Vienna Convention

non est factum: Tricks and Treaties

~ Jessica Savage ~ 2 Comments

‘non est factum’ is a defense used to get out of a contract. It will not, however, get anyone out of a treaty or out of the agreement-making process.

There is a meme doing the rounds on social media amongst the Aboriginal sovereignty movement related to this concept of non est factum. The overall logic runs something like this;

  1. non est factum is fraud.
  2. fraudulent treaties are invalid.
  3. Therefore, treaties entered into under conditions of non est factum are invalid.

All up, the impression is that it isn’t possible to be tricked into a treaty. If you don’t understand what you are signing because you don’t have the right information, education or advice, then the treaty will be invalid.

Lets break the three points down, The first point – that non est factum is fraud – is incorrect. Non est factum means ‘not my deed’, and can occur by honest mistake. It can, but does not automatically mean fraud. It is typically an excuse used in contract law to get out of a contract because the person signing it didn’t know what they were signing because of a disability (such as visual impairment) or some other condition. It is a weak defense and generally hard to prove in court. Also – it’s usefulness and applicability to treaties is unproven.

The second point is that “fraudulent treaties are invalid”. This is true – but we should look at the Vienna Convention on the Law of Treaties to see the full context. The convention sets out the conditions on which a treaty is invalid due to fraud in Article 49.

Article 49 – Fraud. If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.

Yes – fraudulent treaties are invalid – but only if it is due to the fraudulent conduct of another negotiating State. So if it’s your own people doing the fraud it doesn’t count. In the case of the Uluru Statement – the treaty (the federation) is between First Nations and the Commonwealth. If other ‘First Nations’ people defraud and mislead First Nations people – it doesn’t count as fraud for the purposes of the Vienna Convention on the Law of Treaties. As long as the token blacks are doing the misleading and the Government keeps their hands clean – it is not fraud.

So overall, non est factum is not going to get any Aboriginal group out of this agreement-making/treaty. If in doubt – do not sign any treaty or “agreement-making” settlement.

The non est factum social media memes propagate a dangerous myth, as it gives Aboriginal people a false sense of security that they cannot be tricked into a treaty. This is false – it is possible to be tricked. These memes give the government an advantage in the overall scam that they are perpetuating – it is very likely deliberately planted disinformation.

Image by Gutife from Pixabay

Native Title amendments and the Vienna Convention on the Law of Treaties

~ Jessica Savage ~ 1 Comment

If you look at the history of Native Title, particularly the chaos after the McGlade decision – something is clear. Australian governments have historically been imposing – through both the courts and legislation, the criteria for the consent of Aboriginal people to ILUAs.

This won’t fly if ILUAs (and compensation agreements) are to be retrofitted to become treaties (Instruments of Accession) in an international sense. The Australian governments will need to extract themselves from the internal processes of Aboriginal decision making. This is what some of these new changes do.

If you familiarise yourself overall with the Vienna Convention on the Laws of Treaties and on international law in general, you will be in a better position to identify a stealth treaty (Instrument of Accession), as these instruments will have to fit these standards.

I will just leave a few quotes here about the amendments alongside some selections from the Vienna Convention on the Law of Treaties that are relevant.

To be very clear, the majority rule is a default one. Any clan that wishes to adopt a decision-making model that requires consensus or unanimity is a matter entirely for them; they can impose conditions to that effect. I think we have made it very clear in this debate that the ability to impose a process that suits the practices of a particular group is remaining entirely in their hands

Amanda Stoker, Queensland, Liberal Party, Assistant Minister to the Attorney-General

Imposing conditions/restrictions on the representative

Amends the: Native Title Act 1993 to: allow a native title claim or compensation group to impose conditions on the authority of its authorised applicant and require public notification of any such conditions

Bill Summary

Article 47 — Specific restrictions on authority to express the consent of a State. If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating States prior to his expressing such consent.

Vienna Convention on the Law of Treaties

Allow an applicant to act with Full powers (like a Head of State)

…clarify the duties of the applicant to the claim group; allow the applicant to act by majority as the default position; allow the composition of the applicant to be changed without further authorisation in certain circumstances; allow the claim group to put in place succession-planning arrangements for individual members of the applicant;

Bill Summary

Article 7 — Full powers

1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:

(a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.

2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:

(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

Vienna Convention on the Law of Treaties