Austrian Review of International and European Law 20: xxx-xxx, 2015.
© 2017 Koninklijke Brill NV. Printed in the Netherlands.
Uniformity in Model Laws as Subsequent
Practice under Article 31 of Vienna
Convention on the Law of Treaties
Ilias Bantekas
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I. Introduction
The life and quality of life of a treaty is by no means a foregone conclusion.
In the past, where treaties were few and apart, member states either strove to
fortify them or took every possible action to destroy them. This is no longer
the case, as treaties, particularly of a multilateral character, affect far more
actors than the foreign offices that participate in their drafting, signature and
ratification. There is nowadays a plethora of direct and indirect stakeholders
that have an interest in the functioning of a treaty. Specialized NGOs, victim
groups, those affected by the measures adopted in a treaty, corporations,
academics and other actors may enter into conduct that ultimately greases
the wheels of state practice. This may include public interest litigation,
scholarly writings, petitions to national parliaments, public protests and many
others. Hence, a state may eventually be forced to amend its original stance
vis-à-vis certain strands of the treaty in question. In equal measure, sustained
transnational judicial dialogue, as well as a pronouncement of an international
tribunal, may alter the course of state practice in one way or another.
1
Increasingly, states resort to forms of international agreement other than
treaties.
2
This includes memoranda of understanding (MoU), model laws and
private agreements and these may encompass only states as parties, as well as
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1
See Ronald J Krotoszynski, ‘“I’d like to Teach the World to Sing (In Perfect
Harmony)”: International Judicial Dialogue and the Muses – Reflections on the
Perils and the Promise of International Judicial Dialogue’ (2006) 104 Michigan
Law Review 1321; Philip M Moremen, ‘National Court Decisions as State
Practice: A Transnational Judicial Dialogue?’ (2006) 32 North Carolina Journal
of International Law and Commercial Regulation 259.
2
See Ramses A Wessel, ‘Informal International Law-Making as a New Form of
World Legislation?’ (2011) 8 International Organizations Law Review 253.