. Identified under idem, Art.76, and keeping custody of the original text under Art.77.

26. See Art.102 of the UN Charter.

27. In Jacobs, F. G. and Roberts, S. (Eds), The Effect of Treaties in Domestic Law, (1987) p.280.Google Scholar

28. Thus e.g. in Air Transport Agreement Arbitration (USA v. Italy) (1965) 45 I.L.R. 393, at p 399Google Scholar, 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.

29. Legal Studies (Journal of the Society of Public Teachers of Law) (Special Issue) (1995), p.49.Google Scholar

30. See e.g. the Hague Convention on Taking Evidence Abroad, supra n.3.

31. See Art.33 of the Vienna Convention, supra n.1.

32. For an application of the principles in ibid, see the award in the Young Loan Arbitration (1980) 59 I.L.R. 495.Google Scholar 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 Corocraft v. Pan American Airways [1969] 1 Q.B. 616 (CA).Google Scholar

33. McNair, , op. cit. supra n.20, at p.411. For a judicial observation on preparatory work see Lord Scarman, in Fothergill, supra n.9, at p.294, who, referring to the conference at which the Warsaw Convention on Unification of Certain Rules relating to Carriage by Air was adopted, said: “Working papers of delegates to the conference, or memoranda submitted by the delegates for consideration by the conference, though relevant, will seldom be helpful; but an agreed conference minute of the understanding on the basis of which the draft of an article of the convention was accepted may well be of great value”.Google Scholar

34. See supra n.1.

35. Extracts from Art.31(2).

36. See Sinclair, , op. cit supra n.6, at p.130.Google Scholar

37. Idem, p.129, instancing the Explanatory Reports accompanying the Conventions drawn up by the Council of Europe.

38. See e.g. Gaja, G., 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 encyclopaediaGoogle Scholar; Homer, R. and Legrez, D., Minutes of Second Inter national Conference on Private International Air Law, 1929 (1975)Google Scholar, where the preparatory work of the Warsaw Convention is provided in translation from the French; and Jasentuliyana, I. and Lee, R. (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.Google Scholar

39. Italy v. Federal Republic of Germany 291.L.R. 442 (1959).Google Scholar

40. Idem, pp.459–468.

41. Interpretation of the Agreement of 25 March 1951 between the W.H.O. and Egypt, advisory opinion of 20 12 1980, 621.L.R. 457.Google Scholar

42. Idem, p.478. Judge Oda in a separate opinion made an analysis in greater detail of the agreement between the ILO and Switzerland.

43. The UN's compilation of such treaty information had become so extensive by 1994 that a decision was made to omit information on all superseded Commodity Agreements. See notice at front of Multilateral Treaties Deposited with the Secretary General—Status as at 31 Feb. 1994 (UN, 1995).

44. See e.g. Shawcross, & Beaumont, , Air Law (4th, looseleaf continuation), Vol.2.Google Scholar

45. Convention for the Unification of Certain Rules relating to International Carriage by Air, Warsaw, 1929 and Protocol to the same, The Hague, 1955.

46. 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 Gardiner, R. K., “Carriage by Air in the US Court of Appeals” [1988] L.M.C.L.Q. 151, at p.156.Google Scholar

47. See e.g. the UK's Carriage by Air (Parties to Convention) Order 1988, S.I. 1988/243.

48. Strasbourg, 1957.Google Scholar

49. Art.6(1)(b).

50. 99 I.L.R. 401 (Netherlands Supreme Court, 1983).Google Scholar

51. Idem. p.402.

52. Ibid.

53. 99 I.L.R. 430 (Netherlands Supreme Court, 1987).Google Scholar

54. See text accompanying n.51 supra.

55. See supra n.13.

56. See supra n.18.

57. Idem, p.248.

58. Idem, p.249.

59. See supra n.4.

60. A modern example of a treaty whose purpose is to make something publicly available, though not in printed form, is the Treaty on the International Recognition of the Deposit of Micro-Organisms for the Purposes of Patent Procedure, Budapest, 1977.

61. See e.g. G.A.Res.A/RES/3068(XXVIII) adopting the International Convention on the Suppression and Punishment of the Crime of Apartheid.

62. G.A.Res.2625, 25 G.A.O.R, Supp.28 (A/8028) (1970).Google Scholar

63. See Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) I.C.J.Rep. 1986, 14.Google Scholar

64. Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights (advisory opinion OC-10/89) (1989) 96 I.L.R. 417.Google Scholar

65. Idem, pp.424–429.

66. 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) 94 I.L.R. 479.Google ScholarSee 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) 95 I.L.R. 1, where the relationship between a Security Council resolution and the Genocide Convention (1948) was considered.Google Scholar

67. Convention relating to the Status of Refugees, Geneva, 1951.Google Scholar

68. R v. Secretary of State, ex p. Bugdaycay [1987] 1 A.C. 514 (HL).Google Scholar

69. Idem, p.519.

70. M.K. v. State Secretary for Justice 99 I.L.R. 35 (the Netherlands, Council of State (Judicial Division), 1988).Google ScholarSee also Re Attorney General of Canada v. Ward 92 I.L.R. 691 (Canada, Federal Court of Appeal, 1990)Google Scholar 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).

71. Geneva, 1974.

72. See American Law Institute's Third Restatement of the Foreign Relations Law of the United States (1987), notes to para.802, giving as examples the Government Procurement Code, the Technical Barriers Code and the Subsidies Code.

73. Idem, notes to para.806.

74. Under the Collision Regulations annexed to the Safety of Lives at Sea Convention every State is under an obligation to make deviation from any international traffic schemes that are approved by the International Maritime Organisation a criminal offence for ships of their flag. See Warbrick, C., “The Regulation of Navigation”, in Churchill, , Simmonds, and Welch, (Eds), New Directions in the Law of the Sea (1973) Vol.III, chap.13.Google Scholar

75. See Annexes 11 and 15 to the Chicago Convention (supra n.13).

76. See Grief, N., Public International Law in the Airspace of the High Seas (1994), pp.66–69.Google Scholar

77. Ibid and see the claim lodged by Iran in respect of the shooting down of an Airbus by a US warship where an ICAO report indicated that the US's NOTAM, warning civilian aircraft of the dangers from military operations, had not been promulgated in a manner which conformed with the provisions of ICAO Annex 15 ((1989) 28 I.L.M. 896, para.2.2.4). The claim has now been settled without determination by the ICJ (see Washington Post, 23 Feb. 1996).