Reluctant Grundnormen: Articles 31(3)(C) and 42 of the Vienna Convention on the Law of Treaties and the Fragmentation of International Law

Abstract

The law of treaties, as laid down in the 1969 Vienna Convention on the Law of Treaties, has a somewhat ambivalent relationship with externalities, including history and time. Waldock's draft article 56 eventually became article 31, paragraph 3(c) of the Vienna Convention, the single most relied on provision to quell anxieties about the fragmentation of international law. Curiously enough, and underlining the Convention's ambivalence on externalities, the Convention contains another article, article 42, which had the potential to do much the same. This chapter aims to contrast the stories of article 42 and draft article 56 with each other, in light of the ongoing discussion amongst international lawyers about the fragmentation of international law: one is an attempt to close off international law from anything (including the factor of time), whereas the other aims to regulate how exactly the factor of time could be incorporated. Keywords: international law; law of treaties; Vienna Convention