Article 49: Fraud
In: Commentary on the 1969 Vienna Convention on the Law of TreatiesSearch for other papers by M.E. Villiger in
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Abstract
Fraud leads to a mistaken impression of reality, but unlike error it is the consequence of a deception by another treaty party. The prohibition of fraud, derived from good faith, is well known in domestic law and entered international law via general principles of international law. Article 49 purposely does not define fraud, its interpretation and application being left to subsequent practice. Article 49 envisages in the situation the relative nullity of the treaty, that is, the latter becomes voidable as from its conclusion (ab initio) if the State so intends. Fraudulent conduct of third States falls outside the scope of Article 49. Fraud not merely affects the consent of the other party or parties to the terms of the agreement; it destroys the whole basis of mutual confidence between the parties. At the time of its adoption Article 49 contained elements of progressive development.