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AGREEMENT IN THE FORM OF AN INTERNATIONAL TREATY AND THE ISSUE OF SOVEREIGNTY
The meaning and functions of treaties in modern law
3.2 The expression 'treaty' has been used in international law as a generic term to cover many different forms of international agreement, often referred to by a variety of names.2 Before 1969, the law governing treaties consisted of the customary rules of international law. To a large extent, these rules were codified and reformulated in the Vienna Convention on the Law of Treaties, concluded in 1969, to which Australia is a party. As a contemporary code on international law treaties, this Convention defines a treaty as an agreement whereby two or more States establish, or seek to establish, a relationship between themselves governed by international law.3 In general terms, the object of a treaty is to impose binding obligations on the states who are parties to it.
3.3 In modern international law, for an agreement to constitute a treaty, it should satisfy the following four criteria:4
(a) The parties must have the capacity to conclude treaties under international law; that is, they must be sovereign entities possessing international personality;
(b) the parties must intend to act under international law and that any dispute arising under the treaty be arbitrated according to international legal principles and by international legal institutions;
(c) there must be a meeting of minds between the parties to the treaty; and
(d) the parties must have the intention to create legal obligations.
As a fifth criterion, though perhaps not a requirement, it is the usual practice for treaties to be in written form.
3.4 The Committee deals with the difficult issue of parties in Chapter 8 which discusses represenation. Assuming that the parties can be satisfactorily identified, it appears to the Committee that all of these criteria, with the exception of the first one, could be satisfied by the Commonwealth and the Aboriginal people. It is the need to satisfy the first requirement – that the parties must have the capacity as entities possessing international personality enabling them to conclude treaties under international law - which the Committee foresees as the major impediment to the conclusion of an international law treaty between the Aboriginal people and the Commonwealth of Australia.
3.5 In a submission to the Committee, Professor D.H.N. Johnson, Professor of International Law at the University of Sydney, argued that a consequence of the Aboriginal people's lack of a recognised international personality would be the United Nations' inability to recognise and hence adjudicate upon an agreement between the Commonwealth and Aboriginal people.5 He noted that the United Nations would be reluctant to register a proposed compact if the request for registration came from a body that is not recognised as a state.6 Professor Johnson argued that even if a Commonwealth request for registration was granted, the registered status of the agreement, though it may have a 'certain political and psychological effect as appearing "to internationalise" relations between the Australian Government and Aboriginal people, would 'strictly be without legal effect'.7
3.6 In addition to the meaning which it had in international customary law, the term 'treaty' was used to describe international commercial agreements. During the 18th and 19th centuries, treaties were made by large trading companies, such as the Dutch East India and Hudson's Bay Companies, acting on their own behalf. These treaties were made with a variety of indigenous chiefs or princes and secured trading arrangements and privileges for the companies. Ultimately, the rights obtained by such companies were assumed by the country which had granted the company its charter. Rather than being considered as treaties in the international law sense, such 'treaties' have always been considered as commercial contracts.
3.7 The term 'treaty' has occasionally been used in domestic law in the context of an agreement between individuals, for example, for the sale or purchase of property. Taking advantage of the full range of meanings of the word, the NAC in its submission suggested that
the word 'treaty' may be used in a domestic sense (to describe an arrangement between Aborigines and the Commonwealth) providing of course there are words specifically used to identify this as a domestic treaty bound only by Australian domestic law and not international law.8
The Committee foresees difficulties with this approach. Once the term is used, it invariably attracts the meaning ascribed to it in international law as set out in the Vienna Convention of 1969. This is because in domestic law there are a wide variety of instruments to choose from such as contracts, settlements and acknowledgements, whereas the term treaty is today used almost exclusively to describe agreements concluded between States and governed by international law.9
3.8 Consideration of an Aboriginal claim to international personality, and a consequent capacity to conclude treaties under international law, requires first that the current legal view as to the sovereign status of the Aboriginal people be ascertained.
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